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The opinion of the court was delivered by Nuss, J.: On the morning of trial to determine whether a child was in need of care, his father requested court-appointed counsel and a continuance. In denying the requests, the district court observed that almost 70 days earlier the father had released his court-appointed counsel and elected to proceed pro se. Accordingly, the trial proceeded with the father representing himself and the court finding that the child, J.A.H., was in need of care as defined by K.S.A. 2005 Supp. 38-1502(a)(l), (2), and (3). The Court of Ap peals affirmed. In re J.A.H., No. 96,364, an unpublished opinion filed February 23, 2007; 2007 WL 570313. Our jurisdiction is pursuant to K.S.A. 20-3018(b), petition for review granted. The issues on appeal, and our accompanying holdings, are as follows: 1. Did the district court err in failing to grant the father’s request for appointment of counsel and a continuance the morning of trial? No. 2. Did sufficient evidence support the district court’s finding that J.A.H. was a child in need of care? Yes. Accordingly, the judgments of the district court and the Court of Appeals are affirmed. FACTS J.A.H. was born to L.R. (Mother) and D.H. (Father) in April 2000. Mother and Father shared joint custody, but Father was the primary residential parent. Court Services Officer David Claassen Wilson had worked with Mother and Father as a conciliator on three occasions. When Wilson dealt with them a fourth time, on October 5, 2005, he recommended their case be referred to case management after receiving reports of problems with visitation exchanges and alleged drug use. Mother had reported to Wilson that she suspected Father was using drugs in front of J.A.H. She claimed that J.A.H. was making statements like, “ 1 know how to roll a joint cause I saw daddy do it’ ” and “ ‘Daddy was smoking a glass pipe with white powder in it.’ ” On the same day as the referral, Father tested positive for methamphetamine in an urinalysis conducted through court services. Wilson testified that approximately 1 week later he was assigned to the case as a case manager. He repeatedly wrote to Father and left a number of messages requesting a meeting with him. Wilson eventually scheduled a meeting for October 24. Wilson testified that on October 20, Father called to say that he did not have transportation and might not be able to make the meeting. Wilson told Father to call if he was unable to attend, but Father never called and did not attend the meeting. On October 25, Father left a message with Wilson stating that Father was moving to Wichita soon. On October 28, Father left a second message with Wilson complaining about a report Wilson had made. Sherri Keller, the supervisor of the domestic relations division and Wilson’s superior, testified that on October 31 Father showed up unannounced at the court services office, demanding to meet with Wilson’s supervisor. Father was upset about Wilson’s report recommending that a child in need of care (CINC) petition be filed on behalf of J.A.H. Keller and Wilson attempted to explain to Father the rationale behind the report’s recommendation. Father was defiant and claimed that he was planning to move away soon with J.A.H. As he left, he slammed the door and yelled, “Fuck the Court!” and “Fuck Court Services!” On November 2, the State filed a CINC petition alleging J.A.H. to be a child in need of care, as defined in K.S.A. 2005 Supp. 38-1502(a)(1), (2), and (3). Although the petition did not seek termination of parental rights, among other things it alleged that Mother was a presumptively unfit parent under K.S.A. 38-1585(a)(3) because on two previous occasions she had a child in her custody adjudicated as a CINC. It also alleged that Father was a presumptively unfit parent under K.S.A. 38-1585(a)(2) because he had twice been convicted of assault. That same day the district court filed an ex parte order of custody finding an emergency existed that threatened J.A.H.’s safety due to the extreme hostility between his parents and Father’s threats of absconding with him. The court placed J.A.H. in the custody of Kansas Social and Rehabilitation Services (SRS). Two days later, on November 4, a temporary custody hearing was held. The district court appointed attorney Deborah Cox to represent Father and set a temporary custody hearing for November 7. On November 7, Father failed to appear at the hearing. His counsel, Cox, requested a continuance on his behalf, but was denied. The district court entered an order of custody finding an emergency situation existed threatening J.A.H.’s safety because there was no parent available to provide a safe and stable environ ment. The court further found that returning J.A.H. home would be contrary to his welfare and authorized relative placement. On November 21, Father called his attorney, Cox, reporting dissatisfaction with her representation. Later that day, Cox received a message from him requesting that she withdraw as counsel and expressing his desire to proceed as a pro se litigant. On November 23, Cox filed a motion to withdraw as counsel, reciting the phone calls and messages “wherein he requested that counsel withdraw from his case, as [Father] wished to proceed as a pro se litigant.” The court granted the motion that same day. The order recites, among other things, that “good cause has been shown in that the Father requests to continue pro se, and no longer requests the assistance of counsel.” On December 12 the district court conducted a pretrial hearing which Father attended. At the beginning of the hearing, the court ascertained that Father wished to proceed without counsel: “THE COURT: [Father], you have the right to proceed in this matter pro se and that’s entirely up to you. I would suggest to you that, unless you are law trained, you may be at a disadvantage in these proceedings. But you have the right to proceed without counsel. Is that your desire? “[FATHER]: Yes, Your Honor.” The court also warned Father of the dangers of proceeding pro se: “THE COURT: You understand that you’ll have to comply with the rules of the Court. If you fail to file a Pretrial Questionnaire in its appropriate form you’ll be precluded from calling witnesses or presenting exhibits. You understand that? “[FATHER]: Yes, Your Honor. “THE COURT: Just so you understand that I’m [not] going to take in special exception because you’re not represented by counsel. You have the right to that if you choose to represent yourself, which you may do, then you need to understand you got to play by the same rules as everybody else. “[FATHER]: I understand, Your Honor.” The district court set the bench trial for 7 weeks later, January 31, and ordered that pretrial questionnaires were due by January 6. Despite the court’s warning, Father failed to complete a pretrial questionnaire. On January 31, immediately prior to trial, the following exchange occurred between Father and the court concerning Father’s request for court-appointed counsel and a continuance: “THE COURT: And, [Father], is it your intention to proceed to trial in this matter? “[FATHER]: Yes it is, Your Honor, I request that counsel be appointed. “THE COURT: [Father], this case has been on file for a significant period of time. You declined the assistance of counsel and failed to appear previously. Now you show up on the day of trial and tell me you want an attorney and you’re going to want a continuance on this matterP “[FATHER]: Yes, Your Honor. “THE COURT: No. It’s unreasonable. You knew before you got here today that you were going to want to have an attorney appointed. You didn’t decide that when you walked in the court building today, did you? ‘[FATHER]: No. I called last week, Your Honor, and left message on your answering machine. ‘THE COURT: I never got any message. You want my administrative assistant to come in and tell me whether she got one, I’ll be glad to have her come in and tell you, but the answer is no. I’ll appoint an attorney for you who can represent you in post trial or adjudication matters before the Court, but I’m, not going to continue this case at this time because you chose to wait until the last minute to say you wanted an appointed attorney. I tried to give you an attorney when this case started. I advised you at that point in time you’d be at a disadvantage without the assistance of counsel and you chose to proceed without counsel. Didn’t you? "[FATHER]: Yes I did, Your Honor.” (Emphasis added.) The exchange continued with the court’s reiterated denial of a continuance but its agreement to appoint counsel after the hearing, as well as a question on how Father otherwise wished to proceed: “THE COURT: Okay. So, if you want to proceed to trial today I’ll afford you the opportunity to trial. If you want to enter a stipulation you can do that. If you wish to stand silent as to this petition, you may do that as well. And then I will appoint an attorney to represent you at further stages in the proceedings and if that attorney believes that you have some legitimate basis for asking that the Court reconsider or set aside any judgment that might be rendered against you, that attorney may file the appropriate pleading and the Court will give it due consideration. But I am not going to grant a continuance today. Understood? “[FATHER]: Yes, Your Honor. “THE COURT: Is it your desire to have a trial or do you wish to enter a stipulation, which is an admission that the allegations in the petition are true, or do you wish to stand silent to the petition; which means you would offer no evidence to rebut or refute those allegations and based upon that I would find the child to be a Child In Need of Care. “[FATHER]: Proceed to trial, Your Honor? “THE COURT: Very well. . . .” (Emphasis added.) Father never responded to the court’s invitation to have the legal assistant testify about whether a phone message on the court’s answering machine had been received. Mother, represented by counsel, and J.A.H.’s guardian ad litem (GAL) both stipulated to the facts alleged in the petition. The GAL further stipulated that there was sufficient factual basis in the petition to support a finding that J.A.H. was a child in need of care. Based upon the stipulations, the court found J.A.H. to be a child in need of care, holding its finding in abeyance pending trial as to Father. The court then proceeded to trial on Father’s issues. After the State’s presentation, Father cross-examined Mother, Wilson and Keller. In his closing statement he argued this was a matter for the domestic court, not a CINC case. The court complimented him on his effectiveness in getting his point across. The court then found J.A.H. was a child in need of care as defined in K.S.A. 38-1502(a)(l), (2), and (3). It found that Father was “unable or unwilling to provide a safe and stable environment;” that Father was not cooperative with the court in the proceedings; and that the health and welfare of the child was at risk under die circumstances. At the conclusion of the trial, the district court inquired into Father’s financial situation and appointed an attorney, Gabriela Vega, to represent him in further proceedings. In an unpublished opinion, the Court of Appeals upheld the district court’s rulings, holding: “Because the parent here had waived his right to counsel and waited over 2 months to make his request for new counsel known to the court, we hold diere is no error when the trial court proceeded to trial. Furthermore, we hold there is substantial evidence in the record to uphold the trial court’s findings that J.A.H. was a child in need of care.” In re J.A.H., 2007 WL 570313, at * 1. ANALYSIS Issue 1: The district court did not err in failing to grant Father’s request for appointment of counsel and a continuance on the moming of trial. Father argues that the district court violated his due process rights and K.S.A. 2005 Supp. 38-1505(b) when it failed to appoint an attorney for him at trial. The State responds that Father waived his right to counsel when he requested that his appointed counsel withdraw and asked to proceed pro se. The State also argues that the real issue is whether the district court abused its discretion in failing to grant a trial continuance for the purpose of appointing counsel to Father. Resolution necessitates statutory interpretation over which this court exercises unlimited review. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005). The right to counsel in CINC proceedings filed in 2005, as here, stemmed from K.S.A. 2005 Supp. 38-1505(b), which stated: “A parent or custodian of a child alleged or adjudged to be a child in need of care may be represented by an attorney, other than the guardian ad litem or a second attorney appointed for the child as provided in subsection (a), in connection with all proceedings under this code. If at any stage of the proceedings a parent desires but is financially unable to employ an attorney, the court shall appoint an attorney for the parent. It shall not be necessary to appoint an attorney to represent a parent who fails or refuses to attend the hearing after having been properly served with process in accordance with K.S.A. 38-1534 and amendments thereto. A parent or custodian who is not a minor, a mentally ill person as defined in K.S.A. 59-2946 and amendments thereto or a disabled person as defined in K.S.A. 77-201 and amendments thereto may waive counsel either in writing or on the record.” (Emphasis added.) This statute, 38-1505, was part of the Kansas Code for Care of Children (Code). See K.S.A. 38-1501 et seq. The Code further provided that it “shall be liberally construed, to the end that each child within its provisions shall receive the care, custody, guidance, control and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the state.” (Emphasis added.) K.S.A. 38-1501. Part of that code, 38-1551(a), addressed delay and continuances: “All proceedings under this code shall be disposed of without unnecessary delay. Continuances may be granted for good cause shown.” (Emphasis added.) (NOTE: The Kansas Code for Care of Children, K.S.A. 38-1501 et seq., has been revised. Effective Januaiy 1, 2007, The Revised Kansas Code for Care of Children, K.S.A. 2006 Supp. 38-2201 et seq., governs. The Revised Code is not applicable to this case because the CINC petition was filed November 2, 2005.) The Court of Appeals first analyzed Father’s due process argument, holding that while the “district court did not comply with the case law when it denied Father’s request for counsel at the CINC trial,” that “failure does not result in automatic reversal.” 2007 WL 570313, at * 3. The court’s analysis, however, relied upon outdated case law; its particular due process analysis is no longer necessary in light of changes to tire Code, as explained below. In 1981, this court addressed whether indigent parents have a constitutional right to appointed counsel in “deprived child” proceedings. In re Cooper, 230 Kan. 57, 60, 631 P.2d 632 (1981). At that time, indigent parents were not granted a statutory right to appointed counsel in such proceedings; however, in permanent deprivation or severance proceedings, the statute and the case law required that tire parent be represented by counsel at the hearing. See K.S.A. 1980 Supp. 38-817; In re Cooper, 230 Kan. at 59-60. In Cooper, Marilyn Dickey’s daughter was determined to be a deprived child. She argued that deprivation proceedings were no different than termination proceedings; accordingly, counsel should have been appointed to her. 230 Kan. at 58. This court recognized that while the “extent of the parents’ interest in the continued and uninterrupted custody of the child, and the due process requirements necessary to protect that interest, vary from jurisdiction to jurisdiction,” the parents’ rights of custody and control of their children are liberty interests protected by the Fourteenth Amendment Due Process Clause. 230 Kan. at 64-65. Adopting a middle-of-the-road approach, the Cooper court held that counsel for indigent parents is necessary when “the conditions outlined prior to the hearing appear to be serious and have remained so for a considerable time . . . 230 Kan. at 67. The Cooper court also stated that counsel was necessary “whenever the parent, unable to present his or her case properly, faces a substantial possibility of loss of custody and permanent severance of parental rights of or prolonged separation from the child.” 230 Kan. at 68-69. The court listed certain factors that should be considered in this determination: “(1) length of anticipated separation the parents may face, (2) the presence or absence of parental consent to State assistance, (3) the presence or absence of disputed facts, (4) the parents’ ability to cope with relevant documents and to question the State’s witnesses at the hearing.” 230 Kan. at 68. After reviewing these factors, the court majority concluded that, because of the absence of a threat of permanent deprivation, there was no error in failing to appoint counsel. 230 Kan. at 69. In 1982, less than one year after Cooper, the Kansas Legislature adopted the Code for Care of Children. The Code specifically provided for the appointment of counsel to indigent parents in CINC proceedings; it does so today. See K.S.A. 2005 Supp. 38-1505(b); Revised Code: K.S.A. 2006 Supp. 38-2205(b). Since 1981, this court has not addressed whether counsel should be appointed in CINC cases. The Court of Appeals has done so in several instances; it continues to rely upon Coopers factor-focused analysis, despite intervening changes in the statutes governing these proceedings. In the instant case, for example, both parties rely upon In re S.R.H., 15 Kan. App. 2d 415, 421, 809 P.2d 1 (1991), a case decided after the adoption of the Code. There, the Court of Appeals relied on Cooper to hold that in eveiy CINC case, the trial court must employ the balancing test to determine whether an indigent parent is entitled to appointed counsel. The Court of Appeals also stated: “The Cooper case, while not requiring the appointment of counsel in every case of temporary deprivation, certainly requires a court hearing a petition to declare a child in need of care to make an independent determination as to whether the parent should be represented by counsel in this proceeding.” 15 Kan. App. 2d at 421. See In re J.J.B., 16 Kan. App. 2d 69, 73, 818 P.2d 1179 (1991). Because the statute requires the appointment of counsel to indigent parents, the factor-focused analysis arising out of Cooper is no longer necessary. Here, the analysis is instead limited to whether tire statutory right to counsel has been denied. As a preliminary matter, we note Father argues that his right to counsel was denied because he did not waive counsel when he requested that his attorney withdraw; he simply wanted new counsel appointed. As support, he points to the judge’s response following his second request for counsel: “The attorney that I appointed to represent you previously, [Father], was Ms. Coxe [sic]. You then basically fired her; told her that you didn’t want her assistance; that you wanted someone else.” (Emphasis added.) While this one statement suggests that Father sought replacement counsel, there is considerable evidence in the record supporting the State’s contention that Father actually sought to proceed pro se. We agree with the Court of Appeals’ rejection of this argument as it noted: “First, the motion to withdraw states that on November 21,2005, Father reported that he was dissatisfied with his counsel’s representation and requested to proceed as a pro se litigant. The district court’s order granting the motion also stated that Father requested to continue pro se as he ‘no longer requests the assistance of counsel.’ (Emphasis added.) Second, as evidenced by the pretrial transcript, the district court advised Father of the disadvantages he might face. Following that advisement, Father reaffirmed his desire to proceed pro se.” 2007 WL 570313, at ”3. It is additionally important to acknowledge that Father’s statutory right to appointed counsel must be balanced against other Code considerations. As mentioned, the Code must be liberally construed to, among other things, ensure that it “will best serve the child’s welfare and the best interests of the state.” K.S.A. 38-1501. The Code also mandates that “[a]ll proceedings under this code shall be disposed of without unnecessary delay,” but this requirement is tempered by a recognition that “[continuances may be granted for good cause shown.” K.S.A. 38-1551(a). A district court’s refusal to grant a continuance is reviewed for abuse of discretion. State ex rel. Stovall v. Meneley, 271 Kan. 355, 382,22 P.3d 124 (2001). Typically, “discretion is abused only when no reasonable person would take the view adopted by the district court.” Vorhees v. Baltazar, 283 Kan. 389, 393, 153 P.3d 1227 (2007). It has been said that “[i]n ruling on a motion for continuance ... a court must consider all circumstances, particularly such matters as the applicant’s good faith, his showing of diligence, and the timetable of the lawsuit.” Fouts v. Armstrong Commercial Distributing Co., 209 Kan. 59, 65, 495 P.2d 1390 (1972). Fonts prefaced its statement of factors with a concern that the denial of a continuance may for all practical purposes deprive a party of his or her day in court, which did not occur in the instant case. Nevertheless, we find its factors helpful to our continuance analysis. In reviewing the particular Fonts factors, we conclude that the trial court’s refusal to grant a continuance the morning of trial—in order to appoint counsel—was not an abuse of discretion. Simply put, there was a lack of good faith by Father. Two days after the CINC petition was filed and before any proceedings, he invoked his right and counsel was appointed. Nineteen days later Father then waived that right, counsel was allowed to withdraw, and he elected to proceed pro se. His desire to proceed pro se was reinforced 19 days after that at the pretrial hearing, despite the court’s warning that he might be disadvantaged. Then, 69 days after his original waiver, he attempted to re-invoke his right to counsel the morning of trial. Because of these same facts, Father’s request for counsel and a continuance on the morning of trial also demonstrates a lack of diligence to bring the matter to trial. Houser v. Frank, 186 Kan. 455, 350 P.2d 801 (1960), provides guidance. There, the defendant knew approximately 1 month before trial that his counsel had been allowed to withdraw and that it would be necessary to retain a new attorney to represent him if he desired counsel. He asked for 2 weeks to obtain new counsel but did not do so until 3:30 in the afternoon 2 days before trial. The morning of trial he argued vigorously for a continuance, which was denied. This court affirmed, acknowledging that such matters are within the trial court’s discretion. Father’s request the morning of trial also is inconsistent with the timetable of CINC proceedings. As mentioned, the Code requires that all proceedings be disposed of without unnecessary delay and that Code provisions be “liberally construed” to “best serve the child’s welfare.” K.S.A. 38-1551(a); K.S.A. 38-1501. The Court of Appeals has held that our courts must strive to decide these cases in “child time” rather than “adult time.” See, e.g., In re D.T., 30 Kan. App. 2d 1172, 1175, 56 P.3d 840 (2002). As the Court of Appeals noted in the instant case, “Children should not be left languishing in SRS custody.” 2007 WL 570313, at * 5. In short, we refuse to hold that the statutory right to counsel “at any stage of the proceeding” is equivalent to the right at every time. K.S.A. 2005 Supp. 38-1505(b). If parents were allowed to waive their right and re-invoke that right at any time, they could delay these important proceedings and interfere with the best interests of the child. But we do agree with the State’s argument that a parent’s waiver does not necessarily preclude a later appointment of counsel; only that the re-invocation came too late in tíre instant case. In reaching our conclusion, we recognize that denying a request for a continuance—which can affect a statutory right to counsel designed to safeguard parental rights—may not necessarily be judged on the typical “abuse of discretion” basis. Cf. Saucedo v. Winger, 252 Kan. 718, 731-32, 850 P.2d 908 (1993) (The amount and degree of judicial discretion will vary depending on the character of the question presented for determination. If a statutory right has been violated, the trial court’s use of discretion is limited. Under these circumstances there is a greater need for articulation by the trial judge of the reasons for his or her “discretionary’ ” decision.). However, even if a higher standard is applied as suggested by Winger, the pretrial hearing and trial transcripts demonstrate that the district court nevertheless met its “greater need for articulation” of the reasons for its decision denying the request. Issue 2: Sufficient evidence supports the district court’s finding that J.A.H. was a child in need of care. Father argues that the State failed to meet its burden of establishing by clear and convincing evidence that J.A.H. was a child in need of care as required by K.S.A. 38-1555. That statute provides: “In ah proceedings on a petition alleging that a child is a child in need of care, the petitioner or the state must prove by clear and convincing evidence that the child is a child in need of care.” Effective January 1, 2007, that statute was repealed and replaced by K.S.A. 38-2250, which similarly states: “The petitioner must prove by clear and convincing evidence that the child is a child in need of care.” The State responds that ample evidence exists. Our standard of review was recently set forth in In re J.D.C., 284 Kan. 155, 170, 159 P.3d 974 (2007): “On appeal, we examine whether there was substantial competent evidence to support the district court’s finding [that child was a child in need of care.] ‘Substantial evidence’ is such legal and relevant evidence as a reasonable person would accept as sufficient to support a conclusion. In re S.M.Q., 247 Kan. 231, 234, 796 P.2d 543 (1990). An appellate court must not reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. 247 Kan. at 234. In a CINC case, we must, however, be able to discern that the State’s evidence was clear and convincing. K.S.A. 38-1555 (now repealed and reenacted as K.S.A. 2006 Supp. 38-2250; effective January 1,2007). We conduct our assessment, viewing the evidence in the light most favorable to the State. 247 Kan. at 234.” Substantively, K.S.A. 2005 Supp. 38-1502 defines a CINC as “a person less than 18 years of age who: (1) Is without adequate parental care, control or subsistence and the condition is not due solely to the lack of financial means of the child’s parents or other custodian; (2) is without the care or control necessary for the child’s physical, mental or emotional health; (3) has been physically, mentally or emotionally abused or neglected or sexually abused.” Here, the district court explained its reasons for finding that J.A.H. was a child in need of care: “And my finding is here today that as of the date of the filing of this petition this child was in fact a child in need of care pursuant to K.S.A. 38-1502(a)(l), (2), and (3). That you were unable or unwilling to provide a safe and stable environment; that you were not cooperative with the Court in the proceedings that were pending before a different division of the District Court of Shawnee County; that the health and welfare of the child was at risk under the circumstances as they existed on that date. And, as such, the Court finds the child to have been a child in need of care.” The State points out that the following facts were elicited at trial. Father tested positive for methamphetamine and refused to submit to urinalysis. Father threatened to abscond with J.A.H. to Wichita despite tie order of case management and further failed to attend appointments and cooperate with court services. Mother and Father both failed to comply with court orders and failed to take J.A.H. to school. We also observe that evidence in the record demonstrates that Father was hostile with the domestic court services staff, that J.A.H. told his mother of Father’s drug use in J.A.H.’s presence, and that the parents were in and out of conciliation three times with court services. In In re J.D.C., this court held that the evidence was sufficient to demonstrate J.D.C. was a child in need of care and that the evidence met the clear and convincing standard. 284 Kan. at 170-71. We similarly conclude that the evidence in the instant case is sufficient. Affirmed. Davis, J., not participating. McAnany, J., assigned.
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Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Shelley Kurt Bock, of Lawrence, an attorney admitted to the practice of law in Kansas in 1979. A hearing panel of the Kansas Board for the Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211 (2007 Kan. Ct. R. An-not. 304). The hearing panel concluded that Bock violated Kansas Rules of Professional Conduct (KRPC) as follows: KRPC 1.1 (2007 Kan. Ct. R. Annot. 384) (competence); KRPC 1.3 (2007 Kan. Ct. R. Annot. 398) (diligence); KRPC 1.4 (2007 Kan. Ct. R. Annot. 413) (communication); KRPC 1.15(a) (2007 Kan. Ct. R. Annot. 473) (safekeeping property); KRPC 1.16 (2007 Kan. Ct. R. Annot. 487) (declining or terminating representation); and KRPC 3.2 (2007 Kan. Ct. R. Annot. 503) (expediting litigation). The hearing panel recommended that Bock be suspended from the practice of law for a period of 3 years but that suspension be stayed subject to Bock’s compliance with a probation and supervision plan for a period of not less than 3 years. Hearing Panel’s Findings of Fact This action arose from two disciplinary complaints (DA 9860 and DA 9861). One complaint arose from Bock’s representation of a client in a divorce action. Consistent with the usual practice in Douglas County District Court, the divorce proceeding was bifurcated. The first stage of the proceeding resulted in the granting of the divorce in March 2005. The second stage of the Douglas County proceeding related to the resolution of the issues of property division, child custody, and support. In this case, Bock failed to complete the second stage of the proceeding, despite his client’s repeated attempts to contact him. Through several telephone messages, the divorce client advised she was experiencing financial hardship because she was not receiving any child or spousal support. A year after the divorce was granted, Bock’s client filed a complaint with the Disciplinary Administrator’s office. Even after Bock was informed of the complaint, Bock did nothing to assist his client in completing the second phase of the divorce proceeding and failed to contact her. Following the docketing of the complaint, the Disciplinary Administrator wrote Bock on March 21, 2006, requesting that he provide a written response to the complaint. On three occasions (April 13, May 2, and May 9, 2006) the attorney assigned to investigate the complaint requested a written response from Bock. Despite these repeated requests, Bock did not respond regarding this complaint. Later, he told the investigating attorney that he thought the parties had settled, the divorce “fell through the cracks,” and he “felt like a deer in the headlights” because of his workload. As of the date of the panel hearing, Bock still had money deposited in this trust account that included costs advanced by the client. The second complaint arose from Bock’s handling of a conservatorship. Bock was appointed as a guardian and coconservator of William Breshears in 1990. Mr. Breshears died in January 2005; his great-niece, who lived out of state, was appointed as the other coconservator. Bock arranged for Breshears’ funeral but did not pay any of the final debts of Breshears, did not file an accounting for 2004 or a final accounting, and failed to close the conservatorship estate or to distribute the assets to Breshears’ heir at law. The coconservator tried repeatedly to contact Bock by telephone, e-mails, and letters and informed Bock that Breshears’ sister and sole heir needed the money from the conservatorship to provide for her assisted living care and other expenses. Bock failed to respond to these communications and on July 29, 2005, the coconservator retained an attorney to assist her. The attorney, George Catt, tried to contact Bock, making many unsuccessful attempts. During a chance meeting at the Douglas County Courthouse, Catt asked Bock to render an accounting and close the conservatorship. Bock said he was ready to do so but needed the names and addresses of the heirs. Catt provided the information. Still, Bock failed to provide an accounting or to take any action to close the conservatorship. On September 13, 2005, Catt filed a petition to have Bock removed as coconservator, to require Bock to render a final accounting, and to produce the financial records of the conservatorship estate. Bock received notice of the hearing to be held September 27, 2005, but did not appear even though he was in the courthouse on different matters. The court ordered Bock to file a final accounting within 30 days and to produce the requested financial records. Bock failed to respond to the court’s order and on March 7, 2006, was removed as coconservator. Catt then obtained financial records of the conservatorship from the bank. The records showed that Bock paid himself attorney fees which were not approved by the court. Additionally, Catt’s investigation of the conservatorship financial records revealed that certificates of deposit were titled in joint tenancy with Bock and Virgil Breshears, a deceased brother of William Breshears, who had resigned as coconservator of William Breshears’ estate in September 2002. The certificates of deposit did not indicate that they were part of the conservatorship. Since Bock was listed as the owner, the bank refused to release the money represented by tire certificates of deposit. Catt attempted to communicate with Bock, but Bock did not respond. Catt eventually went to Bock’s office and, after confronting Bock, obtained Bock’s signature on the necessary forms to release tire money to Breshears’ estate. Hearing Panel’s Conclusions of Law Based upon the findings of fact, the hearing panel made several conclusions of law. Noting that KRPC 1.1 requires that lawyers provide competent representation to their clients and KRPC 1.3 requires lawyers to act with reasonable diligence, the panel found Bock failed to meet these requirements when he: (1) failed to complete the divorce proceeding and obtain child support, spousal support, and a division of the marital estate for his client; (2) failed to perform the duties of coconservator and attorney for the conservators of the Breshears’ conservatorship by failing to render accountings when due and when requested by the coconservator; and (3) failed to competently provide representation by not closing the conservatorship after Breshears’ death. Next, the hearing panel found that Bock’s failures in both cases also violated KRPC 1.4(a), which requires lawyers to keep their clients reasonably informed about the status of a matter and to promptly comply with the reasonable requests for information. The hearing panel also concluded that Bock’s holding of the certificates of deposit of the Breshears’ conservatorship in his own name violated KRPC 1.15(a), which requires a lawyer to hold property of clients separately from the lawyer’s own property. Further, Bock’s failure to turn over the property and bank records of the Breshears’ conservatorship after Catt’s numerous requests and the failure to return the cost deposit advanced by his divorce client were found to violate KRPC 1.16(d), which provides that a lawyer should take reasonably practical steps to protect the client’s interests when the attorney’s representation is terminated, including surrendering papers and property to which the client is entitled and refunding any advance fee that is unearned. Finally, the hearing panel found that Bock’s failure to complete the divorce proceeding, to terminate the Breshears’ conservatorship, and to promptly comply with court orders in the conservatorship proceeding violated KRPC 3.2, which requires an attorney to make reasonable efforts to expedite litigation consistent with the interests of the client. In deciding what discipline to recommend, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (1991). In applying Standard 3, the hearing panel considered the duty violated, the lawyer’s mental state, the potential or actual injury caused by the misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. Respondent violated his duties to his clients to provide diligent and competent representation, to provide reasonable communication, and to return his clients’ property promptly when he ceased representing them. He also violated his duty to the public and his clients to expeditiously process litigation. “Mental State. Respondent knowingly violated his duty, however, as discussed below. Respondent suffers from clinical depression and anxiety and may not have been able to perform notwithstanding his intellectual ability to know his obligations. “Injury. Respondent’s misconduct caused actual injury to his clients. “Aggravating or Mitigating Factors. Aggravating factors are those that may justify an increase in the degree of discipline to be imposed. The Hearing Panel found the following aggravating factors present in this case: “A Pattern of Misconduct. This case involved two complaints and in both Respondent failed to take action necessary to represent his clients competently and violated the same rules of professional conduct repeatedly. “Substantial Experience in the Law. Respondent has practiced law for nearly 26 years and has substantial experience. “Multiple Offenses. The Respondent violated KRPC 1.1, 1.3, 1.4, 1.15(a), 1.16(d), and 3.2. Therefore, the Respondent committed multiple offenses. “Vulnerability of the Victim. Both [the divorce client] and Mr. Breshears were vulnerable victims of Respondent’s conduct. “Indifference to Making Restitution. Respondent has failed to return to [his divorce client] the $119.00 . . . paid for [the court] costs’deposit which was not so used and Respondent has made no offer to restore the Breshears’ heir the extra costs incurred in attorney fees to Mr. Catt because Respondent refused to cooperate in providing information. “The Hearing Panel has found the following mitigating factors in this case: “Absence of Prior Disciplinary Record. The Respondent has no prior discipline record. “Absence of Selfish or Dishonest Motive. The Respondent did not act for his own benefit or to enrich himself. “Personal or Emotional Problems. The testimony of Dr. Lemer and his report admitted into evidence establish that Respondent suffers from depression, anxiety and possibly an adult attention disorder which are causative factors in Respondent’s inability or failure to act when confronted with his failure to perform as expected by himself and his clients. “Previous Good Character and Reputation. As evidenced by the testimony of his peers and the letters of recommendation submitted into evidence by Respondent, the Respondent has enjoyed a good reputation in his community and particularly among the members of the bar in his same practice areas. “Remorse. The Respondent is remorseful that his conduct has injured his clients and caused embarrassment to his family and supporters in the bar.” In addition, the hearing panel considered several standards cited by the disciplinary counsel to support his recommendation that Bock be suspended from the practice of law, including Standards 4.42(a) and (b), 4.12 and 7.2. The panel concluded that suspension would be appropriate but also found “the probation plan proposed by Respondent is workable, substantial, detailed and submitted in compliance with Rule 211(g). The Panel is mindful that Respondent sought a delay in the hearing to allow more time to prove that the probation plan was working as in place and that the extension was denied due to the difficulty in rescheduling the hearing. We have been impressed with the willingness of [the supervising attorney] to take on extensive supervision obligations over an extended term and with Dr. Lemer’s testimony concerning Respondent’s treatment and voluntary entry into a treatment program for depression before this proceeding. Moreover we credit the testimony of Respondent’s fellow practitioners that Respondent provides valuable legal services in an underserved area of the administration of justice in his community.” The hearing panel made specific recommendations regarding the conditions of the probation plan. Analysis 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); see Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304). When a respondent does not file exceptions to the hearing panel’s report, the report is deemed admitted under Supreme Court Rule 212(c) and (d) (2007 Kan. Ct. R. Annot. 317). In this case, Bock filed no exceptions to the hearing panel’s report. We conclude that the hearing panel’s findings of fact are supported by clear and convincing evidence and that the findings of facts support the hearing panel’s conclusions of law. We therefore adopt the hearing panel’s findings and conclusions and find that Bock violated KRPC 1.1, 1.3, 1.4, 1.15(a), 1.16, and 3.2. With respect to the discipline to be imposed, the hearing panel’s recommendation is advisory only. The court may impose discipline greater or lesser than that recommended by the hearing panel or the Disciphnary Administrator. Supreme Court Rule 212(f). Upon consideration of the facts, the conclusions of law, and the appropriate standards, we conclude the hearing panel’s recommendation of discipline is appropriate. The probation plan as adopted by the hearing panel included several requirements, one of which was payment of restitution to Bock’s clients, that were to be performed within specified time periods that expired before the hearing before this court. Bock certified to the court that he had paid the restitution and had otherwise complied with other terms of the probation during the time between the filing of the hearing panel’s final report and the hearing before this court, with the exception he has applied for but has not yet received malpractice insurance. Understanding that some terms of the probation have already been completed, we adopt the recommendations of the hearing panel. It Is Therefore Ordered that Shelley Kurt Bock be suspended from the practice of law for a period of 3 years in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261). His suspension is stayed, and he is placed on 3-years’ supervised probation on the following terms and conditions: 1. Bock shall return to his divorce client the $119 she paid to him. 2. Bock shall also pay to the heir of William Breshears through her attorney, George Catt, the sum of $1,521.60, which sum represents the amount paid to Catt for work required because of Bock’s failure to respond to requests for information. 3. Bock will continue his treatment with Stephen Lemer, Ph.D. This treatment shall continue throughout the period of supervised probation unless Dr. Lemer deems treatment no longer necessary. Dr. Lemer shall notify the Disciphnary Administrator in the event that Bock discontinues treatment against his recommendation. Bock shall provide Dr. Lerner with any appropriate release of information necessary to allow Dr. Lemer to provide such information to the Disciplinary Administrator. 4. In the event it becomes necessary for Bock to take medication, he shall have regular contact with a qualified medical professional regarding the medication. Bock shall follow the qualified medical professional’s recommendation regarding any medications prescribed. 5. Dr. Lemer shall make periodic reports to the Disciplinary Administrator’s office. The reports shall update the Disciplinary Administrator on the need for treatment and the current treatment modality. 6. Bock shall not engage in the representation of clients in civil matters, including personal injury cases, divorce, annulment, or child support matters. Bock may represent clients in criminal matters; cases related to criminal defense, e.g., drivers’ license suspension cases and drug tax cases, as well as juvenile and child in need of care proceedings. 7. Bock’s practice will be supervised by James T. George, a licensed attorney in good standing in Lawrence, Kansas. Bock shall allow Mr. George access to his files, calendar, and operating account and trust account records and comply with any request made by the supervising attorney. During the first year of supervision, Bock shall meet with the supervising attorney weekly. During the remainder of the probation period, Bock shall meet with Mr. George at Mr. George’s direction. Mr. George shall prepare a detailed monthly report to the Disciplinary Administrator regarding Bock’s status on probation. 8. Mr. George shall conduct an immediate and detailed audit of Bock’s files. Six months after the completion of the first audit, Mr. George shall conduct a second audit. At the completion of the supervised probation and at such other times as either the Disciplinary Administrator or Mr. George deem appropriate, Mr. George shall conduct additional audits. After each audit Mr. George shall make a report regarding the same. If Mr. George discovers any violations of the KRPC, he shall include such information in his report. Mr. George shall provide the Disciplinary Administrator and Bock with a copy of each audit report. Bock shall follow all recommendations and correct all deficiencies noted in Mr. George’s periodic audit reports. 9. As supervising attorney, Mr. George shall determine if the office procedures and diary procedures for Bock are appropriate. Mr. George shall cause Bock to have a diary or calendaring system, letters for client contact, letters for notices to clients of hearings and scheduled meetings, and a method to track all phone messages and phone contacts from clients and the responses thereto. 10. Procedures shall be commenced whereby all phone contacts and phone messages are handled on a daily basis, unless a trial schedule prevents phone contacts with clients. No phone message, request, or entreaty from a client shall go more than 3 days without Bock contacting the client. 11. At the weekly meetings with his supervising attorney, Bock shall review all new retained and appointed cases. Bock shall present Mr. George with a diary and calendar information and appropriate fee information. Additionally, at that meeting, Bock and Mr. George shall review the following week’s schedule in order to assure notice has been sent to the appropriate parties, appropriate preparation has been carried out, and all updates to the files have been completed. 12. As supervising attorney, Mr. George shall prepare and submit to the Disciplinary Administrator a monthly report in regard to the weekly meetings. 13. Mr. George will be acting as an officer and an agent of the court while supervising the probation and monitoring the legal practice of Bock. As supervising attorney, Mr. George shall be afforded all immunities granted by Supreme Court Rule 223 (2007 Kan. Ct. R. Annot. 361) during the course of his supervising activities. 14. Bock shall file with the Disciplinary Administrator written office procedures designed to monitor the status, deadlines, and court appearances of all matters in which he has undertaken representation. He shall modify that procedure if directed to do so by the Disciplinaiy Administrator. 15. Bock shall follow all written office procedures. 16. Bock shall continue to cooperate with the Disciplinary Administrator. If the Disciplinaiy Administrator requires any further information, Bock shall timely provide such information. 17. Bock shall obtain and continue to maintain professional liability insurance, if reasonably possible. 18. Bock shall not violate the terms of his probation or the provisions of the KRPC. In the event that Bock violates any of the terms of his probation or any of the provisions of the KRPC during tire probationary period, Bock shall immediately report such violations to his supervising attorney and to the Disciplinary Administrator. 19. Costs of this matter in an amount to be determined by the Disciplinary Administrator shall be taxed to Bock and paid within 30 days after certification. It Is Further Ordered that at the end of the 3 years, if Shelley Kurt Bock has abided by all the conditions of his probation and satisfactorily completed probation, he may file a motion and supporting affidavits requesting to be discharged from probation in accordance with Supreme Court Rule 211(g)(7). It Is Further Ordered that if Shelley Kurt Bock fails to comply with the conditions of probation, probation may be revoked pursuant to Supreme Court Rule 211(g)(9) and disciplinary action taken in accordance with Supreme Court Rule 211(g)(10), (11), and (12). It Is Further Ordered that this opinion be published in the official Kansas Reports. Nuss, J., not participating. Leben, J., assigned.
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Per Curiam: This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator against respondent, Thomas T. O’Neill, an attorney admitted to the practice of law in Kansas in September 1986. The respondent’s last registration address filed with the Clerk of the Appellate Courts of Kansas is in Kansas City, Kansas. This court temporarily suspended respondent’s license to practice law in Kansas on January 9, 2006, pursuant to Kan. Sup. Ct. R. 203(c)(4) (2006 Kan. Ct. R. Annot. 243), after notification from the Disciplinary Administrator that the respondent had been convicted of felony driving under the influence (DUI). A formal complaint was filed charging respondent with violating KRPC 8.4 (2006 Kan. Ct. Annot. 510), based upon the felony DUI conviction. The complaint alleged that respondent was charged on August 29, 2002, with DUI, and that the offense was charged as a felony because respondent had previously been twice convicted of DUI. The complaint alleged that respondent was convicted on that charge on September 29, 2003, based upon a stipulation of facts, that an appeal was taken to the Kansas Court of Appeals, and that respondent’s conviction was affirmed. (State v. O’Neill, No. 93,108, unpublished opinion filed November 10, 2005.) The respondent filed an answer admitting the allegations of the complaint. The matter was set for a hearing before the Kansas Board for Discipline of Attorneys but was continued by agreement to allow the Disciplinary Administrator to file a second formal complaint. An amended formal complaint was then filed which included the additional allegations that respondent had failed to disclose a number of his arrests and convictions when he applied for admission to the Kansas bar, in violation of KRPC 8.1(a) (2006 Kan. Ct. R. Annot. 505). Following the hearing before a panel of the Kansas Board for Discipline of Attorneys, the panel concluded respondent had violated KRPC 8.1(a) (knowingly making a false statement of material fact in applying for admission to the bar) and KRPC 8.4(b) (committing a criminal act). A majority of the hearing panel recommends that the respondent be indefinitely suspended from the practice of law in the state of Kansas. One member of the panel recommends disbarment. The panel made findings of fact, reproduced in pertinent part as follows, and conclusions of law: “FINDINGS OF FACT “2. On April 30, 1986, the Respondent applied to take the Kansas bar examination. In so doing, the Respondent filed with the Clerk of the Appellate courts a document entitled, ‘Applicant’s Questionnaire and Affidavit’ and a ‘Petition for Admission to the Bar of the State of Kansas by Written Examination.’ “3. Question 17(a) of the Applicant’s Questionnaire and Affidavit provides as follows: ‘Have you ever been summoned, arrested, taken into custody, indicted, convicted OR tried for, OR charged with, OR pleaded guilty to, the violation of any law or ordinance or the commission of any felony or misdemeanor, OR have you ever been refused a fidelity or other bond? ‘NOTE 1: Include all such incidents no matter how minor the infraction or whether guilty or not except minor traffic violation and juvenile offenses. ‘NOTE 2: Although a conviction may have been expunged from the records by order of a Court, it nevertheless must be disclosed in your answer to this question. See K.S.A. Supp. 21-4619.’ The Respondent answered question 17(a) in the affirmative. The Respondent attached a letter from R. Richard Stanwix, the Police Chief of Lawrence, Kansas, at the time. In the letter, Chief Stanwix advised that the Respondent had two convictions for reckless driving in Lawrence, Kansas. The convictions occurred in January, 1981, and September, 1981. No additional arrests or convictions were disclosed by the Respondent in the Applicant’s Questionnaire and Affidavit. “4. The Respondent’s Applicant’s Questionnaire and Affidavit includes the following statement: ‘. . . I have carefully read the questions in the foregoing questionnaire and have answered them truthfully, fully, and completely, without mental reservations of any kind and that the answers are complete and are true to my own knowledge.’ Following the above statement, the Respondent signed his name. The Respondent’s signature was notarized. “5. Section VIII of the Respondent’s Petition for Admission to the Bar of the State of Kansas by Written Examination contains the following statement: T further state that I have never pleaded guilty nor have I been convicted of a felony or of a misdemeanor other than minor traffic offenses, except . . . .’ Following that statement, the Respondent inserted the following: T. Reckless driving; January 15,1981; Lawrence, Kansas; Municipal Court of Lawrence. ‘2. Reckless driving, September 23,1981, Lawrence, Kansas; Municipal Court of Lawrence. ‘see letter from R. Richard Stanwix, Chief of Police, Lawrence, Kansas.’ Following the Respondent’s typewritten references to two reckless driving convictions, the form of the Petition contains the following note, ‘If ever convicted, give date, place, name of trial court, nature of offense charged, present status, etc. Specify fully.’ “6. Section XII of the form of the Petition contains the following statement: 1 fully agree that notwithstanding I am admitted to practice law in the courts of the State of Kansas by reason of this petition, if it should develop hereafter that any statement herein contained is false, it shall be ground for the Supreme Court to cancel my certificate of admission and to revoke my license as an attorney at law.’ The Respondent’s signature follows this statement. Following the Respondent’s signature appears the following statement which is signed by the Respondent and notarized: ‘I, Thomas Tyrone O’Neill, the petitioner above named, do solemnly swear that I signed the above and foregoing petition; that I have read the said petition and that all statements therein made are true. So help me God.’ “7. In the Questionnaire and Affidavit as well as in the Petition for Admission to the Bar of the State of Kansas by Written Examination, the Respondent was required to swear that the information he provided was true. In both documents, he signed the statement, representing that the information contained was true and complete. However, the Respondent failed to include criminal arrest and conviction information in both the Questionnaire and the Petition. “8. At the time the Respondent filed the Questionnaire and Petition, his criminal arrest and conviction history included the arrest and convictions detailed in paragraphs 9 through 14,16,17, and 19, below. “9. On November 7, 1974, the Respondent was convicted of a felony offense for the sale/cultivation or distribution of hallucinogenic drugs. See K.S.A. 65-4127(b)(3). This conviction was later expunged.1 [FOOTNOTE 1: At the hearing on this matter, the Respondent introduced an Order of Annulment from the 1974 felony conviction. The order does not reference any statute which provides the authority to annul the conviction. The statute referenced in the order pertains only to expungement.] “10. On March 22, 1978, the Respondent was convicted of driving under the influence of alcohol in Sedgwick County District Court. “11. On May 31, 1978, the- Respondent was convicted of a misdemeanor offense of possession of hallucinogenic drugs. See K.S.A. 65-4127(a)(3). “12. On March 26, 1983, the Respondent was arrested for driving under the influence of alcohol by officers from the Wichita, Kansas, police department. The disposition of this case is unknown. “13. On March 21, 1985, tire Respondent was arrested for driving under the influence of alcohol by officers in Douglas County, Kansas. Following his arrest, the Respondent was convicted of the offense in the Municipal Court of Lawrence, Kansas. The Respondent appealed his conviction to the District Court of Douglas County, Kansas. At a trial de novo, the Respondent was found not guilty. “14. On May 8, 1985, the Respondent was arrested for driving under the influence of alcohol by officers from the Wichita, Kansas, police department. The disposition of the case is unknown. “15. The Respondent was admitted to the practice of law in the state of Kansas on September 30,1986. “16. On January 25,2002, officers from Kansas City, Kansas, police department arrested the Respondent for having violated K.S.A. 8-1567, driving under the influence of alcohol. Thereafter, on August 12, 2002, the City of Kansas City, Kansas, moved to dismiss the case for a lack of jurisdiction. Then, on August 29, 2002, the Respondent was charged in the District Court of Wyandotte County, Kansas, with having violated K.S.A. 8-1567, driving under the influence of alcohol. In the charging document, the prosecutor alleged that the offense was a felony because the Respondent had been twice previously convicted of driving under the influence of alcohol. “17. The Court convicted the Respondent of felony driving under the influence of alcohol.2 The Respondent appealed the ‘sentence, orders and judgments.’ The Court of Appeals affirmed the Respondent’s conviction. [FOOTNOTE 2: According to the journal entry, the court convicted the Respondent following a plea. However, according to the Respondent’s docketing statement, the Respondent was convicted following a trial based upon stipulated facts.] “18. Thereafter, on January 9, 2006, pursuant to Kan. Sup. Ct. R. 203(c)[4], the Kansas Supreme Court entered an order temporarily suspending the Respondent’s license to practice law in Kansas, based upon the felony conviction. “19. While Ills felony conviction was on appeal, in October, 2005, the Respondent was again arrested for driving under the influence of alcohol. Thereafter, he was charged with driving under the influence in the Municipal Court of Mission Hills, Kansas. The Respondent entered a plea to the misdemeanor charge and was convicted of the same. The Respondent testified that he did not know why the charge of driving under the influence of alcohol in Mission Hills, Kansas, was not charged as a felony. “20. In preparation for the hearing on the Formal Complaint, either the Respondent or counsel for the Respondent contacted Donald L. Zemites, Executive Director of Kansas Lawyers Assistance Program. Mr. Zemites agreed to write an open letter in behalf of the Respondent. Mr. Zemites included the following statements in his letter: ‘On January 25, 2002, Mr. O’Neill was charged with a felony DUI in the District Court of Wyandotte County and in February 2002 entered mainstream K.C. and successfully completed a thirty-day inpatient treatment program and has maintained sobriety since then. ‘Mr. O’Neill self-referred to me in October 2003, entered a monitoring agreement (attached), and has continued attendance to AA meetings and in sobriety since that time. . . . ‘Mr. O’Neill has maintained sobriety for 5 years, demonstrating his ongoing recovery from his addiction and taken action and responsibility toward protecting his clients and correcting the problem that created his felony conviction and present complaint . . . .’ At the hearing on this matter, the Respondent testified about Mr. Zemites’ knowledge of the Respondent’s subsequent arrest and conviction. The following exchange occurred between the Respondent and a Hearing Panel member: ‘Q. [By Ms. Butaud] Mr. O’Neill, I guess I’m really bothered by the report from Mr. Zemites. I just feel like we should be able to rely on information that comes from his office when it’s presented to us. And it’s clear from your testimony and the questions from Mr. Hazlett that this is not at all accurate. Is that true? ‘A. [By the Respondent] I think it’s fairly accurate. ‘Q. But it says that you have maintained sobriety for five years? ‘A. I had a relapse that I didn’t tell him about and that’s true. ‘Q. And it’s clear that Mr. Zemites believes that you were sober for 5 years? ‘A. Yes, I didn’t tell him about my relapse.’ “CONCLUSIONS OF LAW “1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.1(a) and KRPC 8.4(b)3, as detailed below: [FOOTNOTE 3: In preparing for the disciplinary hearing, the Respondent or his counsel contacted Mr. Zemites and requested that he submit a letter of support. However, the Respondent had not informed Mr. Zemites of the 2005 arrest and conviction of driving under the influence of alcohol. By failing to disclose his subsequent arrest and conviction for driving under the influence of alcohol to Mr. Zemites and then seeking his support in the disciplinary process, it appears to the Hearing Panel that the Respondent violated, at least the spirit of, KRPC 8.1(b). That section provides that ‘a lawyer ... in connection with a disciplinary matter, shall not . . . fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter.’] “2. In applying for admission to the bar, ‘[a]n applicant . . . shall not knowingly make a false statement of material fact.’ KRPC 8.1(a). In this case, the Respondent made a false statement of material fact in applying for admission to the bar when he failed to disclose six arrests and convictions on the Questionnaire and Affidavit and the Petition for Admission to the Bar of the State of Kansas by Written Examination. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.1(a). “3. According to KRPC 8.4(b), ‘[i]t 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.’ A felony conviction for driving under the influence of alcohol and an additional conviction for what should have amounted to a second felony driving under the influence of alcohol reflects adversely on the Respondent’s fitness as a lawyer. As such, the Hearing Panel concludes that the Respondent violated 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, 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 legal profession to maintain personal integrity “Mental State. The Respondent knowingly and intentionally violated his duty. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm 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: “Dishonest or Selfish Motive. The Respondent failed to disclose the vast majority of his criminal history when he applied to take the bar examination. Thus, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty and selfishness. “A Pattern of Misconduct. By failing to disclose six arrests and convictions, the Respondent engaged in a pattern of misconduct. Accordingly, the Hearing Panel concludes that fhe Respondent engaged in a pattern of misconduct. “Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. The Respondent submitted false evidence and engaged in other deceptive practices during the disciplinary process when he sought and obtained a letter of support from Mr. Zemites, knowing that Mr. Zemites did not have the facts necessaiy to fully appreciate the Respondent’s current fitness. “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 approximately 20 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in die practice of law at the time he engaged in the misconduct. “Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent has repeatedly been arrested and convicted of violations of the law. Clearly, 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. 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 has a long-standing alcohol addiction. The Respondent’s addiction to alcohol contributed to his violations of the rules. “Imposition of Other Penalties or Sanctions. In the criminal cases, the Respondent has been subject to other penalties and sanctions. “In addition to the above-cited factors, tire 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. ‘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. ‘Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding. Standard 6.11. ‘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 parly to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. Standard 6.12. ‘Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system. Standard 7.1. ‘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.” RECOMMENDED DISCIPLINE The hearing panel was not unanimous in its recommendation for discipline. A majority of the panel recommended that respondent be indefinitely suspended, but one panel member would have imposed disbarment. The majority explained its recommendation as follows: “The Disciplinary Administrator recommended that the Respondent be disbarred. Counsel for the Respondent recommended that the Respondent be placed on probation subject to the terms and conditions of probation detailed in his plan. “. . . . In this case, probation is not appropriate because the Respondent’s plan is not workable, substantial, and detailed. Additionally, the Respondent’s misconduct involves dishonest conduct. Dishonest conduct cannot be corrected by probation. Finally, placing the Respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas. “Rased upon the findings of fact, conclusions of law, and the Standards listed above, a majority of the Hearing Panel recommends that the Respondent be indefinitely suspended from the practice of law in the state of Kansas.” The dissenting panel member believed disbarment would be the appropriate discipline: “With respect to my perhaps more wise colleagues on the Hearing Panel, my recommendation would be for disbarment in this instance. Mr. O’Neill omitted six arrests and/or convictions which should have been disclosed on his application for admission to the Bar. The application was made under oath. This constitutes a violation of KRPC 8.1(a). While this violation may seem remote and may never have been discovered had the Respondent not been convicted of felony driving under the influence of alcohol, the pattern started by the Respondent by the omission of information in 1986 appears to be reoccurring by the Respondent’s failure to report the October, 2005, driving under the influence of alcohol arrest pursuant to the informal monitoring agreement. The Respondent allowed his attorney at the disciplinary hearing to offer Exhibit A knowing that information contained therein was not accurate. This pattern of dishonest behavior toward his substance abuse problem, and attempt to conceal it, distinguishes this factual scenario from that in the case of In the Matter of Joseph M. Laskowski, No. 96,886 [282 Kan. 710, 147 P.3d 135 (2006)]. In that case, indefinite suspension was ordered by the Kansas Supreme Court. It is my opinion that the facts in the present case are more aggravated and that disbarment would be the appropriate discipline.” 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 Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); see also Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284) (misconduct to be established by clear and convincing evidence). The respondent did not file any exceptions to the panel’s final report. Accordingly, the final report is deemed admitted. Supreme Court Rule 212(d) (2006 Kan. Ct. R. Annot. 295). We hold the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law, with one exception. The panel concluded that the respondent’s failure to disclose the 1974 felony drug conviction, among others, constituted a false statement in applying for admission to the bar and, thus, violated KRPC 8.1(a). The panel’s conclusion was based on the belief that the annulment of that conviction was actually an expungement. This does not appear to be correct although it is unclear from the record whether that conviction was annulled or expunged and what statute was applied. The conviction may have been annulled under K.S.A. 21-4616 (Weeks) or K.S.A. 21-4617(b) (Weeks), either of which provided that, upon annulment, the offender “shall in all respects be treated as not having been convicted,” except for determining sentence in the event of a subsequent conviction, and that “[i]n any application for employment, license or other civil right or privilege . . . [the offender] may state that he has never been convicted of such crime.” We conclude that respondent’s failure to list the 1974 conviction on the bar admission form has not been shown by clear and convincing evidence to constitute a violation of KRPC 8.1(a). With respect to the discipline to be imposed, the panel’s recommendation 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). The failure to disclose the 1974 conviction aside, there are five arrests and/or convictions which were intentionally and wrongfully omitted from the bar examination, admission documents, and the untrue oaths he took thereon. This is a very serious violation, even though it remained undiscovered for many years. But for the 2003 felony DUI offense, the violation might well have gone undiscovered. This does not lessen the severity of the misconduct. Respondent’s submission of the Zemites letter, knowing that it was based on information respondent had not disclosed to Zemites, is in keeping with the respondent’s pattern of wrongful nondisclosure of crucial information relative to legal proceedings. Through the nondisclosure and false recommendation respondent had obtained and submitted, he obviously hoped to avoid serious discipline sanctions herein. Then, of course, we have the 2003 DUI conviction from which the case arose as well as the October 2005 DUI conviction, occurring while the 2003 conviction was on appeal. The violations are veiy serious and the only possible choice of appropriate discipline is between indefinite suspension and dis barment. Like the panel, we are not unanimous as to the discipline to be imposed. After careful consideration, we conclude the appropriate discipline is indefinite suspension although a minority would disbar the respondent. Respondent has an established record of deception as to his misconduct. Should respondent ever seek reinstatement to the practice of law in Kansas and the petition is referred by the court to the Disciplinary Administrator, that office is directed to check out thoroughly every aspect of respondent’s petition and investigate respondent’s activities in the years that will have elapsed since his suspension and make a detailed report and hold a full hearing thereon for consideration by a hearing panel and/or this court. See Supreme Court Rule 219 (2006 Kan. Ct. R. Annot. 327). It Is Therefore Ordered that Thomas T. O’Neill be indefinitely suspended from the practice of law in the state of Kansas, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2006 Kan. Ct. R. Annot. 243). It Is Further Ordered that respondent forthwith comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports. Davis, J., not participating. McAnany, J., assigned.
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The opinion of the court was delivered by Nuss, J.: In this case we must decide whether a district court’s reasons for its upward dispositional departure from a presumptive sentence of probation were “substantial and compelling” as required by K.S.A. 2005 Supp. 21-4716(a). The Court of Appeals held that the reasons, which were not listed as aggravating factors in that statute, were not valid departure factors. It vacated the prison sentences and remanded to the district court for resentencing Martin. State v. Martin, No. 95,819, an unpublished opinion filed January 26, 2007. We granted the State’s petition for review; our jurisdiction is under K.S.A. 20-3018(b). The sole issue on appeal is whether the district court’s reasons, despite not being listed in K.S.A. 2005 Supp. 21-4716, are nevertheless substantial and compelling as required by that statute. We hold that they are. Consequently, we affirm the district court and reverse the Court of Appeals. FACTS The essential facts are not in dispute. On July 10, 2005, Tina M. Martin had an argument with an acquaintance. Later that night, she drove her 16-year-old son to the acquaintance’s house. While driving by, she turned off her car headlights, gave her son a handgun, and ordered him to “do it, do it!” Martin’s son then fired four shots at the house. Four people were in the house at the time: two adults, a teenager, and an infant. No one was injured. Martin was arrested and charged with 2 counts. Count 1 alleged that she committed the offense of criminal discharge of a firearm at an occupied dwelling, i.e., she “did . . . unlawfully, maliciously, intentionally and without authority discharge a firearm ... at a dwelling . . . occupied at the time by a human being” in violation of K.S.A. 2005 Supp. 21-4219(b). Count 2 alleged that Martin committed the offense of contributing to a child’s misconduct, i.e., she “did . . . unlawfully, intentionally cause or encourage a child ... to commit an act which if committed by an adult would be a felony, to wit: Criminal Discharge at Occupied Dwelling,” in violation of K.S.A. 2005 Supp. 21-3612(a)(5). Both charged offenses are severity level 7 person felonies. After Martin pled guilty, the district court found a factual basis for her pleas and accepted them. Based upon the presentence investigation report showing that Martin had a history of several offenses and a criminal history score of E, presumptive probation was indicated for both charges. However, because of the application of the “special rule” due to the use of a firearm by Martin’s son, the codefendant, a presumption of imprisonment arose for Count 1. Martin moved for a downward dispositional departure from the prison sanction. The court sustained that motion, stating: “The fact that a co-defendant used a firearm to commit the crime this defendant aided and abetted was not considered in imposing the dis-positional departure sentence.” The State then moved for an upward dispositional departure from presumptive probation. The court sustained the State’s motion, stating two reasons for its departure: 1. “Defendant occupies a special fiduciary relationship with her 16-year-old son, the shooter in a drive-by shooting whom she encouraged to ‘do it, do it!’; and, thus, violated the special fiduciary relationship and the unique position of trust she occupies as a mother.” 2. “Further, encouraging a drive-by shooting demonstrates a callous, but yet a cowardly disregard for human life.” The court then imposed concurrent sentences of imprisonment for 23 months and 13 months respectively, both within the aggravated sentencing range for each of the two crimes. The Court of Appeals vacated the sentence and remanded to the district court with instructions to resentence Martin in accordance with directions in its opinion. Slip op. at 8. Among other things, it specifically concluded that “[t]he district court’s determination that a fiduciary relationship existed between Martin and her codefendant son was not an appropriate factor to use to depart from the presumption of probation.” Slip op. at 6. It also concluded “that K.S.A. 2005 Supp. 21-4716(c)(3) applies and bars the use of the district court’s ‘callous and cowardly disregard for human life’ factor because every drive-by shooting necessarily involves this actual disregard for human life.” Slip op. at 7-8. Additional facts will be provided as necessary to the analysis. ANALYSIS Issue: The Court of Appeals erred when it concluded that the departure factors were invalid. Martin primarily argues that the Court of Appeals correctly held that the district court’s departure reasons are barred by the “statutory counterpart” rule first applied in State v. Favela, 259 Kan. 215, 911 P.2d 792 (1996), and later labeled in State v. Martin, 279 Kan. 623, 112 P.3d 192 (2005). The State essentially argues that the statutory counterpart rule is bad law and should be discarded, but, if not, it certainly has no application to these facts. A short review is in order. The sentencing of a criminal defendant is strictly controlled by statute in Kansas. State v. Anthony, 274 Kan. 998, 999, 58 P.3d 742 (2002). The legislature has expressly granted sentencing judges the authority to depart from statutorily established presumptive sentences or dispositions provided certain procedures are followed. K.S.A. 2005 Supp. 21-4716(a) identifies this authority and provides in relevant part: “[T]he sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines . . . , unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” (Emphasis added.) The parameters for appellate review of a sentencing court’s dis-positional departure are set by K.S.A. 21-4721(d). Consistent with the sentencing court’s obligation under 21-47l6(a), it provides: “In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure: “(1) Are supported by the evidence in the record; and “(2) constitute substantial and compelling reasons for departure.” (Emphasis added.) K.S.A. 21-4721(d). There is no dispute in the instant case about whether the evidence in the record supports the reasons given by the sentencing court for the departure. Rather, the dispute is whether these reasons are substantial and compelling for departure. Analysis of the present dispute consists of two parts: First, are the reasons given by the sentencing court valid departure factors and, second, “are the reasons, as a whole, substantial and compelling reasons for departure in a given case?” State v. McKay, 271 Kan. 725, 729, 26 P.3d 58 (2001). This determination is a matter of law which we review de novo. 271 Kan. at 728. Valid departure factors K.S.A. 2005 Supp. 21-4716(c)(l) and (2) list a number of legislatively established factors for both sentence mitigation and aggravation, respectively, which “may be considered in determining whether substantial and compelling reasons for a departure exist.” Subparagraphs (c)(1) and (c)(2) also make clear that both lists represent “nonexclusive . . . factors.” Accordingly, while the district court’s two departure factors here are not statutorily listed, they may still help constitute—together or singly—substantial and com pelling reasons. See, e.g., McKay, 271 Kan. 725 (absconding was a valid departure factor, although not statutorily listed). We first examine the “special fiduciary relationship and unique position of trust” reason. This examination requires review of the statutory counterpart rule. The case of Favela, 259 Kan. 215, supplies some explanation of the rule. There, the 17-year-old defendant argued that his young age should be a mitigating factor justifying a downward departure in his sentence. He reasoned that although a defendant’s young age was not statutorily listed as a mitigator, it should qualify because the statute did list as an aggravator the victim’s young age. This court disagreed, applying the doctrine of expressio unius est exclusio alterius, and stated as follows: "[The statute] specifically lists the victim’s young age as an aggravating factor but [the statute] says nothing about the defendant’s young age being a mitigating factor. Even though the list of mitigating factors is nonexclusive [under the statute], the doctrine of ‘expressio unius est exclusio alterius’ applies here, and, thus, the legislature must not have intended for the defendant’s young age to be a mitigating factor. The fact the defendant was only 17 years old at the time of the offense is not a substantial and compelling reason justifying departure as a matter of law.” 259 Kan. at 235. Nine years after Favela this court considered a related argument in State v. Martin, 279 Kan. 623. Whereas in Favela the defendant had argued that the existence of a particular statutory aggravator supported use of a related nonstatutory mitigator, in Martin the State argued that the existence of a particular statutory mitigator supported use of a related nonstatutory aggravator. Specifically, the State reasoned that because K.S.A. 21-4716(c)(l)(B) listed the defendant’s minor or passive role as a mitigator, then his major role as the ringleader or kingpin should qualify as an aggravator justifying an upward departure in his sentence. Citing tíre same language from Favela quoted earlier in this opinion, a majority of the Martin court disagreed: “In the circumstances of the present case, the same reasoning [as Favela] applies. K.S.A. 2003 Supp. 21-4716(c)(l)(B) specifically lists the defendant’s playing a minor or passive role in the crime as a mitigating factor, but 21-4716(c)(2) says nothing about the defendant’s ringleader status being an aggravating factor. Because the legislature expressly identified a minor or passive role as a mitigating factor does not mean, as the Court of Appeals’ majority would have it, that it follows that the ringleader role, although unmentioned, is an aggravating factor. On the contrary, the legislature’s expressing the one and failing to express the other is correctly construed as an indication that the legislature did not intend the other.” (Emphasis added.) 279 Kan. at 628. The Martin court recognized that the expressly nonexclusive nature of the statutory list suggests a legislative intent to acknowledge the existence of valid unlisted factors. Despite that recognition, it then concluded: “Valid unlisted factors, however, according to this court’s reasoning in Favela, do not have counterparts included in a statutory list.” (Emphasis added.) 279 Kan. at 628. Here, citing Favela and Martin, the Court of Appeals applied its understanding of the statutory counterpart rule. Its application barred the district court’s use of an unlisted aggravator, a special fiduciary realtionship and unique position of trust between the defendant and her codefendant son, because of the existence of a purported statutory aggravator counterpart: “a fiduciary relationship which existed between the defendant and victim.” (Emphasis added.) K.S.A. 2005 Supp. 21-4716(c)(2)(D). The State first generally argues, with some validity, that the doctrine of expressio unius est exclusio alterius has no application to statutory lists which the legislature has clearly labeled as “nonexclusive.” It points out that in State v. Gunby, 282 Kan. 39, 52-53, 144 P.3d 647 (2006), we ruled that analogous language in K.S.A. 60-455 (“evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent . . . ”) was exemplary—not exclusive, as this court had previously interpreted the language. In overruling our precedents, we held that the eight material facts set forth in the statute are “among the possibilities, not the only possibilities” and “starting points for analysis rather than ending points.” 282 Kan. at 53. In other words, the State argues that the statutory counterpart rule in Favela and Martin is as wrong as the precedents overruled in Gunby. In the alternative, the State argues that even if the statutory counterpart rule is valid, it has no application to our facts. It correctly points out that the defendant in Favela used a statutory aggravator to attempt use of an unlisted mitigator, and that the State in Martin used a statutory mitigator to attempt use of an unlisted aggravator. It emphasizes that by contrast, the Court of Appeals applied the rule to mean a statutorily listed aggravator barred use of a related but unlisted aggravator. We agree with the State that this interpretation is an expansion of the counterpart rule expressed and applied in Favela and Martin and represents an improper application. Because we agree with the State’s narrowly drawn alternate argument, we need not address the broader question of the continued efficacy of Favela and its progeny. The Court of Appeals’ interpretation of the counterpart rule suggests that any time a particular concept is listed in the statute as an aggravator, no variation on that theme could serve as any basis for an aggravator. Similarly, any time a particular concept is listed in the statute as a mitigator, no variation on that theme could serve as any basis for a mitigator. This interpretation moves away from the legislature’s pronouncement that its statutory lists of aggravators and mitigators are nonexclusive and moves closer to making them exclusive. In short, because the sentencing court’s aggravating factor for downward departure does not have a counterpart in the opposite statutory mitigating factor list, the counterpart rule does not bar it as a valid unlisted factor for departure. In addition to using the counterpart rule to bar the use of the special fiduciary relationship between codefendants mother and son as a valid departure factor, the Court of Appeals noted that “Martin was also convicted of contributing to a child’s misconduct or deprivation in violation of K.S.A. 2005 Supp. 21-3612(a)(5) for ‘causing or encouraging a child under 18 years of age to commit an act which, if committed by an adult, would be a felony.’ This separate conviction further mitigates the usage of either factor [e.g., special fiduciary relationship] utilized by the court in sentencing Martin to prison.” Martin, slip op. at 8. We disagree. Martin’s violation of the special fiduciary relationship and unique position of trust she occupied, as a mother, was a different, more serious type of conduct than that required by K.S.A. 2005 Supp. 21-3612(a)(5). That statute requires no fiduciary relationship out of which the “causing or encouraging” of a child arises, much less a parent-child relationship, as here. Finally, we also observe that the federal courts have often used upward departures based upon defendant parents’ violating their positions of trust to influence their children to carry out criminal acts. In United States v. Salcido-Corrales, 249 F.3d 1151, 1155 (9th Cir. 2001), the Ninth Circuit Court of Appeals affirmed the sentencing court’s use of an upward departure based upon the defendant’s involvement of his son in his crimes, stating: “Other circuits have affirmed upward departures based on defendants’ involvement of their children or other relatives in the commission of crime. [Citations omitted.] A parent occupies a position of trust with respect to a child and will have, in many cases, substantial influence over the child’s decisions. We do not find it improper for a district court to find particularly blameworthy the fact that a parent has brought his child into a criminal enterprise, and to rely on that fact as a basis for an upward departure.” (Emphasis added.) See also United States v. Ledesma, 979 F.2d 816, 822 (11th Cir. 1992) (Upward sentence departure for mother who had involved her young adult daughter in the conspiracy to manufacture and distribute cocaine base. “There is ample precedent for departing upward based on a defendant parent’s influencing his or her children to join in criminal activity.”); United States v. Jagim, 978 F.2d 1032, 1042 (8th Cir. 1992), cert, denied, 508 U.S. 952 (1993) (departure upheld where defendant’s nephew, while “perhaps not a ‘vulnerable victim’ . . . nonetheless was dragged into the conspiracy by his uncle in part because of the familial relationship”); United States v. Porter, 924 F.2d 395, 399 (1st Cir. 1991) (Upward sentence departure for father who “had urged his son to rob another bank to obtain money for his [father’s] bail.”); United States v. Christopher, 923 F.2d 1545, 1556 (11th Cir. 1991) (Upward sentence departure due to defendant’s “willingness to corrupt members of his own family, including his own children, by involving them in criminal activities.”); United States v. Shuman, 902 F.2d 873, 876 (11th Cir. 1990) (Upward sentence departure for mother’s “willful incorporation of her son into the drug-trafficking business.”). Substantial and compelling reasons in this case Now that we have determined that the special fiduciary relationship reason given by the sentencing court was a valid departure factor, we proceed to the second part of our analysis, i.e., whether the reasons, as a whole, are substantial and compelling reasons in this particular case. McKay, 271 Kan. at 729. In McKay, this court acknowledged: “ ‘Reasons which may in one case justify departure may not in all cases justify a departure.’ [State v. Grady], 258 Kan. at 83 [, 900 P.2d 227 (1995)]. Rather, we must evaluate the offense of conviction, the defendant’s criminal history, and the departure reason stated, as well as the purposes and principles of the Kansas Sentencing Guidelines. State v. Tiffany, 267 Kan. 495, 504-05, 986 P.2d 1064 (1999); Grady, 258 Kan. at 83.” 271 Kan. at 730. Indeed, in McKay, although the court found that absconding is a valid departure factor, it held under the totality of the circumstances that the defendant’s absconding for 2 months did not constitute a substantial and compelling reason to depart from the presumptive sentence. 271 Kan. at 731. Cf. United States v. Monaco, 23 F.3d 793, 800 (3d Cir. 1994) (“In sum, we will not say that bringing a child into a criminal scheme is always an aggravating circumstance, especially when the defendant did not understand that what he or she was asking the child to do violated the law. The evaluation is too bound up in the facts and circumstances of each case.”) The McKay court provided some additional guidance by defining “substantial” and “compelling”: “The term ‘substantial’ refers to something that is real, not imagined; something with substance and not ephemeral. The term ‘compelling’ implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary. [Citation omitted.]” 271 Kan. at 728. The State argues that the facts of this case justify Martin’s dis-positional departure sentence, i.e., that they “leave the status quo” and “go beyond what is ordinary.” It notes that someone could have been easily injured or killed when Martin’s son fired four shots into the home at her urging. In that event, Martin certainly would have been facing incarceration instead of presumptive probation. It further points out that Martin’s criminal history of E included numerous nonperson felonies and misdemeanors spanning 20 years. Finally, it observes that in Favela, 259 Kan. at 233-34, we acknowledged that one of the legislative purposes of the sentencing guidelines was to protect public safety and that one of the guidelines’ objectives was to reserve incarceration for serious violent offenders who present a threat to public safety. As a result, it argues that Martin’s dispositional departure sentence furthers the guidelines’ purposes and principles because a parent who exploits his or her position and encourages his or her child to commit a violent felony undoubtedly presents a significant and unique risk to public safety. We observe that this initial encouragement not only represents poor parental behavior modeling but also may lead the son to commit future violent criminal acts. We also independently observe that the acts of violence in the instant case, although even more serious, are most analogous to the acts in United States v. Porter, 924 F.2d 395. There, defendant appealed his conviction and sentence for robbing five banks. The district court departed upward from the United States Sentencing Guidelines’ recommended sentence, requiring defendant to serve an additional 2 months in prison “because it found that Porter had urged his son to rob another bank to obtain money for his (Porter’s) bail.” 924 F.2d at 399. His son’s testimony was corroborated by a letter defendant sent another son. The opinion is silent on whether the defendant’s urging culminated in an actual armed robbery or attempt. Nevertheless, the First Circuit held that “the factual finding provided a perfectly adequate justification for an upward departure.” 924 F.2d at 399. Accordingly, we hold that the special fiduciary relationship and unique position of trust defendant occupied as a mother, and her violation of that special relationship and unique position, are especially substantial and compelling under the specific facts of this case. Given this holding, we need not examine the sentencing court’s other reason for departure. See State v. Ippert, 268 Kan. 254, 261, 995 P.2d 858 (2000) (“Kansas law does not require that all of the reasons given for departure by the sentencing court support the departure sentence. As long as one or more of the factors relied upon is in fact substantial and compelling, the departure sentence will be affirmed.”). Before closing, one additional issue merits our attention. Both the Court of Appeals in its decision, and Martin’s counsel during his arguments to this court, stated that “[w]hen the trial court does not rely upon statutory aggravating factors in imposing a departure sentence, the appellate court views the decision to depart with stricter scrutiny.” Slip op. at 4 (quoting State v. Martin, 279 Kan. 623, 626, 112 P.3d 192 (2005). Martin in turn cited State v. Murphy, 270 Kan. 804, 807, 19 P.3d 80 (2001), which stated: “Our leading case on downward departures is State v. Favela, 259 Kan. 215, 238, 911 P.2d 792 (1996), where we recognized that in cases in which the sentencing court does not rely upon any statutory aggravating or mitigating factors to depart its actions should be viewed with stricter scrutiny. We follow this direction in examining the trial court’s reasons for departure.” (Emphasis added.) A close examination of Murphy’s specific page citation to Favela, however, reveals that the Favela court was merely quoting what the dissenting judge had written in the Court of Appeals before the case came to the Supreme Court: “The trial court found the fact that the victim was an aggressor, or at least a participant, in the incident which preceded tire defendant’s crime was a substantial and compelling reason justifying departure. This factor is based on the mitigating circumstance found in K.S.A. 1994 Supp. 21-4716(b)(l)(A). The Court of Appeals did not address whether this factor was a substantial and compelling reason justifying departure, but the dissent did. The dissent stated: ‘Cases in which the sentencing court does not rely upon any statutory aggravating or mitigatingfactors to depart should be viewed with a stricter scrutiny. However, when the sentencing court relies upon statutory aggravating or mitigating factors to depart, these reasons should be given great deference by a reviewing court.’ 21 Kan. App. 2d at 215.” (Emphasis added.) Our opinions do not clearly demonstrate a considered review and ultimate express acceptance of this uncited position articulated by the dissenter in Favela. Moreover, as his dissent reveals, that same judge appeared to suggest that the “stricter scrutiny for non-statutory factors” should be counterweighted by a “great deference for statutory factors” (although he earlier acknowledged that the determination of whether the reasons given for departure consti tute substantial and compelling reasons is a matter of law.) 21 Kan. App. 2d at 215. This latter suggestion of great deference for statutory factors was apparently rejected by this court in Favela when it reviewed the Court of Appeals opinion. See Favela, 259 Kan. at 232-33 (issue of whether departure factors are substantial and compelling is a question of law and should be reviewed de novo). In McKay, we interpreted Favela as holding “that the issue [of whether departure factors are substantial and compelling] should be reviewed de novo ivith no deference given to the sentencing court.” (Emphasis added.) 271 Kan. at 728 (citing Favela; 259 Kan. at 233.) In a twist on the usual argument, in McKay the State argued that absconding, a nonstatutory departure factor given by the district court, should be given deference. Rather than hold that this nonstatutory departure factor should be subject to stricter scrutiny, the McKay court instead expressly held that no deference would be given and that “[t]he essential question, therefore, is whether the sole fact that the defendant absconded for a period of 2 months is a substantial and compelling reason for departure as a matter of law.” (Emphasis added.) 271 Kan. at 729. Having now directly considered the issue and its histoiy, particularly our apparent approach in McKay, we expressly reject any notion that a sentencing court’s use of statutory factors for departure should be reviewed with great deference and that its use of nonstatutory factors for departure should be reviewed with stricter scrutiny. Any language in decisions of Kansas appellate courts inconsistent with this holding is disapproved. This even-handed approach is also more consistent with the legislative scheme contained in K.S.A. 2005 Supp. 21-4716. There, although the legislature provides lists of aggravating and mitigating factors, the lists are clearly identified as “nonexclusive.” Accordingly, we find no legislative intent for grading departure factors simply based upon their appearance in, or absence from, the statute. The decision of the Court of Appeals is reversed; the decision of the district court is affirmed.
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Per Curiam,-. This is an original proceeding in discipline filed by the Disciplinary Administrator against respondent, Irwin S. Trester, an attorney admitted to the practice of law in Kansas in 1968. A hearing panel of the Kansas Board for the Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211 (2006 Kan. Ct. R. Annot. 284). The hearing panel concluded that Trester violated Kansas Rules of Professional Conduct (KRPC) as follows: KRPC 5.5(a) (2006 Kan. Ct. R. Annot. 494) (unauthorized practice of law); KRPC 8.4(b) and (c) (2006 Kan. Ct. R. Annot. 510) (misconduct). Additionally, Trester was held to have violated Kansas Supreme Court Rule 202 (2006 Kan. Ct. R. Annot. 239) (grounds for discipline). The hearing panel unanimously recommended that Trester be indefinitely suspended from the practice of law in the state of Kansas. Hearing Panel’s Findings of Fact This action arose out of Trester’s practice of law in the state of California where he does not have a license. Despite his admission to the Kansas Bar, Trester never practiced law in the state of Kansas and returned to California and took the California Bar examination on four occasions. Trester never passed the California Bar examination but was not dissuaded and, for nearly 40 years, practiced law in California. His office was advertised as “Law Offices of Irwin Trester.” Much of his work was limited to the federal practice in the areas of immigration and labor law. Trester testified before the hearing panel that he was merely required to have a license to practice in some state, not necessarily in the same state where his office was located. Friedman Bag Company (Friedman), a California company, retained Trester to represent it in the areas of labor and employment law. Trester never informed Friedman that he was not licensed to practice law in California. In 2002, Friedman sued both Trester individually and his business, the “Law Offices of Irwin Trester,” in California Superior Court, alleging legal malpractice and fraud. The fraud claim was based on the fact that Trester represented Friedman without a license to do so. In 2005, California prosecutors charged Trester with seven counts of grand theft, one count of possession of an assault weapon, and one count of unauthorized practice of law. The basis for the theft charges was Trester’s acceptance of retainers without a license to practice law in the state of California. Trester subsequently entered a plea of no contest to three charges of felony theft and one charge of misdemeanor unauthorized practice of law. On October 26, 2005, the California court placed Trester on probation for 3 years and ordered him to perform 100 hours of community service, to pay restitution, and to refrain from practicing law in California. Then, in June 2006, the California court granted Trester s motion to reduce the felony convictions to misdemeanors under the California penal code. Hearing Panel’s Conclusions of Law Based upon the findings of fact, the hearing panel made several conclusions of law. The hearing panel cited Supreme Court Rule 202, which describes the effect of a criminal conviction on a person licensed to practice law in Kansas: “A certificate of a conviction of an attorney for any crime . . . shall be conclusive evidence of the commission of that crime ... in any disciplinary proceeding instituted against said attorney based upon the conviction.” 2006 Kan. Ct. R. Annot. 240. Based on this rule, the hearing panel concluded that Trester s three California theft convictions and one conviction of engaging in the unauthorized practice of law were conclusive evidence of his commission of those crimes. Although the hearing panel did not mention the fact that Trester admitted violating KRPC 5.5(a) in his answer to the formal complaint, the panel did conclude the rule was violated. KRPC 5.5(a) states that a lawyer shall not “practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.” 2006 Kan. Ct. R. Annot. 494. Because Trester was convicted of engaging in the unauthorized practice of law in California, the hearing panel found him in violation of that rule. The hearing panel found that Trester violated KRPC 8.4(b), which states: “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.” 2006 Kan. Ct. R. Annot. 510. Focusing again on Trester’s three California theft convictions and one conviction of engaging in the unauthorized practice of law, the hearing panel concluded that theft and the unauthorized practice of law are crimes that reflect directly on his honesty and trustworthiness. Finally, the hearing panel also found that Trester violated KRPC 8.4(c), which states: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” 2006 Kan. Ct. R. Annot. 511. The hearing panel concluded that Trester engaged in dishonest conduct when he held himself out as an attorney in California. In deciding what discipline to recommend, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (1991). In applying Standard 3, the hearing panel considered the duty violated, the lawyer’s mental state, the potential or actual injury caused by the misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to the legal profession to maintain his professional integrity. “Mental State. The Respondent intentionally violated his duty. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to Friedman Bag Company. “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: “Dishonest or Selfish Motive. Theft is a crime of dishonesty. Misleading a client into believing that you possess a license to practice law in California is also dishonest. Thus, the Respondent’s misconduct was motivated by dishonesty and selfishness. “A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct when, over an extended period of time, he committed the crimes of theft and the unauthorized practice of law. As such, die Hearing Panel concludes that the Respondent engaged in a pattern of misconduct. “Multiple Offenses. The Respondent violated KRPC 5.5, KRPC 8.4(b), and KRPC 8.4(c). Accordingly, the Hearing Panel concludes that the Respondent committed multiple offenses. “Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent refused to acknowledge the extent of the wrongful nature of his conduct. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1968. Therefore, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct. “Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent engaged in illegal conduct, and, as a result, was convicted of three counts of theft and one count of engaging in the unauthorized practice of law. “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. “The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation. 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 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 Respondent was prosecuted for theft and for engaging in the unauthorized practice of law. As a result, the Respondent was placed on probation, ordered to perform community service work, and ordered to pay restitution. According to the Respondent, he is in compliance with the terms and conditions of his probation.” In addition to the above-cited factors, the hearing panel examined ABA Standard 4.62 regarding suspension after a lawyer knowingly deceives a client and causes injury or potential injury; Stan dard 5.11 regarding disbarment after a lawyer engages in serious criminal conduct including theft or in any other intentional conduct involving dishonesty, that seriously adversely reflects on the lawyer s fitness to practice; and Standard 7.2 regarding suspension after a lawyer knowingly engages in conduct that is a violation of a duty owed to tire profession, and causes injury or potential injury to a client, the public, or the legal system. The Deputy Disciplinary Administrator recommended Trester be indefinitely suspended, and Trester requested published censure. Trester filed exceptions to the final hearing report. His only exception to the hearing panel’s findings of fact concerned the subject matter of the Friedman case. Trester stated he was retained by Friedman to handle “labor relation matters.” Trester also took exception to the hearing panel’s conclusions of law regarding his violation of KRPC 8.4(c). He further took exception to some of the aggravating factors and the hearing panel’s recommendation of discipline. Analysis 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). This court views the findings of fact, conclusions of law, and recommendations made by the hearing panel as advisory only, but we give the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Therefore, the hearing panel’s report will be adopted where amply sustained by the evidence, but not where it is 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 eval uate their demeanor. We do not reweigh the evidence or assess the credibility of witnesses. 284 Kan. at 190. Rather, this court examines any disputed findings of fact and determines whether clear and convincing evidence supports the panel’s findings. In re Kellogg, 269 Kan. 143, 153, 4 P.3d 594 (2000). If so, the findings will stand. Moreover, it is not necessary to restate the entire record to show substantial competent evidence to support the hearing panel’s findings. 269 Kan. at 153. I. Violation of KRPC 8.4(c) First, Trester argues that clear and convincing evidence does not support the hearing panel’s finding that he violated KRPC 8.4(c). KRPC 8.4(c) provides that “[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” 2006 Kan. Ct. R. Annot. 511. Trester urges this court to reject the hearing panel’s conclusion that he engaged in dishonest conduct when he held himself out as an attorney in California. Rather than motivated by dishonesty, fraud, or deceit, Trester contends that his misconduct was motivated by the “mistaken belief’ that he could hold himself out as an attorney because he was admitted to practice law in Kansas and had been admitted to practice law before the United States Supreme Court, the Ninth Circuit Court of Appeals, and the Tenth Circuit Court of Appeals. According to Trester, he has a “plausible explanation” justifying this mistaken belief. Regarding this alleged “plausible explanation,” Trester claims that before opening his California office, he solicited input from Los Angeles Attorney Ira Sherman, then head of the ethics division of the California Rar. In his testimony at the hearing, he indicated that the services he provided in California were consistent with the advice given to him by Sherman. Refore the hearing panel, Trester denied ever making any appearances as an attorney before the California Superior Court, Appellate Court, or Supreme Court, instead claiming that he only appeared in those courts as a mediator. Instead of appearing in a legal capacity in California state courts, Trester testified that he made regular appearances in federal immigration courts and before administrative agencies. When asked, however, what percentage of his practice in the last 10 years has related to immigration law, Trester answered: “It’s varied from 15 to 20 percent to 50 and sometimes 60 percent.” To add credence to his argument that he, in good faith, held himself out as an attorney, Trester notes in his brief that two previous ethics complaints filed against him were dismissed. First, Trester testified at the hearing that around 1980 an ethics complaint was filed in California based on Trester’s holding himself out as an attorney. According to him, the claim was dismissed for lack of jurisdiction. Second, in 1996, a California attorney filed an ethics complaint against Trester, and the matter was referred to the office of the Kansas Disciplinary Administrator. The subject of the complaint involved Trester’s negotiation of collective bargaining agreements and informal labor arbitration under the National Labor Relations Act. Because these particular acts did not consist of engaging in the unauthorized practice of law in California, the complaint was dismissed. Neither of these previous incidents appear to be relevant to the case at hand. Trester contends that he never told anyone he was a member of the California Bar. But, as the petitioner points out, Trester admitted he never told Friedman that he was not licensed to practice law in California, nor did he place his state of licensure on his business cards or stationery. Trester, instead, advertised that he was an “attorney at law” in the “Law Offices of Irwin Trester,” which gave the impression that he was authorized to practice law generally in that state. The petitioner argues that Trester’s admission and actions show the intent to deceive. We agree. Trester contends his situation is comparable to the one in In re Kershner, 250 Kan. 383, 827 P.2d 1189 (1992). Kershner was convicted of four felony violations of the Kansas Securities Act (2 counts of violating K.S.A. 17-1254 by offering for sale shares of stock of a corporation when he was not registered as a broker-dealer or agent and 2 counts of violating K.S.A. 17-1255 by offering for sale or selling shares of stock in a corporation when such security was not registered). 250 Kan. at 383-84. Kershner also failed to file his attorney registration fees for the years 1985-90 when he was not practicing law. In addition, Kershner failed to appear before the hearing panel, later claiming he never received notice of the hearing. 250 Kan. at 386. The Kershner hearing panel recommended disbarment, finding that respondent violated the Model Rules of Professional Conduct (MRPC) 8.4(b), (c), and (g). 250 Kan. at 387. This court found the fact that Kershner was convicted of four felony violations of the Kansas Securities Act was sufficient to show a violation of MRPC 8.4(b). We concluded: “[U]nder the facts present, Kershner s felony convictions cannot also be ‘other conduct that adversely reflects on his fitness to practice law’ and a violation of MRPC 8.4(g). There does not appear to be a violation of MRPC 8.4(c).” 250 Kan. at 388. Kershner is distinguishable from the present case. Unlike this case, there is no indication Kershner held himself out as a broker or dealer and the criminal offenses did not include theft or the unauthorized practice of law. Additionally, Kershner had no victims to compensate. Here, Trester was ordered to pay restitution in the California theft cases. And the hearing panel found Trester caused actual injury to Friedman. Trester contends that he wants to provide evidence by way of explaining his conduct, but it appears that he merely attempts to attack the California criminal theft convictions and unauthorized practice of law conviction. This attack is inappropriate on two fronts: (1) Trester admits he violated KRPC 8.4(b) which was based on his California conviction of the crime of unauthorized practice of law, and (2) 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 (2006 Kan. Ct. R. Annot. 240). Recently, in In re Pyle, 283 Kan. 807, 825, 156 P.3d 1231 (2007), this court acknowledged the fact that, in fewer than 50 cases, we have found attorneys guilty of violating KRPC 8.4(c) in its current form. See, e.g., In re Singleton, 279 Kan. 515, 111 P.3d 630 (2005) (attorney misrepresented documents to judge; indefinite suspension); In re Rock, 279 Kan. 257, 105 P.3d 1290 (2005) (attorney converted client funds, abandoned clients, and committed other misconduct; disbarment). We have no qualms, however, saying that holding oneself out as an attorney in a state in which he or she has no license to practice law and giving the impression the attorney is authorized to practice law generally in that state engages in conduct that violates KRPC 8.4(c). Clear and convincing evidence supports the panel’s finding that Trester violated KRPC 8.4(c). II. Aggravating Factors Next, Trester argues clear and convincing evidence does not support the hearing panel’s findings regarding three of the six aggravating factors in the final hearing report. At the outset, we note that neither this court nor the hearing panel is required, in an attorney disciplinary proceeding, to cite and discuss every potentially applicable ABA Standard. The ABA Standards serve only as guidelines to assist courts in selecting appropriate and uniform discipline, depending upon the facts and the aggravating and mitigating factors present in each case. In re Ware, 279 Kan. 884, 892-93, 112 P.3d 155 (2005). Dishonest or Selfish Motive First, Trester contends the hearing panel incorrectly found his misconduct was motivated by dishonesty and selfishness. The panel stated: “Theft is a crime of dishonesty. Misleading a client into believing that you possess a license to practice law in California is also dishonest.” Again, Trester argues that he held himself out as an attorney based on a good faith belief that he was allowed to do so for the “limited purpose of providing labor and immigration services.” This court has stated that theft is a crime of dishonesty. In re Lucas, 281 Kan. 692, 693-94, 132 P.3d 914 (2006) (criminal acts of forgery and theft reflected directly on respondent’s honesty and trustworthiness in violation of KRPC 8.4[b]). Further, Trester misled Friedman by holding himself out as an attorney practicing in California. He advertised his business as the “Law Offices of Irwin Trester” and even named it so on a web page advertisement. Clear and convincing evidence supports the panel’s finding that Trester’s conduct was motivated by dishonesty and selfishness. Refusal to Acknowledge Wrongful Nature of Conduct Second, Trester contends the hearing panel incorrectly found that he refused to acknowledge the wrongful nature of his conduct. Trester points out that, as a mitigating factor, the panel found he showed a cooperative attitude. The panel stated: “The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct.” In his brief, Trester admits he was wrong to hold himself out as an attorney when he was not licensed to practice law in California. This admission comports with the petitioner’s statement regarding Trester’s cooperation. Nevertheless, Trester’s refusal to acknowledge the wrongful nature of his conduct is replete throughout the record and his brief. Clear and convincing evidence supports the panel’s finding that Trester refused to acknowledge the wrongful nature of his conduct. Illegal Conduct, Including that Involving the Use of Controlled Substances Third, Trester contends the hearing panel incorrectly found that he engaged in illegal conduct which included the use of controlled substances. The panel stated: “The Respondent engaged in illegal conduct, and, as a result, was convicted of three counts of theft and one count of engaging in the unauthorized practice of law.” Although the use of controlled substances was included in the caption, the panel never made a finding of drug use, nor were drugs ever mentioned in the formal complaint or at the hearing. Moreover, the petitioner acknowledges in its brief that the hearing panel made no finding concerning the use of controlled substances. At oral argument, it was clarified that the heading was simply a statement of the ABA factor: “Illegal conduct, including that involving the use of controlled substances.” Trester is correct that there is no evidence of drug use in this case. Clear and convincing evidence supports the panel’s finding only that Trester engaged in illegal conduct which resulted in convictions of three counts of theft and one count of engaging in the unauthorized practice of law. III. Recommendation of Indefinite Suspension Trester contends the hearing panel’s recommendation of indefinite suspension from the practice of law is too harsh. He argues that public censure would be an appropriate sanction for his misconduct. We note that when an attorney has been convicted of a felony offense, this court, with very few exceptions, imposes either suspension or disbarment as a sanction. In re Howlett, 266 Kan. 401, 403, 969 P.2d 890 (1998); see also In re Nelson, 255 Kan. 555, 563, 874 P.2d 1201 (1994) (citing several cases of attorney sanctions following felony convictions); see also Supreme Court Rule 203(c) (2006 Kan. Ct. R. Annot. 243) (requiring temporary suspension pending final disciplinary action if respondent has been convicted of a felony). Trester pled guilty to three felony theft charges. In postjudgment proceedings, the felony convictions were reduced to misdemeanors under California Penal Code § 17(b)(3) (West 2006), which grants judges the discretion to reduce the crime classification. The basis for the request was to avoid the automatic termination of Trester’s Kansas law license. Pursuant to ABA Standard 3, the hearing panel considered the factors of the duty violated, Trester’s mental state, the potential or actual injury caused by the respondent’s misconduct, and the existence of aggravating and mitigating factors. Also, the panel considered these ABA Standards: “Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.” Standard 4.62. “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 to 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. “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. The hearing panel recognized that federal agencies and federal courts may regulate practitioners appearing in such venues without reference to state licensing requirements. See Sperry v. State of Florida, 373 U.S. 379, 385, 10 L. Ed. 2d 428, 83 S. Ct. 1322 (1963). The panel also recognized that at least one federal circuit court of appeals has held that a lawyer practicing only in federal court may maintain a law office without a state license. See Surrick v. Killion, 449 F.3d 520 (3rd Cir. 2006). But the panel determined that these cases do not negate the fact that Trester has been convicted of the unauthorized practice of law. As correctly observed by the panel, if there was a defense to that charge, the time to have litigated the issue was during the California prosecution. Under Supreme Court Rule 202 (2006 Kan. Ct. R. 239), the time for Trester to litigate the issue has passed. Under our rules, we accept that Trester was engaged in the unauthorized practice of law. Moreover, the fact that Trester can cite authority for his position that he was authorized to practice law in federal courts does not negate the fact that Trester s stationery, law office sign, and other representations to the public and to Friedman were deceptive indications that Trester could practice law in the state of California. The evidence was that Friedman was misled by these representations. Trester urges this court to consider the facts that he has completed his community service requirements, paid the ordered restitution, and has fully cooperated with the Disciplinaiy Adminis trator. He further adds that he has no prior disciplinary record and is remorseful for his misconduct. Trester has changed his business stationery, business cards, and office sign so that they no longer advertise that he is an “attorney at law.” Trester requests published censure. ABA Standard 4.63 states: “Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to the client.” Given the serious nature of this case—three counts of theft related to Trester’s practice of law—and the length of time Trester s deceptive behavior played out, we conclude a period of suspension would be more appropriate. “All lawyers, by virtue of their licenses, enjoy the status of officers of the court. That status brings with it the responsibility to refrain from conduct unbecoming such officers, to uphold the rule of law, and to enhance public confidence in that rule and the legal system set up to safeguard it.” Pyle, 283 Kan. at 829-30; see also In re Moore, 280 Kan. 971, 127 P.3d 270 (2006) (indefinite suspension; attorney’s lack of diligence in client matters, failure to communicate with clients, conduct in making court appearances after her license had been suspended for failure to pay registration fee and annual continuing legal education fee, and failure to respond to lawful demands for information in attorney disciplinaiy proceedings); In re Hunter, 273 Kan. 1015, 46 P.3d 1199 (2002) (90-day suspension for engaging in authorized practice of law while respondent’s license was suspended because of his failure to pay registration and CLE fees and to report CLE hours and failing to tell clients that his license was suspended); cf. The Florida Bar v. Kaiser, 397 So. 2d 1132 (1981) (New York attorney practiced immigration and naturalization matters out of Florida; injunction was issued to prohibit attorney from advertising in telephone books, on television and in newspapers, regarding availability as an attorney, with implication of authorization to practice law in state, which constituted unauthorized practice of law); Attorney Grievance Com’n of Maryland v. Harris-Smith, 356 Md. 72, 737 A.2d 567 (1999) (attorney who was admitted to bar of federal district court in the state, but not state bar, engaged in the unauthorized practice of law; 30-day suspension). We note that, in effect, Trester has been suspended from the practice of law by the terms of his probation in the criminal case. According to the docket sheet submitted as an exhibit at the panel hearing, one of the conditions of probation imposed at the sentencing hearing on October 26, 2005, is that “the defendant is not to practice law in the State of California whatsoever.” Because Trester has not been practicing law, a majority of the court concludes that making the suspension effective as of the date of the criminal sentence is appropriate. It Is Therefore Ordered that Irwin Trester be and he is hereby indefinitely suspended from the practice of law in the state of Kansas. This order shall be retroactive to October 26, 2005. It Is Further Ordered that Irwin Trester shall comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314) and, if respondent seeks reinstatement, that he shall comply with Supreme Court Rule 219 (2006 Kan. Ct. R. Annot. 327); that he shall demonstrate that he knows, understands, and is willing to comply with the Kansas Supreme Court rules; and that he is 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. Davis, J., not participating. McAnany, J., assigned.
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The opinion of the court was delivered by ROSEN, J.: Alex L. Bellamy petitioned this court to review the Court of Appeals’ opinion affirming the denial of his K.S.A. 60-1507 motion. The district court dismissed Bellamy’s motion without conducting an evidentiary hearing on Bellamy’s claim that he received ineffective assistance of counsel. Bellamy asserts that the Court of Appeals applied an incorrect standard of review and seeks to have this matter remanded for an evidentiary hearing. FACTS Alex Bellamy was charged with one count of rape for engaging in sexual intercourse with A.P., a 21-year-old woman who suffered from brain damage due to an illness during her infancy. A.P.’s brain damage caused physical and developmental disabilities which required her to attend special schools. Bellamy was charged alternatively with rape by force or fear, pursuant to K.S.A. 2001 Supp. 21-3502(a)(l)(A), and rape where the victim was incapable of giv ing consent due to mental deficiency or mental disease, pursuant to K.S.A. 2001 Supp. 21-3502(a)(l)(C). Bellamy pled guilty to rape based on A.P.’s incapacity to consent. When Bellamy was 24 years old, he met A.P. while he was driving around and observed A.P. in her family’s front yard. He decided to pull his car over and talk to her. After asking A.P.’s name and age, Bellamy asked A.P. if she wanted to go for a ride. A.P. asked her older brother for permission to go and then got in the car with Bellamy. Bellamy took A.P. to his house. He and A.P. went to his bedroom and, after talking for a while, began kissing. Bellamy then repeatedly asked A.P. if she wanted to have sex with him. At first, A.P. said no, then she said maybe, and finally A.P. said yes because she thought Bellamy might hurt her. A.P. asked Bellamy to use a condom. After having sexual intercourse with A.P., Bellamy drove A.P. home. A.P. told her mother where she had been and what had happened. Upon her mother’s request, A.P. directed her mother to Bellamy’s house. A.P.’s mother then called the police. Bellamy entered into a plea agreement in which die State agreed to recommend probation as a dispositional departure rather than the presumptive prison sentence pursuant to Kansas sentencing guidelines. At Bellamy’s sentencing hearing, Bellamy’s counsel advised tire court tliat Bellamy had undergone a psychological evaluation, which revealed that Bellamy also suffered from diminished mental capabilities and had been in special education classes throughout his schooling. Because students in special education classes were Bellamy’s peers, Bellamy did not see people with intellectual or emotional impairment as abnormal. According to the psychological evaluation, it may have been asking too much of Bellamy to diagnose or appreciate a casual acquaintance as being mentally impaired. Based on this information, the district court sentenced Bellamy to an underlying prison term of 155 months but granted a dispositional departure and directed Bellamy to serve 36 months on probation. Bellamy did not appeal. After Bellamy had been on probation for about a year and a half, he was charged with a probation violation for failure to maintain employment, failing to report to his probation officer, making a false police report, and resisting arrest. Bellamy admitted the allegations, advising die court that he had loaned his car to the friend of a friend, who had not returned the car. Because Bellamy did not know who had borrowed his car, he reported it as stolen and told police that he had been carjacked. Without transportation, Bellamy was unable to get to work or to his appointments with his probation officer. When Bellamy admitted to police what had actually happened to his car, the police arrested him for making a false report. Based on this information, the district court revoked Bellamy’s probation and ordered that his probation be reinstated after he served 60 days in jail. The court also extended his probation by 6 months. A short time later, Bellamy was charged with violating his probation again. The second probation violation warrant alleged that Bellamy had failed a drug test. Bellamy admitted the allegation, explaining that he had been left homeless when he was released from serving the jail time ordered as part of his prior probation violation. Without a place to reside, Bellamy began living with a man who used drugs and had encouraged Bellamy to use drugs. Bellamy’s counsel argued that Bellamy did not have a drug problem and would be successful on probation if he could get the appropriate support. However, the district court revoked Bellamy’s probation and reinstated his prison sentence, modifying the term of imprisonment from 155 months to 147 months. After attempting to appeal his conviction and sentence out of time, Bellamy filed a pro se 60-1507 motion alleging, among other things, that his trial counsel was ineffective. According to Bellamy, his attorney advised him that A.P. was legally incapable of giving consent because she had been in special education. In response to Bellamy’s 60-1507 motion, the district court appointed counsel to represent Bellamy and conducted a preliminary hearing. After hearing arguments from Bellamy’s counsel and the State, the district court denied Bellamy’s 60-1507 motion without an evidentiary hearing. Bellamy appealed the denial of his 60-1507 motion to the Court of Appeals. In an unpublished opinion, Bellamy v. State, No. 94,365, filed September 29, 2006, the Court of Appeals affirmed the district court’s denial, and Bellamy filed a petition for review. We granted Bellamy’s petition for review to determine whether the Court of Appeals applied the proper standard of review and whether Bellamy should have received a full evidentiary hearing on his claim of ineffective assistance of counsel. ANALYSIS Bellamy first argues that the Court of Appeals erroneously applied an abuse of discretion standard in its decision affirming the district court’s denial-of his' 60-1507 motion. Relying on Laymon v. State, 280 Kan. 430, 436-38, 122 P.3d 326 (2005), Bellamy asserts that the proper standard of review is de novo because the appellate courts can review the motion, files and records in the same manner as the district court. In Laymon, this court noted that prior cases have often stated the standard of review to be an abuse of discretion because the sentencing court has discretion to determine whether a 60-1507 claim is “ ‘substantial before granting a full evidentiary hearing and requiring the prisoner to be present.’ ” 280 Kan. at 436-37 (quoting Supreme Court Rule 183[h] [2004 Kan. Ct. R. Annot. 221]). Nevertheless, tire Laymon court applied a de novo standard, reasoning: “[T]o the extent a decision is based only upon the ‘motion, files, and record’ of a case, an appellate court is as equipped as a district court to decide the issues efficiently and reliably, and both this court and the Court of Appeals routinely engage in de novo review of summary denials of 60-1507 motions while giving lip service to the abuse of discretion standard. [Citation omitted.]” 280 Kan. at 437. Bellamy asserts that our decision in Laymon is confusing because it does not explicitly overrule the prior case law applying an abuse of discretion standard. We note that Bellamy’s assertion fails to recognize the limiting language used in applying the de novo standard in Laymon to those cases involving summary dismissal by the district court. Nevertheless, we are mindful of the inconsistency in the standard of review applied to 60-1507 motions and will clarify the confusion. Our research reveals that Kansas appellate courts have applied three different standards in reviewing 60-1507 motions—abuse of discretion, de novo, and findings of fact and conclusions of law. See, e.g., Flynn v. State, 281 Kan. 1154, 1157, 136 P.3d 909 (2006) (applying a findings of fact and conclusions of law standard in concluding that the district court properly denied movant’s claims of ineffective assistance of counsel); Graham v. State, 263 Kan. 742, 753, 952 P.2d 1266 (1998) (concluding that the district court’s findings were not supported by substantial competent evidence, reversing the district court’s order for a new trial, and remanding for a hearing on petitioner’s sentence); Taylor v. State, 252 Kan. 98, 103, 843 P.2d 682 (1992) (affirming the denial of movant’s claim that he was denied the right to testify due to ineffective assistance of counsel based on a findings of fact and conclusions of law standard); Estes v. State, 221 Kan. 412, 414, 559 P.2d 392 (1977) (upholding district court’s summary denial of movant’s motion based on an abuse of discretion standard); Morrow v. State, 219 Kan. 442, 548 P.2d 727 (1976) (applying a de novo standard without articulating a standard); Johnson v. State, 203 Kan. 947, 457 P.2d 181 (1969) (applying a de novo standard in concluding that movant’s trial counsel was effective); Sharp v. State, 203 Kan. 937, 457 P.2d 14 (1969) (using a de novo standard in affirming the district court’s denial of an evidentiary hearing on movant’s claim that his guilty plea was coerced by ineffective counsel); White v. State, 201 Kan. 801, 443 P.2d 182 (1968) (using a findings of fact and conclusions of law standard in reviewing the district court’s evidentiary hearing and remanding the matter to the district court for findings of fact and conclusions of law); Brown v. State, 196 Kan. 236, 240, 409 P.2d 772 (1966) (recognizing the rule giving the district court discretion to ascertain whether the claim was substantial before granting an evidentiary hearing but applying a de novo standard in determining that the movant should have received a full evidentiary hearing); Webb v. State, 195 Kan. 728, 735, 408 P.2d 662 (1965) (acknowledging the rule allowing discretion but applying a de novo standard and stating its conclusion as a findings of fact and conclusions of law standard); Veronee v. State, 193 Kan. 681, 396 P.2d 360 (1964) (applying a de novo standard to interpreting a sentence modification statute); Upchurch v. State, 36 Kan. App. 2d 488, 491-92, 141 P.3d 1175, rev. denied 282 Kan. 797 (2006) (reversing the district court’s summary denial of movant’s motion using an abuse of discretion standard); Tomlin v. State, 35 Kan. App. 2d 398, 400, 130 P.3d 1229, rev. denied 282 Kan. 796 (2006) (applying an abuse of discretion standard in affirming the summary dismissal of petitioner’s claim of ineffective assistance of counsel); Jenkins v. State, 32 Kan. App. 2d 702, 703, 87 P.3d 983, rev. denied 278 Kan. 845 (2004) (noting that the district court conducted an evidentiary hearing on the motion and applying a findings of. fact and conclusions of law standard in affirming the district court’s denial of movant’s claim that he received ineffective assistance of counsel); Lewis v. State, 33 Kan. App. 2d 634, 645, 111 P.3d 636, rev. denied 277 Kan. 924 (2003) (applying a findings of fact and conclusions of law standard in affirming the denial of movant’s claim of ineffective assistance of counsel based on evidence from a hearing on the 1507 motion); Gilkey v. State, 31 Kan. App. 2d 77, 78, 82, 60 P.3d 351, rev. denied 275 Kan. 963 (2003) (applying an abuse of discretion standard in affirming the denial of movant’s claim of ineffective assistance of counsel because the judge in the 1507 proceeding was also the judge in the criminal trial). To determine the proper standard of review for 60-1507 motions, we must begin with the statute, which provides: “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon die county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. The court may entertain and determine such motion without requiring the production of the prisoner at the hearing. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence said prisoner or grant a new trial or correct the sentence as may appear appropriate.” K.S.A. 60-1507(b). Supreme Court Rule 183 (2006 Kan. Ct. R. Annot. 228) provides additional guidance, stating in pertinent part: “(f) Hearing. Unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief, the court shall notify the county attorney and grant a prompt hearing. ‘Prompt’ means as soon as reasonably possible considering other urgent business of the court. All proceedings on the motion shall be recorded in a manner approved by the court. “(h) Presence of Prisoner. The prisoner should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to events in which the prisoner participated. The sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and ' requiring the prisoner to be present.” Based on K.S.A. 60-1507 and Rule 183, the district court has three options for resolving a 60-1507 motion. “First, it may determine that the motion, files, and records of the case conclusively show that the petitioner is entitled to no relief, in which case it will summarily deny the petitioner’s motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the petitioner. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial.” Lujan v. State, 270 Kan. 163, 170-71, 14 P.3d 424 (2000). In each of these three options, the district court must make legal conclusions regarding whether (1) “the judgment was rendered without jurisdiction,” (2) “the sentence imposed was not authorized by law or is otherwise open to collateral attack,” or (3) “there has been such a denial or infringement of the constitutional rights of tire prisoner as to render the judgment vulnerable to collateral attack.” K.S.A. 60-1507(b). Legal conclusions are reviewed using a de novo standard. State v. Gary, 282 Kan. 232, 236, 144 P.3d 634 (2006); Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004); State v. Washington, 275 Kan. 644, 660, 68 P.3d 134 (2003); In re Hood, 252 Kan. 689, 690, 847 P.2d 1300 (1993). Even though the district court’s legal conclusions are subject to an unlimited review, appellate courts do not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Hayden, 281 Kan. 112, 132, 130 P.3d 24 (2006). Thus, the option employed by the district court in reaching its decision impacts the appellate court’s standard of review. Summary dismissal The first option involves a summary decision without conducting a hearing. Under this option, the district court reviews the motion, records, and files of the case and reaches a decision without conducting a hearing. We see no reason for the appellate court to give any deference to the district court’s factual findings under this option because an appellate court has the same access to the motion, records, and files as the district court. See Laymon, 280 Kan. at 437. Thus, the standard of review for the summary dismissal of K.S.A. 60-1507 motions is de novo. Preliminary hearing The second option gives the district court an opportunity to conduct a preliminaiy hearing after appointing counsel for the petitioner. At the preliminary hearing, the district court may admit limited evidence and consider arguments of counsel. The district court is required to issue findings of fact and conclusions of law. Rule 183(j). Because an appellate court must give deference to any factual findings made by die district court as a result of the hearing, it must apply a findings of fact and conclusions of law standard of review to determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. See Graham, 263 Kan. at 753. Ultimately, the district court’s legal conclusion regarding whether the movant has established that (1) “the judgment was rendered without jurisdiction,” (2) “the sentence imposed was not authorized by law or is otherwise open to collateral attack,” or (3) “there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack” is reviewed as a conclusion of law using a de novo standard. K.S.A. 60-1507(b); see Drach v. Bruce, 281 Kan. 1058, 1063, 136 P.3d 390 (2006). Full evidentiary hearing The third option involves a full evidentiaiy hearing by the district court. Under this option, the district court is required to make findings of fact and conclusions of law. Rule 183(j) (2006 Kan. Ct. R. Annot. 227). An appellate court must give deference to the district court’s findings of fact, accepting as true the evidence and any inferences that support or tend to support the. district court’s findings. State v. Combs, 280 Kan. 45, 47, 118 P.3d 1259 (2005); Graham, 263 Kan. at 753-54. As a result, the appropriate standard of review is findings of fact and conclusions of law. Under this standard, an appellate court must determine whether the district court’s factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the district court’s conclusions of law. Graham, 263 Kan. at 753. Ultimately, the district court’s conclusions of law and its decision to grant or deny the 60-1507 motion are reviewed using a de novo standard. Drach, 281 Kan. at 1063. We note, for the purposes of clarity, that the language of K.S.A. 60-1507 controls the standard of review rather than Rule 183(h). The language of K.S.A. 60-1507 does not support the conclusion that appellate courts may apply an abuse of discretion standard. Thus, we disapprove any language to the contrary in previous opinions applying an abuse of discretion standard to a district court’s decision on a K.S.A. 60-1507 motion. Abuse of discretion is no longer recognized as a standard for reviewing the results of 60-1507 motions. In this case, the district court conducted a preliminary hearing to determine whether the issues were substantial and required a full evidentiaiy hearing. Relying on Laymon, the Court of Appeals articulated the standard of review to be abuse of discretion. Bellamy, slip op. at 5. However, it appears that the Court of Appeals actually applied a de novo standard in reaching its conclusion that Bellamy’s trial counsel was effective and that Bellamy knowingly entered a guilty plea. Although the Court of Appeals properly reviewed the district court’s ultimate legal conclusions using a de novo standard, it did not address the district court’s factual findings to determine whether they were supported by substantial competent evidence or whether they were sufficient to support the district court’s conclusions of law. Accordingly, the Court of Appeals articulated the wrong standard of review and failed to fully apply the proper standard of review. Having determined what the proper standard of review is, we now turn to the substantive issue raised in Bellamy s 60-1507 motion. Bellamy claims that he did not knowingly and understandingly plead guilty to raping A.P. According to Bellamy, his trial counsel advised him that A.P. was legally incapable of consenting to sexual intercourse because she had gone to special schools for children with learning disabilities. Bellamy argues that he relied on his trial counsel’s advice to his detriment because he would not have agreed to plead guilty to raping A.P. if he had known that A.P.’s capacity to consent was a factual question for the jury to decide. It is a fundamental principle that a guilty plea must be freely, knowingly, and understandingly made to be valid. Hughes v. State, 206 Kan. 515, 516, 479 P.2d 850 (1971). Bellamy argues that his plea was not knowingly or understandingly made because his counsel was ineffective. To establish a claim of ineffective assistance of counsel, Bellamy must show that his counsel’s performance was less than that guaranteed by the Sixth Amendment to the United States Constitution and that the deficient performance was prejudicial. Flynn, 281 Kan. at 1157. The State’s position focuses on the test for ineffective assistance of counsel, asserting that an evidentiary hearing is not necessary on the first prong of the test because there is nothing to establish that Bellamy was prejudiced by any deficiency in his counsel’s performance under die second prong of the test. The State points to Bellamy’s plea agreement, asserting that Bellamy derived a great benefit because he received 3 years of probation instead of the 155-month presumptive prison sentence set forth in the sentencing guidelines. The State also relies on Bellamy’s failure to raise a direct appeal or otiierwise contest his conviction and sentence until after his probation was revoked for multiple violations. We disagree with the State’s argument. Bellamy’s sentence is not the proper basis for determining whether he was prejudiced by a guilty plea based on improper legal advice. In addition to agreeing with the State’s argument regarding the lack of prejudice because Bellamy received a significant disposi tional departure, the Court of Appeals also concluded that Bellamy was not prejudiced because the evidence from the preliminary hearing was sufficient to convict Bellamy of rape based on force or fear. This conclusion is also in error. Bellamy did not plead guilty to rape based on force or fear. An appellate court cannot speculate as to what the outcome of a trial might have been based solely on the evidence presented at the preliminary hearing. In this case, the district court found that Bellamy pled guilty to raping someone who was incapable of giving consent. However, the district court did not make any factual findings regarding the advice Bellamy received about A.P.’s capacity to consent. Nevertheless, the district court concluded as a matter of law that Bellamy received effective assistance of trial counsel. Without factual findings regarding the advice Bellamy received, there is no way for us to determine whether the district court’s factual findings are supported by substantial competent evidence. Likewise, we find no facts to support the district court’s conclusion that Bellamy’s trial counsel was effective because it did not specifically address Bellamy’s claim that his trial counsel improperly advised him on the issue of consent. Pursuant to K.S.A. 60-1507 and Rule 183, the district court must conduct an evidentiary hearing unless the motion, files, and records of the case conclusively show that the movant is not entided to relief. There are not sufficient facts in the record to establish what advice Bellamy received from his trial counsel prior to entering his guilty plea or how that advice influenced Bellamy’s decision to plead guilty. When substantial questions of fact remain, the matter must be remanded to the district court for a hearing. Laymon, 280 Kan. at 437. “This is particularly true when evidence on such facts can best be evaluated by the judge who presided at trial, and that judge will be assigned the 60-1507 motion.” Laymon, 280 Kan. at 437. Substantial issues of fact remain to be resolved in this case before the court can determine whether Bellamy received effective assistance of trial counsel. Because the factual issues involve events in which Bellamy participated, he must be present at the hearing. See Rule 183(h). Accordingly, we remand this matter to the district court for a full evidentiary hearing. 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 Beier, J.: In the early morning hours of April 4, 2004, seven individuals witnessed defendant Lafayette Cosby fatally shoot Robert Martin: The contested issue at trial was whether defendant shot Martin while attempting to defend his friend, Alrick “Tin Tin” Johnson. In this appeal from his jury conviction of premeditated first-degree murder, defendant argues that the district judge erred by admitting a statement made after defendant invoked his right to speak with an attorney and in allowing the State to inform die jury that defendant had invoked that right. He also argues that the district judge erred by permitting the State to present testimony attacking defendant’s character; that the prosecutor committed reversible misconduct by suggesting to the juiy that premeditation can occur instantaneously; and that cumulative errors denied him a fair trial. Factual and Procedural Background The day before the crime began with celebration: Defendant and his roommate, Bouba Sembene, went to Kansas City, Missouri, to take part in a Senegal Independence Day event. Defendant made arrangements to meet Johnson back at the men s apartment in Lawrence later that night to have drinks and make music. Defendant also invited his downstairs neighbor, Vanessa Engelbert, and her friends, Andrea “Star” Garrison and Chad Davis. When defendant and Sembene returned to the apartment from Kansas City, Johnson was already there with his girlfriend, Brianna Moten. Mamadou Drame, a third roommate, arrived later. Garrison arrived at about 1 a.m. She received a call from Davis to meet her in the parking lot; Martin was with Davis. After a brief trip to see Martin’s girlfriend, they entered defendant’s apartment, where defendant greeted them. Engelbert then joined the gathering. Martin had a reputation as a “drug dealer” and a history of violence. He had been using cocaine and marijuana earlier that evening. After Martin asked to use defendant’s restroom, defendant showed Martin where it was located—in the back of the apartment between two bedrooms. Johnson expressed concern to defendant about Martin. Martin was dating Johnson’s foster sister, Kim Foster. Several months before, Martin and Foster had visited Johnson’s house, and Johnson had witnessed them fighting. Ultimately, Johnson had refused to help Martin, and the police eventually took Martin to jail. This was the last time Johnson had seen Martin, and Johnson was worried Martin might want to setde a score with him. Defendant, aware of this Johnson-Martin history, went to the back of the apartment and waited so that he could talk to Martin when he came out of the restroom. When Martin came out, he said to defendant, “You got to follow me around?” Defendant tried to explain that it was awkward for Martin to show up uninvited and that he was concerned that Martin did not like Johnson. Defendant wanted to be sure any problem Martin had with Johnson would not be revisited that night, but Martin was vague in his responses, saying there are always “repercussions” for actions. Defendant testified that this conversation took place in the hallway of the apartment, but Davis testified that, when he went to check on the men, he saw them in the back bedroom, laughing; defendant was lying on the bed, and Martin was sitting on the floor. The men rejoined the gathering in 15 to 20 minutes. Martin sat in a chair opposite the couch where Johnson, Moten, and Engelbert were sitting. After about 5 minutes, Martin went over to the couch and patted Johnson on the shoulder to get him to make room next to him. Martin then squeezed himself between Johnson and Engelbert on tire couch. Johnson remembered that Martin then turned away and began talking to Davis and Garrison. Defendant testified that he was watching Martin closely because he was still concerned about what Martin might do. He saw Martin fidgeting with his coat, and he testified that he saw a gun under the coat. Upon seeing the gun, defendant went to a back bedroom and retrieved his own gun. He then went to the kitchen, from which he was able to watch Martin. Martin had turned toward Davis and Garrison and, defendant testified, he was manipulating the gun in his coat. Garrison testified that Martin was using his hands as he was talking. Johnson, Engelbert, and Davis testified that they did not see Martin with a gun. Johnson turned to say something to Moten, just as Martin turned toward Johnson; Defendant said he saw the barrel of Martin s gun sticking out from Martin’s coat. Defendant came into the room and shot Martin. Martin fumbled with his coat, and defendant thought he was trying to get his gun to fire back. Defendant then shot Martin three more times. When the shots were fired, most of the others ran outside. While running past defendant, Davis heard him say, “The mother fucker tried to kill me.” Sembene ran back and hid in his room. He heard defendant telling Martin that Martin needed to accept Jesus. Defendant heard Engelbert say she was calling the police, and he heard sirens. He stayed with Martin for 10 to 15 minutes, telling him police and an ambulance were on the way. Defendant then began to woriy that Davis had called Martin’s brother, and defendant did not want to be around if Martin’s brother showed at the apartment. Defendant then left. Johnson went back into the apartment to retrieve his backpack and then went to Davis’ apartment. Engelbert, Moten, Garrison, and Davis went to Engelbert’s apartment, two floors below, where they heard sirens. Davis then had Engelbert take him home, where they met Johnson. The group went back to Engelbert’s apartment and were surprised that police were not there. Drame met them at Engelbert’s, and the group went back to defendant’s apartment upstairs to retrieve Garrison’s cell phone and Moten’s shoes. While they were there, they began picking up bottles and cleaning the apartment. Drame called police after everyone left. Police did not recover a gun from Martin’s body, from his coat, or from the scene; nor did police collect Martin’s coat or test it for gun oil residue. Defendant, meanwhile, walked around Lawrence, and, about daylight, threw his gun into a creek or pond. He eventually walked to a church in West Lawrence. After the service, he walked almost all the way to Topeka, where he was picked up by a passing motorist and dropped at the home of some friends. He stayed with those friends for a couple of hours and then walked around Topeka, until he was picked up by the Topeka police on the evening of April 5, 2005. The State’s complaint, charging first-degree premeditated murder, was filed that day. Detectives M.T. Brown, John Hanson, and Amy Jumisko of the Lawrence Police Department met with defendant in an interview room at the Topeka police station. After obtaining preliminary information, Brown gave defendant Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). Defendant said he understood his rights. He also said he did not want to speak with the detectives and wanted to consult with a lawyer first. Brown then asked defendant where the gun was and if it was in a safe place. Defendant said that it was, and Brown did not ask any more questions. On the drive from Topeka to Lawrence, however, the defendant made comments and statements to law enforcement. Defendant moved to suppress his statements. At the hearing on his motion, the State called Brown, who testified that when he met defendant in Topeka, he did not say the detectives were investigating a homicide. Brown said defendant was not restrained and he did not appear to be under the influence of drugs or alcohol. He also appeared to understand English and his rights. When asked whether he was willing to waive those rights and talk, defendant said he wanted to speak to a lawyer first. After defendant responded to Brown’s question about the gun, Brown informed defendant that he was going to be transported to Lawrence. Defendant then volunteered: “I do want you to know this: I will say I didn’t want this to happen. I will say that.” Defendant declined to give a written statement at that time. This initial meeting had lasted roughly 20 minutes. Jumisko testified that she observed, but did not participate in, the meeting between defendant and the two other detectives at the Topeka police station. She confirmed that defendant received Miranda warnings, asked for a lawyer, and then responded to Brown’s question about the gun. She also testified that, during the trip to Lawrence, she and Hanson did not plan to ask any questions of defendant. However, after about 10 minutes of silence, defendant began to volunteer information and Jumisko got out a pen to record his comments. Throughout the drive, according to Jumisko, defendant was calm and polite. According to Jumisko’s notes, defendant said, “I am not a killer.” Hanson responded, “But someone is dead.” Defendant repeated, “I am not a killer,” and then asked if police had “found the gun” on Martin. Hanson told defendant they could not discuss anything with him because he had asked for an attorney. After a short time, defendant asked, “How’s [Martin’s] family?” Hanson replied, “Not good.” Defendant made several more statements, punctuated by pauses, to which the police did not respond. He said, “I walked all the way to Topeka and a friend gave me the clothes and they knew the situation”; “Met a man walking on the street where I was arrested. We walked a long time and talked”; and “I went to a liquor store and got picked up on the very next block.” Defendant said he planned to drink a botde of wine before facing the charges, and said, “I went to church.” Hanson then laughed and said, “We heard.” Defendant replied, “I thought you would be waiting outside for me,” and “A couple of cops passed me when I walked out of the church.” Hanson told defendant that, if he wanted to explain the situation, he needed to talk to an attorney and then let the police know. After more silence, defendant said, “Nobody knows what happened, just me and Rob.” Then, after several minutes, defendant said, “Based on what they thought they saw, but not before.” This statement was never clarified, and defendant said nothing else before he arrived at the Douglas County Jail. The State argued at the suppression hearing that Brown’s one question concerning the whereabouts of the gun after defendant received Miranda warnings and invoked his Fifth Amendment right to have counsel present during interrogation was permissible under a “public safety exception” recognized in New York v. Quarles, 467 U.S. 649, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984). Defendant’s subsequent statements, the State asserted, were voluntary and unsolicited; no evidence suggested the comments were initiated by the officers, and the officers responded appropriately by reminding defendant they could not talk with him. Defendant attempted to distinguish Quarles, in which officers had asked defendant about a gun before giving Miranda warnings. The district judge ruled that defendant’s statements were admissible. Later, at a sidebar during trial, the judge affhmed this ruling and further ruled, over objection, that the witnesses could explain that their unwillingness to follow up on defendant’s statements was attributable to defendant’s invocation of his rights. Pretrial, the State had filed a motion in limine to prevent defendant from introducing evidence of the victim’s prior convictions, arguing character evidence about the victim was irrelevant because the defendant’s claim of self-defense was not supported by the evidence. The State also argued that, even if evidence would justify a self-defense instruction, the victim’s reputation for violence could only come into evidence through general opinion testimony, not through prior convictions or specific instances of conduct. At the hearing on the motion, defendant argued testimony about Martin’s reputation in the community—including evidence that he had “stuck a shotgun” to someone’s head, brandished guns in people’s homes, “pistol-whipped” an individual, and was believed by the Lawrence police to be armed and dangerous—was relevant, ma terial, and indispensable to the defense theory of the case. The district judge initially took the matter under advisement but eventually ruled that, because defendant pursued a defense-of-another theory, evidence of the character of the deceased was proper and could be shown by evidence of his general reputation in the community. The judge said specific instances of conduct would not be allowed unless they were incidents that occurred between defendant and victim. The court reserved a final ruling, though, because defendant had not yet actually claimed self-defense or defense of others as an affirmative defense to the charges. At trial, the State proffered the testimony of Anthony Wisdom, who would testify that defendant had a long-held irrational belief Martin was trying to kill him. After some discussion, the district judge ruled the proffered testimony, though possibly relevant, was too remote and its probative value was outweighed by its risk of undue prejudice. The State renewed its proffer on at least one occasion, and the judge refused to change his ruling. Defendant testified at length at trial, discussing his relationship with Martin. He knew Martin had recently served time in prison, believed Martin was dangerous and unpredictable, and had witnessed Martin turn on one of his own friends, beat him “to the ground,” and then hug him. Defense counsel asked defendant, “What was going through your mind and what was your perception about why you acted or reacted the way that you did?” Defendant responded: “The only way I can answer that question is to—is I can’t answer your question unless you know Robert Martin. You just have to know who he is and have to know his lifestyle and have to know his personality .... It was him. It’s who he was and that is why I reacted, you know, as far as his personality and as far as his character.” On cross-examination, the prosecutor asked defendant whether he believed Martin had been trying to hurt him for some time, and defendant said no. The prosecutor then asked, “Isn’t it true that you believe, and you believed . . . that Robert Martin had been trying to kill you for five years?” Defendant answered, “That is absolutely false and I am sorry that you even said that to the jury.” Defense counsel objected, and the district judge overruled the ob jection. Further, the judge permitted the State to question defendant about Wisdom’s proffered testimony, portions of which defendant denied. The State then called Wisdom as a rebuttal witness. He testified that he, Martin, and defendant had all been good friends for 10 or 11 years. Five years earlier, he and defendant had eaten hallucinogenic mushrooms and were working on music when Martin stopped by; the three talked about getting more mushrooms. Suddenly, defendant demanded that Wisdom take him home. When Wisdom dropped defendant off, defendant accused Wisdom and Martin of tiying to kill him. Wisdom testified that he talked to defendant a number of times over the next few years about the accusation; defendant remained convinced Martin “had tried to kill him” and was still tiying to kill him. Defendant, according to Wisdom, believed Martin was “the devil” or had the devil “in him.” During closing argument, while discussing the element of premeditation, the prosecutor told the juiy: “[Y]ou all might have your own ideas about that [legal concept, but] this is what the law tells you. ‘Premeditation: To have thought over the matter beforehand.’ So it’s not an intricate plan and you don’t have to find that Lafayette Cosby planned to kill Robert Martin prior to Robert Martin getting there that night. You don’t have to find that Lafayette Cosby planned to kill Robert Martin prior to going back to the room to get his gun. You just have to find that he thought it over beforehand, even if that was instantaneous.” The defense immediately objected. The judge sustained the objection but also said, “[T]hat is for the jury to decide.” The prosecutor then repeated the correct definition of premeditation as “thinking the matter over beforehand.” Admission of Defendant’s Statement About Gun The defendant argues that the district judge erred by admitting defendant’s statement that the gun was in a safe place. In his view, Brown’s question about the whereabouts of the gun, which followed defendant’s invocation of his Miranda rights, was not excused by a Quarles’ public safety exception because there were no exigent circumstances and Quarles applies only to pre-Miranda statements. The parties set forth slightly different standards of review on this issue. The State suggests that, when a district court has conducted a full hearing on the admissibility of a statement and determines that it was freely, voluntarily, and intelligently made, this court should uphold the determination if there is substantial competent evidence to support it. This standard is incomplete. First, the district court did not admit the statement because it was freely, voluntarily, and intelligently made. It admitted the statement because it determined that “there was a legitimate concern for public safety that fit the Quarles scenario.” Defendant is correct that, when reviewing a district judge’s suppression decision on an accused’s statements, the factual underpinnings of the decision are reviewed for substantial competent evidence, but the ultimate legal decision drawn from those facts is reviewed de novo. State v. Mattox, 280 Kan. 473, 480, 124 P.3d 6 (2005); State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003). We do not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005). The district judge found that Brown considered it dangerous that the gun used in the homicide had not been located. Defendant had walked throughout Lawrence and Topeka, and the gun could have been anywhere, meaning a child might find it and more people could be harmed. The district judge regarded the concern as reasonable, and, although it would have made more sense for Brown to ask defendant about the gun before Miranda warnings were given, the judge did not “see anything or know of any cases that indicate that the sequence has to be a certain order. ... I have some concern with the time gap . . . [but it] is not an issue that the court can consider as long as there was a legitimate concern for public safety.” There is substantial evidence in the record to support the district court’s findings of fact about Brown’s worry over the gun, but the ultimate legal question of whether a public safety exception applies requires our independent review. See Mattox, 280 Kan. at 480. The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during a custodial interrogation and the right to remain silent. U.S. Const, amend. V; Miranda, 384 U.S. at 479. Miranda requires law enforcement to inform suspects of these rights before statements, exculpatory or inculpatory, made in a custodial interrogation can be admitted against them; Miranda, 384 U.S. at 444; but Miranda’s rules are procedural safeguards; they are not constitutional rights themselves. Michigan v. Tucker, 417 U.S. 433, 444, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974). In Quarles, 467 U.S. 649, the United States Supreme Court recognized an exception to Miranda in situations involving a threat to public safety. In that case, a woman reported that she had just been raped by an armed man who had escaped into a supermarket. The officers apprehended a suspect, noticing he had an empty shoulder holster. Without first advising him of his rights, an officer asked the suspect where the gun was. The suspect directed police to the gun behind some nearby empty cartons, and the statement was admissible because the need to ascertain the location of a potential danger to the public outweighed the need for the “prophylactic rule” of Miranda. Quarles, 467 U.S. at 657. Our courts have recognized the public safety exception expressed in Quarles and have applied it in pre-Miranda situations where there is an immediate need for an officer to protect himself or herself or the public. For example, in State v. McKesson, 246 Kan. 1, 7, 785 P.2d 1332, cert, denied 495 U.S. 937 (1990), we determined that a gun seized during a valid warrantless arrest of defendant in his motel room was admissible under the public safety exception, where police officers had asked the defendant about the location of the gun before reading him the Miranda warnings. In that case, officers had reason to believe that the defendant was armed, that an accomplice was in the bathroom, and that adjoining motel rooms were occupied. Public safety demanded determination, without delay, of the location of any weapons in the room. We have applied the public safety exception in other pre-Miranda situations as well. See State v. Drennan, 278 Kan. 704, 722-724, 101 P.3d 1218 (2004) (where officers had reasonable belief potential victim might be in danger, in need of assistance, officers justified in asking suspect about victim’s whereabouts before reading suspect Miranda rights); State v. Bailey, 256 Kan. 872, 880, 889 P.2d 738 (1995) (officer’s question about whereabouts of gun occurred after high-speed chase, report defendant was suspect in shooting; question fell within “public safety” exception); see also State v. Ewing, 258 Kan. 398, 404, 904 P.2d 962 (1995) (declining to discuss “persuasive” argument that public safety exception applied to pre-Miranda questioning where error in admission of statement harmless). Once the right to have counsel present during interrogation has been invoked, the courts impose a relatively rigid requirement that interrogation must cease. Questioning can be resumed only after a lawyer has been made available or the suspect reinitiates conversation. Edwards v. Arizona, 451 U.S. 447, 482, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981); State v. Henry, 273 Kan. 608, 613, 44 P.3d 466 (2002). This rule provides a second layer of prophylaxis for the Miranda right to counsel, designed to prevent police from badgering a defendant into waiving previously asserted rights. Michigan v. Harvey, 494 U.S. 344, 350, 108 L. Ed. 2d 293, 110 S. Ct. 1176 (1990); Mattox, 280 Kan. at 481; State v. Walker, 276 Kan. 939, 944-46, 80 P.3d 1132 (2003). Here, it is undisputed that defendant was in custody at the time his challenged statement was made; his invocation was clear and unambiguous; and he did not waive his asserted right to counsel by responding to Brown’s question concerning the whereabouts of the gun. A valid waiver of a previously asserted right cannot be established by showing only that the suspect responded to further police-initiated custodial interrogation, even if the suspect has been advised of his rights. Edwards, 451 U.S. at 484. The question that remains is one of first impression in Kansas: Can an officer’s response-provoking question meet the public safety exception expressed in Quarles and applied in McKessor if it is posed after Miranda warnings are given and after defendant invoked the right to have an attorney present during questioning? There is a split of authority on this issue. See United States v. Mobley, 40 F.3d 688, 692 (4th Cir. 1994), cert, denied 514 U.S. 1129 (1995) (public safety exception applies both before, after administration of Miranda warnings, right to counsel is invoked; however, absent circumstances posing objective immediate danger to public, police, need for exception not apparent; suspicion questioner on fishing expedition outweighs belief public safety motivated otherwise improper questioning); United States v. DeSantis, 870 F.2d 536, 541 (9th Cir. 1989) (even if accused has been advised of rights and invoked those rights, public safety exception applies with equal force as long as there remains objectively reasonable need to protect officers, public from immediate danger associated with weapon); Trice v. United States, 662 A.2d 891, 894-97 (D.C. 1995) (detective’s question after defendant’s assertion of right to counsel within public safety exception, although arrest, questioning occurred 4 days after shooting; detective waited 1 hour after arrest to ask question at police statioh rather than at defendant’s home; strong circumstantial evidence gun at defendant’s home; several small children in defendant’s home at time of arrest); Borrell v. State, 733 So. 2d 1087, 1089 (Fla. Dist. App. 1999) (police called to scene immediately after shooting; unarmed defendant surrendered within minutes; circumstances demonstrate “an objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon”); see also State v. Davis, 1999 WL 1050092, unpublished opinion of Ohio Court of Appeals filed November 19,1999, rev. denied 88 Ohio St. 3d 1433, 724 N.E.2d 809 (2000) (“public safety” exception extends to certain narrow circumstances where suspect informed of Miranda rights, invokes right to counsel; here, appellant undeterred by Miranda warnings, voluntarily gave location of weapon); compare United States v. Anderson, 929 F.2d 96, 98-102 (2d Cir. 1991) (public safety does not justify deceptive, coercive tactics; suspect had been read Miranda rights; agent coerced suspect saying he would lose opportunity to cooperate if attorney sought); State v. Pante, 325 N.J. Super. 336, 346, 739 A.2d 433 (1999), cert, denied 163 N.J. 76, 747 A.2d 285 (2000) (defendant revealed location of explosives after continued post-Miranda interrogation; public safety exception does not justify questioning after right to counsel invoked); State v. Harris, 199 Wis. 2d 227, 247, 544 N.W.2d 545 (1996) (public safety exception cannot excuse questioning after right to counsel invoked); see also People v. Zanini, 2003 WL 103464, unpublished opinion of California Court of Appeals filed January 10, 2003 (appellant arrested, taken to police station, given Miranda warnings; appellant invoked rights; officer subsequently mentioned concern about public safety; appellant again stated he did not want to incriminate himself; officer then implied anything appellant said would not be used to incriminate appellant; defendant’s statements inadmissible). We decline to weigh in on this conflict among the various federal and state courts, because a narrower ground for our decision exists in this case. Even if the district judge erred in admitting defendant’s statement about the gun, the error was harmless. See Ewing, 258 Kan. at 404 (declining to discuss Quarles exception; any error harmless). Defendant never disputed that he killed the victim with his gun. Seven persons saw him do so. Evidence that defendant knew the location of the gun after the shooting was of no probative value to the jury on the true contested issue at trial: defendant’s intent or justification for killing Martin. Under these facts, we are convinced that the district judge’s admission of defendant’s statement concerning the whereabouts of the gun was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967); State v. Thompkins, 271 Kan. 324, 335, 21 P.3d 997 (2001). Reference to Defendant’s Invocation of Rights Defendant next argues that the State’s introduction of evidence about his invocation of rights violated Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). He characterizes this error as one of prosecutorial misconduct, because the prosecutor used admissible evidence of his voluntary statements during the ride to Lawrence to open the door to inadmissible evidence of the earlier invocation of rights, and made improper comments designed to impeach defendant’s credibility. We agree. Generally, it is constitutionally impermissible for the State to elicit evidence at trial of an accused’s post-Miranda silence. Doyle, 426 U.S. at 618; see State v. Gadelkarim, 256 Kan. 671, 685, 887 P.2d 88 (1994). A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name, instead invoking the constitutional right to remain silent. State v. Brinkley, 256 Kan. 808, 820, 888 P.2d 819 (1995). The Doyle rule also applies when the State attempts to impeach a defendant’s credibility by arguing that the invocation of his or her right to counsel evidences guilt. See Doyle, 426 U.S. at 618; State v. Edwards, 264 Kan. 177, Syl. ¶ 8, 955 P.2d 1276 (1998). As mentioned, at the hearing on defendant’s motion to suppress, and again at the sidebar during trial, the defense objected to the admission of the fact that defendant had invoked his rights, but the district judge permitted officers to tell the jury they did not follow up on defendant’s unsolicited statements because of the invocation. This ruling was error; there was no need for the explanation the officers gave. See State v. Dumars, 33 Kan. App. 2d 735, 747, 108 P.3d 448, rev. denied 280 Kan. 986 (2005) (Doyle violation occurs when a prosecutor elicits testimony from a detective that a defendant exercised his or her right to silence). To make matters worse, the State went beyond presenting the bare fact that defendant had previously invoked his rights. During Brown’s trial testimony, after the prosecutor asked about defendant’s interview in Topeka and elicited the fact that defendant invoked his rights, the following exchange occurred: “Q. [Prosecutor:]. Now I am accurately stating that after you asked him about the gun, that you don’t ask him about any other—you don’t ask any other question of him? “A. [Detective Brown:]. No. “Q. But does he say, ‘I want you to know this,’ and [say] 1 didn’t want this to happen’? “A. That is right. “Q. Did he ever tell you why it happened? “A. No. “Q. Did you ever stop him from telling you why it happened? “A. No. “Q. Did he ever mention he was defending himself and another person? “A. No.” In addition, the prosecutor called Jumisko to testily about the substance of defendant’s spontaneous statements and then asked: “Q. Now did he at any point elaborate on any of the statements that you wrote down? “A. No. “Q. And if he were to—would have started talking about the circumstances under which this happened, would you have allowed him to say—tell you whatever he wanted to tell you? “A. If he had brought it up on his own, I would have written down what he said.” This pattern continued when the prosecutor cross-examined defendant: “Q. You agree with me that the first time that you—other than your lawyer, the first time you told anyone what you have told us here today is today; this is the first time? “A. No, sir. “Q. You agree that the Lawrence Police Department didn’t stop you from telling them whatever you wanted to tell them; do you agree with that statement? “A. Yes, sir. “Q. When you went to Topeka, you said you went to a friend’s house. “A. Yes, sir. “Q. Did you tell that friend what happened? “A. No, sir. “Q. You told [the man you met walking] that you shot a person in Lawrence; correct? “A. No, sir. I told [him] ‘I killed a man last night’ is what I told him. “Q. And this is yes or no. At no point . . . did you ever tell him that you killed a man to defend yourself or another person? “A. I didn’t say anything about the incident.” When evaluating a prosecutorial misconduct claim, this court first asks whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence. State v. Dixon, 279 Kan. 563, 590-91, 112 P.3d 883 (2005); State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). We agree with defendant that the prosecutor committed misconduct with regard to defendant’s invocation of his rights. In addition to “explaining” why the officers did not follow up on defendant’s unsolicited statements, the prosecutor repeatedly asked about defendant’s post-Miranda silence. We perceive no reason to have done so, except to imply to the jury that defendant’s assertion of the defense of another should not be believed. We defer for the moment our discussion of whether this misconduct necessitates reversal. Premeditation Defendant also argues that the prosecutor’s suggestion during closing argument that premeditation can be instantaneous also constituted misconduct that deprived him of a fair trial. The following is the challenged argument and ensuing exchange: “[Y]ou all might have your own ideas about that [legal concept, but] this is what the law tells you. ‘Premeditation: To have thought over the matter beforehand.’ So it’s not an intricate plan and you don’t have to find that Lafayette Cosby planned to kill Robert Martin prior to Robert Martin getting there that night. You don’t have to find that Lafayette Cosby planned to kill Robert Martin prior to going back to the room to get his gun. You just have to find that he thought it over beforehand, even if that was instantaneous. . . . “[Defendant’s Counsel]: I hate to interrupt, but I object because I don’t think that is a correct statement of the law. I think the case law specifically says he can’t— “[Prosecutor]: That is a matter for them to decide. “THE COURT: I agree with defense, but'I think that is what the—I think that is for the jury to decide. “[Defendant’s Counsel]: I apologize for the interruption. “[Prosecutor]: That is the definition of premeditation. There are some things you have to decide what they mean. You all have life’s experiences and that is why you are here. ‘To have thought over the matter beforehand.’ You have to decide what that means. Did Lafayette think the matter over beforehand? Did he know what he was doing when he went [to get the gun and came back to the kitchen]?” In State v. Pabst, 273 Kan. 658, 44 P.3d 1230, cert, denied 537 U.S. 959 (2002), the prosecutor’s statement that “premeditation means to have thought the matter over beforehand. It’s the conscious act of a person” was examined. We held this was not a misstatement of the law and thus did not qualify as prosecutorial misconduct. 273 Kan. at 661; see also State v. Doyle, 272 Kan. 1157, 1163-66, 38 P.3d 650 (2002) (“[s]omething can be premeditated as soon as it happens”; harmless misstatement because not purposeful; jury received proper instruction; premeditation supported by evidence); State v. Jamison, 269 Kan. 564, 572-73, 7 P.3d 1204 (2000) (statement that “premeditation can occur in an instant” harmless error; where jury given proper instruction, sufficient evidence of premeditation existed). However, we sent a clear warning in Pabst that prosecutors must avoid forms of the word “instant” or any synonym conveying that premeditation can develop instantaneously. Pabst, 273 Kan. at 662. We have consistently found reversible misconduct when a prosecutor states or implies that premeditation can be instantaneous. See, e.g., State v. Morton, 277 Kan. 575, 585, 86 P.3d 535 (2004) (prosecutor s gesture of firing gun, accompanied by statement, “That can be premeditation under the laws of the State of Kansas. One squeeze of a trigger is all it takes,” implied instantaneous premeditation; misconduct reversible); State v. Holmes, 272 Kan. 491, 497, 499-500, 33 P.3d 856 (2001) (prosecutor said “premeditation can occur in an instant. That’s the law in the State of Kansas”; deliberate misstatement constituted reversible error). Given Pabst’s warning, the prosecutor in this case should have known better. His misstatement of the law was outside the considerable latitude given him in discussing the evidence. Again, we defer for the moment our harmless error analysis. Rebuttal Testimony of Tony Wisdom The district judge twice rejected the State’s proffer of Wisdom’s testimony that defendant had a long-held irrational belief that Martin was trying to kill him. Relying on State v. Mason, 208 Kan. 39, Syl. ¶ 1, 490 P.2d 418 (1971), the district court ruled that the defense-of-another theory made the nature and character of the victim admissible by general reputation testimony. In contrast, evidence of the defendant’s character would not be admissible unless defendant put his character in issue. See K.S.A. 60-447(b); State v. Stokes, 215 Kan. 5, 6-7, 523 P.2d 364 (1974). During defendant’s testimony, defendant discussed the victim’s reputation and character, as well as specific instances of conduct he had witnessed. He suggested that Martin was wild, unpredictable, and dangerous. In response to the specific question of what was going through his mind when he acted or reacted on the night of the crime, defendant said, “Martin. You just have to know who he is”; “It was him. It’s who he was and that is why I reacted.” On cross-examination, the prosecutor then asked defendant whether it was true that he believed Martin had been trying to kill him for years; defendant strenuously denied holding that belief. The district court then permitted the State to call Wisdom in rebuttal. Defendant argues on appeal that Wisdom’s rebuttal testimony was inadmissible character evidence, because defendant had not put his character in issue. He characterizes Wisdom’s testimony as portraying him as a “drug-addled, delusional lunatic.” In a criminal case, evidence of the accused’s character, if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character. K.S.A. 60-447(b). Generally, when a person’s character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person’s conduct. K.S.A. 60-446. However, when a character trait is relevant to prove conduct on a specified occasion, the trait may not be proved by specific instances of conduct other than prior convictions. K.S.A. 60-447(a). A defendant on trial for murder, after laying a proper foundation by evidence tending to show that he or she acted in self-defense or, as here, defense of another, may introduce evidence of the turbulent and quarrelsome character of the deceased. See State v. Walters, 284 Kan. 1, 10, 159 P.3d 174 (2007); State v. Lumley, 266 Kan. 939, Syl. ¶ 9, 976 P.2d 486 (1999). Defendant did so here. He did not introduce evidence of his own good character; he did not offer testimony that he was a law-abiding citizen or that he was peaceful- and nonviolent. Defendant is correct that he did not put his own character in issue in this case. However, defendant’s argument on this issue is unavailing because Wisdom’s rebuttal testimony did not constitute character evidence. Rather, it related information about events Wisdom had seen and heard. The testimony contradicted defendant’s assertion that he had never said or believed Martin was after him and was proper rebuttal. The district court, properly exercising its discretion, determined that the Wisdom testimony should be excluded from the State’s case in chief, because, although relevant and admissible, it was more prejudicial than probative. See K.S.A. 60-445. But this calculus could be revisited and a different decision reached after defendant testified. A district judge has broad discretion in determining the use and extent of relevant evidence in rebuttal, and such a ruling will not be ground for reversal absent abuse of that discretion that unduly prejudices the defendant. Generally, admission of rebuttal evidence intended to contradict facts put into evidence during the defense case is not error. State v. Blue, 221 Kan. 185, 188, 558 P.2d 136 (1976) (rebuttal evidence admissible under K.S.A. 60-420 to attack defendant’s credibility; evidence competent to show testimony of defendant, defense witness false). We see no abuse of discretion in admission of Wisdom’s rebuttal testimony here. Cumulative Error Defendant’s last claim in this appeal is cumulative error. Cumulative trial errors, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative effect rule if the evidence is overwhelming against a defendant. State v. Anthony, 282 Kan. 201, 216-17, 145 P.3d 1 (2006). The evidence on the only truly contested issue in this case, the viability of defendant’s claim that he shot Martin to protect Johnson, was conflicting. Although seven persons witnessed the shooting, this aspect of the State’s case was not overwhelming. As discussed above, the admission of defendant’s statement about the gun, pursuant to the public safety exception, if erroneous, was clearly harmless standing alone. Given the truly overwhelming evidence that defendant was the shooter, we do not consider it relevant to cumulative error either. However, there were two significant errors in defendant’s trial. The Doyle violation was due initially to the district judge’s error. However, it was compounded by the prosecutor’s repeated misconduct, which created a serious problem. The prosecutor’s further statement during closing that premeditation could be instantaneous also was serious. We observe that the prejudice inquiry at the heart of the cumulative error standard mirrors the prejudice analysis applicable when prosecutorial misconduct is at issue. Given the overlay of prosecutorial misconduct in this case, we look to the Tosh rubric, 278 Kan. at 93, for guidance. Under that rubric, once we discern that an error arose from prosecutorial misconduct, we are required to determine whether the error qualifies as “plain,” i.e., whether the prosecutor s behavior prejudiced the defendant and denied him or her a fair trial commands consideration of three factors: (1) whether the prosecutor’s 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 little weight in the minds of jurors. Dixon, 279 Kan. at 592. None of these factors is individually controlling. Moreover, the third factor may not override the first two factors, unless the harmlessness tests of both K.S.A. 60-261 and the federal harmless error rule outlined in Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967), have been met. Tosh, 278 Kan. 83, Syl. ¶ 2. Were we dealing with only the district judge’s error in permitting the police to “explain” why they did not follow up on defendant’s voluntary statements, we would be somewhat less concerned with the effect of the Doyle violation on the fairness of defendant’s trial. A Doyle violation can be ruled harmless. Brecht v. Abrahamson, 507 U.S. 619, 638-39, 123 L. Ed. 2d 353, 113 S. Ct. 1710, reh. denied 508 U.S. 968 (1993); State v. Fulton, 28 Kan. App. 2d 815, 820-21, 23 P.3d 167, reh. denied 271 Kan. 1039 (2001). But we are faced not only with the judge’s erroneous admission of a limited reference to defendant’s post-Miranda invocation of his rights. As detailed above, the prosecutor attempted to capitalize on the jury’s familiarity with this invocation, asking again and again about defendant’s initial failure to claim that he was protecting Johnson. These multiple instances of misconduct, coupled with the prosecutor’s later misstatement of well-known law on the definition of premeditation lead us to conclude that the misconduct was gross and flagrant and demonstrated ill will. The lack of overwhelming evidence undercutting the defense-of-another theory, when both K.S.A. 60-261 and Chapman are taken into account, further persuades us that this case must be reversed and remanded for new trial. We pause only to note one additional defense argument, hoping to put it to rest. K.S.A. 60-261 provides that no error “is ground for granting a new trial or for setting aside a verdict . . . unless refusal to take such action appears inconsistent with substantial justice.” The Chapman formula for harmlessness of constitutional error frequently recited by this court requires reversal unless we are willing to declare a belief that it was harmless beyond a reasonable doubt. 386 U.S. at 24. Stated another way, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Thompkins, 271 Kan. 324, 335, 21 P.3d 997 (2001). This formulation of the federal constitutional harmless error rule has been recognized as synonymous with that set forth by the United States Supreme Court in Fahy v. Connecticut, 375 U.S. 85, 11 L. Ed. 2d 171, 84 S. Ct. 229 (1963). In Fahy, the Court said: “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” 375 U.S. at 86-87; see Chapman, 386 U.S. at 23. In State v. Kleypas, 272 Kan. 894, 1084-85, 40 P.3d 139 (2001), cert, denied 537 U.S. 834 (2002), we addressed the various statements of the Chapman rule, acknowledging that Kansas’ use of “little, if any, likelihood of changing the result of the trial” was marginally different from Chapmans “willingness to declare a belief that it was harmless beyond a reasonable doubt.” However, we regarded them as equivalent to one another. Kleypas, 272 Kan. at 1084. Today in response to defense counsel’s oral argument, we say unequivocally that neither of these formulations differs substantively or functionally from Fahy’s standard. Reversed and remanded for new trial.
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Per Curiam: This is an original uncontested proceeding in discipline filed by the office of the Disciplinaiy Administrator against respondent, Scott L. Ruther, an attorney admitted to the practice of law in Kansas in September 1985. The respondent’s last registration address filed with the Clerk of the Appellate Courts of Kansas is in Lenexa, Kansas. A hearing panel of the Kansas Board for Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211 (2007 Kan. Ct. R. Annot. 304). The hearing panel concluded respondent violated the Kansas Rules of Professional Conduct as follows: KRPC 1.15(d)(1) (safekeeping property) (2007 Kan. Ct. R. Annot. 473); KRPC 1.15(d)(3)(iii) (rules and procedures concerning interest on attorney trust account); and KRPC 1.15(e) (attorney certification of compliance with KRPC 1.15), as well as Supreme Court Rule 211(b) (requiring service of answer to complaint within 20 days). The panel unanimously recommended that the respondent be indefinitely suspended from the practice of law in the state of Kansas. The respondent did not file exceptions to the final hearing report. FINDINGS OF FACT The hearing panel’s findings of fact are summarized as follows. On May 24, 2004, respondent completed the 2004 Kansas attorney registration form. On the form respondent indicated he had neither a Kansas trust account nor a Kansas Interest on Lawyers Trust Account (IOLTA). Additionally respondent certified: “I am familiar with and have read Kansas Supreme Court Rule 226, KRPC 1.15, and I and/or my law firm comply/complies with KRPC 1.15 pertaining to preserving the identity of funds and property of a client.” In fact, respondent had opened an interest-bearing savings account at a Lenexa Bank on August 13, 2001, which was open and active during the investigation stage of the proceedings herein. In February 2005, a complaint was filed against the respondent regarding his trust account. Robert Straub, an investigator with the Disciplinary Administrator’s office, conducted the investigation. On March 8, 2005, Mr. Straub met with the respondent and conducted an audit of the respondent’s trust account. Mr. Straub discovered certain irregularities with the way the respondent handled his trust account. Specifically the panel found: “The Respondent used the Trust Account to hold client money. Additionally, the Respondent used the Trust Account to hold personal money. For example, in 2004, the Respondent deposited personal funds on two occasions. On May 18, 2004, the Respondent deposited personal funds in tire amount of $12,500 into the Trust Account. Then, on May 25, 2004, the Respondent deposited in excess of $96,000 into the Trust Account in behalf of a client. Thereafter, on June 1, 2004, the Respondent withdrew the personal funds in the amount of $12,500. The $96,000 remained in the Respondent’s Trust Account until July 28, 2004. Following the withdrawal of the $96,000, accumulated interest on those funds remained in the account. On August 16, 2004, the Respondent deposited $9,602.16 of personal funds into the Trust account. The Respondent withdrew the $9,602.16 in two transactions. On January 24,2005, the Respondent withdrew $4,500. Then on March 9, 2005 [the day after the Straub interview], the Respondent closed the account and withdrew the balance of the $9,602.16 deposit as well as accumulated interest on client money.” There is no finding or claim that any principal belonging to a client was diverted by respondent or that the balance in the account ever fell below what was owed to clients. Ultimately a formal complaint was filed and appropriately served on respondent. No response was filed by respondent. CONCLUSIONS OF LAW The hearing panel’s conclusions of law are summarized as follows: 1. Respondent violated KRPC 1.15(d)(1) whenhe commingled his personal funds with those of a client. Specifically that section requires: “(d) Preserving identify of funds and property of a client. (1) All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the State of Kansas with a federal or state chartered or licensed financial institution and insured by an agency of the federal or state government, and no funds belonging to the lawyer or law firm shall be deposited therein except as follows: (i) Funds reasonably sufficient to pay bank charges may be deposited therein. (ii) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.” (2007 Kan. Ct. R. Annot. 474.) 2. Respondent violated KRPC 1.15(d)(3)(iii) when he retained interest that had accrued on the client’s money. The applicable section provides: “(d) Preserving identity of funds and property of a client. (3) Except as provided in subsection (3)(iv), any lawyer or law firm that creates or maintains an account for funds of clients or third persons, that are nominal in amount or that are expected to be held for a short period of time and on which interest is not paid to the clients or third persons shall comply with the following provisions: (iii) If the account bears interest, lawyers or law firms that deposit client funds in such an account shall direct the depository institution: (aa) to remit at least quarterly, to the Kansas Bar Foundation, Inc., interest or dividends, as the case may be, on the average monthly balance in the account or as otherwise computed in accordance with the institution’s standard accounting practice; and (bb) to transmit with each remittance to the Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent and the rate of the interest applied; and (cc) to transmit to the depositing lawyer or law firm at the same time a report showing the amount paid to the Foundation, the rate of interest applied, and the average account balance of the period for which the report is made.” (2007 Kan. Ct. R. Annot. 474-76.) 3. Respondent violated KRPC 1.15(e) when he certified on his 2004 attorney registration form: “ T am familiar with and have read Kansas Supreme Court Rule 226, KRPC 1.15, and I and/or my law firm comply/complies with KRPC 1.15 pertaining to preserving the identity of funds and property of a client.’ ” (2007 Kan. Ct. R. Annot. 476.) This was a false certification as respondent was clearly not in compliance with the requirements of that section as previously noted. Further, respondent falsely checked the box on the same form stating he did not have a Kansas trust account. 4. Respondent violated Kansas Supreme Court Rule 211(b) when he failed to serve an answer to the formal complaint within 20 days of service of the complaint. The rule provides: “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.” (2007 Kan. Ct. R. Annot. 305.) ANALYSIS 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); see Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304). When a respondent does not file exceptions to the hearing panel’s report, the report is deemed admitted under Supreme Court Rule 212(c) and (d) (2007 Kan. Ct. R. Annot. 317). In this case, respondent filed no exceptions to the hearing panel’s report. We conclude that the hearing panel’s findings of fact are supported by clear and convincing evidence and that the findings of facts support the hearing panel’s conclusions of law. We therefore adopt the hearing panel’s findings and conclusions and find that respondent violated KRPC 1.15(d)(1), 1.15(d)(3)(iii), 1.15(e), and Kansas Supreme Court Rule 211(b). We turn now to the question of what is the appropriate discipline to be imposed. This case has some bizarre facets. It is unique in that what was initially a rather minor disciplinary matter has escalated by virtue of respondent’s actions or, specifically, nonactions into a very serious situation. The panel’s final hearing report tracks the record as follows: “7. Following the investigation, on August 22, 2005, a Deputy Disciplinary Administrator wrote to the Respondent, informed him that the Review Committee of the Kansas Board for Discipline of Attorneys found probable cause to believe that he had violated KRPC 1.15 and suggested that the Respondent apply for the Attorney Diversion Program. The Deputy Disciplinary Administrator asked the Respondent to reply within 20 days. The Respondent did not respond to the Disciplinary Administrator’s letter. “8. On November 7,2005, the Deputy Disciplinary Administrator again wrote to the Respondent. She provided the Respondent with additional time to apply for the Attorney Diversion Program. The Respondent failed to respond to the Deputy Disciplinary Administrator’s second letter. “9. On December 5, 2005, the Disciplinary Administrator wrote to the Respondent, informed him that the Review Committee of the Kansas Board for Discipline of Attorneys directed that the Respondent be informally admonished for violating KRPC 1.15. The Disciplinary Administrator scheduled the informal admonition for January 10, 2006. The Respondent failed to appear for the scheduled informal admonition. “10. On January 18, 2006, the Disciplinary Administrator again wrote to the Respondent. The Disciplinary Administrator directed the Respondent to call and explain why he did not appear for the informal admonition. The Respondent failed to call the Disciplinary Administrator as directed. “11. On February 16, 2006, the Disciplinary Administrator called the Respondent by telephone. The Disciplinary Administrator left a message for the Respondent to return the call. The Respondent failed to return the call. “12. On February 23, 2006, the Disciplinary Administrator wrote to the Review Committee. The Disciplinary Administrator informed the Review Committee that the Respondent had failed to apply for diversion, appear for an informal admonition, respond to written requests, and return telephone calls to the Disciplinary Administrator’s office. As a result, the Disciplinary Administrator requested permission to schedule this matter for hearing. “13. On March 1, 2006, the Disciplinary Administrator wrote to the Respondent. The Disciplinary Administrator informed the Respondent that the Review Committee had directed that this matter be scheduled for hearing. The Discipli naiy Administrator encouraged the Respondent to retain counsel. Additionally, the Disciplinary Administrator informed the Respondent of [the] rale regarding probation plans. “14. The Respondent failed to fulfill the minimum continuing legal education requirements and failed to pay an associated fee for the 2005-06 compliance period. As a result, on October 11, 2006, the Kansas Supreme Court suspended the Respondent’s license to practice law. “15. On November 14, 2006, the Disciplinary Administrator wrote to the Respondent and informed him that the case had been scheduled for hearing on April 12, 2007. “16. On March 7, 2007, the Deputy Disciplinary Administrator forwarded a copy of the Formal Complaint and the Notice of Hearing to the Respondent at his last registration address. On March 8, 2007, the formal Complaint and Notice of Hearing were received at the Respondent’s office and signed for by Laura Jacobs. The Respondent/mfed to file an Answer to the Formal Complaint.” (Emphasis supplied.) Additionally respondent failed to appear at the hearing before the panel. Consistent with his prior inactions, respondent failed to appear at the hearing before this court. The panel noted respondent had been admitted to the practice of law in Kansas for 20 years with no prior disciplinary record. The panel furdier found that respondent had engaged in bad faith obstruction of the disciplinary proceeding by intentionally and repeatedly failing to comply with the rules and orders of the process, to return telephone calls, and to appear as directed. Respondent’s total lack of cooperation and participation in the disciplinary process presents a unique situation. As noted in the panel’s findings, this matter could have easily been resolved by respondent. He was offered diversion and later, private admonition. No explanation or reason has been proffered or even suggested why respondent chose to totally ignore his problem with the disciplinary process. Therefore, we must assume the conduct was intentional and without any mitigating circumstances. The panel recommended indefinite suspension as the appropriate discipline. We agree. Respondent’s conduct renders any lesser discipline inappropriate. The period of indefinite suspension shall be deemed to have commenced on October 11, 2006, the date respondent was suspended for noncompliance with CLE requirements. It Is Therefore Ordered that Scott L. Ruther be and he is hereby indefinitely suspended from the practice of law in the state of Kansas. This order shall be retroactive to October 11, 2006. It Is Further Ordered that respondent forthwith comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports.
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The opinion of the court was delivered by Davis, J.: Thomas Murray appeals from his conviction of first-degree murder for killing his former wife. He contends that his conviction must be reversed based on the following claims of error: (1) Prosecutorial misconduct during the State’s closing argument; (2) the admission of testimony regarding the defendant’s post-Miranda silence; (3) the admission of hearsay statements of the victim concerning her relationship with the defendant; (4) cumulative error; and (5) insufficiency of the evidence to support his conviction. We conclude that no reversible error occurred and affirm. Facts On November 14, 2003, the Douglas County Sheriffs Department received a call from Larry Lima, who lived in California, requesting that the police conduct a welfare check on his fiancee, Carmin Ross. Carmin lived at 1860 E. 1150 Road in rural Douglas County. The home is situated about .6 miles from County Road 438 and about 500 feet from the nearest residence. The officers arrived at Carmin’s residence shortly after 1 p.m. and knocked on the front door. One of the officers looked through a window and saw what appeared to be blood and someone’s knee. The officers split up and met again at the back of the home; neither officer present observed any broken windows or other signs of forced entry into the home. After entering the home through the back door, the officers found Carmin lying on the floor in her living room. The room was in disarray, with a potted plant on its side and the coffee table partially flipped over on the couch. Blood spots were found throughout the area. There was no evidence of a sexual assault and no evidence that anything had been removed from the home. An autopsy revealed that Carmin had suffered 11 lacerations due to blunt force injury followed by 13 stabs in the neck with a knife, as well as several defensive wounds on her arms. Neither the knife nor any other weapon was found on the premises, although a knife was missing from Carmin’s knife block in the kitchen. The detectives hypothesized that Carmin’s attacker had first beaten her, and, unsure whether the beatings would kill her, the attacker retrieved a knife from Carmin’s kitchen and stabbed her. Aside from the mess in the living room, Carmin’s house was clean and well kept. In addition, Carmin’s car was still in the driveway; no windows were broken, and there was no indication that anything had been stolen. An exhaustive investigation ensued. Officers searched the roadway and garbage from rest areas near Carmin’s home and interviewed all those who knew Carmin to determine when she had last been seen alive. The Riley County Police Department contacted the defendant at about 7:30 p.m. on November 14, 2003. The defendant and Carmin had been married until Carmin met Lima at a conference in Wichita in 2002; they divorced in the spring of 2003 and were currently in a custody struggle over their 4-year-old daughter, Ciara. When the police arrived at the defendant’s home, the defendant walked into an adjacent room, picked up Ciara, and answered the door with his daughter in his arms. The defendant appeared distraught when the police informed him that Carmin had died. However, he never asked the officers how Carmin had died or whether her death had involved foul play. The defendant then drove himself to the police department for a requested interview with police. The defendant’s interview at the police department lasted approximately 9V2 hours, with the majority of the interview being audio- and video-recorded. The detectives noticed that during the first 2 hours of the interview, the defendant kept his right hand in his lap or under his leg. The detectives later noticed that the defendant had a cut on his little finger on his right hand and bruises along the outside of both of his wrists and on his hands and arms. The defendant explained that he cut his finger when cutting a pineapple for Ciara. Although he initially could not remember where the bruises came from, he later told the investigators he was bruised when he was playing with Ciara and bouncing her on his knees. By 9 p.m., the defendant still had not asked how Carmin died but was voluntarily explaining in detail how he had spent his time the previous day. He also told the detectives that they would find his DNA on the carpet of Carmin’s living room. At about 10 p.m., the investigators pointed out to the defendant that he had yet to ask how Carmin died; the defendant said he did not want to know the details. At 11 p.m., investigators sought the defendant’s consent to search his car and home. He signed a written consent for both searches and told the detectives, “I’ll tell you what you’re going to find in [the] car.” The defendant explained that the detectives would find “Carmin’s blood” and her fingerprints. No one had informed the defendant at that time that Carmin’s death had been bloody or violent. The defendant also consented to the search of his computers both at home and at his office at Kansas State University. The defendant went on to explain that Carmin had borrowed his car a few weeks ago when Ciara was ill so that Carmin could get medicine at Walgreens, because her car was blocked in by the defendant’s vehicle when he was visiting. According to the defendant, Carmin suffered a horrible nosebleed on the way. Although no one had informed the defendant how Carmin died, he told the police in his interview that he would not have done anything “like they were suggesting” because he was a “thinking man.” He explained that if he were going to commit a homicide, he would do it with an airborne poison “or something really slick.” He later stated that he was “having fun with this from a CSI perspective.” At about 12:30 a.m., the defendant agreed to provide the police with a written statement. He then asked a detective who came into the room whether there were cameras in the toll booths along I-70. When the officer answered that there were cameras, the defendant replied, “That’s all I need to know.” When he completed his written statement, he told the detectives that something in the statement would cause them to look at it “with a raised eyebrow.” He tiren stated that he failed to point out that he drove on 1-70 the previous morning to look at pillow cases in Paxico. About 3 a.m., the defendant explained that Carmin’s blood would be in his house because Carmin had cut herself when trying to cut a piece of candy for Ciara on Halloween. He also explained that his blood would be found in her downstairs bathroom because when he was at Carmin’s home after mediation on the previous Tuesday, he had picked a callus and had caused it to bleed. The detective then informed the defendant for the first time that Car-min had been murdered and that the murder had occurred in her own home. Following the interview, the defendant left the police department without being charged. Further consideration and investigation of the defendant’s police interview undermined many of the explanations that he provided in his statement. Specifically, several acquaintances indicated that Ciara was not the type of child who wrestled or roughhoused. Fur thermore, no witness could verily the defendant’s statement that Carmin was prone to nosebleeds. Ciara’s babysitter told the detectives that on the morning Carmin was murdered, the defendant had dropped off Ciara at least 30 minutes early. Furthermore, although the defendant had initially told the police officers in his interview that he was at home grading tests all morning, a number of his students at the university stated that he was grading the students’ papers in class as they were turned in. The defendant’s statements regarding his grading of tests were also inconsistent with his later statement during the interview that he had driven to Paxico to look at antique pillowcases. DNA testing showed that all of the blood in Carmin’s house belonged to tire victim, with the exception of a drop of blood on the baseboard of Carmin’s downstairs bathroom. This drop of blood contained at least two contributors—Carmin and an unknown male. While there was a blood pattern found just inside the front porch that was consistent with a work boot or shoe, no such shoe was found, either in the vicinity of Carmin’s house or at the defendant’s home. No other impression was found. In addition, a number of acquaintances informed the investigators of statements made by the defendant leading up to Carmin’s death. The defendant had told a neighbor that he “ would be better off if [Carmin] weren’t alive.’ ” The defendant also made numerous statements to his best friend, GayLynn Crossley-Brubaker. Crossley-Brubaker explained that she had called the defendant on the evening of November 13 (the day Carmin was allegedly murdered) to discuss Thanksgiving plans and noted that the defendant seemed unusually upbeat. On November 15,2003, the defendant called Crossley-Brubaker and told her that Carmin was dead and that the police were treating him as a suspect. He also told his friend that he had cuts on his hands as if “holding a knife by the blade.” He repeatedly said, “ ‘All I see is the blood, all the blood.’ ” Crossley-Brubaker also questioned the defendant’s indication that he had gone to Paxico to look at pillowcases on the morning of Carmin’s death, because she had not known that the defendant was interested in antiques and she did not think he would waste the gas on such a trip. A search of the defendant’s computer revealed that he had run several searches between October 8, 2003, and November 10, 2003, including: “colorless and odorless poison”; “homicide”; “poisoning and colorless and odorless and murder and perfect and tasteless”; “murder for hire”; “how to hire an assassin”; “how to kill someone quickly and quietly”; “the best way to kill someone”; and “eyedrops and murder and csi.” On November 12, 2003, the day before Carmin’s death and the day after the defendant learned at custody mediation that Lima was moving to Lawrence and that eventually Carmin wanted to move with him and Ciara to California, the defendant conducted a search for “highway 40” and “Topeka.” The links that followed illustrated how to drive from Topeka to Lawrence without using the Kansas Turnpike. Ten months after her death, the State charged Thomas Murray with first-degree murder for killing Carmin. After a 4-week trial, the juiy found the defendant guilty of first-degree murder. The court sentenced him to fife in prison with the possibility of parole after 25 years. Murray now appeals his conviction. I. Prosecutorial Misconduct During Closing Argument The defendant argues that the State committed prosecutorial misconduct during closing argument by misstating the evidence relating to the DNA analysis of the blood spot found in Carmin’s bathroom and by misconstruing testimony of GayLynn Crossley-Brubaker. The defendant did not object to either of the prosecutor’s comments that he now claims were problematic. Ordinarily, a party must make a timely and specific objection to an alleged error in order to preserve the issue for appellate review. See K.S.A. 60-404; State v. Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006). However, when a defendant’s claim for prosecutorial misconduct implicates his or her right to a fair trial, an appellate court reviews the alleged misconduct under the same analysis, regardless of whether an objection was made. State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006). We have found that a defendant’s right to a fair trial is implicated when a prosecutor misstates facts or states facts not in evidence. See State v. Conway, 284 Kan. 37, 43-44, 159 P.3d 917 (2007); State v. Ly, 277 Kan. 386, 392-93, 85 P.3d 1200, cert, denied 541 U.S. 1090 (2004). Standard of Review Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an 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. Swinney, 280 Kan. at 779. In its plain error analysis, the appellate court considers three factors: “(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence is of such a direct and overwhelming nature that the misconduct would likely have 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, 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.]” 280 Kan. at 779-80. When a defendant claims that a prosecutor committed reversible misconduct, the prejudicial nature of alleged errors is analyzed in the context of the trial record as a whole. State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994). Discussion Comments Regarding DNA Analysis According to the defendant, the prosecutor committed reversible misconduct when she stated during the State’s initial closing argument segment that there was “[bjlood in the house. His [the defendant’s] blood, her [Carmin’s] bathroom. Defendant killed Carmin.” The defendant asserts that this statement misrepresented the results of the DNA tests relating to the blood stain on the floorboard of the bathroom, which were inconclusive as to whether the blood belonged to the defendant. This court has previously explained that during “closing argument, the prosecutor may draw reasonable inferences from the evidence but may not comment upon facts outside the evidence. [Citation omitted.]” (Emphasis added.) State v. McCray, 267 Kan. 339, 351, 979 P.2d 134 (1999). More recently, the court stated: “The fundamental rule for closing arguments is that the prosecutor must confine his or her remarks to matters in evidence. It is clearly improper for the prosecutor to state facts that are not in evidence. When the prosecutor argues facts that are not in evidence, the first prong of the prosecutorial misconduct test is met, and an appellate court must consider whether tire misstatement of fact constitutes plain error.” Ly, 277 Kan. 386, Syl. ¶ 4. The defendant argues that the prosecutor s statement during closing argument that his blood was found in Carmin’s bathroom was a misstatement of the evidence. In particular, the defendant asserts that the prosecutor’s statement was inconsistent with the report from the DNA analysis of the bloodstain found on the baseboard of Carmin’s bathroom, which stated that no conclusion could be drawn as to whether the bloodstain matched the defendant’s DNA. The State counters that the question of whether the bloodstain in the bathroom matched Murray’s DNA was a hotly contended issue of fact. The State points to testimony and other evidence indicating that the blood on the baseboard was Murray’s, claiming that the prosecutor was free to argue reasonable inferences from that evidence—namely, that the defendant’s blood was found in the bathroom. In addition, the State claims that any possible error in the statement was cured since the court instructed the jury that the remarks of counsel in closing arguments are not evidence. Our review of the record in this case reveals that there was evidence to support the prosecutor’s statement that the defendant’s blood was found in Carmin’s bathroom. A drop of blood containing male DNA was found at the baseboard. After conducting a Y-STR analysis to isolate the male DNA, Dr. Sudhir Sinha, who conducted the analysis of the bloodstain, testified that according to scientific policies, the presence of one particular “peak” in the DNA of the bloodstain that did not match the defendant’s sample, as well as the relatively weak nature of some of the peaks in the unknown sample, required Dr. Sinha to report that no conclusion could be drawn regarding the correlation between the unknown sample and the defendant’s DNA. However, the doctor testified that the inconclusive results of the analysis were probably due to the location of the bloodstain—the bathroom baseboard—as a number of people would use that bathroom and the sample would be diluted and mixed over time. The doctor also testified that in his professional opinion and from his experience, the bloodstain DNA from Car-min’s bathroom was consistent with the defendant’s DNA: “Q. [Prosecutor] Doctor, based on your experience, do you have an opinion with a reasonable degree of scientific certainty whether Tom Murray’s DNA is consistent with the baseboard sample? “A. [Dr. Sinha] Well, as far as our standard quality control we gave the result inconsistent, inconclusive. But as far as my experience looking at it and looking at the data and doing several times and always finding the fifteen there, and that it’s my scientific opinion that, yes, he is not excluded, and the result looks consistent that out of the mixture he could be one of the person[s] there present.” In addition, the doctor testified that other DNA tests specifically excluded other men who could be connected to the bathroom, sucb as Lima, because the tests showed no correlation between the DNA samples. However, the defendant’s sample resulted in a strong enough correlation to the unknown sample that scientific policies would not exclude Murray as a possible contributor—it was just not conclusive according to scientific standards. Moreover, in his initial interview with the police after he learned of Carmin’s death, the defendant stated that he would “guarantee that you’ll [the police] find a drop of my [the defendant’s] blood” in Carmin’s bathroom. The defendant then explained that he had cut open a callus when he was at Carmin’s house on the Tuesday before her death and had cleaned up the blood with a towel in the bathroom. The record indicates that the towel rack that would have held this towel (which was not found in the bathroom when Car- min’s body was discovered on Friday) was located directly above where the bloodstain was found on the baseboard. We conclude that there was ample evidence in the record to support the prosecutor’s argument that the defendant’s blood was found in Carmin’s bathroom. Thus, the prosecutor’s comments were reasonable inferences based on the record and were within the wide latitude allowed prosecutors during closing argument. See State v. Stano, 284 Kan. 126, 151, 159 P.3d 931 (2007). Our conclusion that the prosecutor’s comments regarding the bloodstain were acceptable argument based on the record is further strengthened by the later statements of both the defense and the State during closing argument in this case. We note that the comment that the defendant alleges was erroneous was made near the close of the State’s initial argument—before the defense’s closing argument and before the State’s rebuttal. Both the defense and the State argued regarding the bloodstain at length during the later portions of the argument, underscoring the factual bases on both sides of the issue. During its closing argument, the defense made the following assertions relating to the DNA and Y-STR analyses: “DNA analysis is not a matter of guessing, DNA analysis is not a matter of a hunch. DNA analysis is not a matter of a guess. DNA analysis is not a matter of what is most convenient at the time that one is testifying about it, or arguing about it. DNA analysis is a scientific process that is used in courts across this country by jurors like yourself to make decisions of immense importance. The DNA analysis conducted by Dr. Sinha concluded in his report the following language: ‘Additional peaks below threshold and peak imbalance suggest the presence of more than one male DNA donor in this sample.’ And it goes on to conclude, ‘Due to the low level nature of the sample and possible allele dropout resulting from degradation, no conclusion can be drawn regarding the suspect Thomas Murray and this sample.’ ” The defense counsel then argued that the jurors should not believe Dr. Sinha’s testimony where he stated that he believed the collected sample was consistent with the defendant’s DNA, because this testimony was based on personal belief and not on the accepted scientific standards. During rebuttal, die prosecutor had the opportunity to clarify his argument relating to the bloodstain and accompanying report, asserting: “We talked about the DNA evidence. And this report’s in evidence, and the Doctor told you every time they ran the tests, Murray’s DNA matched here, here, one of the top spots here, here, here, here and here. The 18 was the only place it didn’t match, and what he said was there is a baseboard, and that’s what all the DNA people say, they say when you’re swabbing the baseboard it’s not unusual, doesn’t mean all the DNÁ was deposited at the same time, when you’re swabbing the baseboard, it wouldn’t be unusual to get other DNA in there. That was the only marker that somebody else, the second male, was found at, drat 18. All the other [markers] were Murray’s, and what the doctor told you— “Look at the markers. Time and time again, Dr. Sinha told you he cannot exclude his [Murray’s] blood and guess what, it’s right where he said he bleeded blood, remember? Oh, I cut my [callus] and I dripped it, I dripped it on the towel right there, the towel that’s missing from the ring that sits right here. There is the waste can. It’s the identical place that he predicted in his interview that we’d find it.” The extended argument by both the defense and the State regarding the DNA testing illustrates that this was a highly contested question of fact and that the prosecutor’s argument consisted of reasonable inferences based on the record in this case. We conclude that the prosecutor’s statement did not constitute prosecutorial misconduct. Comments Regarding Crossley-Brubakers Testimony The defendant also argues that the prosecutor committed reversible misconduct by making the following statement during closing argument: “[L]et’s talk about GayLynn, who demonstrably is probably his [the defendant’s] best friend. . . . His best friend, and what did the defense ask, ‘Did it ever cross your mind, did it ever once cross your mind, that Thomas Murray could be involved?’ She said, ‘Yes.’ She does believe he’s involved, that’s what she told you, his best friend. His best friend thinks he’s a murderer.” (Emphasis added.) The defendant argues that this statement was improper for two reasons. First, the defendant claims that the comment misstated Crossley-Brubakers testimony. Second, the defendant argues that personal opinions regarding the guilt or innocence of a defendant should not be admitted into evidence, and for the same reason, comments on such opinion testimony are not proper for prosecutors during closing argument. The testimony discussed by the prosecutor during closing argument was elicited during defense counsel’s cross-examination of Crossley-Brubaker and the prosecutor’s subsequent redirect examination of the witness. During cross-examination, defense counsel asked Crossley-Brubaker if the reason that she had never asked the defendant whether he killed Ross was because “no such thing ever even crossed [her] mind.” Crossley-Brubaker responded, “I can’t answer that question yes or no.” On redirect examination, the prosecutor explored the witness’ answer in greater detail: “Q. (By Mr. Bath) Did it ever cross your mind that he [the defendant] was involved in the homicide? “A. [Crossley-Brubaker] Yes. “Q. And what was, when was that? “A. Um, a couple of red flags. “Q. No, when was it? “A. When? On the 15th. “Q. And did you do anything as a result of your thoughts? “A. Yes. “Q. What did you do? “A. I went to the viewing to talk, to try to find out more information. “Q. And at the end of the viewing, which would have been the 22nd or 21st? “A. 22nd. “Q. Did you do something? “A. Yes. “Q. What did you do? “A. I contacted the Sheriff s Department. “Q. Here? “A. At Douglas County, yes.” Defense counsel initially objected to this line of questioning by the prosecutor, but the court overruled his objection on the basis that defense counsel had asked a similar question during cross-examination and so opened the door to the issue on redirect examination. The defendant does not appeal this ruling. “No rule governing oral argument is more fundamental than that requiring counsel to confine their remarks to matters in evidence. The stating of facts not in evidence is clearly improper.” State v. Bradford, 219 Kan. 336, 340, 548 P.2d 812 (1976). Although “a prosecutor may not misstate the facts in evidence,” we have already explained that “a prosecutor is permitted to draw reasonable inferences from the evidence and is given latitude in drawing those inferences.” Stano, 284 Kan. at 151; see also State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000) (stating that the law recognizes a prosecutor must be allowed “the freedom to craft an argument drat includes reasonable inferences based on the evidence”). When a defendant claims that a prosecutor committed reversible misconduct, the prejudicial nature of the alleged errors is analyzed in the context of the trial record as a whole. Whitaker, 255 Kan. at 134. Crossley-Brubaker testified on cross-examination that it had “cross[ed] [her] mind” that Murray was “involved in the homicide.” She explained that after her concerns were not put to rest at Car-min’s visitation, she contacted the Douglas County Sheriffs Department. Contrary to the defendant’s contention on appeal, we find that the prosecutor’s argument that Crossley-Brubaker thought Murray was “a murderer” is a reasonable inference based on the witness’ testimony. Our review of the defendant’s second argument relating to the prosecutor’s statement—that it was improper to base closing argument on improperly-admitted opinion testimony—leads us to conclude that this contention is also without merit. It is notable that the defendant does not appeal the trial court’s determination that Crossley-Brubaker’s testimony was admissible since the defense had opened the door on cross-examination. It appears that the defendant is attempting to circumvent the fact that Crossley-Brubaker’s statement originated during cross-examination by asserting that even though the statement was in evidence due to actions by defense counsel, the prosecutor should be precluded from arguing that evidence since opinion testimony is unreliable. Such an argument is not supported by Kansas law. Instead, we have held that no prejudicial error occurs—including prosecutorial misconduct—where the questionable statements are provoked and made in response to prior arguments or statements by defense counsel. State v. Elnicki, 279 Kan. 47, 64, 105 P.3d 1222 (2005). Although defense counsel did not (understandably) mention Crossley-Brubaker’s testimony during closing argument, it was the defense’s actions that introduced the witness’ in itial statement regarding the defendant’s guilt. It was therefore not improper for the prosecutor to argue inferences based on that testimony during closing argument. For these reasons, we conclude that the prosecutor’s statement that Crossley-Brubaker thought the defendant was “a murderer” did not constitute prosecutorial misconduct. II. Testimony Regarding the Defendant’s Post-Miranda Silence The defendant argues that the trial court erred when it permitted the State to recall a police officer witness to testify regarding the defendant’s post-Miranda silence. Detective Patrick Pollock, a police officer who was present during the defendant’s interview with police on November 14, 2003 (the night he learned that Carmin was killed), testified that although the defendant told the police during the interview that the bruises on his wrists came from roughhousing with Ciara, the detective’s later investigation revealed that Ciara did not like to roughhouse. On cross-examination, the following exchange took place between defense counsel and Pollock: “Q. [Defense counsel] . . . Now, you were asked about an injury to [sic] Ciara in the right hand of Mr. Murray, his right index, and am I correct that the investigation that you have done to determine whether or not that’s happened is whether or not Ciara roughhoused with some other people? “A. [Pollock] We asked that question of some people, yes. “Q. Okay. Did you ever ask Tom how he played with Ciara? “A. I don’t believe we did, no. “Q. You think that might have been instructive? “A. It could have been.” Following Pollock’s cross-examination, the State approached the court and requested whether it could recall Pollock to testify that the reason that he never asked the defendant those questions was that the defendant had declined to speak with the police on the advice of his attorney. According to the State, the phrasing of defense counsel’s question on cross-examination—“Did you ever ask Tom how he played with Ciara?”—opened the door to this testimony, since it implied that the State had conducted a less-than- thorough investigation. (Emphasis added.) The court agreed with the State’s argument, explaining: “[T]hat question [referring to the question on cross-examination] apparently has a lot of relevance to you [defense counsel] whether or not he ever investigated anything other than talking to the baby-sitters, that was important. You ended on that just about, you thought that was a really important point. Therefore it does have significance, and whether or not the police officer was competent and did a thorough investigation is clearly an issue that you intend to—I mean in opening argument, you talked about it, so I mean I think it’s an issue in this trial and I think they [the State] can, as I say, veiy carefully crafted question, ask [why the detectives did not interview the defendant again].” The trial court noted that the State would be allowed to recall Pollock later to testify on that point, as long as the line of questioning was “very limited.” The court granted defense counsel a standing objection to Pollock’s expected testimony. When the State recalled Pollock as a witness several days later, the following exchange took place: “Q. [Prosecutor] You recall when you testified you were asked by the defense whether you had ever spoken to Murray regarding injuries to his hand and whether Ciara caused them? “A. [Pollock] Yes. “Q. After your 11/14/03 interview of Murray, did you attempt to interview him again? “A. Yes, we did. “Q. And why would you want to speak with him again? “A. Well, we had investigated some of his statements, we wanted to do a followup interview and go over those, the findings that we had found. “Q. Were you successful? “A. No. “Q. And why not? “A. On advice of counsel he was no longer available to be reinterviewed.” The defendant argues that this last statement—“On advice of counsel he was no longer available to be reinterviewed”—impermissibly referenced his post-Miranda silence in violation of the United States Constitution. Standard of Review Questions regarding the admission of evidence are generally reviewed for an abuse of discretion. See State v. Thomas, 252 Kan. 564, 572, 847 P.2d 1219 (1993). However, we have recently explained that judicial discretion " Varies, depending on the character of the question presented for determination. A district court’s decision is protected if reasonable persons could differ about the propriety of the decision, as long as it was made within and took into account tire applicable legal standards. If, among other things, a district court’s decision goes outside the legal framework or fails to properly consider statutory hmitations, it constitutes an abuse of discretion.’ [Citation omitted.]” State v. Miller, 284 Kan. 682, 689, 163 P.3d 267 (2007). For this reason, the question of whether an evidentiary ruling violated the defendant’s constitutional rights is reviewed de novo. See State v. White, 279 Kan. 326, 332-33, 109 P.3d 1199 (2005) (“while we have said that the admissibility of evidence is often within the discretion of the district judge, constitutional considerations still prevail”). An exercise of discretion that results in an error of constitutional magnitude is serious and may not be held to be harmless unless the court is willing to declare a belief that it was harmless beyond a reasonable doubt. State v. McCarty, 271 Kan. 510, 518, 23 P.3d 829 (2001). Discussion In Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), the United States Supreme Court held that “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment [to the United States Constitution].” We have further explained: “A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent. [Citation omitted.]” State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998). In State v. Clark, 223 Kan. 83, 87-89, 574 P.2d 174 (1977), this court determined that Doyle also prohibited prosecutors from commenting on defendants’ post-arrest silence even after they had already made a statement to the police. The Clark court reasoned that “[a]n accused may remain completely silent, and he is under no duty to volunteer his exculpatory story. Thus, he should be afforded the same right after some discussion with the police when he remains silent as to matters later asserted at trial.” 223 Kan. at 89. Applying this rationale, Clark held that “Doyle prohibits a state prosecutor from impeaching a defendant’s alibi defense told for the first time at trial, when the defendant carried on limited discussion with police after arrest, but remained silent as to matters subsequently asserted at his trial.” 223 Kan. at 89. The defendant argues that Pollock’s statement during his recall testimony violated the defendant’s Fourteenth Amendment right by commenting on the fact that he refused to be reinterviewed on the advice of counsel after he had received Miranda warnings. It is evident that Pollock’s statement on redirect examination implicates the defendant’s rights under Doyle, because the statement explicitly refers to the defendant’s invocation of his right to silence. See Edwards, 264 Kan. at 196; Clark, 223 Kan. at 89. Thus, unless the State can demonstrate that the admission of the statement was otherwise warranted or that the admission was harmless beyond a reasonable doubt, the statement’s admission constituted reversible error. See State v. Mims, 220 Kan. 726, 730-31, 556 P.2d 387 (1976). The State provides two bases for its assertion that Pollock’s statement did not violate the defendant’s constitutional rights: (1) The defendant had already spoken at length with the police during his first interview (and therefore was not silent), and (2) the statement was made in response to defense counsel’s questions that implied the State had not conducted a thorough investigation. We note that the first basis asserted by the State—that the defendant could not claim a Doyle violation when he had already consented to an extensive interview with the police—is directly contradicted by this court’s opinion in Clark, where the court held that a defendant “should be afforded the same right [under Doyle] after some discussion with the police when he remains silent as to matters later asserted at trial.” 223 Kan. at 89. However, we agree with the State’s second contention that defense counsel’s questions during cross-examination of Pollock opened the door to the brief exchange between the prosecutor and the detective on redirect examination. The chief argument of the defense in this case was that the circumstantial nature of the State’s case indicated that the State had not conducted a thorough investigation of Carmin’s murder and had pinned the murder on the defendant. Defense counsel’s questions during its cross-examination of Pollock carry this implication. After determining that the investigators had never asked the defendant how he played with his daughter, defense counsel asked, “You think that might have been instructive?” implying that the lack of additional questioning could be attributed to the detective’s incompetence. Furthermore, as the trial court noted below, the fact that defense counsel asked, “Did you ever ask Tom how he played with Ciara?” implied that the investigators could have (and should have) followed up their interviews of Ciara’s babysitters with additional questions to the defendant concerning the nature of the roughhousing with his daughter. (Emphasis added.) Again, the implication of defense counsel’s questions was that the State failed to adequately investigate all of the information relating to tire defendant’s involvement in the murder. A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. State v. Kesselring, 279 Kan. 671, 693, 112 P.3d 175 (2005). We have previously applied this invited error analysis in a very narrow context when considering Doyle violations. See State v. Gadelkarim, 256 Kan. 671, 685-86, 887 P.2d 88 (1994), disapproved on other grounds State v. Gunby, 282 Kan. 39, 61-63, 144 P.3d 647 (2006) (disapproving of res gestae as a basis for admitting evidence of crimes or other civil wrongs independent of K.S.A. 60-455); State v. Falke, 237 Kan. 668, 682, 703 P.2d 1362 (1985), disapproved on other grounds State v. Walker, 252 Kan. 279, 297-98, 845 P.2d 1 (1993) (disapproving of language used in Falke with regard to instructions on voluntary intoxication). As the court recognized in Gadelkarim, “the invited error rule cannot be used as a pretext for the violation of a defendant’s constitutional rights where there is no justification for so doing. [Citation omitted.]” 256 Kan. at 685. In Falke, this court reviewed the murder and kidnapping convictions of the co-defendants Falke and White. At trial, White’s defense counsel asked the investigating detective during cross-examination to read from a report summarizing the detective’s initial interview of White. This report indicated that White told the officer at the time of arrest that White did not remember what happened when the crime took place because he was intoxicated. White later testified on his own behalf, explaining in detail the events surrounding the murder, but claiming that he was not involved in the murder and was merely present. White made no reference to being unable to remember what happened. 237 Kan. at 681. The prosecutor asked White on cross-examination why he had not told the police this story when he first talked with them; White replied that he was “scared.” 237 Kan. at 681. The defense counsel objected, arguing that the prosecutor had impermissibly commented on White’s post-arrest silence. 237 Kan. at 682. The Falke court examined the Doyle and Mims decisions, but concluded that the rule in those cases was inapplicable to the facts before it. The court first found that the facts did not present a Doyle issue, as the State was not impermissibly commenting on White’s post-arrest silence, but was instead using White’s previous statement during the initial interrogation to impeach his later testimony at trial. See Falke, 237 Kan. at 682. In addition, the State found that White could not prevail on his Doyle claim because “the defendant originally introduced the statements which he later objected to when the prosecutor sought to use them to impeach the defendant. The defendant may not invite error and then complain of that error on appeal. [Citation omitted.]” 237 Kan. at 682. In Gadelkarim, defense counsel was cross-examining a police officer regarding his interrogation of the defendant and asked if the officer had determined whether the defendant could be interviewed after his arrest. The officer responded, “ "Eventually he invoked Miranda. He wanted to speak with his attorney prior to answering any questions.’ ” 256 Kan. at 684. Defense counsel immediately requested a hearing outside the presence of the jury and requested a mistrial on the basis of the officer’s answer; defense counsel claimed he did not anticipate that the officer would re spond in a way that implicated the defendant’s post-Miranda silence. The trial court denied the request for a mistrial, finding that defense counsel had a copy of the police officer’s report where he indicated that the defendant had requested an attorney and also based on the State’s representations that it would not address the officer’s statement on redirect or during closing argument. 256 Kan. at 684. This court affirmed, noting that the statement was both invited and harmless. 256 Kan. at 686. The court explained that the State did not rely on the officer’s statement and “expressly agreed not to address the subject of Gadelkarim’s silence on redirect.” 256 Kan. at 686. In addition, the court found: “Gadelkarim’s complaint involves a single comment elicited by his own attorney on cross-examination, not by the prosecution. Evidence in the record reveals that defense counsel should have been aware of the potential of eliciting the very response of which the defendant now complains. Moreover, the strength of the evidence indicating Gadelkarim’s guilt contravenes the argument that Gadelkarim was denied the right to a fair trial by the officer’s statement that Gadelkarim had invoked his Miranda rights. The trial court did not err in denying Gadelkarim’s motion for a mistrial.” 256 Kan. at 686. In Gadelkarim, we distinguished our ruling from the previous case of State v. Higgins, 243 Kan. 48, 49-52, 755 P.2d 12 (1988), disapproved on other grounds State v. Warren, 252 Kan. 169, 178, 843 P.2d 224 (1992) (rejecting the Higgins court’s multiplicity analysis), where we declined to find that defense counsel invited a discussion of the defendant’s post-Miranda silence even though the initial testimony regarding the defendant’s invocation of that right occurred during the defense’s cross-examination of a State’s witness. Importantly, once statements regarding the defendant’s invocation of his right to silence were admitted during cross-examination, the State explored the matter again during its redirect examination and then engaged in a lengthy discussion during closing argument of the defendant’s failure to assert his innocence. 243 Kan. at 49-50. The Higgins court found that the prosecutor’s extended discussion of the defendant’s post-arrest silence violated his constitutional rights. The court noted that “[a]s a general rule, a litigant may not invite error and then complain of the error on appeal.” 243 Kan. 48, Syl. ¶ 2. However, the court found that “[t]he invited error rule may not be used to excuse the actions by counsel during cross-examination or closing argument when such actions are ordinarily improper and erroneous, and are not a necessary or justified response to the actions of the other party in order to achieve a fair trial.” 243 Kan. 48, Syl. ¶ 4. Higgins explained: “In the present case, it is apparent that both the State and the trial court were aware that, ordinarily, no comment could be made regarding a defendant’s post-arrest silence. Nor was there any necessity for the full exploration of the nature of the defendant’s silence after his arrest and the State’s comments during its closing argument. The sole motivation for the State’s comments was the exploitation of the opportunity to utilize defendant’s exercise of his Fifth Amendment Miranda rights against him. The present case does not involve a defendant who has invited or misled the court into error or who acquiesced in errors of the trial court. Nor did the defendant indulge in any improper or erroneous activities which required the State, in order to achieve a fair trial, to respond in kind. The cross-examination by counsel for the defendant was not an invitation to the State to violate defendant’s right to due process. Rather, the State seized upon the opportunity to present evidence and arguments during closing which clearly violated the defendant’s constitutional rights and were improper.” 243 Kan. at 51-52. We recently reached a similar conclusion to the Higgins rationale in State v. Cosby, 285 Kan. 230, 169 P.3d 1128 (2007). In that case, we held that the State’s introduction of testimony by a police detective that the defendant had invoked his right to silence violated the defendant’s constitutional rights under Doyle. 285 Kan at 244-46. In coming to this conclusion, we rejected the State’s argument in that case that it was necessary to introduce the testimony regarding the defendant’s invocation of his right to silence in order for the officers “to tell the jury they did not follow up on defendant’s unsolicited statements because of the invocation.” 285 Kan at 245. Instead, we held that the testimony was erroneous and should not have been introduced because “there was no need for the explanation the officers gave.” 285 Kan. at 245. To compound the error, we found that “the State went beyond presenting the bare fact that defendant had previously invoked his rights” and “repeatedly asked about defendant’s post-Miranda silence.” 285 Kan. at 245-46. Under these circumstances, we held that the State’s action in eliciting the testimony was erroneous and rose to the level of prosecutorial misconduct. 285 Kan. at 246. Our review of the testimony of Detective Pollock in this case leads us to conclude that this case is more akin to Gadelkarim and Falke than to Higgins and Cosby. Although the defendant did not explicitly introduce evidence relating to his refusal to be reinterviewed, defense counsel implicitly raised this issue when he asked Pollock, “Did you ever ask Tom how he played with Ciara?” (Emphasis added.) This question does not refer to a particular time frame, but instead implies that the detectives conducted a faulty investigation since they did not consult with the defendant after they had come across evidence that potentially conflicted with the defendant’s interview statements. In particular, we find that defense counsel’s following question—“You think that might have been instructive?”—underscored the defendant’s argument that the detectives did not conduct a complete investigation. In light of the specific facts of this case, we hold that defense counsel’s questions during cross-examination of Pollock provided sufficient justification for the State’s limited questioning of Pollock on redirect to the effect that the reason the detective did not ask the defendant additional questions concerning his wrestling with Ciara was that the defendant declined to be reinterviewed. We emphasize that the State’s questioning of Pollock on redirect was limited and Pollock’s response was scripted so as to minimize the effect on the defendant. The State did not mention the defendant’s invocation of his right to silence at any other time during the trial and did not discuss that invocation during the State’s 2 hours of closing argument. Under these circumstances, we find that the detective’s testimony on redirect examination merely responded to defense counsel’s implications during cross-examination and thus was invited error and cannot be the basis for reversal. We further note that even if we were to determine that the admission of Pollock’s testimony regarding the defendant’s post-arrest silence was erroneous under Doyle, such error was harmless. “In determining [harmless error in the Doyle context], we consider the nature and extent of the comment in comparison with the strength of the evidence of the defendant’s guilt as well as whether the evidence was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the defendant to testify. [Citation omitted.]” Edwards, 264 Kan. at 196. Moreover, when considering whether a Doyle error is harmless or prejudicial, “each case must be scrutinized and viewed in the light of the trial record as a whole, not on each isolated incident viewed by itself. [Citation omitted.]” State v. Hernandez, 284 Kan. 74, 95, 159 P.3d 950 (2007). The defendant claims that Pollock’s statement cannot be harmless, because the court did not provide a limiting instruction indicating that the statement should only be viewed for the limited purpose of demonstrating the State’s investigatory efforts. The defendant compares this case to Gunby, 282 Kan. at 57, where this court reiterated that evidence of crimes or civil wrongs admitted under K.S.A. 60-455 must be accompanied by a prophylactic limiting instruction. We have never held that a limiting instruction is required in cases involving a defendant’s post-arrest silence under Doyle. However, even if such a requirement existed, the defendant did not request such an instruction below. Thus, the trial court’s failure to provide such an instruction would be reviewed for clear error. 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 there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citations omitted.]” State v. Trotter, 280 Kan. 800, 805, 127 P.3d 972 (2006). We note that although the court did not provide any instructions regarding the proper use of the defendant’s post-arrest silence, it did provide an instruction regarding the defendant’s right against self-incrimination. This instruction stated: “A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference of guilt from the fact that the defendant did not testify, and you must not consider this fact in arriving at your verdict.” Even though this instruction did not explicitly refer to post-arrest silence, it explains that a defendant is not compelled to testily. The reasonable inference from this statement, which was the basis of the Supreme Court’s decision in Doyle, is that a defendant is not required to incriminate himself or herself at any stage in the criminal proceedings. While an additional instruction relating to a defendant’s pretrial statements might have edified this conclusion, one cannot say that the jury would have rendered a different verdict if such an instruction would have been included. More importantly, we find that Pollock’s testimony on redirect examination was limited to a very brief explanation of why the police originally desired an additional interview with the defendant and why that interview was not successful. Neither the prosecutor nor Pollock commented on the implications that may arise from such a refusal. In fact, on recross-examination, Pollock agreed that there was nothing wrong “with a citizen retaining counsel when he or she is being made die suspect of a first-degree murder case based on suspicion, a hunch, an intuition.” Moreover, no mention was made of Pollock’s redirect testimony during closing argument. The incident was therefore limited to the very brief recall of the witness by the State and the defense’s single-question recross-examination. We find that Pollock’s statement was not “manifestly intended or ... of such character that the jury would naturally and necessarily take it to be a comment on” the defendant’s invocation of his right to silence. Edwards, 264 Kan. at 196. Under these circumstances, it seems clear beyond a reasonable doubt that the statement “ ‘had little, if any, likelihood of having changed the result of the trial.’ [Citation omitted.]” State v. Brown, 280 Kan. 65, 77, 118 P.3d 1273 (2005). III. Admission of Hearsay Statements of the Victim The defendant argues that the trial court erred by admitting previous statements made by Carmín through the testimony of Carmin’s mother and of an attorney with whom Carmín consulted concerning possible custody litigation. The defendant contends that these statements were inadmissible hearsay and did not fit within any recognized exception to the hearsay rule. Testifying as a witness for the State, Carmin’s mother described an incident in 1997 when she and Carmín went shopping together. The mother explained: “A. . . . We had gone shopping, just she and I, and I was driving the car home on the freeway and we were discussing our shopping or whatever we had done, and I said, ‘Seems to me that you have to justify everything that you do’; and she broke out, ‘Baha.’ And I’m driving along and I looked at her because I didn’t know what was going on, and she was actually crying, and stopped herself very quickly and said, ‘I’m all right,’ and I didn’t interfere with that information because I wasn’t going to interfere with their marriage and their choices and what they did. It just surprised me a great deal. “Q. Did she say anything to you about your observations?” At this point, Murray s counsel objected on the basis of hearsay. The court found that the question did call for hearsay, but overruled the objection because the answer went to the “[Relationship of the parties.” The prosecutor then resumed questioning: “Q. (Ms. Wilson) What did Carmin tell you about your comment? “A. She indicated that I was correct.” Later in the trial, over defense counsel’s objection, Anne Miller—a lawyer Carmin consulted regarding possible custody litigation over Ciara—read at length from e-mails that Carmin had sent her regarding the ongoing custody mediation between Carmin and the defendant. Miller also testified regarding her conversation with Carmin after the last mediation session on November 11: “She [Carmin] said that the dynamics of the communication between her and Dr. Murray had changed dramatically, that she had become much more forceful in her position of obtaining primary residential custody of Ciara, that Larry Lima was in fact going to move to Lawrence. She—apparently Dr. Murray asked her if this was on a short-term or long-term basis, and she said it would be a short-term basis, and she made it clear what her plan was with respect to moving to California with Mr. Lima.” The court permitted this testimony, finding that it demonstrated “the deterioration of the relationship” between Carmin and the defendant during the custody mediation. On appeal, the defendant contends that Carmin’s statements to both her mother and Miller were hearsay and that the explanation provided by the trial court for its admission of the witnesses’ testimony—that it went to the “relationship of the parties”—is not a recognized hearsay exception. The defendant points out that the “relationship of the parties” rationale was one of the avenues by which courts had until recently allowed parties to present evidence of crimes and civil wrongs independent of K.S.A. 60-455. This court explicitly disapproved of the “relationship of the parties” rationale for presenting K.S.A. 60-455 evidence in Gunby, 282 Kan. 39. The State asserts that Carmin’s previous statements were relevant and were not inadmissible hearsay. The State also contends that the defendant should not be permitted to object to the admission of these statements as hearsay since he was charged with murdering the declarant. Standard of Review An appellate court reviews a trial court’s admission of hearsay statements for an abuse of discretion. Miller, 284 Kan. at 708. “ ‘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]). Discussion Before addressing the merits of the defendant’s hearsay argument, we first consider the State’s contention that the defendant waived any objections to the admission of Carmin’s statements at trial because he was charged with her murder. In support of this assertion, the State cites State v. Meeks, 277 Kan. 609, 614-16, 88 P.3d 789 (2004), where we discussed the doctrine of forfeiture of confrontation rights by wrongdoing. There, we explained: “ ‘The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own [the accused’s] wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.’ ” 277 Kan. at 614-15 (quoting Reynolds v. United States, 98 U.S. 145, 158, 25 L. Ed. 244 [1879]). Meeks additionally found that “a waiver of the right to confrontation based upon the procurement of the absence of the witness also constitutes a waiver of any hearsay objections to prior statements of the absent witness.” 277 Kan. at 615. In Meeks, we noted that the doctrine of forfeiture by wrongdoing could apply to allow a victim’s statements during the trial where the defendant is charged with murdering the victim or otherwise procuring his or her unavailability. 277 Kan. at 615-16. However, we stated that before a court could find that an accused had forfeited his or her confrontation rights and waived any hearsay objection regarding an unavailable victim’s statements, the trial court must make a determination by the preponderance of the evidence that the accused brought about the unavailability. See 277 Kan. at 615-16. As the court explained: “ ‘If the trial court determines as a threshold matter that the reason the victim cannot testify at trial is that the accused murdered her, then the accused should be deemed to have forfeited the confrontation right, even though the act with which the accused is charged is the same as the one by which he allegedly rendered the vntness unavailable.’ ” 277 Kan. at 615. Here, tire trial court made no such determination; instead, it merely found that the statements were admissible to show the deteriorating relationship between Carmin and the defendant. The case is therefore distinguishable from Meeks, where, although the trial court did not explicitly state that Meeks killed the victim and thus waived his objection to the admission of the hearsay, it nevertheless made findings on the record indicating that it had come to such a conclusion. See 277 Kan. at 616. Because the trial court did not make the requisite threshold determination in this case, we find that the defendant did not waive his hearsay objections to Carmin’s statements. Nevertheless, we find that these statements were admissible under K.S.A. 2006 Supp. 60-460(d)(3). K.S.A. 2006 Supp. 60-460 defines hearsay as “[ejvidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” Such evidence is inadmissible unless it falls under a recognized hearsay exception. “The theory behind the hearsay rule is that when a statement is offered as evidence of the truth asserted in it, the credibility of the asserter is the basis for the inference, and therefore the asserter must be subject to cross-examination. 6 Wig-more on Evidence § 1766 (Chadboum rev. 1976).” State v. Harris, 259 Kan. 689, 698, 915 P.2d 758 (1996). At oral argument, the State’s counsel acknowledged that both Carmin’s statement to her mother and her statements to her attorney, Anne Miller, were offered to prove the truth of the matter discussed therein—that the defendant and Carmin’s marriage was not always happy due to the defendant’s controlling nature and that the ongoing custody dispute over Ciara was becoming heated, particularly after Carmin told the defendant of Lima’s plans for a temporary move to Lawrence. Because the State offered these statements to prove the truth of the matter asserted, we must determine whether they were admissible under one of the exceptions to the hearsay rule provided in K.S.A. 2006 Supp. 60-460. We note at the outset that the reasoning provided by the trial court for admitting the evidence in question—to show the relationship of the parties—is not one of the exceptions to the hearsay rule listed in K.S.A. 2006 Supp. 60-460. Until recently, Kansas courts recognized a “relationship of the parties” exception to K.S.A. 60-455, which deals with the proper use of evidence of crimes and civil wrongs, that allowed parties to introduce evidence of a discordant relationship independent of that statute. See Gunby, 282 Kan. at 51-57. Gunby explicitly abolished this exception, holding that the admission of all evidence of other crimes and civil wrongs must be analyzed under K.S.A. 60-455. See 282 Kan. at 57. Because the trial court in this case admitted all of Carmin’s hearsay statements on the basis that they demonstrated the relationship of Carmin and the defendant, the defendant argues that our analysis in Gunby demands reversal. We recognize that the rationale provided by the trial court regarding the admissibility of Carmin’s statements was improper, as K.S.A. 2006 Supp. 60-460 does not include an exception for evidence relating to marital relationships. However, the defendant’s argument based on Gunby is equally incorrect. Our analysis in Gunby with regard to evidence of the relationship between the parties only applies to evidence of other crimes or civil wrongs. See Gunby, 282 Kan. at 55 (the “marital discord exception to K.S.A. 60-455 . . . now covers [prior to Gunby, that is] many violent relationships—between husband and wife, between separated and divorced spouses, between cohabitant and noncohabitant lovers, even between neighbors who have had a sexual relationship”). The testimony of Carmin’s mother and Miller did not indicate the existence of an abusive or violent relationship between Carmin and the defendant. Rather, the testimony of both women indicates that, contrary to the defense’s assertions and the defendant’s statements in his interview that he and Carmin were getting along very well, the relationship between Carmin and the defendant had longstanding serious rifts that were growing as tire custody dispute continued. This is not the type of evidence that is barred by K.S.A. 60-455. As a preliminary matter, we note that there is no question that Carmin’s statements to her mother and to Miller were relevant in this case. See Gunby, 282 Kan. at 47-48 (“Once relevance is established, evidentiaiy 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.”). The defendant asserted both during his interview with the police and through his counsel’s argument at trial that the relationship between him and Carmin was congenial until her death. Moreover, although he claims that the statements were inadmissible hearsay and not admissible under Gunby, the defendant acknowledges in his brief on appeal that the evidence was relevant to demonstrate the relationship and thus to demonstrate motive. The question before us is whether this relevant evidence was inadmissible hearsay. As we have previously stated, the trial court incorrectly ruled that Carmin’s hearsay statements were admissible as evidence of the relationship of the parties. Nevertheless, if a trial court reaches the right result, its decision will be upheld even if it provided an incorrect reason or engaged in an improper legal analysis. See State v. Hoge, 283 Kan. 219, 225-26, 150 P.3d 905 (2007). Thus, we consider whether the statements by Carmin were admissible under some other exception to the hearsay rule. After reviewing the statements admitted in light of Kansas’ hearsay rule, we find that Carmin’s statements to her mother and to Miller were admissible under K.S.A. 2006 Supp. 60-460(d)(3). This section recognizes an exception to the hearsay rule “if the declarant is unavailable as a witness, [and the statement was made] by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.” K.S.A. 2006 Supp. 60-460(d)(3). There is no question that Carmin, as a murder victim, was unavailable as a witness at the trial for that murder. See K.S.A. 60-459(g)(3). Thus, the question with regard to both groups of statements (the statements to her mother and the statements to her attorney) is whether the statements were made “when the matter [discussed] had been recently perceived [by Carmin] . . . while [Carmin’s] recollection was clear” and whether the statements were made “in good faith.prior to the commencement of the action . . . with no incentive to falsify or to distort.” K.S.A. 2006 Supp. 60-460(d)(3). First, with regard to Carmin’s statements to her mother—that Carmin had to justify everything she did to the defendant during their marriage—these were made in response to her mother’s question while they spent a day shopping. Carmin was currently married to the defendant and was thus speaking from experience with a clear recollection of their relationship. Moreover, this statement was made in 1998—5 years prior to Carmin and the defendant’s divorce, and clearly long before Carmin’s murder trial. We find that this statement was admissible under K.S.A. 2006 Supp. 60-460(d)(3). Likewise, with regard to Carmin’s e-mails to Miller during the course of the custody dispute, we note that Carmin sent each email to Miller within a day of the mediation session with the defendant, illustrating that her description of the events at the mediation and of her discussion with Miller were fresh in her mind. She provided the information to an attorney that she had been consulting in case the custody dispute went to litigation, so it does not seem that she would have an incentive to falsify or distort the information. Finally, although the last e-mail (which discussed the defendant’s reaction to Carmin’s news that Lima would be moving to Lawrence) did discuss her plans for obtaining custody, no custody litigation had been initiated at that time and, obviously, no murder investigation was underway. Thus, we find that Carmin’s e-mails are admissible under K.S.A. 2006 Supp. 60-460(d)(3). Because all of Carmin’s statements were admissible under K.S.A. 2006 Supp. 60-460(d)(3), we find that the trial court did not err in admitting those statements into evidence at trial. See Hoge, 283 Kan. at 225-26. Finally, we note that even if we were to determine that Carmin’s statements did not fall into an exception under the hearsay rule, we would find that the admission of these statements was harmless. “Errors that do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal when substantial justice has been done. [Citation omitted.]” State v. Ackward, 281 Kan. 2, 23, 128 P.3d 382 (2006); see also K.S.A. 60-261. To determine whether a trial error is harmless error or prejudicial error, each case must be scrutinized and viewed in light of the trial record as a whole, not by viewing each isolated incident by itself. State v. Abu-Fakher, 274 Kan. 584, 613, 56 P.3d 166 (2002). In this case, Carmin’s statements to her mother and to Miller were harmless. Several other witnesses testified regarding the defendant’s somewhat controlling nature and how this influenced his marriage. Moreover, tire information contained in Carmin’s e-mails to Miller—the details regarding the custody dispute, the fact that Lima intended to move to Lawrence; and that he, Carmin, and Ciara eventually planned to move to California-—'was presented at trial through a number of other witnesses and evidence. Most importantly, the defendant discussed the potential move and his reservations about that move at length during his interview with the police. We find that the admission of that information through another channel did not violate substantial justice. The admission by the trial court of Carmin’s statements was not error. IV. Cumulative Error The defendant claims that even if the errors he alleges in his brief 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. at 29. However, we need not undergo a cumulative error analysis when we have determined that no trial errors took place. See State v. Humphery, 267 Kan. 45, 64, 978 P.2d 264 (1999). Because we find that the defendant has failed to demonstrate that the trial court or prosecutor erred at trial, his claim of cumulative error also fails. V. Sufficiency of the Evidence to Support the Defendant’s Conviction In his final argument on appeal, the defendant asserts that the evidence presented by the State was insufficient to support his conviction. In particular, he claims that the State’s case against him did not rest on “concrete evidence,” but instead relied on “speculation, inference, and hunches.” The crux of the defendant’s argument is that because there was no direct evidence linking him to Carmin’s murder, his conviction was based “solely on inferences” and must be reversed. Standard of Review When the sufficiency of the evidence is challenged on appeal, this court must determine whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). This court has previously recognized that “[cjonvictions based upon circumstantial evidence . . . can present a special challenge to the appellate court” in that “ ‘the circumstances in question must themselves be proved and cannot be inferred or presumed from other circumstances.’ ” State v. Williams, 229 Kan. 646, 648-649, 630 P.2d 694 (1981) (quoting 1 Wharton’s Criminal Evidence § 91, pp. 150-51 [13th ed. 1972]). Nevertheless, this court has repeatedly held that “whatever type of evidence is introduced in a criminal trial (whether it be termed direct, indirect, testimonial, circumstantial or a combination) the trier of fact must apply the same test to convict the defendant”—proof of guilt beyond a reasonable doubt. State v. Wilkins, 215 Kan. 145, 156, 523 P.2d 728 (1974). For this reason, we have espoused that “[a] guilty verdict in a criminal case will not be disturbed on appeal if there is substantial evidence, even though the evidence is entirely circumstantial. [Citation omitted.]” State v. Scott, 271 Kan. 103, 107, 21 P.3d 516 (2001). As we explained in Scott: “The probative values of direct and circumstantial evidence are intrinsically similar, and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each. [Citation omitted.] When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of witnesses. [Citation omitted.]” 271 Kan. at 107-08. Moreover, “if the circumstances alleged to justify a finding of premeditation are adequately proven by evidence, and are not merely suppositions themselves, there is no impermissible stacking of inferences such that reversal is required.” State v. Rice, 261 Kan. 567, 587, 932 P.2d 981 (1997). We note that the trial court in this case instructed the jury regarding this distinction, stating: “You may not find an element of a crime from an inference that is based solely upon an inference. However, you may draw reasonable inferences from facts established in the evidence.” Discussion In order to convict the defendant of first-degree murder, the State was required to prove that Murray killed Carmin intentionally, on November 13, 2003, in Douglas County, and with premeditation. See K.S.A. 21-3401(a). Appellate courts reviewing claims of insufficiency of the evidence consider all of the evidence in the light most favorable to the prosecution to determine “if the essential elements of a charge are sustained. [Citations omitted.]” State v. Pratt, 255 Kan. 767, 768, 876 P.2d 1390 (1994). This is not the first time that we have been presented with an appeal from a first-degree murder conviction that was entirely based on circumstantial evidence. For example, in State v. Flynn, 274 Kan. 473, 485-86, 55 P.3d 324 (2002), we found that there was sufficient evidence to convict the defendant of first-degree murder, even when all of the evidence presented was circumstantial. As we explained in that case: “The State presented evidence of Dana’s opportunity to commit this crime. She left work shortly after noon on December 22, 1992, after having a telephone conversation with her lawyer, the bearer of bad news in terms of the custody battle. The evidence showed it was likely Dana knew through her attorney that Randy was home that day. Her own statements following the murder established that she had purchased fuel for her car and telephoned her mother from a payphone to arrange for someone to pick up the children. . . . “Admittedly, there was nothing at the scene of the crime to link the murder to Dana. . . . However, the evidence of Dana’s actions after the murder further strengthen the conclusion that the jury acted reasonably in convicting her. After Randy’s murder, the evidence showed Dana had driven her car through an automatic carwash twice. This evidence was sufficient to allow the jury to arrive at a logical conclusion that Dana’s car was soiled with either Randy’s blood or dirt from the road. Further, the evidence showed that after the murder Dana stated Randy was an evil, wicked man who deserved to die. “In considering the sufficiency of evidence to sustain a conviction, this court reviews all the evidence, viewed in the light most favorable to the prosecution. [Citation omitted.] In light of this standard, we are convinced a rational factfinder could have found, beyond a reasonable doubt, that Dana was guilty of the murder of Randy Sheridan.” Flynn, 274 Kan. at 485-86. Similar to Flynn, the evidence in the instant case linking the defendant to Carmin’s murder is entirely circumstantial. There is no direct evidence linking Murray to the crime scene. However, the defendant clearly had the motive to commit the crime. The State introduced ample evidence of the defendant’s increasing desperation regarding Ciara’s custody proceeding, as well as evidence that Lima would be moving to Lawrence. The defendant discussed the custody dispute and the impending move in detail with the police during his 9%-hour interview the night he learned that Car-min had died, stating that he did not want Ciara to live in California or to be the kind of dad who saw his daughter every other holiday and during the summer. By his own admission in an e-mail, the defendant felt like “an animal backed into a comer.” The defendant indicated to a neighbor that life would be much easier if Carmín were dead. The Internet searches also demonstrate sufficiently that the defendant was contemplating a murder. Moreover, just as was the case in Flynn, the defendant had the opportunity to commit the crime. There is a 4-hour gap between when, according to Ciara’s babysitter’s testimony, the defendant dropped Ciara off the morning of Carmin’s death and when the babysitter brought her to the defendant’s home after noon. The State demonstrated that even driving at an easy pace, this provided the defendant with enough time to drive from Manhattan to Lawrence, commit the murder, and drive home. Notably, no one can account for the defendant’s whereabouts that morning. He did not go to the university to work, but rather stated that he stayed home to grade tests. However, even this story changed, as he later stated that he drove to Paxico. Finally, although Murray attempted to account for the injuries on his hands and arms, the State produced evidence that the cuts were consistent with holding a knife by the blade when stabbing someone and that the bruises on his wrists were consistent with a rough struggle with a blunt object. In short, the State produced evidence that the defendant suffered wounds consistent with those that would have been suffered by Carmin’s attacker, who inflicted 11 blows to the victim with a blunt object, retrieved a knife from Carmin’s kitchen, and stabbed her 13 times in the neck and back. From this evidence, we find that there was sufficient evidence for a jury to find that the defendant killed Carmín Ross intentionally, that the murder was premeditated, and that the murder took place on the morning of November 13, 2003, in Carmin’s home in Douglas County. The defendant argues that because the State’s case against him was based on entirely circumstantial evidence, the summary above is based only on inferences and thus cannot be used to prove his guilt. In essence, the defendant contends that because he provided exculpatory explanations for each of the pieces of evidence pro duced by the State, it would have been just as reasonable for the jury to infer that he was not guilty of the crime charged. In raising this argument, the defendant applies an incorrect standard for this court’s review. It is not the place of an appellate court to reassess the weight and credibility of the evidence presented at trial; that assessment is the onus of the jury. Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988). Rather, we need only determine whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to support the conviction. See Rice, 261 Kan. at 586. Although all of the evidence in this case was circumstantial, we find that the evidence is sufficient to support the defendant’s conviction for first-degree murder. The defendant’s conviction for first-degree murder is affirmed.
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The opinion of the court was delivered by Beier, J.: Barkeep Billy Scott challenges his jury conviction of involuntary manslaughter for the death of patron Juanita Good-pasture, who expired the night she consumed a red, yellow, and green alcoholic concoction too aptly named “The Stoplight.” Evidence in the record before us is conflicting on exactly how much other alcohol Goodpasture consumed at Scott’s establish ment, The Point; on the exact contents of the three drinks composing “The Stoplight”; on whether Goodpasture drank “The Stoplight” to win a bet with Scott or a contest of his design; and on whether Scott offered a prize or refund if Goodpasture was able to refrain from using the bathroom and remain upright for 30 minutes after “The Stoplight” slid down her throat. There is no conflict, however, on what happened to Goodpasture after she was assisted home from The Point. She passed out in the yard of her home, where her mother and a friend left her, alone and unconscious, until bar closing time. Goodpasture’s mother and friends then worked together to get the 273-pound Goodpasture into her living room and left her alone again while they watched movies elsewhere. The next day, Goodpasture was dead, a victim of acute ethanol intoxication. By the time of her autopsy, a blood alcohol content of .37 to .43 was detected. The examining physician opined that Goodpasture’s aspiration of her stomach contents also could have contributed to her demise. Neither he nor any other witness testified that “The Stoplight,” in particular, had a lethal role. The State initially charged Scott under alternative theories of involuntary manslaughter—a violation of K.S.A. 2004 Supp. 21-3404(c) based on the doing of a lawful act in an unlawful manner, and a violation of K.S.A. 2004 Supp. 21-3404(a) based on unintentional and reckless behavior. After his arrest, it amended its complaint to charge Scott only under K.S.A. 2004 Supp. 21-3404(c). At trial, the relevant portion of Jury Instruction No. 6, taken from PIK Crim. 3d 56.06, provided: “In Count I, the defendant is charged with the crime of involuntary manslaughter. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: 1. That the defendant unintentionally killed Juanita Goodpasture; 2. That it was done during the commission of a lawful act in an unlawful manner. ...” Jury Instruction No. 7 stated: “The laws of Kansas provide: No club, drinking establishment, caterer or holder of a temporary permit, nor any person acting as an employee or agent thereof, shall offer or serve any free cereal malt beverage or alcoholic liquor in any form to any person; or encourage or permit, on licensed premises, any game or contest which involves drinking alcoholic liquor or cereal malt beverage or the awarding of drinks as prizes.” Although Scott argues several sometimes interrelated issues on appeal, we conclude that two are dispositive and the rest, moot. Necessity of Proof of Causation We first address whether involuntary manslaughter, as defined in Kansas, requires the State to prove that a defendant’s conduct caused the victim’s death. Our standard of review on this question of statutory interpretation is de novo. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006); see also State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006) (in interpreting statute, court must give effect to plain, unambiguous language, expressed intent of legislature). Although criminal statutes must be strictly construed in favor of the accused, our interpretation must be reasonable and sensible in light of the legislature’s word choice. See State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998). As mentioned, Scott ultimately was charged and convicted under K.S.A. 2004 Supp. 21-3404(c), which defines involuntary manslaughter as “the unintentional ldlling of a human being committed . . . during the commission of a lawful act in an unlawful manner.” Nothing in this statute explicitly exempts bar owners or bartenders from criminal liability for the death of a patron if the elements of the criminal offense are proved. That being said, it does not appear that our involuntary manslaughter statute has ever been employed on similar facts, i.e., to prosecute a bar owner or bartender on the theory that violation of a statute regulating the dispensing of liquor resulted in fatal alcohol poisoning of a patron. See, e.g., State v. Bell, 273 Kan. 49, 51-52, 41 P.3d 783 (2002) (demonstrating typical invocation of K.S.A. 21-3404(c) as lesser included offense in murder case in which defendant claims lawful self-defense but may have exerted unlawful excess force, leading to unintentional death of victim); see also State v. Bell, 266 Kan. 896, 916, 975 P.2d 239, cert, denied 528 U.S. 905 (1999) (instruction on involuntary manslaughter not warranted where no evidence other than defendant’s own statement that he fired first shot in self-defense); State v. Meyers, 245 Kan. 471, 474, 781 P.2d 700 (1989) (involuntary manslaughter instruction not available despite assertion of self-defense where evidence established that, after altercation, defendant went to his home, got a gun, went looking for the victims, fired warning shots, then closed his eyes and fired two shots, one of which struck and killed the victim); State v. Seelke, 221 Kan. 672, 673, 681, 561 P.2d 869 (1977) (wife’s voluntary manslaughter conviction for shotgun slaying of her drunken husband who had just savagely beaten her and threatened both her and her twin babies reversed where evidence supported instruction on lesser included offense of involuntary manslaughter based on lawful act, unlawful manner self-defense); State v. Gregory, 218 Kan. 180, 185-86, 542 P.2d 1051 (1975) (evaluating district court’s instruction on manslaughter, holding jury could conclude self-defense with excessive force, justifying lawful act, unlawful manner involuntary manslaughter instruction). Several Kansas cases arising under distinct factual circumstances demonstrate that convictions of involuntary manslaughter require proof that the defendant’s conduct caused the victim’s death. State v. Chastain, 265 Kan. 16, 25, 960 P.2d 756 (1998); State v. Collins, 36 Kan. App. 2d 367, 371, 138 P.3d 793 (2006). Moreover, the victim’s contributory negligence, while not a defense, is “a circumstance to be considered by the jury along with all other evidence to determine whether the defendant’s conduct was or was not the proximate cause of the decedent’s death. In some instances, a decedent’s contributory negligence may have been a substantial factor in his or her death and a superseding cause thereof; it may have intervened between a defendant’s conduct and the fatal result so as to be itself the proximate cause.” Chastain, 265 Kan. 16, Syl. ¶ 7. See Collins, 36 Karr. App. 2d at 371. In Chastain, 265 Kan. 16, the defendant was charged with involuntary manslaughter after a fatality resulted from a collision at an intersection. The State contended the defendant was under the influence of alcohol and driving at a high speed; the defendant contended the victim’s negligence in running a stop sign caused the accident. When, during deliberations, the jury asked if the fault of both parties could be considered, the district judge responded in the affirmative. On appeal, this court upheld the defendant’s conviction of the lesser included offense of driving under the influence, holding that the district judge’s response to the jury was correct and that causation was an essential element of the crime. 265 Kan. at 24-25. In Collins, 36 Kan. App. 2d 367, our Court of Appeals examined another involuntary manslaughter case involving an allegation that the defendant driver was under the influence of alcohol and his ultimate conviction on the lesser included offense of driving under the influence. At trial, the defense had relied on the victim’s negligence in sitting on a stationary motorcycle in the middle of the road at night, arguing that the fatality accident would have occurred even if the defendant had been sober and reasonably prudent. On appeal, the State argued that the district judge had erred in instructing the jury on proximate cause. The appellate panel affirmed the conviction, holding that proof of involuntary manslaughter while driving under the influence required evidence that defendant’s conduct proximately caused the victim’s death. 36 Kan. App. 2d at 371. Other Kansas cases have consistently held likewise. See State v. Anderson, 270 Kan. 68, 72, 12 P.3d 883 (2000) (proof of proximate cause required); State v. Yowell, 184 Kan. 352, 336 P.2d 841 (1959) (more required for proof of involuntary manslaughter than mere unlawful act as attendant circumstance in series ultimately resulting in fatality; unlawful act must be proximate cause of victim’s death); see also State v. Scott, 201 Kan. 134, Syl. ¶ 3, 439 P.2d 78 (1968) (evidence sufficient to sustain manslaughter conviction where death would not have resulted except for unlawful conduct); State v. McNichols, 188 Kan. 582, 586-87, 363 P.2d 467 (1961) (same; unlawful conduct must be proximate cause of death to support manslaughter); State v. Maxfield, 30 Kan. App. 2d 873, 878-79, 54 P.3d 500 (2001), rev. denied 273 Kan. 1038 (2002) (holding evidence sufficient to support finding that defendant’s conduct caused victim’s death, thus supporting involuntary manslaughter conviction); State v. Woodman, 12 Kan. App. 2d 110, 113-17, 735 P.2d 1102 (1987) (defendant charged with aggravated vehicular homicide, driving under the influence; victim ran red light; jury instruction too vague on necessity of proximate-cause proof; conviction reversed). These results are not surprising, given the statute’s plain language. The legislature chose to use the word “killing” to describe the death of the victim for each of the potential means of involuntary manslaughter it defined. “Killing” connotes specific, proximate causation—not merely a peaceful, natural death. We note that Black’s Law Dictionary recognizes the word’s necessary implication; “kill” means “to end fife; to cause physical death.” (Emphasis added.) Black’s Law Dictionary 886 (8th ed. 2004). Application of the Kansas rule requiring proof of causation also is supported by our review of precedent from other jurisdictions that have arisen in factual circumstances somewhat more similar to those before us here. See Votre v. State, 192 Ind. 684, 138 N.E. 257 (1923) (at party involving drinking, dancing, defendant offered drink of whisky to minor girl; girl died that night of heart attack caused by alcohol poisoning; defendant’s conviction reversed for insufficient evidence of causation; death not natural result, probable consequence of defendant’s unlawful act; victim had long suffered from heart disease); Jabron v. State, 172 Miss. 135, 159 So. 406 (1935) (manslaughter conviction in death of child to whom defendant gave whisky reversed; defendant had no reason to anticipate act would result in death; evidence showed child’s mother also gave child whisky on same day; child liked, had access to whisky); People v. Haber, 221 App. Div. 150, 223 N.Y.S. 133 (1927) (victim died of alcohol poisoning shortly after drinking wood alcohol served illegally at defendant’s hotel; notwithstanding victim’s dying declaration that defendant’s whisky killed him, court held evidence insufficient to establish defendant’s unlawful sale caused death; evidence showed victim hard drinker, drank at other places on day of death; others had drunk defendant’s whisky, had not been poisoned); State v. Reitze, 86 N.J.L. 407, 92 A. 576 (1914) (innkeeper unlawfully sold liquor to visibly intoxicated man who, upon leaving premises, died after fall; court reversed manslaughter conviction; although sale of liquor unlawful, sudden death not usual, probable result of that unlawful act). In light of all of the above, we have no hesitation in holding the State must prove that a defendant’s behavior was the proximate cause of the victim’s death under K.S.A. 2004 Supp. 21-3404(c). We now turn to the question of whether that proof existed in this case. Sufficiency of Evidence of Causation When the sufficiency of the 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 a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gholston, 272 Kan. 601, 605, 35 P.3d 868 (2001), cert, denied 536 U.S. 963 (2002); State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000). While the State must sustain its burden of proof on each element of an offense charged, circumstantial evidence and the logical inferences therefrom are sufficient to support a conviction of even the most serious crime. See State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 (2000); State v. Reed, 256 Kan. 547, 566, 886 P.2d 854 (1994); see also State v. Wilkins, 269 Kan. 256, 267, 7 P.3d 252 (2000) (quoting State v. Harper, 235 Kan. 825, 831, 685 P.2d 850 [1984]). If an appellate court holds that evidence to support a conviction is insufficient as a matter of law, the conviction must be reversed; and no retrial on the same crime is possible. See Burks v. United States, 437 U.S. 1, 11, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978) (double jeopardy precludes second trial once appellate court reverses for insufficient evidence); State v. Houck, 240 Kan. 130, 135-36, 727 P.2d 460 (1986) (conviction reversed without remand, where evidence did not support conviction of offense charged). Relevant to this issue, Scott asserts that proof of proximate causation was lacking in his trial. He argues that Goodpasture caused her own death by drinking voluntarily to excess or that her death was attributable to the combination of her voluntary drinking and her mother’s neglect. He also advances what is essentially a public policy argument that it is illogical for Kansas law to subject him to criminal liability when he could not have been subjected to civil liability. See, e.g., Mills v. City of Overland Park, 251 Kan. 434, 837 P.2d 370 (1992) (disallowing civil suit against vendor after death of intoxicated customer); Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731 (1985) (disallowing civil suit against vendor after injury to third party by intoxicated customer). These arguments do not convince us. Scott’s attempt to lay blame at the feet of Goodpasture and her mother is a juiy argument. We do not reweigh evidence on appeal. State v. Harris, 284 Kan. 560, 579, 162 P.3d 28 (2007). His effort to portray his exposure to criminal liability as unfair when compared to Kansas’ rejection of civil liability for alcohol vendors, although at least superficially sensible, is addressed to the wrong branch of state government. He needs to speak to his legislator about the potential breadth of application of K.S.A. 21-3404(c). We nevertheless conclude that the evidence of proximate causation placed before Scott’s jury was insufficient as a matter of law. The State proved that Goodpasture, an adult, voluntarily consumed alcohol including “The Stoplight,” at The Point. It proved that her death resulted from acute ethanol poisoning. But it put on no evidence to show that “The Stoplight”—the only alcohol alleged to have been supplied to her by Scott illegally, i.e., the only alleged lawful act performed in an unlawful manner—led to the poisoning. Although the jury might reasonably have inferred that “The Stoplight” accounted for some part of Goodpasture’s blood alcohol content, there was no testimony demonstrating that “The Stoplight,” in particular, marked the doorway from her intoxication to her death. On this record, the two cases from other jurisdictions cited by the State cannot save Scott’s conviction. The first, State v. Rohm, 609 N.W.2d 504 (Iowa 2000), involved the death of a minor to whom alcohol was supplied through the efforts of the defendant and her sons. Although the State is correct that the Rohm defendant’s involuntary manslaughter conviction for “unintentionally caus[ing] the death df another person by the commission of a public offense” (Iowa Code § 707.5 [1997 Supp.]) was affirmed by the Iowa court, 609 N.W.2d at 507, 509, the victim’s youth makes the case too distinct to be of any persuasive value here. Supplying any alcohol to a minor, except in very narrow circumstances, is unlawful. In Rohm, that fact would have gone a long way toward meeting the State’s burden to prove a causal link between the supplying—defendant’s illegal conduct—and the minor’s alcohol poisoning death. The second case relied upon by the State, Nebraska’s Thiede v. State, 106 Neb. 48, 182 N.W. 570 (1921), also arose in very different circumstances. Thiede involved a defendant who gave an unlimited supply of a home brew to another adult. The court held that: Where a person furnishes to another intoxicating liquor which, “by reason of its extreme potency or poisonous ingredients, is dangerous to use as [a] beverage, [and] the party furnishing the liquor knows, or . . . should have known, of the danger, then there appears from his act a recklessness which is indifferent to results. Such recklessness in the furnishing of intoxicating liquors, in violation of law, may constitute such an unlawful act as, if it results in death, will constitute manslaughter.” Thiede, 106 Neb. at 58. Here, although the State put on evidence of the potency of “The Stoplight,” it did not prove that it contained poisonous ingredients. Even viewing the evidence before Scott’s jury in the light most favorable to the State, as required, it was insufficient to show that Scott’s conduct in serving “The Stoplight” caused Goodpasture’s death. Without such proof, his performance of a lawful act in an unlawful manner was not involuntary manslaughter under K.S.A. 2004 Supp. 21-3404(c). Reversed. Davis, J., not participating. Greene, J., assigned.
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Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Phillip A. Brooks, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas. The formal complaint filed against the respondent alleged violations of Kansas Rules of Professional Conduct (KRPC) 8.4(b) (2007 Kan. Ct. R. Annot. 559) (misconduct). A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. Upon the conclusion of the hearing, the panel made the following findings of fact and conclusions of law together with its recommendations to this court: “FINDINGS OF FACT “The Hearing Panel finds the following facts, by clear and convincing evidence: “1. Phillip A. Brooks (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 16399. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Kansas City, Missouri. . . . The Missouri Supreme Court admitted die Respondent to the practice of law in 1993. The Kansas Supreme Court admitted the Respondent to the practice of law in 1994. “2. [In] March 2005, the United States Attorney filed an Information in the United States District Court for the Western District of Missouri. . . . [T]he Respondent was charged with willfully failing to pay income taxes for tax year 2000 to the Internal Revenue Service in violation of 26 U.S.C. § 7203, class A misdemeanor. “3. When he learned that he was going to be charged criminally, the Respondent self-reported the misconduct to the disciplinary authorities in Kansas and Missouri. “4. On October 31, 2005, the Respondent entered a plea of guilty to the criminal charge. The Court placed the Respondent on probation for a period of three years. The amount of unpaid tax at issue was $29,198.00. The Respondent has paid the outstanding tax obligation as well as accrued interest and penalties. “5. On February 13, 2006, die Disciplinary Administrator’s office received information from Kimberly Schmidt, a Disciplinary Assistant in Missouri, that the Respondent had been disciplined as a result of the misdemeanor conviction. In an Order dated January 31, 2006, the Missouri Supreme Court found that the Respondent violated Missouri Rules of Professional Conduct §§ 4-8.4(b), (c), and (d). The Missouri Supreme Court ordered that the Respondent’s license to practice law be suspended. However, the Missouri Supreme Court placed the Respondent on probation. The Respondent’s probation continues through February 1, 2009. “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 honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Respondent admitted he committed a criminal act, specifically, failure to pay income taxes. Accordingly, the Hearing Panel concludes that the Respondent committed a criminal act and that criminal act reflects directly on the Respondent’s honesty and trustworthiness, 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, 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 knowingly violated his duty. “Injury. As a result of the Respondent’s misconduct, the Respondent caused potential harm to the public. “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 factor present: “Illegal Conduct. The Respondent was convicted of failure to pay income taxes, a class A misdemeanor. “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 Prior Disciplinary Record. The Respondent has not previously been disciplined in Kansas, Missouri, or federal court other than arising from his failure to pay his income taxes in 2000. “Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case. “Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. The Respondent paid the outstanding income taxes as well as the accrued interest and penalties. “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 Kansas City, Missouri. 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 Respondent was convicted of failure to pay income taxes. As a result of the conviction, the Respondent was placed on probation for three years. Further, as to the Respondent’s license to practice law in Missouri, the Respondent was placed on probation by the Missouri Supreme Court. Finally, the Respondent was disciplined by the United States District Court for the Western District of Missouri. “Remorse. At the hearing on die Formal Complaint, the Respondent expressed genuine remorse. “In addition to die above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Reprimand is generally appropriate when a lawyer negligendy 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 censured and that the censure be published in the Kansas Reports. The Disciplinary Administrator also recommended that the Respondent be required to provide proof that he has filed and paid his state and federal taxes for tax years 2007 and 2008. Counsel for the Respondent joined the Disciplinary Administrator’s recommendation that the Respondent be censured and that the censure be published. “Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be cen sured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports. “Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.” The respondent does not contest the panel’s findings, conclusions, or recommendation. This court has considered the final hearing report of the panel and the record on appeal and adopts the findings of fact, conclusions of law, and the recommendations of the panel. The findings and conclusions established by clear and convincing evidence that respondent violated KRPC 8.4(b). It Is Therefore Ordered that respondent, Phillip A. Brooks, 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 violation of KRPC 8.4(b). It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to respondent. Davis, J., not participating. McAnany, J., assigned.
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In a letter dated November 7,2007, to the Clerk of the Appellate Courts, respondent Richard Matthew Lane, of Wichita, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2006 Kan. Ct. R. Annot. 308). At the time respondent surrendered his license, review was pending before the Kansas Supreme Court on the final hearing report in accordance with Supreme Court Rule 212 (2006 Kan. Ct. R. Annot. 295). The hearing panel found by clear and convincing evidence that the respondent violated KRPC 1.1 (2006 Kan. Ct. R. Annot. 358) (competence) when he failed to competently represent two clients in separate matters; KRPC 1.3 (2006 Kan. Ct. R. Annot. 371) (diligence) when he failed to provide diligent representation in nine different representations; KRPC 1.4(a) (2006 Kan. Ct. R. Annot. 386) (communication) by failing to keep clients reasonably informed about the status of their cases in twelve different representations; KRPC 1.16(d) (2006 Kan. Ct. R. Annot. 448-49) (declining or terminating representation) by failing to refund unearned advanced fees in twelve different representations; KRPC 3.2 (2006 Kan. Ct. R. Annot. 462) (expediting litigation) by failing to make a reasonable effort to expedite litigation in two cases; KRPC 8.1(b) (2006 Kan. Ct. R. Annot. 505) and Supreme Court Rule 207(b) (2006 Kan. Ct. R. Annot. 268-69) by failing to provide written responses to the initial complaints. This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that he should be disbarred. It Is Therefore Ordered that Richard Matthew Lane be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked. Dated this 29th day of November, 2007. It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Richard Matthew Lane from the roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that this order shall be published in the official Kansas Reports, that the costs herein shall be assessed to the respondent, and that Richard Matthew Lane forthwith shall comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314).
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The opinion of the court was delivered by Rosen, J.: Garnet Tolen appeals the dismissal of his K.S.A. 60-1507 motion for failing to file it within the 1-year statutory limit. Tolen was convicted of rape and aggravated criminal sodomy in February 1999. He filed a direct appeal to the Court of Appeals, and his convictions were affirmed. State v. Tolen, No. 84,058, unpublished opinion filed January 11, 2002. This court denied his petition for review on March 20,2002, and the'mandate was issued on March 22, 2002. On January 18, 2005, Tolen filed a 60-1507 motion. Concluding that Tolen’s motion had not been filed within the 1-year time limitation of K.S.A. 60-1507(f), the district court summarily denied it without a hearing or the appointment of counsel, Tolen appeals. We transferred the matter from the Court of Appeals on our own motion pursuant to K.S.A. 20-3018(c). Analysis Tolen asserts that K.S.A. 60-1507(f) is unconstitutional because it does not include language granting a grace period for preexisting claims that were final before the 1-year time hmitation became effective. We review the constitutionality of a statute as a question of law and apply a de novo standard of review. State v. Rupnick, 280 Kan. 720, 736, 125 P.3d 541 (2005). The constitutionality of a statute is presumed, and all doubts must be resolved in favor of the validity of the statute. Before the statute may be stricken, it must clearly appear to violate the constitution. This court must construe the statute as constitutionally valid if there is any reasonable way to do so. 280 Kan. at 736. K.S.A. 60-1507 was amended effective July 1, 2003, to include the following provision: “Time limitations. (1) Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (ii) the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court’s final order following granting such petition. “(2) The time limitation herein may be extended by the court only to prevent a manifest injustice.” K.S.A. 60-1507(f). Tolen compares K.S.A. 60-1507 with 28 U.S.C. § 2244(d)(1) (2000), which establishes a 1-year period of limitation for filing a federal habeas corpus action. Tolen asserts that the federal statute specifically provides a grace period, allowing every person to know that they had 1 year from April 24, 1996, (the effective date of the federal statute) to commence the appropriate action. See Hoggro v. Boone, 150 F.3d 1223, 1225-26 (10th Cir. 1998) (holding that the time hmitation in 28 U.S.C. § 2244(d) did not bar federal habeas corpus petitions filed within 1 year after the April 24, 1996, effective date of the statute). Tolen argues that K.S.A. 60-1507(f) is unconstitutional because it does not provide an equivalent provision. Tolen overlooks our Court of Appeals decision in Hayes v. State, 34 Kan. App. 2d 157, 161-62, 115 P.3d 162 (2005), which applies a grace period for claims preexisting the amendment of K.S.A. 60-1507 to add a time limit in subsection (f). Hayes was convicted of first-degree murder, aggravated robbery, and conspiracy to commit robbery in 1995. In November 2003, Hayes filed a pro se 60-1507 motion, arguing that the 1-year time limit should be extended to prevent manifest injustice. The district court summarily dismissed Hayes’ motion. Without addressing whether manifest injustice prevented the dismissal of Hayes’ motion, the Hayes court held that the 1-year limitations period in K.S.A. 60-1507(f)(1) must allow a 1-year period from the date the amendment became effective for all preexisting claims. 34 Kan. App. 2d at 161-62. Because Hayes filed his motion in November 2003 before such a 1-year grace period would have expired in July 2004, the Court of Appeals reversed the dismissal of Hayes’ motion and remanded the matter for further proceedings. 34 Kan. App. 2d at 162. Even if Hayes is correct—and we believe it is—Tolen lacks standing to raise this issue. In State v. Snow, 282 Kan. 323, 343, 144 P.3d 729 (2006), this court refused to address Snow’s claim that K.S.A. 2005 Supp. 21-4720(c) was unconstitutional because the aspects of the statute complained of did not apply to his case. Snow claimed that 21-4720(c) was unconstitutional because it allowed the district court to enhance his sentence based on its own factual findings. However, Snow’s sentence was enhanced based on aggravating factors found by a jury. The Snow court held that Snow lacked standing to challenge the constitutionality of 21-4720(c), stating: “[D]efendants, like Snow, for whom a statute is constitutionally applied cannot challenge the constitutionality of the statute on the grounds that the statute may conceivably be applied unconstitutionally in circumstances other than those before the court.” 282 Kan. at 343. Tolen’s direct appeal outcome became final on March 20, 2002. K.S.A. 60-1507(f) did not take effect until July 1, 2003. Even if a 1-year grace, period is permitted, it expired on July 1, 2004, and Tolen did not file his 60-1507 motion until January 18, 2005. Like Snow, Tolen is attempting to argue a constitutional infirmity that cannot help him even if it merits a cure. At oral argument, in response to questioning from the court, Tolen’s counsel also asserted for the first time that the statute was unconstitutional because, in essence, Tolen could not know the outcome of the Court of Appeals, Hayes case until the decision was filed on July 15, 2005; i.e., he was unaware a 1-year grace period might extend the time for filing of his claim to July 1, 2004, until that date was long past. Neither of the parties briefed this argument. We are not required to consider new issues raised at oral argument. State v. McCown, 264 Kan. 655, 656, 957 P.2d 401 (1998) (refusing to address the defendant’s argument regarding jury instructions because the defendant failed to brief the argument and raised it for the first time at. oral argument); State v. Marsh, 193 Kan. 302, 305, 392 P.2d 953, cert, denied 380 U.S. 910 (1964) (denying counsel’s request at oral argument to enlarge the specifications of error to include additional issues); State v. Young, 190 Kan. 403, 404, 375 P.2d 783 (1962) (same); State v. Hamilton, 185 Kan. 101, 102, 340 P.2d 390, cert, denied 361 U.S. 920 (1959) (same); Mansfield Painting & Decorating, Inc. v. Budlaw Services, Inc., 3 Kan. App. 2d 77, 81, 589 P.2d 643, rev. denied 225 Kan. 844 (1979) (refusing to address a discovery issue because the issue was raised for tire first time at oral argument and the other party did not have an opportunity to brief the issue). However, we have authority to address issues we have raised sua sponte. See State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007) (addressing a speedy trial issue sua sponte because consideration of the issue was necessary to serve the ends of justice or prevent the denial of fundamental rights). Because this issue resulted from our questioning, we have decided to resolve it. The legislature’s adoption of a 1-year time limit for filing motions under K.S.A. 60-1507 put all persons, including inmates such as Tolen, on constructive notice of the new provision. See State v. Lueker, 264 Kan. 341, 345, 956 P.2d 681 (1998) (applying the 1995 amendment to the felon in possession of a firearm statute even though the defendant was not precluded from possessing a firearm under the prior version when he was convicted of the underlying crime); Ramsey v. Hand, 185 Kan. 350, 359, 343 P.2d 225 (1959), cert, denied 362 U.S. 970 (1960) (stating the rule that everyone is presumed to know the law and noting that the rule is so well established that it requires no citation to authority). In addition, Tolen, like everyone else, has had constructive notice .since June 24, 1998, that such a statutoiy time limit on post-conviction proceedings had been construed by our Tenth Circuit Court of Appeals to include a 1-year grace period to cover preexisting claims; this was the construction of the federal counterpart to K.S.A. 60-1507(f). See Hoggro, 150 F. 3d at 1225-26 (construing effect of Antiterrorism and Effective Death Penalty Act of 1996 on 28 U.S.C. § 2244 actions). Tolen was not compelled to wait for Hayes to blaze a trial. His case could have been Hayes instead, had his action fallen within the K.S.A. 60-1507(f) grace period. In view of the foregoing, the district court properly denied Tolen’s 60-1507 motion as untimely. Affirmed. Davis J., not participating. Greene, J., assigned.
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The opinion of the court was delivered by Johnson, J.: ONEOK, Inc. (ONEOK) and Mid Continent Market Center, Inc. (MCMC) appeal the judgment in favor of the plaintiffs in a class action lawsuit filed by Reno County real property owners who claimed to have suffered diminished property values as a result of die escape of natural gas from the Yaggy Field gas storage facility. Finding the district court erred in denying defendants’ motion for judgment as a matter of law, we reverse. In Hayes Sight & Sound, Inc. v. ONEOK, Inc., 281 Kan. 1287, 136 P.3d 428 (2006), we reviewed in some detail the events surrounding the Januaiy 2001 natural gas incident in Hutchinson, Kansas. For purposes of this appeal, we will provide a brief overview of those events. The Incident On January 17, 2001, an explosion occurred in a downtown Hutchinson business, and firemen determined that the ensuing fire appeared to be fueled by natural gas. Geysers of gas and brine appeared at various locations in the city. The next day a mobile home exploded in the Big Chief Mobile Home Park, killing two people. A number of residences and businesses were evacuated. Consultants converged on the city and eventually the source of the problem was traced to a leak in the casing of a well which was part of the Yaggy underground natural gas storage facility located northwest of Hutchinson. Approximately 143 million cubic feet of gas escaped from the storage facility. Experts opined that the escaped gas migrated underground through a porous geologic formation and rose to the surface in Hutchinson through abandoned brine wells which were not properly plugged. Ownership and Control of Yaggy Facility At the time of the incident, MCMC, a subsidiary of ONEOK, operated the Yaggy facility; Kansas Gas Service Company was an incorporated division of ONEOK. Western Resources, Inc. (now Westar) had owned or controlled the facility prior to 1997. Remedial Action After the source of the problem was identified, 58 deep drilled vent wells were placed in various locations in the area for the purpose of allowing the gas to escape into the atmosphere. Approximately 15 of those wells actually emitted gas; the remaining wells were dry holes. Lawsuits Many of the property and business owners who suffered damages from the incident individually settled or litigated their respective claims. See, e.g., Hayes Sight & Sound, Inc., 281 Kan. 1287. This lawsuit was filed as a class action against the owners/ operators of the Yaggy storage facility. The district court certified the class involved in this appeal, defined as follows: “ ‘All owners of real property in Reno County, Kansas, who have suffered, or will suffer diminished property values as a result of release and/or threatened release of natural gas from the Yaggy facility.’ ” A class of Hutchinson business owners claiming business interruption damages was included in the initial petition, and the two class actions were tried together. However, after the initial petition, the court treated the two class actions as separate cases, and the business owners class has a separate appeal pending before this court. See Gilley v. Kansas Gas Service Co., 285 Kan. 24, 169 P.3d 1064 (2007). This opinion deals exclusively with the real property owners’ class action. In its third amended petition, the real property class alleged negligence, strict liability, res ipsa loquitur, nuisance, and trespass as a result of the Yaggy natural gas escape. Claiming the class members had lost the quiet enjoyment of their property and suffered economic harm and damage with respect to property values, the petition sought compensatory damages, injunctive relief, and punitive damages. All of the defendants, ONEOK, MCMC, and Western Resources, filed a joint motion for summary judgment, arguing that plaintiffs could not: (1) establish an actual entry onto their properties for the trespass claim; (2) establish that they suffered some type of injury for the negligence, res ipsa loquitur, and strict liability claims; (3) establish a substantial and unreasonable interference with the use of their properties for the nuisance claim; and, therefore, (4) plaintiffs could not recover diminution of value of land due to marketplace stigma without physical injury or intrusion upon the properties at issue. The district court denied the motion, opining that genuine issues of material fact existed, such as whether there was a physical intrusion of gas upon or under the plaintiffs’ properties. Subsequently, the plaintiff class dismissed its trespass claim, and the court opined that strict liability was inapplicable. Ultimately, the action proceeded to trial on the theories of negligence and nuisance with the plaintiff class seeking actual damages of $81,810,000, plus punitive damages and attorney fees. At the trial, the named representatives of the class did not testify. However, other Reno County residential real properly owners testified. Some related their personal experience in trying to sell their homes after the incident. Others described their reactions to having a vent well drilled on their property. At the defendants’ request and over the plaintiffs’ objection, the district court instructed the jury that the properly owners’ testimony would be about their own personal experience with their own property and was not to be considered “as either common or typical of Reno County residential landowners.” At the core of the plaintiffs’ case was the testimony of their expert, Dr. Robert Simons, who was retained to perform a mass appraisal on the Reno County real property affected by the gas escape to determine class-wide damages. At trial, Dr. Simons limited his opinion to those land tracts situated within Vi mile of a deep drilled vent well (DDV). That area encompassed approximately 5,000 property owners. Dr. Simons performed calculations on three bases: a housing trends study, a contingent evaluation survey, and a hedonic regression analysis. He then averaged the result of the three bases to obtain his ultimate damage determination. The housing trends study compared the post-incident property values in Reno County with those of surrounding counties. Dr. Simons based the contingent evaluation survey upon responses to hypothetical questions posed in a poll of area residents. A hedonic regression analysis identifies the components affecting the value of a residence, such as the age and size of the building and the property’s proximity to schools and parks, and then assigns a value to each component. Here, Dr. Simons opined that the component of a residence’s proximity to a DDV effected a 5% loss in value for those residences within 14 mile. At the close of the plaintiffs’ case, ONEOK and MCMC moved for judgment as a matter of law, arguing, inter alia, that the plaintiffs’ claim of diminished value was unsupported by evidence of class-wide physical injury and that plaintiffs had failed to establish the required elements of the negligence and nuisance claims. The district court summarily denied the motion. After a 16-day trial, the jury was instructed to determine whether any defendant was at fault by way of negligence or nuisance, to assign a percentage of fault to each defendant, to determine the total damages sustained by the plaintiff class, and to determine whether any defendant acted in a willful or wanton manner. The jury awarded 5 million dollars in damages, assigning 80% of the fault to ONEOK, 20% to MCMC, and 0% to Western Resources. The jury found that none of the defendants acted in a willful or wanton manner, precluding punitive damages. After adding attorney fees, the district court entered judgment against ONEOK for $6,154,797.42 and against MCMC for $1,538,699.36. ONEOK and MCMC timely appealed the verdict, including the denial of their summary judgment and judgment as a matter of law motions. The real property class cross-appealed, complaining of the amount of the verdict. Western Resources also filed a prophylactic cross-appeal in the event judgment in its favor was disturbed on appeal. The case was transferred to this court on the parties’ mo tions pursuant to K.S.A. 20-3017. This court granted a joint motion to dismiss Western Resources’ cross-appeal as moot, given that none of the parties sought to disturb its favorable judgment. APPEAL ISSUES The statement of issues in appellants’ brief confines this appeal to a consideration of the district court’s denial of their motion for summary judgment and their motions for judgment as a matter of law. The brief declares that “[a] new trial is neither warranted nor sought by the defendants,” and, at oral argument, defense counsel confirmed that defendants do not challenge the district court’s class certification. Obviously, defendants seek an outright reversal of the judgment against them, but do not want to disturb the jury’s award in the event that reversal is not granted. Appellants identify the specific questions presented as being: “[Wjill Kansas compensate real property owners for stigma/fear in the mind of the buying public, where that fear is unfounded because the property is not contaminated and its use has not been restricted; “[D]id plaintiffs suffer the permanent loss claimed, where the alleged causes are not permanent, but are abatable; “[C]an plaintiffs recover damages where the plaintiffs, who are class representatives, did not testify at trial and those witnesses who did testify offered anecdotal evidence and did not establish standing; “[D]id plaintiffs fail to prove the amount of damages where plaintiffs’ damage witness calculated damages as an aggregate, using methodologies which have been judicially determined to ‘obscure conceptual and practical obstacles almost certain to negate ... an across the board formula?’ ” The appellee plaintiff class disagrees with appellants’ statement of the issues, contending that the manner in which appellants present their arguments establishes that the sole issue is whether the evidence presented at trial is sufficient to make a cognizable claim for damages under Kansas law. In a cross-appeal, the plaintiff class contend that the trial court erred in giving limiting instructions to the jury which effectively negated the testimony of class members at trial and that the prejudicial effect of the limiting instructions rendered the damage award inadequate. STANDARD OF REVIEW Citing to Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 126, 815 P.2d 72 (1991), ONEOK and MCMC ask for a de novo review of the summary judgment denial. However, Rrown refers to the oft-stated summary judgment standard: “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citation omitted.]’ Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005). On the other hand, when the parties have no factual dispute, a de novo appellate review is appropriate. Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004). In the present case, the district court found that there were genuine issues of material fact at the time the summary judgment motion was heard. ONEOK and MCMC do not address why they believe the district court erred in that finding, especially given that the trespass claim was still in play. The property owners class also reminds us that summary judgments are to be granted with caution in negligence actions. See Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998). “ ‘In a negligence action, summary judgment is proper if the only questions presented are questions of law. To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.’ ” Schmidt v. HTG, Inc., 265 Kan. 372, 396-97, 961 P.2d 677, cert, denied 525 U.S. 964 (1998) (quoting Honeycutt v. City of Wichita, 251 Kan. 451, Syl. ¶ 8, 836 P.2d 1128 [1992]). See South v. McCarter, 280 Kan. 85, 94, 119 P.3d 1 (2005). ONEOK and MCMC also argue that the denial of the motions for judgment as a matter of law are reviewed de novo, citing to Fisher v. Sears, Roebuck & Co., 207 Kan. 493, 494-95, 485 P.2d 1309 (1971). A directed verdict is now referred to as a judgment as a matter of law. K.S.A. 60-250. Our standard of review on a motion for judgment as a matter of law is the same as previously employed for a directed verdict. Stover v. Superior Industries Int'l, Inc., 29 Kan. App. 2d 235, 237, 29 P.3d 967, rev. denied 270 Kan. 903 (2000). “ “When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on die evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict.’ Calver v. Hinson, 267 Kan. 369, Syl. ¶ 1, 982 P.2d 970 (1999).” Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 202, 4 P.3d 1149 (2000). In other words, a motion for judgment as a matter of law must be denied when evidence exists upon which a jury could properly find a verdict for the nonmoving party. Cf. Brown v. United Methodist Homes for the Aged, 249 Kan. at 126. PHYSICAL INJURY/INTERFERENCE WITH USE Initially, defendants argue that the plaintiff class failed to prove that the real property in the class suffered physical injury from the escaped gas, or that, class-wide, the real properly owners suffered an interference with the use and enjoyment of their property because of the gas contamination. Resolving all facts and inferences which may reasonably be drawn from the evidence in favor of the plaintiff class, we agree with the defendants’ assertion. The plaintiff class does not directly address the question, but it intimates that there was a physical injury to the property, as evidenced by the testimony of its expert geologist. That witness opined that, with a high degree of probability, the natural gas from the Yaggy facility permeated under each of the properties located within Va mile of a DDV well and that some pockets of gas must remain in the area. However, the plaintiff class dropped its trespass claim, and the issue is not whether natural gas, at some point, passed under the class members’ properties, but rather whether the escaping gas caused any injury to the properties. The plaintiff class offered the testimony of selected Hutchinson area real property owners who related their respective personal experiences following the initial gas explosion. None of those witnesses established physical injury to their property or an interference with the use and enjoyment of their property. Wendell Friesen owned a house within the Hutchinson city limits which he put on the market in the latter part of2001. The Reno County Appraiser had valued the property at $134,100 in 2000 and at $125,570 in 2001. Originally, Friesen tried to sell the home on his own, listing it at $129,000. Subsequently, a realtor sold the property for $116,000 some time before December 2001, but after the terrorist attack of September 11. The house was on the market for a total of 8 to 10 weeks. Friesen did not say that his property had been physically affected by the gas incident or that his personal use and occupancy had been affected. Rather, his complaint was that he was disappointed in the ultimate sale price. Ken Gamber and Pauline Berend testified about their respective residences, both situated on farms outside of the Hutchinson city limits. Both property owners had entered into an agreement with the gas company to permit a DDV well to be placed on their property. Both described being nervous about having the vent wells on their property. However, neither witness described any physical damage, other than that occasioned by the drilling and operation of the vent wells to which they had consented and for which the driller had agreed to pay damages. Berend testified that her use of the property was restricted in that she was afraid to use an outside charcoal grill, albeit that fear emanated from her observation of tire discharge from the vent well, to which she had consented. Gamber acknowledged that the Reno County appraisal of his property had increased every year since the gas incident; Berend did not know whether the appraised value of her property was higher than before. Both properties were susceptible to frequent flooding from a nearby creek. Jeff Sandberg owned a modular home across the street from the Big Chief Mobile Home Park, where the fatal explosion of January 18, 2001, occurred. He also ran an asphalt business from that location. Sandberg described his forced evacuation and loss of use of the property in the months following the explosion, as well as some work that was performed on a brine well situated on his property. However, Sandberg acknowledged that he had been fairly compensated for his business interruption, motel expenses, and other financial losses. His major complaint was that he was unable to sell his property after the gas incident. He initially listed the property for sale at $83,000 and subsequently lowered his asking price to $79,000, before taking the property off of the market in 2002. Sandberg testified that he was unaware that the Reno County appraisal for his property in 2001 was $59,700. When Sand-berg was asked whether he had listed his property for sale on two occasions before the explosion, he responded, “I may have, I don’t know for sure. I can’t recall it if I did.” James Updegrove owned property about 3 blocks from the Big Chief Mobile Home Park which contained a 100+-year-old, 2-story brick firehouse that had been converted into a residence. While Updegrove testified about cracks in the structure’s walls, foundation, and floors, he acknowledged that the structure was cracked before the explosion and that he could not say there were any more cracks after the explosion than before. Other than the period of forced evacuation, Updegrove did not testify about any interference with his use and enjoyment of the property. He mentioned that he tried to list the property for sale after the explosion, but the realtor would not take the fisting. Updegrove conceded that his property would only appeal to a “unique audience” of buyers and that he had no personal knowledge of whether the value of his property had been affected in any way by the Hutchinson gas incident. Tammy Pohl testified about losing a home to foreclosure after die gas incident. She acknowledged that her experience was not common with anyone else in Reno County. She and her husband had built the home and subsequentiy refinanced the property and used part of the proceeds in their iawn service business. Appar ently, about the time of refinancing, the property was privately appraised at $84,000. Later, the Pohls purchased another home for $120,000, intending to sell the self-built residence. They received an offer of $51,000, but did not accept it, even though Pohl was aware that the Reno County appraisal for the year 2000 was $52,400. Upon advice of counsel, the Pohls discontinued making payments on the refinancing note and foreclosure followed. The Pohls were not hving in the self-built residence at the time of the explosion, and the property did not sustain any physical damage. In short, the anecdotal witnesses did not establish either physical injury or interference. Likewise, the plaintiffs’ damage expert, Dr. Simons, did not base his estimate of the class-wide loss in market value on any physical injury to the real property or any interference with the use and enjoyment of the property. To the contrary, his opinion was based upon a perceived stigma or fear among the buying public, regardless of whether such fear had a basis in fact or science. Thus, when the district court heard defendants’ motion for judgment as a matter of law, it had no evidence before it that the class had suffered physical injury to the real property or that the gas escape had interfered with the class members’ use and enjoyment of their property. STIGMA OR MARKET FEAR DAMAGES Accordingly, we perceive that the core and dispositive question for our determination is whether a property owner can collect damages under either a negligence or nuisance theory for a diminution in the property’s market value caused by the stigma or market fear resulting from an accidental contamination where the property owner has not proved either a physical injury to the property or an interference with the owner’s use and enjoyment of the property. In Kansas, the answer to that question is “no.” Recognition of Stigma Damages in Kansas The plaintiff class asserts that Kansas has specifically recognized stigma damages, pointing to prior Kansas cases in which our courts have found that damage awards can include the diminution of the market value of a plaintiff s real property resulting from a market fear or stigma. A review of those cases reveals the distinguishing factor that they involved properties which had sustained physical injuiy as a direct result of the respective defendant’s action or inaction. In Ryan v. Kansas Power & Light Co., 249 Kan. 1, 3, 815 P.2d 528 (1991), this court reviewed the judgment of damages awarded to landowners in an easement condemnation proceeding, where the principal question raised by the utility company dealt with the admissibility of nonexpert testimony “regarding fear in the marketplace of high voltage electrical transmission lines and its effect on property valuation.” The Ryan court reviewed the Court of Appeals decision in Willsey v. Kansas City Power & Light Co., 6 Kan. App. 2d 599, 631 P.2d 268, rev. denied 230 Kan. 819 (1981), and opined that the effect of Willsey had been to adopt the “minority rule,” with which the Supreme Court agreed. 249 Kan. at 7. Accordingly, Ryan held: “In a condemnation proceeding to acquire an easement for installation of a high voltage electrical line, testimony regarding fear in the marketplace is admissible with respect to the value of the property taken by condemnation without proof of reasonableness of the fear since fear of a high voltage line is reasonable.” 249 Kan. 1, Syl. ¶ 1. In both Ryan and Willsey, the plaintiffs owned the land upon which the defendants were going to construct and maintain high-power electrical transmission lines. There was no question that the land would be damaged to some extent during construction and that the electric lines would interfere with the landowners’ use and enjoyment of their respective property. The only question was whether the jury could consider the general public’s fear of high-voltage power lines as a factor in assessing the landowners’ total damages. In Horsch v. Terminix Int'l Co., 19 Kan. App. 2d 134, 865 P.2d 1044 (1993), rev. denied 254 Kan. 1007 (1994), the plaintiffs had purchased a house relying in part upon a termite inspection report indicating that the house had no evidence of termite damage. Subsequently, the Horsches discovered termite damage requiring repairs costing $5,045. In their negligence action against the termite inspection company, the plaintiffs sought damages for the cost of repairs and claimed additional damages for the diminution in the market value of their house resulting from marketplace stigma or fear. Terminix argued that plaintiffs had suffered only temporary damages, making the cost of repairs the sole remedy. Plaintiffs’ expert opined the house had suffered a permanent reduction in value due to the stigma of termite damage. Ultimately, the Horsch court held: “Under the facts of this case, where a buyer purchased a house in reliance on a termite company’s report that incorrectly stated the house had no prior termite damage, the company may be liable both for the cost of repair of the damage and any reduction in market value of the house caused by marketplace fear of houses with prior termite damage.” 19 Kan. App. 2d 134, Syl. ¶ 6. These cases instruct us drat a diminution in property value resulting from the general public’s fear of high-power electrical lines or fear of termite damage can be a component in measuring the damages suffered by the owner of the property directly affected by the stigmatizing condition. Further, those cases stand for the proposition that the general public’s fear of high-power electric lines and termites is a reasonable concern. However, those cases do not answer our question. As noted, the plaintiff class did not prove that the stigmatizing condition directiy affected its real property or that the stigma was a reasonable fear. The scenario before us would be more akin to an action by Ryan’s neighbor against Kansas Power & Light Company, claiming drat his or her adjacent land has suffered a diminished fair market value because of the stigma of having a high-power electric line on Ryan’s property, or an action by Horsches’ neighbor against Terminix, claiming a reduced property value due to the stigma of having a termite damaged house in close proximity. In other words, die plaintiff class would have us expand the holdings in Ryan, Wil-Isey, and Horsch beyond their facts. Likewise, even when acknowledging that stigma damages may be recoverable, our courts have cautioned that “ ‘[r]emote, speculative and conjectural damages are not to be considered.’ ” Ryan, 249 Kan. at 6 (quoting Willsey, 6 Kan. App. 2d at 611); see also Horsch, 19 Kan. App. 2d at 140 (“Under Kansas law, recovery will not he where the alleged damages are too conjectural or speculative to form a basis for measurement.”). Indeed, Horsch opined that “[t]here is no one set rule under Kansas law for recovery of damages for the loss of real property,” but rather “[t]he measure of damages depends on the facts of the case.” 19 Kan. App. 2d at 138. Causes of Action In separate counts of the third amended petition, plaintiff class claimed a cause of action for both negligence and nuisance. The count alleging negligence recites that “[t]he plaintiffs have sustained damage including but not limited to: unreasonable interference with the use and enjoyment of their property and damage to their property values.” The nuisance count alleges the same damages. Thus, the theory for both causes of actions appears to be identical, i.e., the defendants were negligent in the maintenance and operation of the Yaggy storage facility; that particular negligence allowed natural gas to escape into the surrounding environment; and, as a result, the plaintiff class property owners suffered a decrease in the market value of their property. As we have noted, this appeal deals only with damages; the defendants’ culpability is not in issue. The claimed damage is the same for both causes of action, and the parties, at times, fail to distinguish between the nuisance and negligence claims, albeit plaintiffs’ counsel insisted at oral argument that the case involves both a nuisance claim and a “general negligence” action. In Culwell v. Abbott Construction Co., 211 Kan. 359, 364, 506 P.2d 1191 (1973), we discussed the relationship between nuisance and negligence: “Nuisance is a field of tort liability rather than a type of tortious conduct. Nuisance has reference to the interests invaded, to the damage or harm inflicted, and not to any particular kind of act or omission which has led to the invasion. Professor Prosser concludes that the attempt frequently made to distinguish between nuisance and negligence, for example, is based entirely upon a mistaken emphasis based upon what the defendant has done rather than the result which has followed, and forgets completely the well-established fact that negligence is merely one type of conduct which may give rise to a nuisance. (Prosser, Law of Torts, 4th Ed., § 87, p. 573.) In other words a nuisance may result from conduct which is intentional or negligent or conduct which falls within the principle of strict liability without fault. The point is that nuisance is a result and negligence is a cause and they cannot be distinguished otherwise.” Nuisance To the extent the defendants suggest that a nuisance action requires physical injury, that argument is misguided. Damages for a nuisance claim focus on the impact upon the landowner, rather than the land itself. Therefore, the question is whether the landowner must show an interference with the use and enjoyment of the property. “ ‘A nuisance is an annoyance, and any use of property by one which gives offense to or endangers the life or health, violates the laws of decency, unreasonably pollutes the air with foul, noxious odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of the property of another may be said to be a nuisance. “ ‘A private nuisance is a tort related to an unlawful interference with a person’s use or enjoyment of his land. The concept of a private nuisance does not exist apart from the interest of a landowner. [Culwell, 211 Kan. 359, Syl. ¶¶ 1, 2.]’ ” Vickridge Homeowners Ass’n, Inc. v. Catholic Diocese of Wichita, 212 Kan. 348, 354, 510 P.2d 1296 (1973). The parties spend some time and energy arguing about the Ohio case of Chance v. B.P. Chemicals, Inc., 77 Ohio St. 3d 17, 29, 670 N.E.2d 985 (1996). There, the Ohio Supreme Court found that when a plaintiff claims an indirect invasion of his or her property, some type of physical damage or interference with use must be shown, and, therefore, the trial court had not abused its discretion in prohibiting the plaintiffs from presenting evidence on speculative stigma damages. 77 Ohio St. 3d at 29. However, by the time of that ruling, nuisance and negligence had been removed from the case and the action was proceeding on a trespass theory. The result in this state on a trespass theory would likely be the same. See Gross v. Capital Electric Line Builders, Inc., 253 Kan. 798, 801, 861 P.2d 1326 (1993) (plaintiff must prove substantial damages to the land to recover for intangible invasion). However, in this case; plaintiff class dropped its trespass claim before trial. Subsequently, however, the Chance decision was further interpreted in Ramirez v. Akzo Nobel Coatings, Inc., 153 Ohio App. 3d 115, 119, 791 N.E.2d 1031 (2003), to mean that pure environmen tal stigma, defined as when the value of real property decreases due solely to public perception or fear of contamination from a neighboring property, does not constitute a basis for compensable damages in Ohio. A plaintiff must show actual harm, even in a claim for private nuisance. On the other hand, upon showing sufficient interference to establish a nuisance, a plaintiff is entitled to the damages flowing from that nuisance. It appears that the majority of other jurisdictions that have considered the issue hold that a nuisance claim requires a physical presence or an interference with the plaintiff s use and enjoyment of the real property which is separate and apart from the diminution of the property’s market value. See Adams v. Star Enterprise, 51 F.3d 417, 422-23 (4th Cir. 1995) (applying Virginia law) (no recovery for a private nuisance which is not visible or otherwise capable of physical detection from plaintiffs property); Rudd v. Electrolux Corp., 982 F. Supp. 355, 369 (M.D.N.C. 1997) (need actual interference [cause] substantial enough to reduce market value [effect]); Miller v. Jasinski, 17 Ark. App. 131, 136, 705 S.W.2d 442 (1986) (depreciation in property value standing alone does not malee tire activity constitute a nuisance which should be abated or which can form the basis of an award of damages); Koll-Iroine Center Property Owners Assn. v. County of Orange, 24 Cal. App. 4th 1036, 1043, 29 Cal. Rptr. 2d 664 (1994) (decline in property value alone without interference in actual property right does not support a claim of private nuisance); City of Louisville v. Munro, 475 S.W.2d 479, 482-83 (Ky. 1971) (sole claim of diminished property value will not support private nuisance or reverse condemnation; a nuisance must disturb physical comfort or be offensive to physical senses); Adkins v. Thomas Solvent Co., 440 Mich. 293, 311, 487 N.W.2d 715 (1992) (allegation of property depreciation alone does not set forth a cognizable claim in nuisance, i.e., not a significant interference with use and enjoyment of the property; but recognizing that property depreciation is a traditional element of damages in a nuisance action); Leaf River Forest Products v. Ferguson, 662 So. 2d 648, 663 (Miss. 1995) (common law does not allow recovery for a decrease in property value caused by public perception without accompanying physical harm to the property); Twitty v. State, 85 N.C. App. 42, 53-54, 354 S.E.2d 296, rev. denied 320 N.C. 177 (1987) (private nuisance is more than threat of contamination; threat must amount to substantial interference with use of the property, mere diminution in value is not enough); Golen v. Union Corp., 718 A.2d 298, 300 (Pa. Super. 1998) (alienability and diminution in value are relevant to calculate damages but are not cognizable injuries of themselves); Walker Drug Co., Inc. v. La Sal Oil Co, 972 P.2d 1238, 1244 (Utah 1998) (inability to use property as collateral to secure a mortgage loan because of fears arising from contamination of adjacent properties not sufficient as a matter of law to support a nuisance claim, i.e., not a substantial and significant interference with landowners’ use of the property); and Edgcomb v. Lower Valley Power & Light, 922 P.2d 850, 860 (Wyo. 1996) (trial court correctly ruled that diminution of value of the property, as a matter of law, is not interference with the use of property in a claim for nuisance). The plaintiff class does not directly address the question of whether a diminution in a property’s market value constitutes an interference with the owner’s use and enjoyment of the property, i.e., whether the property devaluation is the nuisance. However, the class intimates that stigma damages are both the injury and the measure of damages. Such an argument merges the cause and effect, i.e., the cause of plaintiff s injury was a diminution in property value which effected a diminution in property value. We perceive such an argument to be circular and inappropriate. Furthermore, the plaintiff class did not establish an impairment to the alienability of the class real property. Even the anecdotal witnesses confirmed that the real property was still marketable. At most, the evidence suggested that some class members were unable to sell their property for as much money as they would have liked. Thus, we hold that to maintain an action for nuisance, a landowner must establish an interference with the owner’s use and enjoyment of the property which is separate and distinct from the claim that the property’s value has diminished because of marketplace fear or stigma. Negligence At oral argument, counsel for the plaintiff class acknowledged the weight of authority requires an interference with the use and enjoyment of property to sustain a private nuisance, but reminded the court of plaintiffs’ “general negligence” cause of action. As previously noted, plaintiffs have but one theory of liability; changing the label on the cause of action will not change the result. Plaintiffs essentially claim that defendants’ negligence created an environment in which the emotions of the buying public distressed the market value of their property. In other words, the claim is for a negligent infliction of emotional distress on the real property. Ironically, if the class members were to claim a negligent infliction of emotional distress upon their persons, our case law is clear that the action would have to be accompanied by an immediate physical injury directly and proximately caused by the negligent conduct. See, e.g., Curts v. Dillard’s, Inc., 30 Kan. App. 2d 814, 815, 48 P.3d 681 (2002). The only exception to that rule is where the defendant’s acts were willful or wanton. 30 Kan. App. 2d at 815. We see no reason to apply a different rule to property claims than is applied to personal injury claims. In order to recover for the diminution in value of real properly resulting from the marketplace fear or stigma alleged to have been created by a defendant’s negligence, the plaintiff must establish that the property sustained a physical injury as a direct and proximate result of the negligent conduct. Here, the plaintiff class did not meet that burden, and the district court should have granted the defendants’ motion for judgment as a matter of law. OTHER ISSUES A detailed discussion of appellants’ other issues is unnecessary, given our foregoing holding. However, we find them to be without merit. Evidence of Permanent Damages Appellants claim the damages sought were not permanent damages. However, in their brief, appellants concede that “[l]oss of market value is permanent loss” and that Dr. Simons opined that the loss of market value in this case was a permanent loss. Thus, we decline appellants’ invitation to reweigh the evidence. See State v. Lopez, 36 Kan. App. 2d 723, Syl. ¶ 4, 143 P.3d 695 (2006). Class Representatives Appellants complain that the class representatives did not testily, albeit their precise argument is rather obtuse. What is clear is that the appellants did not appeal the class certification. As the plaintiff class points out, the plaintiffs’ burden was to prove class-wide damages, not the individual claims of the class representatives. Appellants’ citation to class action lawsuits seeking declaratory and injunctive relief, where the equitable remedy must be fashioned to the particular inadequacy found, are simply inapplicable to this case. Dr. Simons’ Credibility Finally, appellants contend that plaintiffs’ expert’s methodologies were flawed and based upon guesses, assumptions, and mere speculation. The complaints about Dr. Simons’ testimony simply invite us to assess his credibility. “Despite some evidence casting doubt on the credibility of key witnesses, we simply do not reweigh such evidence or redetermine the credibility of witnesses.” Lopez, 36 Kan. App. 2d 723, Syl. ¶ 4. Further, we would note that the defendants’ own expert confirmed that the hedonic regression analysis utilized by Dr. Simons is a recognized method of mass appraisal. CROSS-APPEAL Likewise, our reversal renders the cross-appeal moot. The plaintiff class does not contend that the anecdotal witnesses were limited in any manner in giving their testimony, i.e., that they had anything more to say. The complaint is that the jury was instructed that the individual testimony could not be considered as being the common or typical experience of all Reno County residential landowners. Interestingly, a review of the trial transcript reveals that the witnesses’ experiences were not even common or typical with each other; some even specifically testified that their individual experi ence or their individual property was unique. It would be difficult to find that the limiting instruction told the jury anything that it could not perceive from listening to the actual testimony, i.e., that the anecdotal personal experience of each lay witness could not be characterized as common or typical of other Reno County residential landowners. Furthermore, as the plaintiff class strenuously argues in the issue on the failure of class representatives to testify, plaintiffs’ burden was to prove class-wide damages. That burden cannot be accomplished by putting on an individual witness and then arguing that the jury can calculate the class damages by multiplying the individual damages by the number of people in the class. The jury simply could not calculate total, class-wide damages from the anecdotal testimony of the lay witnesses; that was the function of Dr. Simons’ testimony. Thus, the district court’s instruction to the jury did not mislead the jurors as to the law or the facts of this case. Reversed and remanded with instructions to enter judgment as a matter of law in favor of the defendants.
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The opinion of the court was delivered by McAnany, J.: David A. Monda, who was convicted of the 1995 murder of Diane Swinney, appeals from the district court’s summary denial of his K.S.A. 60-1507 motion in which he alleged prosecutorial misconduct, ineffective assistance of counsel, and newly discovered evidence. A divided panel of the Court of Appeals affirmed. Monda v. State, No. 94,811, unpublished opinion filed December 1, 2006. This court granted Moncla’s petition for review. Swinney owned the Star’s Club, a Wichita bar where Kevin Robertson worked. According to the State’s witnesses, Swinney and employee Linda Brown closed the bar at about 2 a.m. on the day of the murder. Swinney left the bar with several cans of beer and drove to her apartment which was a block or two from the bar. Swinney had lived in her upstairs apartment for about 3 months before her death. Pat Berry and Kathryn Cunningham also occupied the house. Berry and Cunningham slept downstairs. Monda had been living in the house less than a week before Swinney’s death. He often slept in a recliner upstairs in Swinney’s room, though at times he slept downstairs. Berry testified that Monda left the house on foot early on the morning of Swinney’s murder. Monda told Berry he was late for work and Swinney was upstairs having sex with someone and he did not want to watch. Moncla went to the home of Carl Guy at about 9 a.m. and asked Guy for a ride to work. Guy agreed and stopped for gas en route. Moncla operated the pump and, during the process, spilled gasoline on his jeans. Guy dropped Moncla off at a QuikTrip store. Moncla arrived at the home of John Bayliff sometime between 9 and 9:30 that morning. Moncla told Bayliff that people were after him and he needed a place to stay. Moncla spent the day with Bayliff. Later that day Robertson broke into Swinney’s apartment after she failed to respond to repeated pounding on her door. She was found dead from repeated blows to her head. When Moncla saw the report of Swinney’s death on the evening television news, he told Bayliff his version of what happened, a version consistent with Moncla’s later testimony at his trial. Moncla stayed with Bayliff for several days until he was arrested and charged with Swinney’s murder. The police found a pillow and a woman’s coat near Swinney’s body. Both were ripped and bloody. A pillowcase covered Swinney’s head. Moncla’s fingerprints were found on the pillowcase. Moncla’s fingerprints were found on the beer cans Swinney had brought to her house after closing the bar. His fingerprints were also found on several empty beer cans in Swinney’s wastebasket. In the bathroom, the police found a claw hammer with human blood under its head. The coroner testified that Swinney suffered at least 18 blows to her head, causing her death. He also found defensive injuries on other areas of her body. He opined that the claw hammer found by the police was the murder weapon. There was no evidence of fingerprints on the hammer. The police found a bloody rag in the bathroom where the hammer was located and where Moncla had been. It was the State’s theoxy that there was enough time following the murder and before Moncla left for him to wipe down the hammer and remove any fingerprints with the rag. Police investigators discovered bloodstains on Moncla’s jeans. However, the stains could not be analyzed because of the gasoline spilled on them on the morning of Swinney’s murder. Forensics scientist Kelly Robbins testified that the pattern of the blood spatter on Moncla’s jeans was consistent with impact force and not consistent with the wearer having knelt in the blood from Swinney’s wounds after her attack, the explanation Monda would later advance in his defense at trial. Monda testified on his own behalf. He claimed that Danny Long committed the murder with the help of Robertson because of debts Swinney owed. According to Monda, on the morning of the murder he was sleeping on Swinney’s recliner when he was awoken by a man hitting him over the head with a gun. There were three men in the room wearing the colors of a motorcycle gang. Monda was forced from the bedroom into the bathroom. He heard several slaps or hits and heard someone say, “[Wje’re going to have to take a loss on this one.” He heard the name Kevin. (When Kevin Robertson testified at trial, Monda claimed he realized that it was Robertson who had hit him on the head with a gun.) After the men left, Monda reentered the bedroom and saw Swinney crying on the floor with a pillow over her head. He removed the pillow and knelt at her side, causing the bloodstains on his jeans. Swinney asked Monda to “stay out of it,” so he left. Robert Wisley, a friend of Long, testified on Moncla’s behalf that Long approached him in a bar and confessed to murdering Swinney with a hammer. Monda was convicted of first-degree murder for Swinney’s death. The court sentenced him to life imprisonment with no possibility of parole for 40 years. This court affirmed Moncla’s conviction. State v. Monda, 262 Kan. 58, 79, 936 P.2d 727 (1997) (Monda I). In 1998, Monda moved for a new trial based on newly discovered evidence. For support he provided affidavits of two fellow inmates, Allen Richards and Scott Staggs. Richards and Staggs claimed that Robertson admitted to them that he was involved in the murder. After a nonevidentiary hearing, the district court denied relief without articulating the basis for its denial. Monda appealed. On appeal, this court reversed and remanded in order for the district court to evaluate the alleged new evidence and to state its findings on the record. State v. Moncla, 269 Kan. 61, 4 P.3d 618 (2000) (Monda II). On remand, the district court held an evidentiary hearing on Moncla’s motion, following which it concluded the new evidence did not raise a reasonable possibility of a different verdict if the case would have been retried. Monda again appealed, and this court affirmed. State v. Moncla, 273 Kan. 856, 861, 46 P.3d 1162 (2002) (Monda III). In 2003, Monda moved for relief pursuant to K.S.A. 60-1507. In his motion he claimed prosecutorial misconduct during the trial, ineffective assistance of trial and appellate counsel, and more newly discovered evidence. Following a nonevidentiaiy hearing, the district court denied relief. A divided panel of the Court of Appeals affirmed. Moncla v. State, No. 94,811, unpublished opinion filed December 1, 2006 (Monda IV). Judge Greene dissented with regard to the denial of an evidentiary hearing on Moncla’s claim of newly discovered evidence. Monda IV, slip op. D-l to D-3 (Greene, J., dissenting). The case returns to us on Moncla’s petition for review. Legal Standards for the District Court and for Appellate Review An evidentiary hearing on Moncla’s K.S.A. 60-1507 motion is not required if the motion together with the files and records of the case conclusively show that Monda is not entitled to relief. See K.S.A. 60-1507(b). The burden is on Monda to allege facts sufficient to warrant a hearing on the motion. See Supreme Court Rule 183(g) (2007 Kan. Ct. R. Annot. 244); State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994). If no substantial issues of fact are presented by the motion, the district court is not required to conduct an evidentiary hearing. Rhone v. State, 211 Kan. 206, 208, 505 P.2d 673 (1973). The district court held a preliminary hearing on Moncla’s motion, at which Moncla’s counsel appeared and argued on Moncla’s behalf. In its order overruling Moncla’s motion, the district court made detailed findings of fact and conclusions of law. We examine these findings and conclusions in order to determine if the findings are supported by substantial competent evidence and whether those findings are sufficient to support the court’s conclusions of law. We review de nova the district court’s conclusions of law. Bellamy v. State, 285 Kan. 346, Syl ¶ 4, 172 P.3d 10 (2007). Prosecutorial Misconduct and the Failure of Counsel to Preserve and Raise the Issue on Direct Appeal In his 2003 motion, Monda asserts for the first time since his 1995 trial that the prosecutor engaged in misconduct by calling him a liar on multiple occasions during closing argument. Without recounting all of the prosecutor’s argument, it suffices to say that he repeatedly characterized Monda as a bar for tebing different versions of the events to different persons at different times. The district court found that this claim was for a trial error which Monda could not raise in his K.S.A. 60-1507 motion since Monda failed to demonstrate exceptional circumstances which would excuse his failure to raise the issue in his direct appeal. See Supreme Court Rule 183(c)(3) (2007 Kan. Ct. R. Annot. 244). The district court also found that this claim was barred by laches. Monda may raise the issue of prosecutorial misconduct only after showing exceptional circumstances which excuse his failure to raise the issue in his direct appeal. See Supreme Court Rule 183(c)(3); State v. Swisher, 281 Kan. 447, 449, 132 P.3d 1274 (2006). Monda claims these exceptional circumstances consist of: (1) the failure of his trial counsel to object to the prosecutor’s remarks at trial and (2) the failure of his appebate counsel to raise the issue in his direct appeal. To demonstrate exceptional circumstances, Monda must estabbsh the two essential elements of ineffective assistance of counsel enunciated in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 (1984); see Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland test). Those elements, as recognized by this court, are: (1) counsel’s representation fell below an objective standard of reasonableness, considering ab the circumstances and (2) but for counsel’s deficient performance there is a reasonable probabibty that the outcome of the proceeding would have been more favorable to the defendant. See Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). In considering the first element, Moncla’s trial and appellate counsel enjoy a strong presumption that their conduct falls within the wide range of reasonable professional conduct. Thus, we are highly deferential in scrutinizing their conduct and make every effort to ehminate the distorting effects of hindsight. The second element requires a showing of prejudice. With respect to the claims regarding trial counsel, we are immediately drawn to the second element of the Strickland test, the need to show prejudice. Trial counsel’s failure to object to the prosecutor’s remarks did not prejudice Monda by denying him the right to raise and argue the issue on appeal. This is because the standard of appellate review is the same regardless of whether counsel objected to the remarks at trial. See Haddock v. State, 282 Kan. 475, 523, 146 P.3d 187 (2006). This brings us to the issue of the conduct of Moncla’s appellate counsel. Moncla’s appellate counsel testified at the hearing that she chose appellate issues most likely to result in a reversal, not issues likely to result in harmless error in light of the overall evidence. We give wide deference to counsel in deciding what issues should be asserted on appeal. Sound professional advocacy requires the exercise of discretion in identifying issues to be presented to the tribunal. Sound appellate advocacy does not require counsel to dilute the effect of otherwise worthwhile claims with others reasonably determined to be unlikely to provide any relief. Haddock is a recent example of those cases in which the prosecutor’s improper comments in closing argument that the defendant was a liar did not warrant reversal since there was no reasonable likelihood that the outcome of the trial would have been different absent these statements. 282 Kan. at 522-23. Moncla’s explanation of who attacked Swinney changed several times throughout the course of the trial. Nevertheless, it is clear that the prosecutor’s remarks regarding Monda were improper. However, the prosecutor’s remarks occupied a minuscule portion of the trial proceedings. They were made after the district court’s caveat to the jury that the statements and arguments of counsel are not evidence and should not be treated as such. The jurors had been instructed that they were the ones charged with deciding the credibility of the witnesses. Moncla’s motion does not allege ill will on the part of the prosecutor. Further, the evidence against Monda was overwhelming. Moncla’s fingerprints were found at the crime scene. Moncla’s jeans and shoes were covered with a blood-spatter pattern inconsistent with his explanation of having knelt at Swinney’s side after she had been attacked. Monda was the only person known to be in the victim’s room near the time of the murder. And no one other than Monda claimed to have seen the people in the house whom Monda identified as Swinney’s attackers. We conclude that there is no reasonable probability that the outcome of the trial would have been more favorable to Monda had the prosecutor not made these improvident remarks during closing argument. Accordingly, Monda fails to demonstrate that the failure of his counsel to preserve and argue this issue on appeal constitutes exceptional circumstances which excuse his failure to assert this claim before the filing of his K.S.A. 60-1507 motion 8 years after his trial. Since Monda fails to show exceptional circumstances which excuse his failure to assert this claim on his direct appeal, it is unnecessary to consider the issue of laches. The district court did not err in denying relief on this claim under Supreme Court Rule 183(c)(3). Other Ineffective Assistance of Counsel Claims Monda argues that his trial counsel also was deficient for (1) fading to object to the prosecutor’s statements regarding polygraph testing; (2) fading to request that a transcript be made of two sidebar conferences; and (3) fading to request DNA testing of numerous hairs and other items found at the crime scene. 1. Polygraph Evidence Monda claimed that Danny Long was the murderer, not he. Detective Timothy Relph investigated Long. Monda called Relph as a witness to advance this claim. Before calling Relph to testify, Monda moved in limine to bar inquiry into the polygraph test the police gave Long. The trial judge ruled, “I will not prevent the State from going into the fact this person was given a polygraph. I will prohibit the State from mentioning anything else whatsoever about the results of that polygraph examination.” The judge further explained that the prosecutor could “ask the detective if after all of the investigations that were utilized what if any determination was made.” The following exchange took place during the State’s cross-examination of Relph: “Q. [Prosecutor:] . . . Did you investigate Danny Long? “A. [Detective Relph:] Yes, I did. “Q. All right. And in part of that investigation, did you ask him to take a polygraph? “A. Yes, I did, ma’am. “Q. And did he take a polygraph? “A. Yes, he did. “Q. After your investigation of him, were you able to rule him out as a suspect? “A. Yes, I was, ma’am. “Q. And in addition to the polygraph, didn’t you also submit his fingerprints that were taken from that scene to determine whether his fingerprints were found anywhere at that scene? “A. I did submit a request, yes, ma’am. “Q. And did you get a result? “A. Yes, ma’am. “Q. And what was that? “A. His fingerprints were not located at that scene.” Moncla’s defense counsel did not object to this exchange; thus, the issue was not preserved for Moncla’s direct appeal. Monda now asserts that this omission denied him effective legal representation at trial. He claims that the results of the polygraph examination should not have been admitted. Relph testified to the following facts: (1) Long was investigated; (2) Long was given a polygraph exam; (3) at the end of the investigation, Long was ruled out as a suspect; and (4) the investigation included a check of fingerprints, and no prints from Long were found at the scene. Monda failed to note fact (4) of the testimony in his appellate brief. When fact (4) is considered, Moncla’s argument seems to be that the State violated the order in limine when it improperly elicited fact (3) before fact (4). In other words, the State asked whether Long was ruled out as a suspect before Relph testified that Long’s fingerprints were not found at the scene. This argument suggests that no violation would have occurred if the State had elicited fact (4) before fact (3). On Moncla’s direct appeal, the court did not reach this issue since “the defendant did not object to the questions of the prosecution which arguably violated the trial court order in limine.” (Emphasis added.) Moncla 1, 262 Kan. at 66. Contrary to the dicta on this point in Moncla’s direct appeal, Moncla’s argument is based upon an unreasonably close reading of the order in hmine. The trial court permitted the State to establish that Long was given a polygraph examination and the ultimate outcome of the investigation. Relph testified that Long was ruled out as a suspect. This occurred after the polygraph examination was administered and after no fingerprints from Long were found at the murder scene. Moncla’s counsel was not deficient for failing to object to this testimony which was consistent with the court’s order in limine. 2. Sidebar Conferences Monda argues his trial counsel was constitutionally deficient in failing to request that a record be made of two sidebar conferences that took place at trial. This issue arises from a discussion in Moncla’s direct appeal of his claims regarding the admission of certain testimony under the provisions of K.S.A. 60-455. This court began with the general observation: “The defendant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, an appellate court presumes that the action of the trial court was proper. State v. Richardson , 256 Kan. 69, 84, 883 P.2d 1107 (1994).” Moncla I, 262 Kan. at 67. From this, the court observed: “The defendant had the responsibility to invite the court reporter to record the substance of the sidebar conference.” Moncla I, 262 Kan. at 68. We need not revisit the extent of counsel’s responsibility to see that a record is made of the proceedings vis-a-vis the authority and duties of the trial court to assure a proper and orderly conduct of the trial. We need only examine the record of the trial to consider the merits of this claim. Monda does not cite to the specific testimony during which the trial court engaged in a bench conference with counsel. Examining Moncla’s brief in his direct appeal, where this issue originated, Monda first raised the issue of improper K.S.A. 60-455 evidence during the testimony of Sherry Bomhauser, his former girlfriend. Moncla’s counsel made several objections upon which the court ruled. At no time did either counsel request leave to approach for a bench conference. There was no failure to maintain a record of a bench conference because there was no bench conference requested or granted. The next area of concern came during Moncla’s cross-examination. When the State attempted to elicit testimony that Monda had battered Swinney before, Moncla’s counsel objected and requested a bench conference. Following the bench conference the trial court sustained Moncla’s objection. In the course of further interrogation, other objections were raised and ruled upon, but no further bench conference was requested. Obviously, Monda can have no complaint about counsel’s conduct when die court sustained his counsel’s objection and the objectionable question was never answered. The final area of inquiry involved the issue of the admission of an audiotape recording of a police interview of Bayliff, the friend Monda stayed with for several days before being arrested. The State offered the tape. Moncla’s counsel objected and requested leave to approach. Following a bench conference, Moncla’s counsel objected to statements on the tape “about Mr. Bayliffs wife and other individuals.” Moncla’s counsel requested that those portions be redacted. The State agreed, and a redacted form of the tape was admitted into evidence and played to the jury. At some point during the playing of the tape Moncla’s counsel objected, to which the court responded, “Was there a problem with the editing that you were going to do?” Moncla’s counsel replied, “No, that part wasn’t pointed out to me.” No specific objection was enunciated. In fact, it is not even clear whether Moncla’s counsel had an objection or whether she simply misspoke and withdrew any objection. In any event, she did not press the issue and the playing of the tape continued without objection. Though not raised in his brief on his direct appeal, Monda apparently argued that the audiotape included references to various domestic violence issues. Our examination of the record discloses no transcript of Bayliff s police interview to confirm this. Monda fails to identify any specific portion of the Bayliff interview which was inadmissible and which his counsel should have fought to keep out. In any event, Moncla’s defense counsel had and took the opportunity to undermine any facts described in the audiotape during her cross-examination of the various witnesses. An examination of Moncla’s motion and the files and records of his case fails to demonstrate any defect in counsel’s conduct regarding admission of the Bayliff tape. But of equal importance, Monda fails to demonstrate prejudice, i.e., “there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different" in light of “the totality of the evidence.” See Bledsoe, 283 Kan. at 90-91. Accordingly, the district court did not err in summarily denying relief on this claim. 3. Testing of Evidence Found at the Crime Scene Monda claims his trial counsel was ineffective for failing to obtain a DNA analysis of hairs, fibers, semen samples, and a bloody footprint found at the scene to determine if they came from other suspects. First, we note that there is no reference in the record to any semen samples or bloody footprints other than in Moncla’s K.S.A. 60-1507 motion. Second, Moncla’s trial counsel was not obligated to establish the identify of the murderer to effectively represent Monda. Some of the hair found at the scene belonged to Swinney. So long as a question remained as to the source of the remaining hair and other substances found at the scene, Moncla’s trial counsel was free to argue Moncla’s theory that someone else committed the murder. That defense would have been compromised had DNA testing identified Monda as the source of these items found at the scene. Thus, the decision not to move the court for testing may be reasonably characterized as “a tactical decision and not a deficient one.” State v. Haddock, 282 Kan. 475, 518, 146 P.3d 187 (2006); see State v. Rice, 261 Kan. 567, 568, 932 P.2d 981 (1997). We defer to decisions of trial counsel on matters of reasonable trial strategy. Moncla fails to demonstrate that his trial counsel was deficient in this regard. Newly Discovered Evidence Finally, Moncla claims the district court erred in fading to order a hearing on his claim of newly discovered evidence. His newly discovered evidence is the anticipated testimony of Clayton Swanner; Sergeant O’Kelly, Jr., a correctional officer at the El Dorado Correctional Facility (El Dorado); Carla Weir; and Brandy Hanna. 1. Clayton Swanner Swanner is an inmate incarcerated with Moncla at El Dorado. Swanner wrote a letter to Moncla’s counsel in which he stated he had been incarcerated with Kevin Robertson at the Winfield Correctional Facility. While there, Robertson confessed to Swanner that Robertson and his brother killed Swinney by beating her over the head with a hammer which they disposed of later. When contacted by Moncla’s counsel, Swanner stated he would not testify either for Moncla or against the Robertson brothers. He stated, “I won’t sign any affidavit concerning my conversation I had with Mr. Moncla or the Robertson brothers.” 2. Sergeant O’Kelly, Jr. Moncla claims Sergeant O’Kelly informed him that Swanner had told O’Kelly about Robertson’s confession. O’Kelly stated he would be willing to testify to Swanner’s statements to him. O’Kelly did not respond when Moncla’s counsel attempted to reach him. 3. Carla Weir Carla Weir reported that Cleo Herrick came to Weir’s home the morning of Swinney’s murder with one of the Robertson brothers; that Herrick told Weir that one of the brothers was involved in Swinney’s murder; and that Weir did not report this to the police out of fear she would be killed if she did so. Weir did not respond when Moncla’s counsel attempted to reach her. 4. Brandy Hanna Brandy Hanna, who was present at Weir s house when Herrick arrived, stated that Herrick and her companion were constantly looking out the window for the police. According to Hanna, Herrick took Weir into another room to talk and when the two returned Weir was crying. Later, Weir informed Hanna that Swinney was dead and that Herrick had threatened to kill Weir if she went to the police. When Moncla’s counsel contacted Hanna, she stated she had no personal knowledge about who killed Swinney and could only repeat rumors she had heard. Further, she was not sure if the other person present at the home was one of the Robertson brothers. 5. Prior Rulings The district court denied relief without an evidentiary hearing, finding that Monda had previously moved for a new trial on a claim of newly discovered evidence and had been afforded a hearing on the claim. The court characterized Moncla’s motion as a “reformulation of his previously adjudicated claim.” Further, the involvement of Robertson and Herrick had been explored at trial and rejected by the jury. On appeal from this ruling, the Court of Appeals affirmed, finding no abuse of discretion since even if these witnesses testified as Monda claimed, given the extensive physical evidence against Monda, there was no reasonable probability that a retrial would produce a different outcome. Judge Greene dissented, stating that Moncla’s claims were not a reformulation of previous claims and they raised substantial factual issues which merited an evidentiary hearing at which the reluctant witnesses could be subpoenaed to testify. 6. Standard of Review Moncla’s claim of newly discovered evidence, raised in the context of a K.S.A. 60-1507 proceeding, was treated by the district court as Moncla’s second motion for a new trial. Our review of a district court’s order denying a request for new trial based on newly discovered evidence is limited to whether the court abused its dis cretion. Baker v. State, 243 Kan. 1, 11, 755 P.2d 493 (1988). However, in considering whether the district court should have conducted an evidentiary hearing before denying a new trial, we consider: (1) whether the motion alleges facts which do not appear in the original record which, if true, would entitle Monda to relief; (2) whether the motion adequately identifies readily available witnesses whose testimony would support these new facts and demonstrate that Monda should receive a new trial; and (3) whether Moncla’s newly discovered evidence could have been produced at his trial through the exercise of reasonable diligence. See State v. Holmes, 278 Kan. 603, 629, 102 P.3d 406 (2004); State v. Norton, 277 Kan. 432, 437, 85 P.3d 686 (2004); Taylor v. State, 251 Kan. 272, 276-77, 834 P.2d 1325 (1992), disapproved on other grounds State v. Rice, 261 Kan. 567, 602, 932 P.2d 981 (1997). The abuse-of-discretion standard includes a review to determine whether the court’s exercise of its discretion was 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]). 7. Analysis Moncla’s motion is not simply a rehashing of his 1998 motion for a new trial. While the issue of who committed the murder is the same, the witnesses through whom Monda claims his innocence may be proven have not been evaluated by the district court. Moncla’s current K.S.A. 60-1507 motion alleges facts which were never heard by his jury. Monda identifies specific witnesses who, he claims, will testify to these facts. We have no idea whether these witnesses will testify in the manner described in Moncla’s motion. The claimed testimony of Swanner and O’Kelly can be characterized as newly discovered since it relates to events and statements made long after Moncla’s trial. However, if Hanna and Weir testify in the manner claimed by Monda in his motion, we have no idea whether the evidence they present truly can be characterized as “newly discovered.” Our lack of information on these points is shared by the district judge who rejected these claims without a hearing. Further, the reluctance of these witnesses does not fore close Moncla’s right to an evidentiary hearing. As Judge Greene noted in his dissent, the court can compel the attendance and testimony of Moncla’s reluctant witnesses to determine the issues raised and whether Monda is entitled to a new trial. Moncla IV, slip op. at D-2 (Greene, J., dissenting). We conclude that the district court abused its discretion in denying a hearing on Moncla’s newly discovered evidence claims. The merits of these claims must await an evidentiary hearing on Monclá’s motion to determine whether Swanner, O’Kelly, Weir, and Hanna testify to the facts alleged by Monda; whether the substance of any evidence they present is sufficient to raise a reasonable probability of Moncla’s acquittal upon a retrial; and, if so, whether Monda could have introduced this evidence at his original trial through the exercise of reasonable diligence. Reversed and remanded with directions for an evidentiary hearing on Moncla’s newly discovered evidence claims. Davis and Johnson, JJ., not participating. McAnany, J., and Larson, S.J., assigned.
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Per Curiam: This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator’s office against Dennis D. Webb, of Wichita, an attorney admitted to the practice of law in Kansas in 1978. The formal complaint against respondent alleges violations of KRPC 1.3 (2006 Kan. Ct. R. Annot. 371) (diligence); 1.4 (2006 Kan. Ct. R. Annot. 386) (communication); 1.8(a) (2006 Kan. Ct. R. Annot. 417) (business transaction with client); 1.16(d) (2006 Kan. Ct. R. Annot. 448) (terminating representation); 8.1(b) (2006 Kan. Ct. R. Annot. 505) (failing to respond to a lawful demand); and 8.4(d) (2006 Kan. Ct. R. Annot. 510) (conduct prejudicial to the administration of justice). The Kansas Board for Discipline of Attorneys held a hearing on November 14, 2006, in Topeka, Kansas. Respondent appeared in person. The hearing panel made the following findings of fact: Complaint by Kim Bannon “2. In October 2003, Kim M. Bannon retained the Respondent to represent her in a cause of action against two medical testing manufacturers. “3. Ms. Bannon was dissatisfied with the Respondent’s representation and on June 27, 2005, she filed a complaint against the Respondent. “4. On July 8, 2005, the Disciplinary Administrator wrote to the Respondent, enclosed a copy of Ms. Bannon’s complaint, and directed the Respondent to provide a written response within 20 days. “5. On July 20, 2005, David M. Rapp, the Chairman of die Wichita Ethics and Grievance Committee wrote to the Respondent. Mr. Rapp informed the Respondent that Timothy J. Finnerty had been assigned to investigate the complaint and reminded the Respondent to provide a written response to the complaint in accordance with the direction of the Disciplinary Administrator. “6. The Respondent failed to provide a written response to the complaint as required. “7. On October 17, 2005, Mr. Finnerty reminded the Respondent of his obligation to provide a written response to Ms. Bannon’s complaint. The Respondent assured Mr. Finnerty that he would provide a written response to the complaint by October 24, 2005. “8. The Respondent never provided a written response to the complaint.” Complaint by Bryant Colbert “9. On October 29, 2002, [Bryant] Colbert retained the Respondent to prepare and file a habeas corpus petition in the Reno County District Court. At the time, Mr. Colbert was imprisoned in the Hutchinson Correctional Facility. Also on October 29, 2002, Mr. Colbert sent the Respondent $300.00 from his inmate account for attorney fees. “10. In November 2002, the Respondent met with Mr. Colbert at the prison. During that meeting, the Respondent told Mr. Colbert that ‘he could get [him] back in court and get [him] another trial and possibly get [him] released.’ Mr. Colbert agreed to pay the Respondent an additional $2,500.00 for preparing and filing the petition for habeas corpus and another $2,500.00 if the Respondent represented Mr. Colbert at a new trial. Additionally, the Respondent directed Mr. Colbert to pay $1,000 for expenses. On December 20, 2002, Mr. Colbert sent the Respondent a check for $3,500.00. "11. Thereafter, the Respondent provided Mr. Colbert with a draft copy of a petition. Other than providing Mr. Colbert with a draft copy of a petition, the Respondent took no other action for Mr. Colbert nor did he have any additional contact with Mr. Colbert. The Respondent never filed the petition in behalf of Mr. Colbert. “12. The Respondent provided no other legal services to Mr. Colbert. The Respondent failed to refund any of the advanced fees or advanced expenses to Mr. Colbert. “13. On August 12, 2005, Mr. Colbert filed a complaint with the Disciplinary Administrator regarding the Respondent’s representation. On August 15, 2005, the Disciplinary Administrator wrote to the Respondent directing him to file a written response to the complaint within 20 days. “14. On August 19, 2005, Mr. Rapp reminded the Respondent to provide a written response to the complaint in compliance with the direction from the Disciplinary Administrator. The Respondent faded to provide a written response to the complaint as required by the Disciplinary Administrator. “15. Mr. Rapp appointed Mr. Finnerty to investigate the complaint. On October 5, 2005, Mr. Finnerty wrote to the Respondent directing the Respondent to provide a written response to the complaint. The Respondent failed to provide a written response to the complaint following Mr. Finnerty’s letter. “16. On October 17, 2005, Mr. Finnerty spoke with the Respondent by telephone regarding the pending complaints. At that time, the Respondent promised to provide a written response to the complaint by October 24, 2005. “17. The Respondent never provided a written response to the complaint filed by Mr. Colbert.” Complaint by Thomas Ross “18. Tom Ross retained the Respondent to represent him in a criminal case pending before a municipal court. As a result of the case, Mr. Ross was convicted of a tax stamp violation. Years later, in July 2004, Tom Ross retained the Respondent again, this time to file and prosecute an action to have the criminal conviction expunged. Mr. Ross paid the Respondent $400 for the representation in the expungement matter. “19. The Respondent prepared and filed pleadings in behalf of Mr. Ross. The Respondent informed Mr. Ross that it should take approximately 3 months to complete the expungement. “20. After waiting 3 months and having not heard from the Respondent, Mr. Ross called the Respondent. At that time, the Respondent informed Mr. Ross that the forms that were required for the expungement had changed and he needed Mr. Ross to sign a new set of pleadings. The Respondent prepared the pleadings and forwarded them to Mr. Ross. Mr. Ross signed the pleadings and returned them to the Respondent. “21. After waiting an additional 3 months, Mr. Ross repeatedly attempted to contact the Respondent by telephone. The Respondent failed to return Mr. Ross’ many telephone calls. Eventually, when Mr. Ross called the Respondent’s telephone number, he learned that the Respondent was no longer working at the law firm. The Respondent’s former firm provided Mr. Ross with the Respondent’s son’s telephone number. “22. Mr. Ross attempted to reach the Respondent by calling the Respondent’s son’s telephone number. While he was unable to reach the Respondent by telephone, he did contact the Respondent’s son. Mr. Ross left a message for the Respondent. The Respondent never contacted Mr. Ross. The Respondent did not complete the representation of Mr. Ross. The Respondent did not refund the fee paid for the representation. “23. Eventually, Mr. Ross retained a new attorney and was able to have his criminal conviction expunged. “24. Mr. Ross filed a complaint against the Respondent. Subsequently, the Disciplinary Administrator wrote to the Respondent, enclosed a copy of Mr. Ross’ complaint, and directed the Respondent to provide a written response to Mr. Ross’ complaint within 20 days. “25. On November 4, 2005, Mr. Rapp wrote to the Respondent, informed him that he appointed Mr. Finnerty to investigate the complaint, and reminded him to provide a written response to Mr. Ross’ complaint within the 20 days provided by the Disciplinary Administrator. The Respondent did not provide a written response to Mr. Ross’ complaint within 20 days. “26. On November 10, 2005, Mr. Finnerty wrote to the Respondent and directed him to provide a written response to the complaint. “27. The Respondent never provided a written response to Mr. Ross’ complaint.” Based upon these findings of fact, the Hearing Panel concluded that die Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.16(d), KRPC 8.1(b), Supreme Court Rule 207(b), and Supreme Court Rule 211(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 Mr. Ross when he failed to prosecute the expungement case. Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. Ross, 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 Mr. Ross. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a). “4. KRPC 1.16(d) provides: ‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’ The Respondent violated KRPC 1.16(d) when he failed to return unearned fees and unused monies advanced for expenses to Mr. Colbert. Additionally, the Respondent violated KRPC 1.16(d) when he failed to give Mr. Ross reasonable notice that he would no longer be representing him. Finally, the Respondent violated KRPC 1.16(d) when he failed to return the unearned fee to Mr. Ross. The Hearing Panel concludes that, accordingly, the Respondent violated KRPC 1.16(d). “5. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirement 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 that he was required to forward a written response to the complaints—he had been instructed to do so in writing by the Disciplinary Administrator, Mr. Rapp, and Mr. Finnerty. Because the Respondent knowingly failed to provide written responses to the initial complaints in all three cases as requested by the Disciplinary Administrator, Mr. Rapp, and Mr. Finnerty, 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 the Formal Complaints in disciplinary cases. Kan. Sup. Ct. R. 211(b) provides the requirement: 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 timely written Answer to the Formal Complaint. The Formal Complaint was served by mail on the Respondent on September 22, 2006, for which he acknowledged receipt on October 4, 2006. The Respondent’s Answer was not mailed until November 9, 2006. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).” The hearing panel did not find a violation of KRPC 1.8(a) (2006 Kan. Ct. R. Annot. 417) (business transaction with a client). In reaching its recommendation, the hearing panel analyzed the following factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (Standards): “Dutij Violated. The Respondent violated his duty to his client to provide diligent representation and adequate communication. Additionally, the Respondent violated his duty to the legal profession to cooperate in disciplinary investigations. Finally, the Respondent violated his duty to his clients to return unearned fees. “Mental State. The Respondent knowingly violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to his clients and 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 tire following aggravating factors present: “Prior Disciplinary Offenses. The Respondent has been previously disciplined on three occasions. First, on November 17, 1998, the Disciplinary Administrator informally admonished the Respondent for having violated MRPC 1.3. Next, on February 27, 2001, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.4. Finally, on February 23, 2005, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.1 and KRPC 1.3. “A Pattern of Misconduct. Included in this case are three complaints. The complaints involve similar misconduct. Additionally, the Respondent has previously been disciplined on three occasions. The previous cases included violations of the rules violated in this case. Accordingly, the Respondent engaged in a pattern of misconduct. “Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.16(d), KRPC 8.1(b), 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 the complaints filed in this case. The Respondent never filed such responses. Additionally, the Respondent failed to file an Answer in this case. The Hearing Panel, therefore, concludes that the Respondent obstructed the disciplinary proceeding. “Vulnerability of Victim. Two of the Respondent’s clients, in this case, were particularly vulnerable. First, Mr. Colbert was in prison. His ability to contact the Respondent or hire new counsel was limited by his incarceration. Mr. Ross was also vulnerable to the Respondent’s misconduct. Mr. Ross did not live near the court in which he was seeking the expungement. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1978. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for more than 20 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 no mitigating circumstances present. “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 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. ‘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.” Based on these factors, the hearing panel recommended that the respondent be suspended from the practice of law in Kansas for an indefinite period of time. Respondent advised the hearing panel that he had already taken other employment outside the legal profession and admitted that he had no objection to the suspension of his license. We conclude that the findings of the hearing panel are supported by clear and convincing evidence, and we adopt the findings, conclusions, and recommendation of the hearing panel. The respondent’s license to practice law shall be indefinitely suspended. We note, however, that a minority of the court would have disbarred tire respondent. It Is Therefore Ordered that the respondent, Dennis D. Webb, be indefinitely suspended from the practice of law in Kansas in accordance with Supreme Court Rule 203(a)(2) (2006 Kan. Ct. R. Annot. 243) for the violations found herein. 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. Davis, J., not participating. Greene, J., assigned.
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Per Curiam: This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator s office against Respondent James Paul Davidson, a Salina attorney licensed to practice law in Kansas since September 1980. The formal complaint charged Respondent in Count I with violations of Kansas Rules of Professional Conduct (KRPC) 1.7 (2006 Kan. Ct. R. Annot. 411) (conflict of interest, own interests adverse to client); KRPC 1.8 (2006 Kan. Ct. R. Annot. 417) (conflict of interest, prohibited transactions with clients); KRPC 4.4 (2006 Kan. Ct. R. Annot. 488) (respect for rights of third persons); and KRPC 8.4 (2006 Kan. Ct. R. Annot. 510) (criminal act reflecting adversely on fitness as lawyer; misconduct prejudicial to the administration of justice); and in Count II with a second violation of KRPC 8.4. Respondent filed an answer and appeared in person and through counsel at his April 17, 2007, disciplinary hearing. The panel filed its final hearing report on July 13, 2007. “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. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. [Citations omitted.] “This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.]” In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003). Factual Background This proceeding arose out of two series of events. The first had to do with Respondent’s dispute with a client over a mutual business transaction, the second with Respondent’s criminal conduct. The hearing panel made the following relevant findings of fact: The Red Kitten Dispute Mark Hughey is the president and sole stockholder of Phat Kat Enterprises, a Kansas corporation, which purchased a bar in Salina called the Red Kitten in the fall of 2003. In late May or early June 2005, Hughey received a letter from his landlords, Helen and Rusty Leister. The Leisters advised Hughey that he was 10 days behind in his rent and gave him 10 days to become current or face eviction. Because Hughey believed the lease included terms different than those referred to by the Leisters, he contacted Respondent for legal advice. Respondent and his wife, Laurie Davidson, were frequent customers at the Red Kitten. Respondent met with Hughey and agreed with Hughey’s interpretation of the lease terms; Respondent then drafted and forwarded a letter to the Leisters stating Hughey’s position. In addition to discussing the lease issue, Respondent and Hughey had discussed the financial situation of the Red Kitten. Hughey told Respondent that the Red Kitten was not making enough money and that Hughey was experiencing personal financial difficulties as a result. By mid-June 2005, Hughey decided to close the bar. Respondent was present at the time Hughey and his friends began removing liquor and personal property from the Red Kitten premises. The next day, Respondent asked Hughey how much money it would take to keep the Red Kitten open. Hughey told Respondent that $10,000 would cover the bar’s outstanding obligations. Respondent obtained $10,000 and provided it to Hughey as part of an agreement made between them at the time. Hughey asked Respondent to reduce their agreement to writing, but Respondent assured Hughey that a written agreement was not necessary and that the two of them would work “it” out. Based on his discussions with Respondent, Hughey understood that the $10,000 represented a loan, that he would pay a total of $500 in interest on the $10,000, and that he would retire his debt over time by forwarding 51 percent of Red Kitten profits to Respondent. In addition, Hughey expected Respondent’s wife to work at the bar to reduce payroll obligations. Hughey was not given an opportunity to seek advice of independent counsel on die transaction and, as mentioned, neither had a copy of the transaction’s terms in writing nor consented to them in writing. At some later point, Respondent’s wife told Hughey that she and Respondent owned a 51 percent interest in the bar. Hughey contacted Respondent to confirm that Respondent did not have an ownership interest; Respondent told Hughey that his was an investment interest. Hughey again asked Respondent to put their agreement in writing, and, again, Respondent told Hughey that a written agreement was not necessaiy. In August 2005, Hughey decided to sell the Red Kitten. He contacted Respondent to see if he was interested in purchasing the bar. On the same day, Hughey met with Red Kitten employees and expressed concern about Respondent and his wife being behind the bar and pouring drinks for customers. Hughey believed Respondent and his wife had each been convicted of alcohol-related criminal offenses, and bars may be fined if they employ such persons to pour drinks. Shortly thereafter, Hughey received a message from Respondent on his answering machine. In the message, Respondent demanded that Hughey turn over the keys to the Red Kitten. If Hughey did not do so, Respondent threatened, Hughey and his girlfriend would be arrested if they returned to the bar. Hughey attempted to reach the Respondent by telephone, but Respondent refused to take Hughey’s calls. At this point, Hughey retained new counsel, Scott Condray. Respondent posted a notice on the door of the Red Kitten. The notice stated that Respondent was now in charge of the bar and would be making all business decisions. Respondent met with Condray, and Condray questioned Respondent about why he had threatened Hughey and his girlfriend with incarceration. Respondent explained that he had been advised the girlfriend had committed felony aggravated battery on Hughey, and Hughey had committed felony obstruction related to law enforcement’s investigation of the girlfriend. Respondent later learned that his source of information on these subjects was unreliable. After exhaustive negotiations, Condray and Respondent were able to arrive at terms under which Respondent would purchase the Red Kitten from Hughey. At the time of Respondent’s disciplinary hearing, the panel found that Respondent continued to own the bar. Criminal Conduct On Februaiy 26,1986, Respondent was charged in the Shawnee County District Court with driving under the influence of alcohol and driving while suspended, misdemeanor offenses. On March 12, 1986, Respondent and tire district attorney entered into a diversion agreement. Respondent successfully completed the diversion, and on March 12,1987, the court dismissed the case pending against him. On January 2, 1997, Respondent was charged with resisting arrest; criminal damage to property; and unlawful discharge of a firearm, misdemeanor offenses, in the Municipal Court of Salina. On January 8, 1997, Respondent and the city prosecutor entered into a diversion agreement, which Respondent successfully completed. On January 22, 1998, the case against him was dismissed. On January 20, 1998, Respondent was charged in the Shawnee County District Court with driving under the influence of alcohol, speeding, and failure to maintain proper registration, misdemeanor offenses. Respondent entered a plea of nolo contendere to DUI on October 23,1998. Pursuant to the plea, the court dismissed the remaining charges and sentenced Respondent to 6 months. The court ordered Respondent to spend 48 hours in jail and then placed Respondent on probation for 1 year. On August 20, 1998, while on probation in the second Shawnee County case, Respondent was charged in the Geary County District Court with DUI; driving in violation of license restrictions; obstruction of official duty; and littering, misdemeanor offenses. It appears Respondent was convicted only of obstruction. It is unclear why the Geary County DUI was not charged as a felony, given Respondent’s criminal history. On April 17, 2001, the Salina City Prosecutor charged Respondent with DUI; defective headlights; and refusal to submit to a preliminary breath test, misdemeanor offenses. Pursuant to a plea agreement, Respondent pleaded guilty to DUI, and the municipal court sentenced Respondent to 1 year in jail, later placing him on probation for 1 year after Respondent served 5 days in custody. The court also ordered Respondent to pay a $500 fine. On June 20, 2002, the Municipal Court of Salina released Respondent from probation. Again, it is unclear why the Respondent was not charged with felony DUI, given his criminal history. On February 19, 2002, while on probation in the second Salina Municipal Court case, the Salina City Prosecutor charged Respondent with driving while his license was suspended, a misdemeanor. Respondent pleaded guilty and was sentenced to 5 days in jail. However, the court released Respondent, placed him on unsupervised probation, and ordered him to pay a fine. The court released Respondent from probation on November 15, 2002. Based “on Respondent’s criminal record, the State of Kansas certified Respondent as a habitual violator and revoked his driver’s license. On August 21, 2002, again, while Respondent was on probation, he was charged by the Salina City Prosecutor with driving a vehicle while his license was revoked. On September 23, 2002, Respondent entered a no contest plea. The court sentenced Respondent to 10 days in jail and a fine of $250. The court placed Respondent on unsupervised probation for 6 months, and, on March 3, 2003, released Respondent from probation. On December 14, 2003, Respondent was charged in the Ottawa County District Court with one-count of battery and two counts of driving while revoked, misdemeanor offenses. The complaint identified Respondent’s wife as the battery victim. The county attorney dismissed the two counts of driving while revoked and entered into a diversion agreement with Respondent on the batteiy charge. On April 15, 2006, Respondent completed the terms and conditions of diversion, and the case against Respondent was dismissed. Hearing Panel’s Conclusions Based on its findings of fact, the hearing panel concluded as a matter of law that Respondent violated KRPC 1.7(b), which provides: “A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.” 2006 Kan. Ct. R. Annot. 440. Respondent’s KRPC 1.7(b) violation resulted from his dispensation of legal advice to Hughey at the same time he acquired some sort of interest in Hughey s business. Because Respondent’s representation may have been materially limited by his own interests, the panel noted that the provisional statements of the rule must be met. The members of the panel did not think Respondent could reasonably have believed that his representation of Hughey would not be adversely affected. The hearing panel concluded that Respondent violated KRPC 1.8(a), which prohibits lawyers from entering into certain transactions without satisfying certain specific conditions. That rule provides: “(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, securiiy, or other pecuniary interest adverse to a client unless: “(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; and “(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and “(3) the client consents in writing thereto.” 2006 Kan. Ct. R. Annot. 417. Here, Respondent violated KRPC 1.8(a) when he entered into a business transaction with Hughey without complying with the terms of the rule. Because there was little agreement about the actual terms of the transaction, the panel found it impossible to determine whether the terms were fair and reasonable to the client. Moreover, the transaction and terms were not transmitted in writing; Hughey was not given the opportunity to seek advice from independent counsel; and Hughey did not consent to the transaction in writing. The hearing panel also concluded that Respondent violated KRPC 8.4(b), which provides: “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.” (2006 Kan. Ct. R. Annot. 510-11). To support this violation, the panel relied on Respondent’s numerous convictions and diversions for DUI, driving while suspended and driving while revoked, resisting arrest, criminal damage to property, unlawful discharge of a firearm, battery, and obstruction. Finally, the panel concluded that Respondent also violated KRPC 8.4(d), which provides that “[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” (2006 Kan. Ct. R. Annot. 510-11). The panel cited Respondent’s “extensive criminal conduct” as evidence of this violation. Recommendations The panel recommended that Respondent be suspended for 1 year and that his reinstatement to practice be conditioned upon his compliance with recommendations set forth in a report generated by Clinical Coordinator Duane Olberding of St. Francis Health Center. Olberding, who had performed a chemical dependency evaluation on Respondent after referral from the Disciplinary Administrator, recommended that, during a 1-year monitoring and assessment period, the Respondent should: (1) abstain from all mood-altering chemicals, including alcohol; (2) enter an outpatient individual therapeutic relationship with an approved alcohol and drug counselor with goals of accepting his alcoholism, increasing relapse prevention skills, further assessing possible mood disorders, and case management for at least 1 year with monthly reports to the Disciplinary Administrator; (3) attend weekly 12-step meetings and provide proof of attendance to the counselor; (4) complete psychological testing with results provided to the counselor and Olberding; (5) maintain monthly communication with the impaired attorneys program; and (6) set up a professional monitoring system that would include monthly random urinalysis testing, with releases of information to and from the professional monitoring program, the counselor, and the Disciplinary Administrator s office. Positive tests during this 1-year period would indicate the need for further assessment and a possible increase in treatment structure. The panel considered the following factors based on the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991 ed.): “Duty Violated. The Respondent violated his duly to his client to avoid conflicts of interest. Additionally, the Respondent violated his duty to the legal profession and to the public to maintain his personal integrity. “Mental State. The Respondent knowingly violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to Mr. Hughey, and to the reputation of the legal profession.” The panel found the following aggravating factors present: “Dishonest or Selfish Motive. Engaging in the conflict of interest with Mr. Hughey was clearly motivated by selfishness. “A Pattern of Misconduct. The Respondent engaged in a pattern of criminal behavior for a period of 19 years. Accordingly, the Respondent engaged in a pattern of misconduct. “Multiple Offenses. The Respondent violated KRPC 1.7(b), KRPC 1.8(a), KRPC 8.4(b), KRPC 8.4(d). As such, the Respondent committed multiple offenses. “Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent failed to completely acknowledge the wrongful nature of his misconduct. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted Respondent to practice law in 1980. The Respondent has been practicing law for 27 years. Accordingly, the Hearing Panel concludes that the Respondent has substantial experience in the practice of law. “Illegal Conduct. The Respondent has been placed on diversion for and convicted of criminal offenses in eight separate criminal cases. Thus, the Respondent has engaged in criminal conduct.” The panel also considered the following mitigating factor: “Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.” The panel considered the following two ABA Standards: “Suspension is generally appropriate when a lawyer knows of a [conflict] of interest and does not fully disclose to the client the possible effect of that conflict, and causes injury or potential injury to a client.” Standard 4.32. “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. The Deputy Disciplinary Administrator recommended that Respondent be suspended for 6 months. Respondent advocated for no suspension and suggested he be allowed to propose a probation plan in line with the recommendations made by Olberding. Respondent took no exceptions to the final hearing report of the hearing panel. We hold that the panel’s findings of fact and conclusions of law are amply sustained by the evidence and hereby adopt them as our own. In addition, we note that Respondent’s demeanor and statements at oral argument before this court only amplified our concern about his health and his ability to practice law. Despite the alarm Respondent’s numerous criminal convictions and diversions should raise and despite his familiarity with Olberding’s evaluation results and recommendations, Respondent appeared to have little insight into his problem with alcohol. He exhibited even less interest in solving it. Under these circumstances, and in view of the harm already done to one client, the majority of this court believes indefinite suspension to be necessary. A minority would impose a less severe sanction. It Is Therefore Ordered that James Paul Davidson be and he is hereby indefinitely suspended from the practice of law in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261) for his violations of KRPC 1.7(b), 1.8(a), and 8.4(b) and (d). It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed to Respondent. NUSS, J., not participating. Leren, J., assigned.
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The opinion of the court was delivered by Johnson, J.: Jeremy V. Nguyen appeals his convictions for first-degree felony murder and for criminal discharge of a firearm at an occupied vehicle. Nguyen raises seven issues, none of which compel us to reverse his convictions. Bang Tran was driving a vehicle in the right lane of a multiple-lane thoroughfare when he suffered a fatal gunshot wound, apparently from a weapon discharged from within a vehicle traveling in the same direction in the left lane. The Tran vehicle contained four passengers, one of whom also sustained a gunshot wound, albeit nonfatal. The other vehicle was driven by Josh Gallatin and contained three passengers, one of whom was Nguyen, seated in the backseat on the passenger side of the car. Gallatin said that after he heard gunshots coming from the back right passenger side of his car, he observed from the comer of his eye that Nguyen’s arm was moving out of the open window. Bobby Xayavong, Nguyen’s friend, testified that, on the day of the shooting, Nguyen said that he fired the weapon at the vehicle but did not mean to do it. Some evidence suggested that gang membership may have played a role in the shooting. After the incident, the group in Gallatin’s car eventually arrived at Nguyen’s house, where Nguyen went into the backyard, carrying a plastic bag which appeared to contain a solid metal object. Later, investigators found two rounds of ammunition in Nguyen’s backyard, which an expert opined had been extracted from the same weapon as the four shell casings collected from the shooting scene and the expended round removed from the victim’s body. However, the weapon was never recovered. Nguyen was age 16 at the time, and the case was commenced as a juvenile offender action. The State moved to prosecute Nguyen as an adult. At the adult certification hearing, the State presented evidence to establish tire requisite probable cause of a prehminary hearing. Nguyen objected to the hearing because there was no indication that his mother had been served with notice or that she had appeared at any of the prior juvenile proceedings. The district court overruled the objection, noting that Nguyen’s father was present in court on that day and had been present at the prior hearings in juvenile court. After the witnesses were examined, Nguyen objected to combining the adult certification hearing and the preliminary hearing, claiming that the consolidation resulted in an unconstitutional shifting of the burden of proof. He argued that he had to choose between his interest in being cared for as a juvenile against his right against self-incrimination. The district court overruled the objection, sustained the State’s motion to prosecute Nguyen as an adult, found probable cause to believe that Nguyen had committed the crimes of first-degree murder and criminal discharge of a fire arm at an occupied vehicle, and conducted an arraignment on those charges. Ultimately, a jury convicted Nguyen on both charges. He appeals, claiming: (1) the prosecutor committed misconduct; (2) the court erred in conducting a preliminary hearing in conjunction with the adult certification hearing; (3) the adult certification hearing was invalid because of a failure to notify Nguyen’s mother; (4) the evidence was insufficient to support adult certification; (5) the criminal discharge conviction was multiplicitous with the felony-murder conviction; (6) the giving of an Allen-type instruction was erroneous; and (7) cumulative errors deprived Nguyen of his right to a fair trial. PROSECUTORIAL MISCONDUCT Nguyen complains of four comments by the prosecutor: two in opening statement and two in closing arguments. Trial counsel only objected to one of the opening statement comments, but the evolution of prosecutorial misconduct jurisprudence has eliminated the need for a contemporaneous objection to preserve the issue for appeal. See, e.g., State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007). Furthermore, that evolution has led to the application of the same standard of review, regardless of whether the defendant provided an opportunity for the trial court to remedy the misconduct by lodging an objection. Albright, 283 Kan. at 428. That review progresses in steps. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If not, the analysis ends. If so, the court must decide whether the erroneous comments constitute plain error. In doing so, the court is guided by 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 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met. [Citations omitted.]” 283 Kan. at 428. Typically, our cases separately analyze each challenged comment, and we will not break new ground in that regard. However, intuitively, one cannot divorce a comment from its context. In analyzing the meaning or harmful effect of an isolated portion of a statement or argument, one must look to the entire soliloquy. Opening Statement Nguyen first complains about the following portion of the State’s opening statement. “Ladies and gentlemen, when that bullet stopped, so, too, did the life of Bang Nhut Tran. 18 years old, forever 18, forever young, forever dead. But that bullet— [objection and objection overruled].” Nguyen contends the rhetoric was inflammatory. Further, he argues that it is improper to make such arguments in an opening statement. With respect to the latter contention, we have observed: “ ‘Opening statements by counsel in criminal prosecutions are not evidence. They are given for the purposes of assisting the juiy in understanding what each side expects its evidence at trial will establish and to advise the jury what questions will be presented for its decision. The tendency is to permit a prosecuting and defense attorney reasonable latitude in stating to the jury the facts they propose to prove.’ [State v. McCorkendale, 267 Kan. 263, Syl. ¶ 4, 979 P.2d 1239 (1999).]” State v. Kleypas, 272 Kan. 894, 957, 40 P.3d 139 (2001), cert, denied 537 U.S. 834 (2002), overruled on other grounds State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev’d Kansas v. Marsh, 548 U.S. 163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006). The challenged comment was preceded by the prosecutor’s description of the path the bullet traveled through Tran’s body. While the statement may have been more dramatic than it needed to be, it nevertheless set forth facts which would come out during the trial. Tran was 18 years old; he was struck by the bullet discharged from the Gallatin vehicle; and he was killed by that bullet. Previously, we have refrained from putting too fine a point on the distinction between stating the facts and making a forbidden argument. See State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006) (“ ’[the victim] will forever be two years old and her last memory will forever be that of the Defendant violently shaking the life out of her ”). We continue that restraint and find that the prosecutor did not exceed the permissible latitude. Nguyen’s other opening statement challenge involved the following: “When this case is over, the State will be asking that you bring back a verdict that the evidence in this case demands and that justice requires. That will be a verdict of guilty for the murder of Bang Nhut Tran.” Nguyen reads that comment as playing to the sympathy of the jury by asking for justice for the victim Tran, prior to the introduction of any evidence. We cannot accept Nguyen’s characterization. To the contrary, the comment is textbook opening statement language. The prosecutor is absolutely permitted to ask for a verdict which is supported by the evidence. Moreover, a verdict supported by the evidence is the very essence of justice. Closing Argument Nguyen cites to two sections of the prosecutor’s closing argument as evidencing misconduct. In the first portion of closing, the prosecutor argued: “Ladies and gentlemen, Wednesday, this coming Wednesday is July 4. It’s Independence Day, and it’s the day that our country celebrates the things that this country is founded upon, life, liberty and the pursuit of happiness and justice for all. And you may not know this, but the Declaration of Independence was actually signed on July 2. We celebrate July 4 because that’s the day it was published, but—that’s the day it was announced, but it was actually signed by the founding fathers on July 2. On January 27, 2001, Bang Nhut Tran had his life, his liberty, his pursuit of happiness taken away from him. All that he has left is justice. “Now, on this day, July 22 (sic), 2001, 225 years to the date that our founding fathers set ink to paper declaring those rights, you can give Bang Nhut Tran justice. The evidence is there. Will you give Bang Nhut Tran justice? I ask that each and every one of you do so. I ask that you find this defendant guilty of Mr. Tran’s murder. Thank you.” Then, in the rebuttal portion of closing, the prosecutor concluded by saying: “Because, ladies and gentlemen, when you go back in that room and you put your heads together, the only verdict, the verdict that the evidence points to, the verdict that justice in this case requires, is that you find the defendant guilty of first degree murder of Bang Nhut Tran. Thank you.” Nguyen interprets the argument as telling the jury to “do its job” in violation of the principles stated in United States v. Young, 470 U.S. 1, 18, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985) (“The prosecutor was also in error to try to exhort the jury to ‘do its job’; that kind of pressure, whether by the prosecutor or defense counsel, has no place in the administration of criminal justice. [Citation omitted.]”). He also relies on cases from outside jurisdictions where the courts have found that the prosecutor cannot tell the jury that its oath requires it to find the defendant guilty. See United States v. Mandelbaum, 803 F.2d 42, 43-45 (1st Cir. 1986) (addressing the prosecutor’s statement, “I would ask you, therefore, to do your duty and return a verdict of guilty,” the court found it is error to urge the jury to do its duty or job, but there was no prejudice so no reversal was required); Noel v. State, 754 P.2d 280, 282-83 (Alaska App. 1988) (finding the prosecutor told the jury to do its job in contravention of Young when he said, “[Defendant has] already been granted all the leniency he deserves and the charge is assault in the fourth degree and that’s the charge you’re here to enforce.”); Redish v. State, 525 So. 2d 928, 929-30 (Fla. App. 1988) (finding the comment “if you succumb to the defense argument, you would be in violation of your oath as jurors” was an impermissible attempt to instruct the jury on its duties and functions); People v. Nelson, 193 Ill. 2d 216, 227-28, 737 N.E.2d 632 (2000) (finding reversible error where the prosecutor told the jury that its oath required it to find the defendant guilty on the evidence); State v. Pennington, 119 N.J. 547, 575-76, 575 A.2d 816 (1990), rev’d in part on other grounds State v. Brunson, 132 N.J. 377, 392, 625 A.2d 1085 (1993) (reversing based in part on prosecutor’s admonition to the jury to return the verdict called for by its oath); State v. Coleman, 74 Wash. App. 835, 838-41, 876 P.2d 458 (1994) (finding it was improper to tell jury that it would violate its oath if it disagreed with the State’s theory of the evidence, but the court did not reverse because there was only one instance of misconduct, and the prosecutor stated the jury’s verdict would be honored no matter what it was). First, we pause only briefly to declare that we find no impropriety whatsoever with the concluding comment on rebuttal. A prosecutor is certainly afforded the latitude to ask the jury to look at the evidence (“put your heads together”) and enter a verdict which is consistent with that evidence and which will then be, by definition, consistent with justice. That comment was permissible, even if we were to find other portions of the closing outside the bounds of fair argument. With respect to the first portion of the closing, we are not persuaded that it was akin to telling the jurors to do their job or that their oaths required a guilty verdict. However, we do note that the prosecutor’s exhortation to do justice for Bang Nhut Tran runs afoul of dictum in State v. McCorkendale, 267 Kan. 263, 979 P.2d 1239 (1999). McCorkendale found that the prosecutor in that case had not exceeded the wide latitude afforded to the State, but in doing so, the court pointed out that the prosecutor “did not argue that the jurors should find the defendant guilty to uphold the standards of the community or that the defendant would, if not found guilty, commit other offenses or that the jury must render justice to the victim and convict.” (Emphasis added.) 267 Kan. at 285-86. McCorkendale suggests, then, that arguing for a conviction in order to give the victim justice is prosecutorial misconduct. As we noted above, it is permissible, if not expected, for a prosecutor to argue for justice in general, i.e., justice for the citizenry of the State of Kansas. One can certainly perceive a distinction when the argument is asking for justice for the specific victim. After all, the plaintiff in a criminal case is the State of Kansas, unlike a wrongful death civil lawsuit. Nevertheless, we are loath to draw a bright fine. As a practical matter, a criminal case cannot be completely divorced from the victim. Perhaps the touchstone is whether the argument seeks to divert the jury from the evidence so as to obtain a conviction based upon sympathy for the victim. Here, we note that the passage of closing argument of which Nguyen complains was immediately preceded by an admonition that sympathy and prejudice are not part of the calculus. Specifically, the prosecutor said: “I think I need to emphasize that one of those instructions is that you can’t consider this case based on sympathy or prejudice. Sympathy and prejudice doesn’t tell us who shot Bang Nhut Tran. You cannot consider the sympathy for Mr. Tran because he died, and you can’t consider the sympathy for the defendant because of the situation that he is in.” Granted, a prosecutor’s prophylactic admonition will not always insulate a subsequent appeal to sympathy. However, here, the prosecutor’s argument was largely evidence based, notwithstanding an underlying promotion of awareness for the victim, and, when coupled with the admonition against sympathy and prejudice, did not exceed the bounds of permissible argument. COMBINING PRELIMINARY HEARING WITH ADULT CERTIFICATION Nguyen contends that he is entitled to a reversal of his convictions and a remand for a new adult certification hearing because the district court overruled his objection to combining the preliminaiy hearing with the adult certification hearing. In the district court, Nguyen argued that the combined hearing effected an impermissible shift of the burden of proof, and that it was constitutionally inappropriate to balance Nguyen’s interest in presenting evidence that he was amenable to treatment as a juvenile against his right against self-incrimination. On appeal, Nguyen argues that combining the hearings impaired his statutory and due process right to defend against his certification for adult prosecution by requiring that he waive his right against self-incrimination, given that his testimony at a preliminary hearing could be used against him at his adult criminal trial. He asserts the doctrine of unconstitutional conditions by analogizing to Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968). At the time, K.S.A. 38-1636(b) (repealed L. 2006, ch. 169, sec. 140) provided that the motion requesting the court to authorize prosecution as an adult could also contain a statement that the prosecuting attorney would introduce evidence of the offenses alleged in the complaint, and that the State could request the court to make the findings required in a preliminaiy examination. When the juvenile respondent was present in court and the court found from the evidence that it appeared that a felony had been committed and that there was probable cause to believe that the felony had been committed by the respondent, the court could direct that there was no necessity for further preliminary examination and order the respondent bound over to the district judge having jurisdiction to try the case. K.S.A. 38-1636(g) (repealed L. 2006, ch. 169, sec. 140). In other words, the district court had statutory authority to follow the procedure utilized in this case. Nguyen does not favor us with a standard of review. The State argues for an abuse of discretion standard, citing to In re Davis, 234 Kan. 766, 771, 674 P.2d 1045 (1984), where we opined that die district court possesses broad discretion in determining whether it should consider the evidence as probative only to the issue of juvenile waiver or also consider the evidence for the purpose of establishing probable cause. Here, the issue is not so much an evidentiary question as it is a challenge to the constitutionality with which K.S.A. 38-1636 was applied in this case. Thus, we perceive our review to be unlimited. Cf. In re Tax Appeal of CIG Field Services Co., 279 Kan 857, Syl. ¶ 3, 112 P.3d 138 (2005) (constitutionality of statute a question of law subject to unlimited review). The doctrine of unconstitutional conditions, upon which Nguyen relies, has been described as follows: “ ‘The doctrine of unconstitutional conditions holds that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether. It reflects the triumph of the view that government may not do indirectly what it may not do directly over the view that the greater power to deny a benefit includes the lesser power to impose a condition on its receipt.’ Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1989).” Mueller v. State, 28 Kan. App. 2d 760, 766, 24 P.3d 149, rev. denied 271 Kan. 1037 (2001), cert, denied 535 U.S. 997 (2002). The doctrine was illustrated in Simmons, which dealt with the tension between the Fourth and Fifth Amendments. One of the Simmons defendants testified at his suppression hearing that he owned an item of evidence which he was seeking to suppress. The motion to suppress was denied, and tire prosecution used the tes timony against the defendant at trial. The Simmons opinion noted that the defendant’s testimony was needed at the suppression hearing in order to establish standing, making it an integral part of his Fourth Amendment exclusion claim. 390 U.S. at 389-94. The Supreme Court opined: “Thus, in this case [defendant] was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” 390 U.S. at 394. Nguyen appears to acknowledge that, in defending against an adult certification, he was not exerting a constitutional right, but rather he was attempting to avail himself of a statutoxy benefit. “The special treatment of juvenile offenders because of age is not an inherent or constitutional right but rather results from statutory authority.” State v. Hitt, 273 Kan. 224, 232, 42 P.3d 732 (2002), cert, denied 537 U.S. 1104 (2003); see also State v. Coleman, 271 Kan. 733, 736, 26 P.3d 613 (2001). Thus, unlike the Simmons scenario, Nguyen was not placed in the position where “one constitutional right should have to be surrendered in order to assert another.” 390 U.S. at 394. Nguyen attempts to bootstrap into the doctrine of unconstitutional conditions by claiming that his due process right to present evidence in defense of the adult certification hearing in the juvenile proceedings conflicted with his right against self-incrimination in the adult criminal proceedings. We find the argument unpersuasive on the question presented of whether the combined hearing was impermissible. We perceive the tension between the Fifth Amendment rights— due process versus self-incrimination—would have been present, regardless of whether the district court permitted the combined hearing. Nguyen acknowledges that the alleged conflict is an inherent one by arguing that his testimony at the preliminary hearing would have been available at his adult criminal trial, i.e., that by exercising his due process right to be heard at the preliminary hearing he would waive his right against self-incrimination. He does not explain why the same conflict would not have existed if the hearing had been restricted to adult certification. A juvenile offender is also afforded the right against self-inciimination. See In re B.M.B., 264 Kan. 417, Syl. ¶ 2, 955 P.2d 1302 (1998). Nguyen does not explain why the exercise of his due process right to testify in defense of the adult certification motion, even without the combined prehminary hearing, would not have also effected a waiver of his right against self-incrimination, either as to future juvenile proceedings or in future adult criminal proceedings. In other words, any conditions placed upon Nguyen’s exercise of his various Fifth Amendment rights were not the result of combining the prehminaiy hearing findings with the adult certification procedure. Accordingly, a remand for a new certification hearing is unwarranted. FAILURE TO NOTIFY MOTHER Nguyen asserts that the State failed to strictly comply with the statutory procedure for certifying his adult prosecution by failing to notify his mother. He argues that the infirmity requires a reversal of his convictions. The parties agree that the question of whether K.S.A. 38-1636(c)(l) (repealed L. 2006, ch. 169, sec. 140) mandates notification to both parents before conducting the adult certification hearing is a question of statutory interpretation, over which this court has an unlimited review. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). K.S.A. 38-1636(c)(l) (repealed L. 2006, ch. 169, sec. 140) provided in relevant part: “The court shall give notice of the hearing to the respondent, each parent of the respondent, if service is possible, and the attorney representing the respondent.” (Emphasis added.) A plain reading of the statute confirms Nguyen’s contention that the court was supposed to notify his mother of the hearing, if service upon her was possible. Further, the court was presented with an opportunity to rectify any shortcomings in notification but inexplicably declined to do so. Nevertheless, the determinative question presented is whether the failure of notice requires reversal of the subsequent adult convictions. We pause briefly to note that the only portion of the juvenile proceedings included in the record on appeal is the transcript from the motion for adult prosecution and preliminary examination hearing. Ordinarily, the party asserting error has the burden to designate a record which affirmatively shows prejudicial error in the trial court. State v. Goodson, 281 Kan. 913, 919, 135 P.3d 1116 (2006). However, at the hearing below, the State did not dispute the lack of notice to the mother and was silent as to whether service was possible. On appeal, the State appears to confirm that notice did not occur. Therefore, we will proceed accordingly. In State v. Jones, 273 Kan. 756, 763, 47 P.3d 783, cert, denied 537 U.S. 980 (2002), this court addressed a scenario similar to the one presented in this appeal. There, the juvenile’s attorney argued at the motion hearing that the court could not authorize prosecution as an adult because neither parent had received notification of the hearing. The State responded that it did not know who the parents were or how to find them. The court proceeded with the motion hearing, relying on the State’s contention that it did not know how to contact the parents. At the close of the hearing, the court announced that the mother was present, having arrived a bit late, and that there were numerous relatives in the courtroom. Therefore, the court opined that the mother had obviously received some type of notice so as to comply with the statute. On appeal, the State conceded that it had known the whereabouts of the juvenile’s mother. 273 Kan. at 764. Just as we have done, Jones found that the district court had violated the parental notification provisions of K.S.A. 38-1636(c)(l) (repealed L. 2006, ch. 169, sec. 140). However, Jones refused to find that the violation of the statutory parental notification provisions was a denial of the respondent’s constitutional right of due process, so as to mandate reversal. Jones noted that the juvenile had been represented by counsel throughout the juvenile proceedings and that the situation did not involve a complete failure to provide notice of the charges to the juvenile, the juvenile’s attorney, and the parents. Furthermore, the hearing was not adju dicatory but dispositional; even though a substantial right was involved, the hearing did not result in the determination of guilt or confinement. Finally, the court noted that the mother received actual notice as shown by her presence at the hearing, which served to satisfy the dictates of K.S.A. 38-1636(c)(l) (repealed L. 2006, ch. 169, sec. 140). 273 Kan. at 766; see also State v. Muhammad, 237 Kan. 850, 856, 703 P.2d 835 (1985) (holding that the court, without violating due process of the law, may conduct a hearing to determine whether to waive juvenile jurisdiction, even if the juvenile fails to appear, if counsel is present and allowed to participate on the juvenile’s behalf); but cf. In re Gault, 387 U.S. 1, 31-34, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967) (finding due process rights were violated when there was a failure to provide notice of charges against the juvenile to the juvenile or his parents). One might ponder whether the legislature intended the parental notification provision to be for the benefit of the parents or of the juvenile, given that the juvenile is required to be represented by an attorney. The essence of due process would appear to be served when the juvenile receives notice of the action to be taken against him or her and the juvenile is given a meaningful opportunity to be heard. However, the touchstone of due process is fundamental fairness, and one can perceive that occasion may arise where the juvenile might be hampered in defending against the adult certification motion by the absence of a particular parent. Therefore, we find that, where one parent appears at the adult certification hearing, a failure to prove that the other parent was served, as required by K.S.A. 38-1636(c)(l) (repealed L. 2006, ch. 169, sec. 140), will not be reversible error unless the juvenile can show that the absence of the one parent prejudiced the juvenile’s ability to defend against the motion for adult certification. Given that Nguyen makes no such claim of prejudice because of the absence of his mother, we decline to reverse his convictions for the court’s violation of the statutory parental notification provisions. EVIDENCE SUPPORTING CERTIFICATION An appellate court reviews the district court’s decision to allow the State to prosecute a juvenile as an adult to determine whether the decision is supported by substantial evidence. State v. Mays, 277 Kan. 359, 363, 85 P.3d 1208 (2004). “ ‘Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.’ ” 277 Kan. at 363 (quoting Jones, 273 Kan. 756, Syl. ¶ 2). In addition, in this case, K.S.A. 38-1636(a)(2) (repealed L. 2006, ch. 169, sec. 140) established a presumption that Nguyen should be prosecuted as an adult, so the burden of proof was upon Nguyen to rebut the presumption. Nguyen contends that he rebutted the presumption and that the evidence was insufficient to support certification. K.S.A. 38-1636(e) (repealed L. 2006, ch. 169, sec. 140) directed the district court to consider each of the following factors in determining whether to certify a juvenile for adult prosecution: “(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution.” However, the statute specifically provides that the insufficiency of evidence pertaining to any of the above factors, in and of itself, shall not be determinative of the issue. K.S.A. 38-1636(e) (repealed L. 2006, ch. 169, sec. 140). Furthermore, K.S.A. 38-1636(a)(2)(A) (repealed L. 2006, ch. 169, sec. 140) provides, inter alia, that a 16-year-old respondent who commits an offgrid offense or who commits an offense while in possession of a firearm “shall be presumed to be an adult” and that the “burden of proof is on the respondent to rebut the presumption.” Although not challenged by Nguyen, we would note that the statutory presumption providing for the adult prosecution of some juveniles based on their age and the alleged offense committed does not violate procedural due process. See Coleman, 271 Kan. at 738. Here, the district judge announced the following ruling: “I find that the motion requesting authorization for adult prosecution is sustained. “I specifically find that, given Mr. Nguyen’s age at the time of the offense was 16; that the crime was committed while he was in possession of a firearm; that the seriousness of the alleged offense is so great that the protection of the community requires criminal prosecution as an adult; that this was an aggressive, violent, premeditated or willful crime; and that it was committed against persons wherein personal injury or death resulted in. I do find that the evidence of gang affiliation is strong enough to make that a factor in my decision as weE. And I believe, given aE of these reasons, that the interest of the community would be better served by adult criminal prosecution. “I specificaEy make the finding that extended juvenile jurisdiction would not benefit Mr. Nguyen, in addition to the fact that juvenile jurisdiction alone does not.” Nguyen principally argues what the evidence did not show. However, as noted, the State need not present substantial evidence on each and every factor listed in the statute. Here, the State’s proof was sufficient to support adult certification, even without the statutory presumption. Moreover, Nguyen provided nothing to rebut the presumption. The district court’s finding is affirmed. MULTIPLICITY Nguyen argues that his convictions for felony murder and criminal discharge of a firearm at an occupied vehicle are multiplicitous. He presents a question of law, subject to our unlimited review. See State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006). Nguyen concedes that he did not make a timely objection in the trial court, but correctly points out that multiplicity may be raised for the first time on appeal in order to serve the ends of justice and prevent a denial of fundamental rights. See State v. Simmons, 282 Kan. 728, 743, 148 P.3d 525 (2006); State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984). Nguyen’s outdated argument contends that the common-law test for multiplicity should be applied here and that State v. Patten, 280 Kan. 385, 122 P.3d 350 (2005), was wrongly decided insofar as it found that the test for determining multiplicity rests with an analysis of the elements. Instead, Nguyen urges us to follow the single act of violence paradigm, discussed in State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004), overruled by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), to find that the single act of discharging the firearm at Tran’s vehicle cannot be split into two convictions, one for felony murder and another for criminal discharge of a firearm at an occupied vehicle. Although one might find Groves’ single act of violence paradigm to be intuitively seductive when considering the general concept that a person should not receive multiple punishments for a solitary wrongful act, this court has clearly and unequivocally rejected that test in favor of a strict elements test. But cf. State v. Pham, 281 Kan. 1227, 136 P.3d 919 (2006) (modifying strict elements test when analyzing multiplicity of conspiracy convictions). After Nguyen filed his brief, this court issued its opinion in Schoonover, which declared that “the single act of violence/merger analysis should no longer be applied when analyzing double jeopardy or multiplicity issues in the context of multiple description cases where a defendant has been convicted of violations of multiple statutes arising from the same course of conduct.” 281 Kan. at 493. Nguyen does not argue that there is multiplicity under the elements test. Under our statutes and case law, the conviction for criminal discharge of a firearm is not multiplicitous with the conviction for felony murder. See K.S.A. 2006 Supp. 21-3436(a)(15) (criminal discharge of a firearm is an inherently dangerous felony whether or not such felony is so distinct from the homicide alleged to be a violation of felony-murder statute); State v. Ramos, 271 Kan. 520, 529-31, 24 P.3d 95 (2001) (finding that criminal discharge of a firearm and felony murder were separate and distinct offenses which require proof of different elements; the crimes did not merge and punishment for both crimes did not violate double jeopardy). Therefore, Nguyen’s multiplicity argument fails. ALLEN INSTRUCTION Nguyen contends that the district court erred by giving an Allen-type instruction, which included the language: “Like all cases, it must be decided sometime.” See Allen v. United States, 164 U.S. 492, 501, 41 L. Ed. 528, 17 S. Ct. 154 (1896). The defense objected to the instruction, but the district judge announced: “I give this instruction. I have always given this instruction. I have not had one jury trial in which I have not given this instruction. I believe it’s appropriate to give it at this point, along with the rest of the Court’s instructions on the law, rather than waiting until at some point wherein the jury may actually need it as a result of having reached an impasse. In my experience, and how many—well over a hundred—well, probably 150 jury trials, we’ve had plenty that have still hung even when they’ve been given this instruction. I’m giving it now.” Included with the other instructions given to the jury prior to deliberations, the court gave an Allen-type instruction which mirrored PIK Crim. 3d 68.12 before that patterned instruction was modified in 2005. The specific instruction language was: “This is an important case. If you should fail to reach a decision, this case is left open and undecided. Like all cases, it must be decided sometime. Another trial would be a heavy burden on both sides. “There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side. “Also, there is no reason to believe that the case would ever be submitted to twelve people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were. “This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision. “This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion so that this case may be completed. “You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary.” When a defendant objects to instructions, our court is required to consider the instructions as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury. State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 (2006). In State v. Makthepharak, 276 Kan. 563, 568-69, 78 P.3d 412 (2003), this court noted that the court disapproved of the instruction when it was given to the jurors after deliberations were in progress. See, e.g., State v. Struzik, 269 Kan. 95, Syl. ¶ 6, 5 P.3d 502 (2000); State v. Boyd, 206 Kan. 597, 600-01, 481 P.2d 1015 (1971), cert, denied 405 U.S. 927 (1972); Bush v. State, 203 Kan. 494, 498-99, 454 P.2d 429 (1969). However, Nguyen acknowledges that this court has declined to find that it is error to give the instruction prior to the jury’s retirement to begin deliberations. See Makthepharak, 276 Kan. at 569; State v. Roadenbaugh, 234 Kan. 474, 483, 673 P.2d 1166 (1983); State v. Irving, 231 Kan. 258, 265-66, 644 P.2d 389 (1982). One might debate whether, upon reaching an impasse, a jury is coerced by hearing an Allen instruction from the judge, but not coerced by being referred back to the original instructions to read the Allen instruction on its own. Nevertheless, this court has made that distinction. Despite the precedent approving a pre-deliberation Allen instruction, Nguyen challenges the specific language “[l]ike all cases, it must be decided sometime” as being inaccurate and misleading and argues that the implication that another trial places a burden on the parties pushes the jury to make a decision. Nguyen relies on cases from outside our jurisdiction, including Burchette v. State, 278 Ga. 1, 2, 596 S.E.2d 162 (2004), where the Georgia Supreme Court found that the portion of a jury instruction stating this case “must be decided by some jury” was inaccurate and should not be used. Interestingly, however, the Georgia court affirmed the defendant’s conviction, even though the Allen instruction was given after the jury was deadlocked. Nguyen’s contention that the instruction as given is inaccurate and misleading has some merit. As noted, the PIK committee saw fit to delete some of the language in 2005. However, after the parties filed their briefs, this court issued its opinion in State v. Anthony, 282 Kan. 201, 145 P.3d 1 (2006), where the defendant had also claimed that the instruction erroneously told the jury that the case had to be decided sometime. Anthony determined that the court would not depart from the holdings in Makethepharak, Roadenbaugh, and Irving that when the instruction accompanies all of the rest of the instructions given before deliberations, there is no error. 282 Kan. at 216. In tire interest of consistency, we will conform to that holding. CUMULATIVE ERROR Finally, Nguyen argues that, even if the individual errors do not warrant reversal, their cumulative effect denied him a fair trial. We state our review standard as: “Cumulative trial errors, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under the cumulative effect rule if the evidence is overwhelming against a defendant. Plaskett, 271 Kan. at 1022. “. . . One error cannot support reversal under the cumulative effect rule.” Anthony, 282 Kan. at 216. Admittedly, the cumulative error determination involves a great deal of subjectivity. Nevertheless, we are satisfied that Nguyen received a fundamentally fair trial, and his convictions are affirmed. Affirmed. Davis, J., not participating. Greene, J., assigned.
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The opinion of the court was delivered by Nuss, J.: A jury convicted Ray F. Garcia of the rape and first-degree felony murder of P.E., a 73-year-old woman. Garcia received consecutive sentences: life in prison for the felony murder and 408 months’ imprisonment for the rape. Our jurisdiction is under K.S.A. 22-3601(b)(l), a maximum sentence of life imprisonment imposed. The issues on appeal, and our accompanying holdings, are as follows: 1. Did Garcia’s prosecution for rape violate the Ex Post Facto Clause of the United States Constitution? Yes. 2. Did the district court err in allowing admission into evidence of Garcia’s prior convictions of two counts of rape and one count of aggravated criminal sodomy? No. 3. Does sufficient evidence support Garcia’s conviction of felony murder? Yes. 4. Do Garcia’s convictions violate double jeopardy? Moot. Accordingly, we affirm Garcia’s felony-murder conviction, reverse his rape conviction, and remand to the district court with directions to vacate the rape sentence. FACTS On Sunday, November 12,1995, P.E., a 73-year-old woman, met her friend Blanche Cooper at church in Wichita. P.E. was wearing a black floral dress Cooper had given her. After church, the two women went to Cooper’s home for a lunch of chicken chow mein, milk, and cherry cheesecake. P.E. left Cooper’s residence at 1:30 p.m. Although P.E. stated that she would return to Cooper’s house the following day for lunch, P.E. did not return. The next day Cooper went to P.E.’s apartment to look for her; police at the scene informed Cooper that P.E. was dead. At the time, P.E. was living at the Interdale Apartments on North Broadway. Kevin Brewington lived in the apartment below P.E.’s. On Tuesday November 14, he went to check on her; the door was locked, so he retrieved a key. After again knocking, Brewington entered P.E.’s apartment to find her on the floor. P.E.’s black floral dress had been pushed up towards her neck and the heel of her left leg was up on the edge of the coffee table. Brewington went back downstairs and called 911. Detective David Alexander and EMS responded; EMS determined that P.E. was dead. After Detective Alexander entered the apartment to secure the crime scene, he interviewed Brewington. Alexander asked Brewington if he saw anything unusual in the apartment. From outside the door of P.E.’s apartment, Brewington had observed a pair of dark-colored winter gloves on the coffee table that he did not recognize as P.E.’s. Brewington also stated that he did not recall seeing rolls of tape on the floor previously. Detective Alexander observed a white, heavy-set, elderly female, blindfolded, lying face up, with her arms out to her side, palms down. The woman’s legs were spread a couple of feet apart and her dress was pulled up to her armpits. Aside from the dress, the woman was nude. Alexander noticed what appeared to be “fresh” minor abrasions on one of her knees, her left shin, and her right toe, as well as a light bloody discharge from her mouth and vaginal area. He also observed a pair of wadded up pantyhose by the window, a pair of men’s white briefs by her right shoulder, and a roll of surgical tape on the floor. On the coffee table, he observed winter gloves, masking tape, and a ceramic ashtray containing two partially smoked hand-rolled cigarettes. Alexander did not see any evidence of forced entry. Although police processed the apartment for fingerprints, they did not find any usable impressions. Due to the state of DNA technology at the time, police were unable to retrieve DNA samples from the cigarette butts. Dr. Marcus Nashelsky performed the autopsy. Because he observed rice, short noodles, and a portion of a red cherry in P.E.’s stomach, he concluded that she died within a few hours of eating that particular meal. Pie collected DNA samples from P.E.’s mouth, vagina, and rectum; no spermatozoa was found. Additionally, Dr. Nashelsky found a few small hairs or fibers on the body. He also noted numerous abrasions to P.E.’s knees. The autopsy also revealed dried blood extending downward from the opening of the vagina to the anus. The blood covered several very small abrasions or scrapes of the skin. He also found a 1/2-inch laceration on the opening of the vagina, consistent with some type of blunt force. Dr. Nashelsky concluded that the genital injuries resulted from an assault that occurred hours before her death. He noted that P.E. had severe coronary artery disease that could have precipitated a heart attack caused by extreme stress. Dr. Nashelsky could not, however, state the specific cause of death or the mechanism of death: suffocation or heart attack from the stress of a physical assault. Wayne Crouse was at the apartment complex on the day P.E.’s body was discovered. Crouse told police that while he and his friend Tony Erskine were talking at the apartment complex, a man named Ray rode up on a bicycle and asked if they had heard about P.E. According to both Crouse and Erskine, the man referred to her solely by her first name. Crouse described the man as white, having black hair with a little bit of grey, a mustache, no glasses, and no tattoos. The man was short—5 feet 8 inches to 5 feet 9 inches tall—and stocky, weighing approximately 180 to 200 pounds. Crouse estimated his age as late 40’s to early 50’s. Crouse had seen him around the apartment complex before. Although the police followed up several leads, P.E.’s death eventually became a “cold case.” Several years later Detectives Dana Gouge and Kelly Otis were assigned to review it. Gouge eventually submitted evidence for DNA testing, including the cigarette butts found in the ash tray in P.E’s living room. Test results showed an unknown male profile, which was later run through CODIS, the combined DNA indexing system. The profile was matched to convicted felon Raymond Garcia. Garcia’s DNA was the only DNA found on the cigarette butts. Gouge and Otis then contacted Crouse for more information. He positively identified a photograph of Garcia as the man he saw on the bicycle whom he knew as “Ray.” The detectives also contacted Erskine; however, he was not able to positively identify Garcia. Goüge then learned that Garcia was incarcerated in the El Dorado State Correctional Facility. In August 2003, Gouge and Otis procured a search warrant to obtain DNA samples from Garcia. At the correctional facility, Gouge took buccal swabs from the inside of Garcia’s mouth. A test of the swabs confirmed the CODIS information. After execution of the search warrant, Garcia agreed to speak with the detectives. He repeatedly denied knowing P.E. Initially, he claimed he had never been at the apartment building, but later he admitted he had been there. Garcia maintained, however, that he had not been in P.E.’s apartment. When Gouge told him that his DNA was found at the scene', Garcia responded that around the time of P.E.’s death, he went to the apartment building with a friend of his named Keith. Keith introduced Garcia to an unknown white male who performed oral sex on him. Garcia was unsure whether he ejaculated. He also stated that he smoked Marlboro and Camel cigarettes, as well as marijuana, or “creeper weed,” but not hand rolled cigarettes. The following month Garcia was interviewed again. Garcia stated that although he had been at the apartment building, he did not know P.E. Garcia acknowledged that his main mode of transportation was his bicycle and that he frequently rode past the apartment complex. Garcia also stated that a man at the apartment complex would pick up cigarette butts out of ash trays. On January 30, 2004, Garcia was charged with rape or, in the alternative, attempted rape and felony murder—-with rape and attempted rape as the underlying felony. The State later filed a motion to admit evidence of Garcia’s 1997 convictions of two counts of rape and one count of aggravated criminal sodomy. The court eventually allowed admission of the evidence as proof of Garcia’s intent and identity. A jury found Garcia guilty of both felony first-degree murder and rape but acquitted him on attempted rape. Garcia received consecutive sentences: life in prison for felony murder and 408 months’ imprisonment for the rape. More facts will be provided as necessary to the legal analysis. ANALYSIS Issue 1: Garcias prosecution for rape violated the Ex Post Facto Clause of the United States Constitution. At the time the crimes were committed in November 1995, the statute of limitations for rape was 5 years. K.S.A. 21-3106(4). As both parties acknowledge, the statute was amended in 2001, extending the time hmitation for a charge of rape to either “the time provided by the law pertaining to such offense [5 years] or one year from the date on which the identity of the suspect is conclusively established by DNA testing, whichever is later.” (Emphasis added.) K.S.A. 2001 Supp. 21-3106(4), (7)(a). Consequently, the amend ment became law only after the original 5-year statute of limitation for rape had run in mid-November 2000. Garcia argues that K.S.A. 2001 Supp. 21-3106(7)(a) was applied to revive his time-barred prosecution for rape in violation of Article I, § 10, clause 1 of the United States Constitution: the Ex Post Facto Clause. This clause prohibits states from enacting laws with certain retroactive effects. Stogner v. California, 539 U.S. 607, 610, 156 L. Ed. 2d 544, 123 S. Ct. 2446 (2003). Our standard of review is de novo. See State v. Marsh, 278 Kan. 520, 537-40, 102 P.3d 445 (2004) (questions of both statutory and constitutional law). In support, Garcia cites Stogner, 539 U.S. 607, and State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989). In Stogner, the United States Supreme Court clarified application of the Constitution’s two Ex Post Facto Clauses to a criminal statute of limitations. There, Stogner was indicted in 1998 for sex-related abuse allegedly committed between 1955 and 1973 in California. At that time, a 3-year limitations period was in effect. However, in 1993, California passed a new statute allowing prosecution for sex-related child abuse where the limitations period had expired if the prosecution was begun within 1 year of the victim’s report to police. Stogner moved to dismiss arguing that the previously time-barred offense was impermissibly revived in violation of the Ex Post Facto Clause. The Supreme Court “conclude[d] that a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto clause when it is applied to revive a previously time-barred prosecution.” 539 U.S. at 632-33. In so holding, the Court discussed why limitations statutes are important: “Significantly, a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. [Citation omitted.] And that judgment typically rests, in large part, upon evidentiary concerns—for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable. [Citations omitted.]” 539 U.S. at 615. Fourteen years prior to Stogner, the Kansas Supreme Court stated a similar rationale and result in Nunn: “We . . . hold that an amendment to a criminal statute of limitations extending the time for commencement of a prosecution is remedial or procedural, not substantive, and may be applied to crimes committed prior to the effective date of the amendment so long as die prior statute of limitations had not expired prior to the effective date of the amendment. Of course, if the statute being amended has run on the specific crime charged, then the amendment cannot be applied to resurrect a prosecution which has already been time-barred.” (Emphasis added.) 244 Kan. at 218. The State acknowledges Stogner and Nunn. Nevertheless, it argues that Stogner’s discussion of evidentiary concerns actually provides a basis for us to conclude that applying the amended statute of limitations would not violate the Ex Post Facto Clause: “Here, however, such concerns are not present, as the amended statute of limitations at issue applies only in cases where a suspect’s identity is conclusively established by DNA evidence. Thus, the instant case presents a scenario where the passage of time has actually increased the amount, and accuracy, of evidence available.” At least one commentator has rejected this argument based on Stogner’s plain language: “Since Stogner did not carve out an exception for DNA evidence, it appears that even near-perfect reliability in linking a defendant to a crime will be insufficient to justify reviving a time-barred prosecution.” Note, Does Time Eclipse Crime? Stogner v. California and the Court’s Determination of the Ex Post Facto Limitations on Retroactive Justice, 38 U. Rich. L. Rev. 1011, 1043 (2004). We agree with the commentator. Under the holdings of Stogner and Nunn, we conclude that application of the amended K.S.A. 21-3106 resurrects a previously time-barred prosecution and violates Article I, § 10, clause 1 of the United States Constitution. Although application of the statute to the present facts violates the Ex Post Facto Clause, the statute is not unconstitutional on its face, as Garcia asserts. Rather, as stated in Nunn, the statute may extend the limitations period for offenses not time barred at the effective date of the amendment. 244 Kan. at 218. In the present case, the offense was already time barred (mid-November 2000) at the amendment’s effective date (July 1, 2001); Garcia was not charged until January 2004. The State argues in the alternative that Garcia waived any claim related to the statute of limitations by failing to raise it below. The State cites Lowe v. State, 14 Kan. App. 2d 119, Syl. ¶ 1, 783 P.2d 1313 (1989), for the proposition that a statute of hmitations defense can be waived in a criminal case by the knowing, voluntary, and intelhgent acts of the defendant. See also In re Johnson, Petitioner, 117 Kan. 136, 230 Pac. 67 (1924) (discussing whether the statute of hmitations in criminal cases must be raised as an affirmative defense; cited in Lowe). In Lowe, defendant pleaded nolo contendere to aggravated battery. The court concluded that pursuant to K.S.A. 22-3208(4), the defendant waived the defenses available to him by pleading guilty. 14 Kan. App. 2d at 121. Nevertheless, the State asserts that the holding in Lowe was not hmited to circumstances involving a plea agreement. While we observe that the holding specifically provided that waiver in a criminal case must be based upon the “knowing, voluntary, and intelligent acts of the defendant,” 14 Kan. App. 2d at 121, the State imphes that the failure of Garcia’s defense counsel to raise die claim at trial was sufficient to meet this standard. The State’s arguments muddy the issue. By the time the rape charge was filed against Garcia in late January 2004, the statute of hmitations already had been extended by the legislature to 1 year after his August 2003 DNA testing—to August 2004. Accordingly, the proper question is not whether he was being prosecuted outside of the statute of limitations. Under the amended statute, he clearly fell within the hmitations period; therefore, the statute of hmitations defense was not available to him, and case law concerning waiver of a hmitations period as an affirmative defense is inapplicable. Rather, the proper question , is whether the amended statute lengthening the hmitations period was applied contrary to a constitutional provision, i.e., the Ex Post Facto Clause, and we have held that it was. Garcia concedes that he is raising the issue of the Ex Post Facto Clause for the first time on appeal. He asserts, however, two applicable exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal: (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. See State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005). Had the constitutional issue been previously raised, Garcia would likely not have been prosecuted for the rape charge, which resulted in a conviction and attendant sentence of 408 months’ imprisonment consecutive to his life sentence for felony murder. Therefore, we conclude that at a minimum, consideration of the issue is necessary to serve the ends of justice and to prevent a denial of fundamental rights. In light of our holding that application of the amendment to revive Garcia’s previously time-barred prosecution for rape violated the Ex Post Facto Clause, the conviction is reversed. See Stogner, 539 U.S. at 632-33 (reversing the California Court of Appeal). The reversal renders moot Garcia’s rape sentencing issue based upon Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007). Issue 2: The district court did not err in allowing introduction into evidence of Garcia’s prior convictions of two counts of rape and one count of aggravated criminal sodomy. Garcia next argues that the district court erred in admitting evidence of his prior convictions of rape and aggravated criminal sodomy to show his intent and identity for the present charges of felony murder and rape. Accordingly, he asserts that his Fourteenth Amendment due process right to a fair trial was denied, his convictions must be reversed, and he must be granted a new trial. Although not raised by Garcia, we preliminarily observe that our reversal of his rape conviction does not necessarily bar rape from serving as the underlying charge for the felony murder. After we noted that in New York die completion of the underlying felony is not an essential element of felony murder, and that an acquittal of the underlying felony is not inconsistent with a conviction of felony murder, in State v. Wise, 237 Kan. 117,123, 697 P.2d 1295 (1985), we held that “under our statute, K.S.A. 21-3401[b], an accused need not be prosecuted [for] or convicted of the underlying felony in order to be convicted of felony murder.” This rule has recentiy been described as “long held.” State v. Dixon, 279 Kan. 563, 571, 112 P.3d 883 (2005). Cf. 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.” [Emphasis added.]). Accordingly, evidence of Garcia’s prior convictions of rape and aggravated criminal sodomy can be relevant to the sole count of the felony murder of P.E., which is based upon rape or attempted rape. Our decision in State v. Gunby, 282 Kan. 38, 144 P.3d 647 (2006), provides a road map for our analysis of this evidentiaiy issue: When a party challenges the admission or exclusion of evidence on appeal, the first inquiry is relevance. Unless otherwise prohibited, all relevant evidence is admissible. K.S.A. 60-407(f). “Relevant evidence” is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). A material or logical connection between the asserted facts and the inference or result they are intended to establish are necessaiy to establish relevance. 282 Kan. at 47 (citing State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 [1999]). Gunby further explained our possible standards of review: “Once relevance is established, evidentiary 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. [Citation omitted.] When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, we review the decision de novo.” 282 Kan. at 47-48. Garcia’s prior convictions were admitted pursuant to K.S.A. 60-455; indeed, Gunby now requires that this statute govern the admissibility of any and all other crimes and civil wrongs evidence. 282 Kan. at 57. The statute states: “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.” (Emphasis added.) Garcia argues that he challenges the legal basis for the admission of the evidence, i.e., the statutory conditions were not met; thus, our review is de novo. See 282 Kan. at 48. But in State v. Overton, 279 Kan. 547, 555, 112 P.3d 244 (2005), we stated: “Overton bears the burden of estabhshing that the trial court abused its discretion in admitting evidence under K.S.A. 60-455, and he has failed to demonstrate such an abuse in the admission of A.D.’s testimony. See Rucker, 267 Kan. at 823. A.D.’s testimony proves Overton’s plan, one of the facts specified in K.S.A. 60-455.” Because of the way Garcia has framed his appellate argument, we agree with him on the standard of our review. As we stated in State v. Tiffany, 267 Kan. 495, 498, 986 P.2d 1064 (1999): “ ‘If the requirements for admission of evidence of prior crimes pursuant to K.S.A. 60-455 are met, the scope of appellate review is limited to whether the trial court abused its discretion.’ [Citations omitted.]” (Emphasis added.) Cf. Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 (1996) (“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.”). Under the plain and unambiguous language of the statute, evidence of prior crimes or civil wrongs cannot be admitted to prove a criminal defendant’s propensity to commit the charged crime, but it can be “admissible when relevant to prove some other material fact.” K.S.A. 60-455; 282 Kan. at 48. While Gunby clarified that the eight material facts listed in the statute are exemplary, not exclusive (282 Kan. at 56), Garcia’s challenge nevertheless goes to two material facts that are listed: intent and identity. Gunby also clarified that the K.S.A. 60-455 inquiry requires several steps. The court must determine that the evidence is relevant to prove a material fact. The court must also determine that the material fact is disputed. The court additionally 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 juiy of the specific purpose for admission whenever 60-455 evidence comes in. 282 Kan. at 48, 56-57. As we stated in Gunby: “These safeguards are designed 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. The issue of prior crimes was initially raised in the State’s motion to admit evidence of Garcia’s criminal history for acts occurring on December 8,1996. The district court eventually allowed admission of the evidence to prove intent and identity. As a result, A.L.R.—the victim of the 1996 crimes—testified at trial about the events leading to Garcia’s convictions. She stated that for some time Garcia had come to A.L.R.’s house or backyard in Wichita to talk with her husband, who worked on bicycles during his retirement; Garcia also rode a bicycle. She knew Garcia by sight, not by name. During the early morning hours of December 8, 1996, A.L.R. was asleep with her husband when she was awakened by someone brushing against her arm. After warning that he had a knife, the intruder ordered A.L.R. and her husband to cover their heads; they then covered their heads with blankets. He also demanded money. When A.L.R. told the intruder the money was in her purse, he led her to the hallway where the purse was located. After retrieving the purse, the intruder led A.L.R. back to the bedroom. He then took off her pajama top and fondled her breasts. By this time she recognized his voice and recalled he had been at her backdoor the day before calling for her husband. Garcia then pulled down A.L.R.’s pajama bottoms and panties and told her to squat down. After she complied, he raped her with his penis. Once she returned to tire bed, she pulled the blanket back over her head. After asking where they kept their tape, Garcia then bound both A.L.R. and her husband. Garcia first wrapped Christmas cloth material, then tape, around her ankles and wrapped tape around her hands and wrists. He then taped her husband’s hands and feet. After removing the blanket from her face so he could bind her hands, Garcia placed a gown over her face. A.L.R. testified that Garcia spent approximately 2 hours in her home, including time spent pulling out drawers throughout the house and otherwise searching for valuables. Before leaving, he took bills and change from her purse and even broke open several piggy banks to obtain all their coins. He also took jewelry, a camera, a VCR, and a backpack. A.L.R. believes he took her keys because they were missing afterward. There was no visible sign of forced entry; she and her husband believed Garcia had come in through the basement door. She was 56 years old at the time of the incident; her husband was 66. A.L.R. identified Garcia as her attacker at trial. Testing conducted by the Kansas Bureau of Investigation revealed Garcia’s DNA was found on A.L.R.’s vaginal swabs. In July 1997, a jury convicted Garcia of two counts of rape and one count of aggravated criminal sodomy against A.L.R. Relevance and Disputed, Material Facts Garcia argues that the facts the State sought to prove in the instant case, intent and identity, were not disputed, material facts. If they were, he also argues that the evidence of prior convictions was not relevant to prove those material facts. He correctly does not object to use of the prior convictions simply because those crimes occurred after the crimes against P.E. See State v. Bly, 215 Kan. 168, 176-77, 523 P.2d 397 (1974) (other offense may be admissible even if it occurred subsequent to the offense for which the defendant is being tried). We have held that “ £[m]ateriality,’ 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.” (Emphasis added.) State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976) (citing Bly, 215 Kan. at 176). Stated another way: “[T]he element or elements being considered (e.g., intent, motive, knowledge, identity, etc.) must be substantially in issue in the case before a trial court should admit evidence of other crimes to prove such elements.” Bly, 215 Kan. at 176. Garcia first focuses on his identity as immaterial and undisputed; we disagree. Identity is a disputed, material fact because he denies being in P.E.’s apartment, much less being the perpetrator of the crimes against her. See State v. Searles, 246 Kan. 567, 579, 793 P.2d 724 (1990) (“ ‘Identity’ was an issue in the present case. The disputed material fact was whether or not the defendant was the one who committed the crime.”). Cf. Bly, 215 Kan. at 176 (‘Where a defendant admits that he committed the act and his presence at the scene of the crime is not disputed, a trial court should not admit other crimes evidence for the purpose of proving identity. The obvious reason is that such evidence has no probative value in the case”). This determination leads us to the relevance issue: whether the 60-455 evidence is relevant, i.e., similar enough to the present crimes charged, to help prove identity. See Faulkner, 220 Kan. at 157 (“The similarity of offenses is a key factor in relevancy”; the court determines whether evidence of other crimes is relevant to prove a material fact which is substantially in issue.). As this court stated in Ely, 215 Kan. at 177: “Where a similar offense is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses. . . . There should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. As pointed out by Mr. Justice Kaul in State v. Johnson, 210 Kan. 288, 502 P.2d 802: ‘ “The quality of sameness is important when pondering the admission of other crimes to prove identity.” ’ (p. 294.) (Emphasis supplied.)” The cases in which prior crimes have been used to prove identity have emphasized that the crimes need not be identical, only similar. Searles, 246 Kan. at 578 (citing State v. Williams, 234 Kan. 233, 670 P.2d 1348 [1983]). Garcia argues that many of the similarities between the present case and his previous convictions “arise simply because the allegations center around a rape occurring in a victim’s home.” The district court found, however, both victims being bound was uncommon and suggested the same for being blindfolded. At the pretrial ruling, the district judge discussed similarities between the two cases: “I don’t profess to be an expert on the methodology of rape or the application of force during rape, but in my limited experience of over 20 years in private practice, now approaching four years on the bench, I would say in my opinion that it is the exception rather than the rule in the force that I’ve seen that people are bound and blindfolded. Certainly [P.E.], by State’s Exhibit No. 4, was blindfolded, and there is certainly evidence in the coroner’s report to reach the conclusion she was bound at some point during this encounter. “Certainly with the [A.L.R.] case, the ’96 case, there was evidence and proof of binding. I think those are similarities. I think those are striking similarities.” (Emphasis added.) We agree with the district court’s determination of similarity based upon binding and blindfolding. We observe that P.E. had ligature marks on her wrists. Her dress’ cloth belt was found beneath her, cut in several places and containing several slip knots. Because the belt’s width matched the ligature marks, police opined it had been used to restrict her movements and then was cut from her wrists. Two rolls of different kinds of tape were also found at P.E.’s murder scene. We further observe that A.L.R. was bound with wrapped cloth material and then tape was placed around her ankles and hands; tape was used around her husband’s hands and feet. Additionally, we observe that P.E. was found with a wool winter scarf tied around her head and covering her eyes. Similarly, A.L.R. and her husband were immediately told by Garcia to cover their heads, which they did with bed blankets. When Garcia later needed to move the blanket in order to bind her hands, he placed a nightgown over her face. We independently observe that Garcia warned A.L.R. that he had a knife; not only had P.E.’s dress’ belt been cut in three places but also knife wounds had been found on her middle finger. We also observe other similarities argued by the State but not addressed by the district court. Fresh abrasions were on P.E.’s knee, left shin, and right toe suggesting she had been forced to kneel; Garcia’s brief characterizes the A.L.R. crimes as her being forced to kneel on the floor before and during the rape. Additionally, as Garcia acknowledged, both P.E. and A.L.R. were victimized in their own homes. Dr. Nashelsky opined that P.E.’s genital injuries resulted from an assault; she died in her living room. A.L.R. was raped in her bedroom. P.E. suffered minor abrasions and scrapes to her vaginal and perineal area, together with a vaginal bloody discharge and a VLinch cut to the opening of her vagina consistent with a blunt force; A.L.R.’s vagina was forcibly penetrated by Garcia’s penis. Furthermore, both victims appeared to have had all of their private areas exposed involuntarily. Garcia removed A.L.R.’s pajama bottoms and panties and let them drop to the floor; he exposed her breasts by taking off her pajama top. P.E.’s dress was pulled up to her armpits and revealed her body was completely nude below. Her underwear was missing and her panty hose was found wadded up against the window. Moreover, both P.E. and A.L.R. were of similar ages. We also observe that neither victims’ residence showed signs of forced entry. Moreover, Garcia knew A.L.R. because he had often been to her house and yard; it can be inferred that Garcia knew P.E. because the day her body was found he referred to her solely by her first name. Also, Garcia spent approximately 2 hours in A.L.R.’s home, including time spent pulling out drawers and otherwise searching for valuables throughout. Garcia’s DNA on the two partially smoked handrolled cigarettes in P.E.’s ashtray suggest he spent a substantial length of time there. Investigators discovered some of P.E.’s drawers and interior doors left open, suggesting Garcia had also spent some of his time searching for her valuables. Moreover, keys were taken from both residences. Additionally, Garcia took money, among other things, from A.L.R.’s home, including all the coins from several piggy banks he broke. No money of any kind was found in P.E.’s apartment, even though her friend, Cooper, had given her $10 a few hours before her death. Differences do exist between the two situations, e.g., A.L.R.’s husband was at home during the attack that occurred early in the morning, while P.E. lived alone and the attack occurred before her evening meal. However, the “quality of sameness” was sufficient to make the evidence relevant to prove identity. See Searles, 246 Kan. at 578-79. (“In the case at bar, the prior crimes are sufficiently similar to the present offense so as to raise a reasonable inference that Searles committed all the offenses. The test of relevancy has been met.”); K.S.A. 60-401(b) (Evidence is relevant if it has any tendency in reason to prove a material fact.). Because we have determined that the evidence was admissible at least for the disputed, material fact of “identity,” addressing the alternate basis of “intent” is moot. Probative Value v. Prejudice Garcia argues that even if intent and identity were disputed, material facts, the evidence should not have been admitted because the risk of prejudice outweighed the probative value. In support, he cites Bly’s discussion of possible prejudice: “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 deseives 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. Thus, in several ways the defendant may be prejudiced by such evidence.” 215 Kan. at 174. See Gunby, 282 Kan. at 48-49. This court stated in Searles, 246 Kan. at 579: “As Breazeale pointed out, the evidence should not be admitted if the potential for natural bias and prejudice overbalances the contribution to the rational development of the case. 238 Kan. at 723. In the present case, it did not. The evidence of the prior crimes was not merely cumulative. The evidence of the prior crimes was an important and natural part of the whole trial.” Clearly the evidence of Garcia’s previous crimes was prejudicial because “[a]ll evidence that is derogatory to the defendant is by its nature prejudicial to the defendant’s claim of not guilty. Evidence that actually or probably brings about the wrong result under the circumstances of the case is ‘unduly prejudicial.’ ” (Emphasis added.) State v. Clark, 261 Kan. 460, 477, 931 P.2d 664 (1997). However, this part of the evidentiary analysis is reviewed for abuse of discretion. See State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 (2004) (Our standard of review of otherwise relevant evidence which arguably should have been excluded after this particular weighing of probative value versus risk of unfair prejudice is abuse of discretion.). Discretion is abused only when no reasonable per son would take the view adopted by the trial court; the burden of proof is on the party alleging that the discretion is abused. 277 Kan. at 618. Like the Searles case, the district court necessarily found that the evidence’s probative value as to identity outweighed prejudice. Certainly like Searles, the evidence of the prior crimes was not merely cumulative but an important and natural part of the whole trial. We cannot say that no reasonable person would take the district court’s view. Further, the court properly instructed the jury that the prior crimes evidence could only be considered for the purpose of proving intent and identity, which helps to dampen any prejudicial effect. See, e.g., State v. Lane, 262 Kan. 373, 391, 940 P.2d 422 (1997) (Absent any contraiy evidence, it must be assumed that the jury followed this instruction, thus minimizing prejudice to the defendant.). Because we have determined the evidence was properly admitted, the State’s argument of harmless error and Garcia’s argument that his Fourteenth Amendment due process rights to a fair trial were violated are moot. Issue 3: Sufficient evidence supports Garcia’s conviction of felony murder. Garcia next argues that his convictions of rape and felony murder were based upon insufficient evidence. Given our holding on issue 1 to reverse the rape conviction as a matter of law and direct the vacation of its sentence, whether sufficient evidence supports that conviction is now moot. We observe at the outset that, as previously noted in issue 2, even with the reversal of the rape conviction and vacation of its sentence, a conviction of felony murder based upon rape does not necessarily fail as a matter of law. Accordingly, we must proceed to determine whether sufficient evidence exists to support the conviction of felony murder which, as here, is based upon rape or its attempt. This court faced a similar issue in State v. Beach, 275 Kan. 603, 67 P.3d 121 (2003). There, the jury convicted Beach of felony murder, whose underlying felony was aggravated robbery, but ac tually acquitted her on the separate charge of aggravated robbery. Beach argued that because of the acquittal of aggravated robbery, there was insufficient evidence to support her conviction of felony murder based upon that charge as the underlying crime. Characterizing the problem of one of inconsistent jury verdicts, this court held in Beach, 275 Kan. 603 Syl. ¶ 4: “[A]n acquittal of direct responsibility for the underlying felony does not vitiate the conviction of felony murder based on the underlying felony.” Accordingly, the court proceeded to determine whether sufficient evidence supported the murder charge which was based upon aggravated robbery. It reviewed the evidence, 275 Kan. at 614-15, and later concluded: “The question in this case ... is whether after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. We conclude that the jury rationally could have found Beach participated in the underlying felony of aggravated robbery. That the jury acquitted Beach of aggravated robbery independent of the felony murder does not impair our conclusion.” (Emphasis added.) 275 Kan. at 622. Because the felony-murder charge was based upon an aggravated robbery in which a rational jury could have found that Beach participated, the Beach court affirmed the felony-murder conviction. 275 Kan. at 628. We acknowledge that the issue in Beach was not identical to the one in the present case. There, the defendant was acquitted of the felony separate from the felony-murder charge. Here, the defendant was convicted of the felony separate from the felony-murder charge, but that conviction was reversed as a matter of law. Consequently, an argument could be made that because the underlying felony, rape, was barred by the Ex Post Facto Clause as a matter of law, then the accompanying murder charge based upon that same crime is similarly barred as a matter of law. However, because felony-murder charges can be brought with or without charges for the underlying felony, we regard a failure to so prosecute, or an acquittal, as the functional equivalent of a bar to bringing the underlying charges because of the Ex Post Facto Clause. We observe, for example, that there is a statute of limitations for rape (5 years per K.S.A. 21-3106[4] and [7]), but none for murder, e.g., felony murder. See K.S.A. 21-3106(1). Accordingly, a felony-murder charge based upon a rape which had occurred more than 5 years earlier should not be time barred. This leads us to the question of the sufficiency of the evidence to support Garcia’s felony-murder conviction. According to Jury Instruction No. 7, the underlying felony was rape or attempted rape. As did the court in Beach, we observe that our standard of review is well known: “ ‘When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. Burhans, 277 Kan. 858, 871, 89 P.3d 629 (2005). In order to prove first-degree felony murder, the jury was instructed that the State had to show that the killing of P.E. was committed during Garcia’s commission of or an attempt to commit rape. See K.S.A. 21-3401(b). The jury was also instructed that rape required showing, among other things, that (1) Garcia had sexual intercourse with P.E.; and (2) the act of sexual intercourse was committed without the consent of P.E. under circumstances where she was overcome by force or fear. See K.S.A. 21-3502. “Sexual intercourse” is defined as “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.” K.S.A. 21-3501(1). The jury was also correcdy instructed, although it did not convict on this separate crime, that to establish the crime of an attempt to commit rape, the State had to show that Garcia performed an overt act toward the commission of the crime of rape, that he did so with the intent to commit the crime of rape, and that he failed to complete commission of the crime of rape. It was additionally instructed that an overt act necessarily must extend beyond mere preparations made by the accused and must sufficiently approach consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense. Mere preparation is insufficient to constitute an overt act. Garcia specifically asserts that the State failed to present sufficient evidence of sexual intercourse, particularly penetration. This assertion ignores, however, that the felony of attempted rape also may serve as the basis for the felony murder, and an attempt does not require penetration. An attempt requires only an overt act which is beyond mere preparation. Such evidence is ample here. P.E. was found blindfolded, lying face up on the floor of her apartment. Her legs were spread a couple of feet apart, and her dress was pulled up to her armpits. Aside from the dress, she was nude. Evidence also revealed her wrists had been bound, and her panty hose had been wadded up and cast aside. The police opined that she had been bound with her dress belt to restrict her and it had then been cut from her wrists. She had fresh minor abrasions on her knee, her left shin, and her right toe, indicating she had been forced to kneel. Dried blood extended downward from the opening of her vagina to the anus, covering several veiy small abrasions or scrapes of the skin. A ká-inch laceration was found on the opening of the vagina, consistent with some type of blunt force. The coroner essentially opined she had been sexually assaulted. Garcia also specifically asserts that the State failed to prove that he was the perpetrator. In support, he points out that no DNA was found on P.E.’s body and no seminal fluid was recovered from the scene. Garcia distinguishes the facts of the present case from his previous conviction for the rape of A.L.R., where DNA taken from A.L.R.’s body indicated Garcia had raped her. He argues that any evidence against him is “purely circumstantial.” Contrary to Garcia’s claim, a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004). Testimony established that two partially smoked handrolled cigarettes containing only Garcia’s DNA were found in an ashtray in P.E.’s apartment near her body. Their presence suggests their smoker had been in the apartment for a considerable amount of time, certainly long enough to commit or attempt a rape. Garcia also changed his story to law enforcement, first telling them he had never been in the apartment complex and then admitting he had. He also admitted he had been in P.E.’s apartment complex around the time of the murder. Shortly after her body had been found, he asked Crouse and Ersldne if they had heard about P.E., calling her by her first name. Additionally, the details of the 60-455 evidence of his 1996 crimes against A.L.R,. for which he was convicted, demonstrate they “were committed in a similar manner so as to raise a reasonable inference that the same person who committed the crime committed the other” against P.E. See Bly, 215 Kan. at 178. After reviewing all the evidence, viewed in a light most favorable to the State, we are convinced that a rational factfinder could have found Garcia guilty beyond a reasonable doubt of attempted rape and felony murder based upon that attempt. See Burhans, 277 Kan. at 871. Sufficient evidence exists to support Garcia’s conviction of felony murder. Issue 4: Garcia’s double jeopardy argument is moot. Finally, Garcia argues that his two convictions are multiplicitous and violate double jeopardy. Because in issue 1 we reversed his rape conviction, the question of double jeopardy is moot. The felony-murder conviction is affirmed, the rape conviction is reversed, and we remand to the district court with directions to vacate the rape sentence.
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Per Curiam: This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator s office against Respondent, Robert E. Wonder, an attorney licensed to practice law in Kansas since April 1984. Respondent’s last registration address with the Clerk of the Appellate Courts of Kansas was in Kansas City, Missouri. The formal complaint charged Respondent with violating Kansas Rules of Professional Conduct (KRPC) 1.1 (2007 Kan. Ct. R. An-not. 384) (competence); KRPC 3.2 (2007 Kan. Ct. R. Annot. 503) (expediting litigation); KRPC 3.3(d) (2007 Kan. Ct. R. Annot. 508) (candor toward tribunal); and KRPC 8.4(d) (2007 Kan. Ct. R. An-not. 559) (misconduct prejudicial to the administration of justice). In answer to the complaint, Respondent admitted violations of KRPC 1.1, KRPC 3.2, and KRPC 3.3(d). He appeared in person and through counsel at his disciplinary hearing, where the Deputy Disciplinary Administrator dropped the KRPC 8.4(d) charge. The panel filed its final hearing report in October 2007. Respondent took no exceptions. “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. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. [Citations omitted.] “This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.]” In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003). The hearing panel made the following findings of fact: In 1987, Respondent drafted the Last Will and Testament of David F. Dowling, Respondent’s good friend. In pertinent part, the will provided: “I appoint Robert E. Wonder, my attorney, of Leawood, Kansas and my brother, Patrick Michael Dowling of Olathe, Kansas as Co-Trustees of the trusts herein created. If either or both should be unwilling or unable to serve, I then appoint my sister, Barbara Ann Gawlik of Stanley, Kansas, as Successor Trustee hereunder; I further appoint my brother Patrick Michael Dowling of Olathe, Kansas and my sister, Barbara Ann Gawlik of Stanley, Kansas, as Co-Personal Representatives of this my Last Will and Testament. If either should be unwilling or unable to serve, I hereby appoint my attorney, Robert E. Wonder of Leawood, Kansas to serve as Successor Personal Representative herein.” Dowling died unexpectedly on April 23,2004. His widow, Gayla, met with Respondent regarding Dowling’s estate. Following their meeting, and at Gayla’s request, Respondent prepared a Petition for Probate of Will and Issuance of Letters Testamentary. In the petition, Respondent provided the names and addresses for Patrick Dowling and Gawlik as the executors named in the will. The petition also stated, however, that “the appointment of an executor is necessary for the collection, conservation and administration of the Estate; Gayla Dowling, whose residence and address is [omitted], is a suitable, competent and qualified person to be granted Letters Testamentary, without bond, as provided by the last will and testament.” On May 13, 2004, Gayla signed and verified the petition as Petitioner. On May 20,2004, Respondent filed the pleadings with the court, including a proposed Order Admitting Will to Probate. At that time, Respondent requested the court sign the order and issue the Letters Testamentary. The court did so. The court’s order included the following language: “Gayla Dowling is named as Executor in decedent’s Last Will and Testament, and is a suitable and competent person to be granted Letters Testamentary, with out bond, in accordance with the directions of decedent’s Last Will and Testament. “Gayla Dowling is appointed Executor of the ‘Last Will and Testament of David F. Dowling,’ deceased, to serve without bond, and upon filing of oath, Letters Testamentary are granted to Gayla Dowling.” Gayla executed an Oath of Executor and received the Letters Testamentary. Respondent had not informed Patrick Dowling that he had been named as co-personal representative of his brother’s estate and co-trustee of his brother’s trusts. Respondent also had not informed Gawlik that she had been named co-personal representative of her brother’s estate and successor trustee of her brother’s trusts. Respondent also had not informed the court of the will’s provisions regarding the roles of Patrick Dowling and Gawlik. On October 7, 2004, Respondent contacted Patrick Dowling to request his resignation as co-trustee of the trusts established in the will. Shortly thereafter, Patrick learned for the first time that he and his sister had been named co-personal representatives. The siblings retained attorney David Hughes to represent them. On October 26, 2004, Hughes wrote to Respondent, requesting that Gayla resign as executor and that Respondent resign as co-trustee. On November 8, 2004, Hughes filed an Amended Petition for Probate of the Will and Issuance of Letters Testamentary. His clients executed and verified the amended petition, which contained the following allegations: “2. Petitioners have an interest in decedent’s estate as the named executors under the last will and testament of David F. Dowling, dated September 15, 1987, which has previously been admitted to probate. “3. David F. Dowling died testate at Shawnee, Kansas, on April 23, 2004; at the time of death the decedent was a resident of Johnson County, Kansas, and a citizen of the United States. “4. The court has previously received a petition for probate and issuance of [letters] testamentary filed by [Gayla] Dowling on May 13, 2004, from which letters testamentary were issued. “5. On October 7, 2004, petitioner Patrick M. Dowling, received a phone call from Robert E. Wonder, attorney for the estate, requesting that he resign as trustee. Patrick M. Dowling was not aware that he was designated as a trustee of the estate of David F. Dowling. On October 9, 2004, Patrick M. Dowling received a letter from Robert E. Wonder dated October 7, 2004, which included a letter dated October 6,2004, from Rick Enna[,] a financial planner, requesting that he resign as trustee of the testamentary trust of David F. Dowling. Upon receiving these letters, Patrick M. Dowling requested a copy of the last will and testament of David F. Dowling, wherein he first discovered that he and Barbara A. Gawlik were designated as executors of the estate of David F. Dowling, and further that he was co-trustee of the testamentary trust. Neither Patrick M. Dowling [n]or Barbara A. Gawlik [was] ever provided a copy of this last will and testament or notified of their responsibilities. Barbara Gawlik has never received any notice of her being named executor of her brother’s estate. “6. Robert E. Wonder, the attorney for the estate, identified Patrick M. Dow-ling and Barbara A. Gawlik, as the named executors of the last will and testament in the previously filed petition, but failed to seek a declination for them to serve as executor[s], or ever notif[y] them of their responsibilities. “13. Petitioners have no idea why the attorney for [the] estate failed to notify them or [seek] their declinations to serve as executors for the estate. “14. The decedent certainly had many years to change the designated executors and made no effort to alter it. The petitioners are anxious to fulfill the responsibilities as executors of their brother’s estate. The appointment of [Gayla] Dowling as executor of this estate, without the knowledge or consent of the named executors should, therefore, be set aside and the petitioners should be appointed to the position that they were named by the decedent. “15. Petitioners sent correspondence dated October 26, 2004, to Robert E. Wonder, attorney for the estate, requesting that [Gayla] Dowling resign as executor and accept the appointment of petitioners, Patrick M. Dowling and Barbara A. Gawlik, as executors of the estate. “16. It is the petitioners!’] belief that substantial financial decisions have been undertaken without the knowledge or consent of the named executors and would ask the court to order [Gayla] Dowling to immediately turn over all of the records relating to the estate of David F. Dowling. Petitioners would further note that since the appointment of [Gayla] Dowling as executor of this estate more than five months have elapsed and no inventory and valuation has been filed with the court.” A hearing was held on the Amended Petition, after which Patrick Dowling and Gawlik were appointed as co-executors. Respondent notified Hughes on June 20, 2005, that he was withdrawing as co-trustee. Based on the foregoing findings of fact, the hearing panel concluded as a matter of law that Respondent violated KRPC 1.1, which requires lawyers to provide competent representation to their clients, and provides: “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The panel concluded that Respondent failed to competently represent the estate by failing to inform the co-personal representatives of their appointment, and by preparing and filing a petition that named Gayla Dowling as executor without first seeking and obtaining declinations from Patrick Dowling and Gawlik. The panel also concluded that Respondent violated KRPC 3.2, which requires an attorney to make reasonable efforts to expedite litigation consistent with the interests of the client. Here, Respondent failed to expedite the probate of Dowling’s estate, causing a delay, which constituted a violation of KRPC 3.2. Finally, the panel concluded that Respondent also violated KRPC 3.3, which, in pertinent part, imposes special obligations on attorneys in ex parte proceedings with the court. “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to malee an informed decision, whether or not the facts are adverse.” KRPC 3.3(d). The panel noted that “ex parte proceedings, by their very nature, are expedited proceedings. The opportunity for the court to compare documents and conduct extensive analysis is limited. In this case, the Respondent presented the documents to the court that he had previously prepared. At the time the Respondent presented the documents to the court, he provided no additional explanation or information regarding the contents.” Respondent’s proposed order contained false information, as Gayla was not named as executor in the will. Because the documents were inconsistent with the will, and because Respondent had not previously notified the named executors and obtained their declina tions, it was incumbent upon Respondent to inform the court of the irregularities. In recommending discipline, the panel considered the following factors based on the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991 ed.) (Standards): “Duty Violated. The Respondent violated his duty to his client to provide competent representation. Additionally, the Respondent violated his duty to the legal system to refrain from interfering with a legal proceeding. Finally, the Respondent violated his duty to the legal system to refrain from providing false information and to refrain from improperly withholding material information. “Mental State. The Respondent negligently violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused potential harm to the estate of David F. Dowling.” The panel found the following aggravating factors present: “Prior Disciplinary Offenses. The Respondent was previously informally admonished by the disciplinary authorities in Missouri for failing to properly communicate with his client. Apparently, the Respondent’s liability carrier paid the Respondent’s client, affected by the misconduct in the underlying Missouri disciplinary case, $250,000. “Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 3.2, and KRPC 3.3(d). As such, the Respondent committed multiple offenses. “Vulnerability of Victim. The true victim in this case was the estate of David F. Dowling. Mr. Dowling intended for his brother and sister to be the Co-Personal Representatives of his estate. However, because of the Respondent’s misconduct, court action was required to accomplish his wishes. Thus the victim in this case was vulnerable to the Respondent’s misconduct. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1984. At the time the Respondent engaged in misconduct the Respondent had been practicing law for a period of 20 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in die practice of law at the time he engaged in the misconduct.” The panel also considered the following mitigating factors: “Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. The Respondent has had significant personal problems during the past several years. He has suffered health problems, the loss of his friend, David F. Dowling, the loss of his mother, the loss of his father, and the loss of his father-in-law. The Hearing Panel concludes that the Respondent’s personal problems 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 Kansas City, Missouri. 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.” A majority of the panel found additional mitigating factors to be present: “Absence of 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. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct. “Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.” The panel also considered the following two Standards: “Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, 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.” Standard 6.13. “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. The Disciplinary Administrator recommended published censure. Respondent sought informal admonishment. A majority of the hearing panel ultimately recommended published censure. One member of the panel dissented from several of the panel’s conclusions and its recommended discipline, stating: “In my opinion, Respondent’s conduct was motivated by dishonesty and selfishness. The Respondent provided false information in a pleading. Because the Respondent provided the Court with false information in a proposed order, I conclude that Respondent violated KRPC 8.4(c). The Respondent’s misconduct warrants a suspension from the practice of law.” We hold that the panel’s findings of fact and the majority’s conclusions of law are amply sustained by the evidence and hereby adopt them as our own. Further, while the panel majority’s recommended discipline is advisory only, and sanction is within our discretion, a majority of this court agrees that the discipline of published censure in accordance with Supreme Court Rule 203(a)(3) (2007 Kan. Ct. R. Annot. 261) is appropriate for Respondent’s violations. A minority of the court would impose a more severe sanction. It Is Therefore Ordered that Robert E. Wonder be and is hereby censured in accordance with Supreme Court Rule 203(a)(3) for the violations of KRPC 1.1, 3.2, and 3.3(d). It Is Further Ordered that this opinion be published in the Kansas Reports and that the costs of these proceedings be assessed to Respondent.
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The opinion of the court was delivered by Greene, J.: James P. Weisgerber appeals a decision of the State Board of Tax Appeals (BOTA) upholding an assessment by the Kansas Department of Revenue, Division of Taxation (KDOR) of additional individual income tax, penalties and interest to Weisgerber for tax years 1999, 2000, and 2001, in the total amount of $577, based upon his failure to add back to his adjusted gross income all contributions to the Kansas Public Employees Retirement System (KPERS) that were picked up by his employer. His appeal frames for our consideration a contention that was not within the authorized purview of BOTA—whether K.S.A. 79-32,117(b)(vi), which requires that certain employee contributions to KPERS be added back to adjusted gross income for purposes of Kansas income taxation, is facially unconstitutional. Weisgerber argues this statute violates the Equal Protection Clauses of the United States and Kansas Constitutions because certain other public employees are not subject to Kansas income tax on contributions to their retirement plans. We conclude that the statute is constitutional and affirm BOTA’s decision upholding the assessment. Factual and Procedural Background The essential facts are not in dispute. The parties filed a joint stipulation before BOTA, and Weisgerber endorsed this stipulation in his live testimony. Although that testimony was apparently intended to explain or elaborate on his constitutional challenge, the parties cite exclusively to the joint stipulation regarding the necessary factual predicate for this appeal. The stipulation includes tire following material facts: “1. The tax periods at issue in this appeal are calendar years 1999,2000 and 2001. “2. Taxpayer is a Kansas resident .... “3. Beginning in 1978, Taxpayer was employed by the League of Kansas Municipalities, which participates in the Kansas Public Employees Retirement System (‘KPERS’). Taxpayer was employed by the League of Kansas Municipalities until beginning his employment with the Kansas Department of Revenue on January 2, 1980. Taxpayer has been continually employed by the Kansas Department of Revenue since January 2, 1980. “4. As an employee of the Kansas Department of Revenue, Taxpayer has been and continues to be a participating member of KPERS. “5. Taxpayer purchased his first year of KPERS coverage during the course of his years of employment. “6. K.S.A. 79-32,117(b)(vi), as amended, provides that amounts designated as employee contributions picked up by an employer pursuant to K.S.A. 12-5005, 20-2603, 74-4919 and 74-4965 shall be added to federal adjusted gross income in determining an individual’s Kansas adjusted gross income. “7. As a KPERS member, Taxpayer was required by K.S.A. 79-32,117(b)(vi), as amended, to include his KPERS contributions in determining Kansas adjusted gross income. Additionally, Taxpayer’s spouse, Sonja Weisgerber, was also a KP-ERS member during the years at issue in this appeal and was likewise required to include her KPERS contributions in determining Kansas adjusted gross income. “8. Believing that the add-back of designated employee contributions picked up by an employer as required by K.S.A. 79-32,117(b)(vi), as amended, is unconstitutional under the Equal Protection Clause of the United States and Kansas Constitutions, Taxpayer did not add-back such KPERS contributions on the joint Kansas Individual Income Tax returns filed for years 1999, 2000 and 2001. “9. On April 15, 2003, the Department issued to Taxpayer a Notice of Final Assessment of Additional Individual Income Tax (‘assessment’) for years 1999, 2000 and 2001, consisting of tax, penalty and interest in the total amount of $577.00. . . . The Department’s assessment was issued based on Taxpayer’s failure to include KPERS contributions in Kansas adjusted gross income on the joint income tax returns filed for such years. “10. Taxpayer remitted to the Department payment under protest of tire assessed tax and interest in the total amount of $476.00 and timely filed a Request for Informal Conference with the Secretary of Revenue (‘Secretary’) pursuant to K.S.A. 79-3226, as amended. ... “11. On October 20, 2003, the Secretary issued her Written Final Determination denying Taxpayer’s request for a refund of the amounts paid under protest and upholding the Department’s assessment, which was based on the add-back of KPERS contributions to Kansas adjusted gross income pursuant to K.S.A. 79-32,117(b)(vi), as amended. . . . “12. On November 18, 2003, Taxpayer appealed the Secretary’s Written Final Determination to the Board of Tax Appeals. “13. The sole issue raised by Taxpayer in this appeal is whether the add-back of designated employee contributions picked-up [sic] by an employer pursuant to K.S.A. 12-5005, 20-2603, 74-4919 and 74-4965 as required by K.S.A. 79-32,117(b)(vi), as amended, is unconstitutional under the Equal Protection Clause of the United States and Kansas Constitutions.” Following an evidentiary hearing, BOTA issued an order on March 8, 2006, upholding the assessment and denying Weisgerber’s request for relief. Notably, BOTA concluded that it did not have jurisdiction to determine the constitutionality of K.S.A. 79-32,117(b)(vi) and upheld the assessment against the taxpayer. BOTA subsequently denied Weisgerber s petition for reconsideration. Standard of Review BOTA correctly refrained from considering or deciding Weisgerber s challenge to the constitutionality of the statute, acknowledging that administrative agencies may not rule on constitutional questions. See Zarda v. State, 250 Kan. 364, 368, 826 P.2d 1365, cert, denied 504 U.S. 973 (1992). Although Weisgerber appealed to the Court of Appeals pursuant to K.S.A. 77-601 et seq. and K.S.A. 74-2426(c)(3), the appeal was transferred to this court on our own motion pursuant to K.S.A. 20-3018(c). We therefore consider the constitutional question in the first instance. We must grant relief “only if . . . [t]he agency action, or the statute or rule and regulation on which tire agency action is based, is unconstitutional on its face or as applied.” K.S.A. 77-621(c)(l). The burden is on the party challenging constitutionality. Blue v. McBride, 252 Kan. 894, Syl. ¶ 1, 850 P.2d 852 (1993). When a party has asserted a facial challenge to the constitutionality of a statute, the question is not whether that statute is authorized by the constitution, but whether it is prohibited thereby. State ex rel. Tomasic v. Unified Gov’t of Wyandotte County/Kansas City, 265 Kan. 779, 787, 962 P.2d 543 (1998). Kansas statutes are presumed constitutional, and all doubts must be resolved in favor of their 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). The Statute Subject to Challenge Weisgerber argues that the add-back provision of K.S.A. 79- 32,117(b)(vi) violates the Equal Protection Clauses of the United States and Kansas Constitutions. K.S.A. 79-32,117 generally itemizes the amounts to be included in an individual’s adjusted gross income for purposes of Kansas income taxation. It provides in material part: “(a) The Kansas adjusted gross income of an individual means such individual’s federal adjusted gross income for the taxable year, with the modifications specified in this section. “(b) There shall be added to federal adjusted gross income: (vi) Any amount of designated employee contributions picked up by an employer pursuant to K.S.A. 12-5005, 20-2603, 74-4919 and 74-4965, and amendments to such sections.” K.S.A. 79-32,117(a), (b)(vi). In its inclusion of such contributions pursuant to K.S.A. 74-4919, the add-back statute applies generally to all KPERS participants, and its inclusion of K.S.A. 12-5005, K.S.A. 20-2603, and K.S.A. 74-4965 specifically requires an add back by participants in certain local police and firemen pension plans, judges, and participants in the Kansas Police and Firemen’s Retirement System. Weisgerber correctly asserts that there are other public employees who are not subject to the add-back statute, specifically employees of the Kansas City, Kansas Board of Public Utilities (K.S.A. 13-1246a), the Kansas Board of Regents (K.S.A. 74-4925), and employees of certain cities of the first class (K.S.A. 13-14,103), none of whom are participants in KPERS. Weisgerber argues that in requiring an add back to adjusted gross income for KPERS participants, while excluding any such add back for similar contributions to tax deferred plans for other public employees, the statute has impermissibly discriminated against KPERS participants in violation of the Equal Protection Clauses of the state and federal Constitutions. Equal Protection Guarantees of the State and Federal Constitutions The Equal Protection Clause of the United States Constitution is found in the Fourteenth Amendment, which provides: “All persons bom or naturalized in die United States, and subject to the jurisdiction Üiereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person widiin its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. This principle of equal protection is also embodied in the Kansas Constitution Bill of Rights, § 1, which states that “[a]ll men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” See Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 251, 930 P.2d 1 (1996), cert, denied 520 U.S. 1229 (1997). Guarantees of the Equal Protection Clauses are implicated when a statute treats arguably indistinguishable classes of people differently. Smith v. Printup, 254 Kan. 315, 321, 866 P.2d 985 (1993). A taxpayer seeking to establish an equal protection violation must demonstrate that his or her treatment is the result of a “deliberately adopted system” which results in intentional systematic unequal treatment. In re Tax Appeal of City of Wichita, 274 Kan. 915, 920, 59 P.3d 336 (2002). Once it is determined that a particular classification system arguably treats similarly situated persons differently and so implicates equal protection, a court must determine which level of scrutiny should be employed to evaluate the constitutionality of that classification. “Federal and Kansas courts have long delineated three levels of scrutiny in equal protection cases: (I) the rational basis test to determine whether a statutory classification bears some reasonable relationship to a valid legislative purpose; (2) the heightened scrutiny test to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny test to determine whether a statutory classification is necessary to serve some compelling state interest.” In re Tax Appeal of CIG Field Services Co., 279 Kan. 857, 878, 112 P.3d 138 (2005) (citing Bair v. Peck, 248 Kan. 824, 830-31, 811 P.2d 1176 [1991]). This court explained in Peden that “[t]he rational basis standard (sometimes referred to as the reasonable basis test) applies to laws which result in some economic inequality.” 261 Kan. at 252. We have recently clarified that this standard is to be employed in analyzing tax classifications. In re Tax Appeal of CIG Field Services Co., 279 Kan. at 878. The rational basis standard is a “very lenient standard.” See Peden, 261 Kan. at 252, 258. In Leiker v. Gafford, 245 Kan. 325, 363-64, 778 P.2d 823 (1989), this court explained the deference given to the legislature’s determination under this “reasonable basis” test: “The ‘reasonable basis’ test is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State’s legitimate objective. The state legislature is presumed to have acted within its constitutional power, even if the statute results in some inequality. Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. [Citations omitted.]” “Relevance is the only relationship required between the classification and the [legislature’s] objective.” Stephenson v. Sugar Creek Packing, 250 Kan. 768, 774, 830 P.2d 41 (1992). Nevertheless, a classification “ ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ [Citation omitted.]” Thompson v. KFB Ins. Co., 252 Kan. 1010, 1018, 850 P.3d 773 (1993). When a plaintiff attacks a statute as facially unconstitutional under the Equal Protection Clauses, the plaintiff “must establish that no set of circumstances exist under which the [statute, regulation, or statutory] amendment would be valid. Simply pointing out that the amendment might not be rationally related to the state objectives sought under one set of facts is not enough to declare the amendment unconstitutional on its face.” Injured Workers of Kansas v. Franklin, 262 Kan. 840, 850-51, 942 P.2d 591 (1997). For this reason, “a plaintiff asserting the unconstitutionality of a statute under the rational basis standard ‘ha[s] the burden “to negative every conceivable basis which might support [the classification].” ’ [Citations omitted.]” (Emphasis added.) Peden, 261 Kan. at 253. Finally, it should be noted that courts give particular deference to the distinctions drawn by the legislature in enacting taxation legislation. Because “all taxation schemes carry some form of discriminatory impact,” 261 Kan. at 260, courts have found that in “taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” ’ [Citations omitted.]” In re Tax Appeal of CIG Field Services Co., 279 Kan. at 878. Does the Statute Treat Arguably Indistinguishable Classes of People Differently, i.e., Are KPERS Participants Similarly Situated with All Other Public Employees? As referenced above, a threshold requirement for stating an equal protection claim is to demonstrate that the challenged statutory enactment treats “arguably indistinguishable” classes of people differently. Ross v. Moffit, 417 U.S. 600, 609, 41 L. Ed. 2d 341, 94 S. Ct. 2437 (1974). Alternatively stated, it must be shown that the persons classified by the enactment are similarly situated to those who were excluded from the classification. See, e.g., Reed v. Reed, 404 U.S. 71, 75-76, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971). The formula for determining whether individuals or entities are similarly situated for equal protection analysis is not always susceptible to ease of application. See, e.g., Coyne v. City of Somerville, 972 F.2d 440, 444-45 (1st Cir. 1992). Here, Weisgerber argues without citation of any authority that K.S.A. 79-32, 117(b)(vi) discriminates among “[a]ll affected . . . government workers who are funding their government sponsored retirement plans.” We conclude that Weisgerber’s proposed class of “all public employees” is far too broad in defining those who are similarly situated; KPERS participants are simply not similarly situated with all other public employees. We note from a host of federal authorities that it is generally difficult to demonstrate this threshold requirement within a broad class of government employees due to over-breadth. See, e.g., Carter v. Arkansas, 392 F.3d 965 (8th Cir. 2004) (public school employees not similarly situated with other state employees); Arnold v. City of Columbia, Mo., 197 F.3d 1217 (8th Cir. 1999) (city police officers not similarly situated with other city employees); Clark v. United States, 691 F.2d 837 (7th Cir. 1982) (pensioners among state and private pension plans not similarly situated with federal pensioners). Here, Weisgerber’s proposed class of similarly situated persons includes employees who are eligible for disparate retirement plans under state law. KPERS participants are eligible for defined benefit retirement plans, whereas the other public employees identified by Weisgerber are not eligible for defined benefit plans but instead have tax sheltered annuity plans; this distinction alone destroys any similarity across the purported class and poses an insurmountable hurdle for Weisgerber’s equal protection claim. See Ganley v. Minneapolis Park and Recreation Bd., 491 F.3d 743 (8th Cir. 2007) (holding members of two distinct pension plans were not similarly situated for equal protection analysis). We have analyzed in more detail the inherent differences between defined benefit plans and tax sheltered annuity plans as a part of our rational basis discussion below; suffice it to say here that these inherent differences cause us to find that the employees in Weisgerber’s purported comparison class are not arguably indistinguishable. Because Weisgerber has failed to demonstrate that all public employees are arguably indistinguishable, the add-back provision of K.S.A. 79-32,117(b)(vi) does not create a classification that results in disparate treatment of similarly situated individuals, and Weisgerber’s equal protection claim fails on this basis alone. See Smith, 254 Kan. at 321-22. Is There a Rational Basis for the Statute to Exclude Other Public Employees? Even if we were to conclude that KPERS participants are similarly situated with all other public employees, KDOR argues that the distinction drawn by K.S.A. 79-32,117(b)(vi) has a rationally based legitimate state interest. We agree. KDOR urges us to compare the difference between the employee retirement plans offered to KPERS participants and those offered to the public employees who are not included within (i.e., excluded from) the ambit of the challenged statute. All of the plans where employee contributions are subject to the add-back provision, including KPERS, are defined benefit pension plans under Internal Revenue Code (IRC) § 401(a), whereas the excluded public employees have tax sheltered annuity plans under IRC § 403(b). Compare 26 U.S.C. § 401(a) (2000 & Supp. IV 2004) with 26 U.S.C. § 403(b) (2000 & Supp. IV 2004). Defined benefit plans provide pre-determined benefits to participants and their beneficiaries dependent on employment characteristics (salary and length of service, among others), but ultimate benefits are not determined precisely by the amount contributed. In contrast, tax sheltered annuity plans hold the precise contributions made by employees in their name until retirement. Employee contributions to KPERS are not earmarked for benefit obligations, but rather are combined with the State’s general revenues. Moreover, the State’s general fund is then obligated for KPERS benefits, enabling the State to fulfill retirement obligations to all KPERS participants. See Att’y Gen. Op. Nos. 94-59; 95-23. We conclude that the fundamental distinction between the included defined benefit plans, such as KPERS, and the excluded tax sheltered annuity plans is that employee contributions to defined benefit plans fund retirement programs with predetermined benefits “for the purpose of effecting economy and efficiency in the administration of governmental affairs.” K.S.A. 74-4901. Taxation of employee contributions to defined benefit plans through the add-back mechanism of K.S.A. 79-32,117(b)(vi) serves to further enhance the State’s general fund, from which obligations to such retirees will be fulfilled. The tax sheltered annuity plans of all other public employees with contribution confined benefits do not similarly implicate the State’s general fund; these plans neither contribute to the general fund nor are their benefits paid from the general fund. This is unquestionably a legitimate legislative purpose that survives equal protection scrutiny. See Peden, 261 Kan. at 253; Injured Workers of Kansas, 262 Kan. at 850-51. Weisgerber argues that this distinction—support for funding of KPERS benefits from the general fund—has no clear support “in the enabling legislation.” This is unnecessary to a rational basis analysis, however, because no evidence of a particular actual legitimate purpose in legislative history or elsewhere is necessary for a legislative enactment to survive rational basis scrutiny. Courts are free to consider whether any potential legitimate purpose exists to support the legislative classification. In re Tax Appeal of CIG Field Services Co., 279 Kan. at 879. It is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993). KDOR has urged alternative grounds to support the legislative classification, but we need not consider these, having already concluded that there is a conceivable legislative basis for the differential treatment. See Peden, 261 Kan. at 253. In summary, we conclude that K.S.A. 79-32,117(b)(vi) does not violate the Equal Protection Clauses of the state and federal Constitutions and BOTA’s decision upholding the additional income assessment of income taxes, interest, and penalties to Weisgerber should be affirmed. Affirmed. Davis, J., not participating. Greene, J., assigned.
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The opinion of the court was delivered by Nuss, J.: Terral A. Breedlove argues that the district court lacked jurisdiction because the felony murder and other adult crimes for which he was convicted and imprisoned were committed when he was a juvenile. As a result, he demands that we reverse the district court’s denial of his motion to correct illegal sentence. Breedlove further demands that we affirm his convictions, but vacate his sentences and remand for resentencing under the Kansas Juvenile Offenders Code, K.S.A. 38-1601 et seq. (Furse 1993). He is currently 30 years old. The sole issue on appeal is whether the district court had jurisdiction. We hold that it did not; accordingly, we reverse Breed-love’s convictions and vacate his sentences. FACTS The facts, and resultant argument, are best understood when presented in the following chronology: August 12, 1995: Breedlove committed the crimes of first-degree felony murder, K.S.A. 21-3401(b), aggravated robbery, K.S.A. 21-3427, and four counts of aggravated assault, K.S.A. 21-3410(a) (First Crimes). He was 17 years, 9 months old at the time. September 3, 1995: Breedlove committed the crimes of aggravated robbery, aggravated assault, aggravated assault on a law enforcement officer, K.S.A. 21-3411, and criminal use of a weapon, K.S.A. 1995 Supp. 21-4201 (Second Crimes). Later that month he was charged in the juvenile department of the Sedgwick County District Court (juvenile court). September 22, 1995: After consideration of Breedlove’s stipulation to the State’s motion for adult prosecution and other evidence, the juvenile court authorized him to be prosecuted as an adult for the Second Crimes and all future acts. Accordingly, these offenses were dismissed from the juvenile court; he was then charged as an adult for these offenses in district court. November 15, 1995: Breedlove turned 18, i.e., he became an adult under Kansas law. January 9, 1996: Breedlove pled guilty to the Second Crimes: aggravated robbery, aggravated assault, aggravated assault on a law enforcement officer, and criminal use of a weapon. He was then sentenced to prison, i.e., as an adult. June 26, 1997: Breedlove was charged with the First Crimes: felony murder, aggravated robbery, and four counts of aggravated assault. Although these crimes were committed while he was 17, perhaps because he was 19 at the time of charging, the case was filed in district court, rather than juvenile court, with a subsequent order authorizing adult prosecution as had been done with the Second Crimes. His status — juvenile or adult — was never addressed. November 20, 1997: Breedlove was tried as an adult for the First Crimes in district court and convicted by a jury. He received a life sentence plus 52 months’ imprisonment, to be served consecutive to the earlier-imposed sentences for the Second Crimes. July 9, 1999: Breedlove’s convictions and sentences for the First Crimes were affirmed in State v. Breedlove, No. 80,952, an unpublished opinion of the Kansas Supreme Court filed July 9, 1999. February 15, 2006: Breedlove filed his motion to correct illegal sentence for the First Crimes, 11 years after committing the crimes, and 9 years after being convicted of committing them. The motion alleged that the district court lacked jurisdiction to prosecute him as an adult because he was not initially charged in juvenile court and authorization for adult prosecution was never established. The district court eventually denied the motion. Breedlove then filed tire instant appeal. Our jurisdiction is pursuant to K.S.A. 22-3601(b)(l), conviction of an off-grid crime. ANALYSIS Issue: The district court lacked jurisdiction. Breedlove argues that his sentences are illegal because they were imposed by a district court without jurisdiction. The issue of whether a criminal sentence is illegal is a question of law, and our standard of review is de novo. State v. Davis, 281 Kan. 169, 174, 130 P.3d 69, cert, denied 166 L. Ed. 2d 40 (2006). Although Breedlove filed his motion 9 years after imposition of his sentences, an appellate court can correct an illegal sentence, e.g., one imposed without jurisdiction, at any time. See K.S.A. 22-3504(1); Davis, 281 Kan. at 175. In Davis we also held that ‘"because a judgment that is rendered without jurisdiction is void (State v. Chatman, 234 Kan. 197, 205, 671 P.2d 531 [1983]), it may be "attacked at any time and may be vacated because it is a nullity.’ ” 281 Kan. at 175. Consequently, Breedlove’s motion is timely brought. As Davis indicates, a judgment that is rendered without jurisdiction, as Breedlove argues here, may be vacated because it is a nullity. We recently held in State v. Johnson, 283 Kan. 649, 652, 156 P.3d 596 (2007), that “[a] judgment for an offense where the court is without jurisdiction to decide the issue is void.” See State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000); State v. Bickford, 234 Kan. 507, 509, 672 P.2d 607 (1983) (The general rule is that proceedings conducted or decisions made by a court are legally void where there is an absence of jurisdiction over the subject matter.); Chatmon, 234 Kan. at 205. Accordingly, where we have determined the district court lacked jurisdiction, we have generally reversed the conviction and vacated the sentence. See, e.g., Johnson, 283 Kan. at 656-57 (reversed and remanded with instructions to reverse conviction and vacate sentence for lack of jurisdiction because the defendant was convicted of an offense that was not charged in the complaint or of a lesser included offense); Davis, 281 Kan. at 184 (reversed and remanded with instructions to reverse conviction and vacate sentence because the district court had no jurisdiction to proceed due to a failure to determine competency of defendant); Chatmon, 234 Kan. at 205, 207 (reversed and remanded to reverse conviction and vacate sentence because “a judgment of the offense of battery where the court is without jurisdiction to decide the issue is void”). Against this basic backdrop, we review the parties’ arguments. Breedlove initially argued that our decision on a similar juvenile jurisdiction issue in State v. Mayfield, 241 Kan. 555, 738 P.2d 861 (1987), provides that a failure to follow the juvenile code deprives the district court of jurisdiction. Accordingly, he simply argued that his convictions should be reversed. In a subsequent brief required by this court, he argues that because his convictions were affirmed in 1999, they remain affirmed, but his sentences should be vacated and the matter remanded for resentencing under the Kansas Juvenile Offenders Code. In support, he cites K.S.A. 38-1681(a)(2) and State v. Smith, 268 Kan. 222, 993 P.2d 1213 (1999). The State concedes drat Breedlove’s prosecution should have originated in juvenile court because his age and lack of qualifying statutory exceptions under that code required it. See K.S.A. 1995 Supp. 38-1602(a), (b) (defining “juvenile” and “juvenile offender”); K.S.A. 38-1636 (Furse 1993) (guidelines for adult prosecution). It also “recognizes that this court has found subject-matter jurisdiction lacking when the State failed to commence a juvenile case before seeking criminal prosecution. See Mayfield, 241 Kan. 555; see also State v. Frazier, 248 Kan. 963, 972-73, 811 P.2d 1240 (1991) (relying on Mayfield,).” It argues, however, that we should overrule Mayfield because Mayfield should have been resolved as a case of personal jurisdiction, instead of subject matter, and the same holds here. It concludes that because Breedlove originally waived personal jurisdiction for failing to object, the district court should be affirmed in all respects. In the alternative, the State argues that Smith is distinguishable. Accordingly, Breedlove’s convictions should be reversed and the sentences vacated so the matter may begin anew. We agree with the State’s alternative argument, as analyzed below. We first carefully examine the facts and holding of Mayfield. In February 1978, when Mayfield was 17, he committed theft by deception. By the time he was arrested and charged later that spring, he was 18. In July 1978, he pled guilty to the crime in district court. After serving 30 days of a 1- to 10-year sentence, he was placed on probation. In January 1980, the probation was terminated by court order. Five years later, in October 1985, Mayfield filed a motion for an order setting aside the conviction and dismissing the action for lack of prosecution. As a basis for the motion, he alleged that he was a juvenile at the time of the crime. He claimed that the district court had no jurisdiction to charge him or to accept his guilty plea; it only had jurisdiction to proceed under the Kansas Juvenile Code, K.S.A. 38-801 et seq. (Weeks), later supplanted by the Kansas Juvenile Offenders Code. The Mayfield court observed that the juvenile code provided in part that “ when any person charged with having committed an act of delinquency before reaching the age of eighteen years is brought before the court after reaching said age, the court shall proceed pursuant to the Kansas juvenile code.’ ” 241 Kan. at 556. The juvenile code also provided a procedure where certain individuals charged under the code could be prosecuted as an adult. However, that procedure was not followed in Maijfield. Indeed, similar to the instant case, the State conceded that Mayfield was charged as an adult pursuant to the criminal code and “proceedings were never commenced pursuant to the Kansas juvenile code.” 241 Kan. at 556-57. This court rejected the holdings of the district court and the Court of Appeals that Mayfield had waived any objection to jurisdiction, personal or otherwise. While the Court of Appeals also found that the district court had subject matter jurisdiction because the alleged offense was a felony, this court disagreed that “because the offense is categorized as a felony under the criminal code that the court obtained subject matter jurisdiction. At the outset we note that subject matter jurisdiction cannot ordinarily be waived.” 241 Kan. at 558. After a review of Kansas statutes and case law, the Mayfield court co'ncluded that the district court lacked jurisdiction to accept the theft by deception guilty plea from a defendant who was a juvenile when the crime occurred. 241 Kan. at 561. In support of its holding, the court observed that the jurisdiction of the district court over juveniles is based exclusively upon compliance with the juvenile code: “Although, since court unification in 1977, we no longer have separate juvenile courts, the policy adopted by the legislature and consistently recognized by the courts has not changed. The jurisdiction of the district court over juvenile offenders in 1978 was based solely upon compliance with the provisions of the Kansas juvenile code and today is based solely upon the provisions of the Kansas juvenile offenders code. (K.S.A. 38-1601 et seq.)” (Emphasis added.) 241 Kan. at 561. This court went on to articulate why the complete failure of the lower court to even commence proceedings in compliance with the juvenile code made the action void: “Thus, we think it is abundantly clear that the Kansas juvenile code (and now the Kansas juvenile offenders code) established an exclusive procedure for those subject to its provisions and the district court did not have jurisdiction of the subject matter of the action against appellant. To obtain such jurisdiction the proceedings had to be instituted under the provisions of the Kansas juvenile code as it existed in 1978. Failure of the State to proceed in accordance with the [juvenile] code deprived the court of jurisdiction to accept appellant’s attempted plea of guilty to a crime when the acts complained of were done by appellant at a time when he was under the age of eighteen. The district court and the Court of Appeals were in error in concluding that as the acts of Mayfield would have constituted a felony if he had been an adult, the court had jurisdiction of the subject matter. The subject matter of the action was not■ a criminal prosecution for a felony but a juvenile proceeding which was never commenced pursuant to the juvenile code.” (Emphasis added.) 241 Kan. at 561. Accordingly, the judgments of the lower courts were reversed, and the case was remanded with directions to set aside the conviction. 241 Kan. at 561. We agree with the Mayfield court on several important counts. First, we note that subsequent Kansas decisions have treated similar jurisdiction questions as concerning subject matter jurisdiction, not personal. See, e.g., State v. Elliott, 281 Kan. 583, Syl. ¶ 1, 2, 133 P.3d 1253 (2006) (municipal courts lack subject matter jurisdiction over third or subsequent driving under the influence violations because they are felonies). As we stated regarding a related issue in Belcher, 269 Kan. at 8-9: “ ‘[I]f a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented. [Citation omitted.] “ . . In a criminal action the trial court must not only have jurisdiction over the offense charged, but it must also have jurisdiction of the question which its judgment assumes to decide. A judgment for the offense of battery where the court is without jurisdiction to decide the issue is void.’ [Citation omitted.]” See Johnson, 283 Kan. at 652. Accordingly, we reject the State’s request that we overrule Mayfield’s analysis of the jurisdiction issue. Second, Mayfield causes us to reject Breedlove’s request that his convictions be affirmed but his sentences vacated and remanded for resentencing under the Kansas Juvenile Offenders Code. May-field clearly demands reversal of the convictions because there was never any jurisdiction for the district court to adjudicate Breedlove. See 241 Kan. at 561; cf. Frazier, 248 Kan. 963, Syl. ¶ 5 (district court had no subject matter jurisdiction over juvenile to accept his nolo contendere plea to driving with a suspended license while having two prior convictions for same offense; thus sentence imposed was illegal; judgment of district court was reversed and case remanded with directions to set aside conviction). We conclude that a court without jurisdiction cannot convict or sentence because any judgment would be void. Breedlove suggests an exception to our conclusion that lack of jurisdiction means the judgment is void and the convictions must be set aside: K.S.A. 38-1681(a)(2) (Furse 1993), as applied in Smith, 268 Kan. 222. The statute provided in relevant part: “(a)(2) If on appeal the order authorizing prosecution as an adult is reversed but the finding of guilty is affirmed or the conviction was based on a plea of guilty or nolo contendere, the respondent shall be deemed adjudicated to be a juvenile offender. On remand the district court shall proceed with disposition.” Breedlove argues that although no formal authorization order exists in this case, the order can be implied from the court’s conduct in allowing him to be prosecuted as an adult. In the alternative, he argues that the actual order from the Second Crimes case can serve as the order in the instant case because “this is presumably the order upon which the district court and the State relied when they proceeded to try Breedlove as an adult without first initiating proceedings in the juvenile court.” In Smith, a 16-year-old male requested to be tried as an adult. After a hearing, the district court eventually waived juvenile jurisdiction. However, the State’s motion for authorizing prosecution as an adult had failed to specifically address the eight factors required under K.S.A. 38-1636(e) (Furse 1993); little, if any, other evidence was offered, and the court therefore failed to consider the statutory factors. The Smith court held this failure was fatal to prosecuting him as an adult: “Although a juvenile can stipulate to allegations made against him in a motion to waive juvenile jurisdiction, the judge, in making the decision to waive jurisdiction, must take into account the juvenile’s stipulation and evidence concerning the eight factors in K.S.A. 38-1636(e). The judge failed to consider the K.S.A. 38-1636(e) factors. Therefore, the waiver of [juvenile] Adam Gault to adult status is not supported by substantial competent evidence, and the waiver order is reversed.” 268 Kan. at 246. The court then applied K.S.A. 38-1681(a)(2) (Furse 1993) to determine its course of action: “K.S.A. 38-1681(a)(2) provides that, if on appeal, the order authorizing prosecution as an adult is reversed but the finding of guilty is affirmed, the respondent shall be deemed adjudicated to be a juvenile offender. Since we have affirmed Adam’s conviction, as required by statute, the matter of Adam Gault is remanded for further proceedings under the juvenile code [i.e., sentencing].” 268 Kan. at 246. After reviewing the statute and Smith, we hold that Breedlove’s arguments are unpersuasive for a number of reasons; three suffice to make our point. First, the language of 38-1681 is clear. Accordingly, we are not free to read anything into it as Breedlove suggests, e.g., implied or borrowed orders authorizing prosecution as an adult. See Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007) (“When language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.”). Subsection (a)(2) speaks only to the situation where the order is reversed, but the finding of guilty is affirmed. In that event, the respondent is deemed adjudicated as a juvenile offender, and essentially the conviction remains affirmed. Here, there simply was no order. When construing statutes and determining legislative intent, this court must consider various provisions of an act in pari materia with a view of reconciling and bringing them into workable harmony if possible. Pankratz Implement Co. v. Citizens Nat’l Bank, 281 Kan. 209, 215, 130 P.3d 57 (2006). Following this guidance, we hold that the requirement of an actual order is reinforced when reading subsection (a)(2) in conjunction with subsection (a)(1). It provides that “[u]nless the respondent has consented to the order, an appeal may be taken by a respondent from an order authorizing prosecution as an adult. The appeal shall be taken only after conviction and in the same manner as other criminal appeals.” (Emphasis added.) K.S.A. 38-1681 (Furse 1993). In further reading these subsections together, it is additionally clear that section (a) refers exclusively to appeals from the order. Similarly, the other sections of 38-1681 also refer exclusively to appeals: section (b) (appeals specifically from order of adjudication, or of disposition, or both) and section (c) (appeals under K.S.A. 38-1681 have pri ority). Simply stated, Breedlove does not bring an appeal of any such orders that were entered, but rather a motion to correct an illegal sentence because such orders were not entered. Second, on a related issue, 38-1681(a)(2) and Smith concerned proper beginnings in the juvenile court, but subsequent failed attempts, through faulty orders, to certify the defendant as an adult to be prosecuted in district court. In short, proper jurisdiction originally existed in, and perhaps never left, juvenile court. Smith implicitly held that the legislature may provide in the specific instances of district court convictions arising out of failed certification orders, if nevertheless affirmed, that the convictions may be held as established in the juvenile court. By contrast, the instant case carries a concession by the State that there was a complete failure to attempt to commence juvenile proceedings — just as in Mayfield. As that court stated: “The subject matter of the action was not a criminal prosecution for a felony, but a juvenile proceeding which was never commenced pursuant to the juvenile code.” 241 Kan. at 561. As in Mayfield, Breedlove was always considered as an adult in district court for the First Crimes and always prosecuted as one. And under such circumstances, Mayfield reversed the conviction because of the district court’s lack of jurisdiction. 241 Kan. at 561. Without even the semblance of commencing juvenile proceedings against Mayfield and Breedlove pursuant to their respective juvenile codes, and with the resultant lack of jurisdiction in the district courts where they were adjudged guilty, we have trouble understanding that either type of court would have jurisdiction to convict them or to otherwise accept affirmed convictions. We observe that 38-1681(a)(2) was in effect when Mayfield was decided in 1987 but not addressed in the opinion. We will not speculate on the reasons. We can observe, however, that if the legislature believed that the statute should have been applied, or if it otherwise disagreed with the Mayfield court, i.e., the conviction should have been affirmed and Mayfield resentenced as a juvenile, it has had 21 years in which to make clarifying changes to the statute. Any amendment would have attempted to clarify that subsection (a)(2) was not limited to improperly issued adult certifica tion orders but would apply to other, perhaps all, failures to obtain jurisdiction over juveniles in district court. To date, the legislature has not done so. Third, we note inconsistencies in Breedlove’s arguments. He brings a motion to correct an illegal sentence based entirely upon lack of jurisdiction under K.S.A. 22-3504(1). He then argues that the district court lacked jurisdiction because he was a juvenile at the time he committed the First Crimes and the court made no attempt to follow the Kansas Juvenile Offenders Code procedures to certify him as an adult. Breedlove reasons that the sentence from a court lacking jurisdiction is illegal and should be vacated. He then argues, however, that the same jurisdiction-less court should have its convictions affirmed. How does one contend that a sentence is illegal because it was issued by a court lacking in jurisdiction but simultaneously contend that the same court had jurisdiction enabling its conviction to be affirmed to support resentencing? Furthermore, while the lack of an adult certification order is what he argues helps prevent the district court from having jurisdiction, he then asks this court to imply or borrow such an order to provide him ostensible relief under K.S.A. 38-1681(a)(2) (Furse 1993). Finally, we agree with tire State’s assertion at oral argument that double jeopardy would not bar re-prosecution of Breedlove on remand. K.S.A. 21-3108 states in relevant part: “(4) A prosecution is not barred under this section: “(a) By a former prosecution before a court which lacked jurisdiction over the defendant or the offense; or “(c) If subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guiliy.” The convictions are reversed, and the sentences are vacated.
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The opinion of the court was delivered by Nuss, J.: This case concerns a dispute about automobile liability insurance. While fleeing police, Melissa Gutierrez lost control of the car she was driving at a high rate of speed, killing her and passenger Ramon Sanchez and injuring passenger Victor Reyes. In a declaratory judgment action, Reyes and Rene Thomas, as parent and natural guardian of minors and heirs at law of Sanchez, sought a ruling that Gutierrez’ Benchmark Insurance Company policy provided coverage. The district court entered summary judgment against Benchmark; a divided panel of our Court of Appeals reversed in Thomas v. Benchmark Ins. Co., 36 Kan. App. 2d 409, 140 P.3d 438 (2006). We granted review; our jurisdiction is pursuant to K.S.A. 20-3018(b). The issues on appeal, and our accompanying holdings, are as follows: 1. Does the policy’s intentional act exclusion bar coverage? Yes. 2. Does the illegal act exclusion bar coverage? Moot. Accordingly, the judgment of the Court of Appeals reversing the district court is affirmed; the judgment of the district court is reversed. FACTS On November 8, 2003, Victor Reyes, Ramon Sanchez, and Melissa Gutierrez entered a pub in Overland Park. After consuming alcohol, Reyes and Sanchez became involved in a fight that moved outside. Eventually, Sanchez and Reyes got into Gutierrez’ car, with Sanchez in the front passenger seat and Reyes in the back. Sanchez then pulled a handgun and, when the car was moving, fired approximately 10 times in the general direction of a group of six or seven people. Once Sanchez’ gun was empty, Gutierrez drove away. A police officer observed the car traveling north on Interstate 35 in excess of 80 miles per hour. While attempting to catch the car, the officer next spotted it on Interstate 635. After the officer activated his lights, Sanchez threw the gun out of the car. Eventually, Gutierrez pulled onto the highway shoulder. After the officer stopped and backup arrived, both officers exited their cars. But before Gutierrez could be ordered from the car, she drove away. According to Reyes, Gutierrez took off despite protest from both passengers. The officer lost sight of Gutierrez’ car as it exited Interstate 635 onto Shawnee Drive. While proceeding on Shawnee Drive, Gutierrez lost control; her car flipped several times and Sanchez was thrown from the car. Gutierrez and Sanchez died, and Reyes, who was wearing a seatbelt, survived with several injuries. Reyes and Rene Thomas (Plaintiffs) filed a declaratory judgment action against Benchmark Insurance Company seeking a determination of the parties’ rights under the automobile liability policy issued to Gutierrez. Benchmark responded that insurance coverage was barred due to (1) the criminal conduct of the driver and passengers—the “illegal act exclusion”—and (2) the intentional conduct of Gutierrez—the “intentional act” exclusion. Plaintiffs moved for summary judgment. The parties later stipulated to the facts as provided in the police records, which included a statement given by Reyes to police in the early morning hours of November 9, 2003, for the limited purpose of the summary judgment motion. After a hearing, the district court granted summary judgment for plaintiffs. The court concluded that the illegal act exclusion did not apply but did not address the intentional act exclusion. A majority panel of the Court of Appeals reversed the district court, holding that Gutierrez’ excessive speeding prohibited recov eiy under the intentional act exclusion. Thomas v. Benchmark Ins. Co., 36 Kan. App. 2d 409, 421, 140 P.3d 438 (2006). The majority also agreed with the district court that the policy’s “illegal act” exclusion did not apply. Judge Bukaty dissented from the majority’s conclusion that Gutierrez’ intentional conduct precluded coverage under the policy. 36 Kan. App. 2d at 426-31. Plaintiffs petitioned for review, and Benchmark cross-petitioned; this court granted review. More facts will be provided as necessary to the analysis. ANALYSIS Issue 1; The intentional act exclusion bars coverage. Standard of Review The parties stipulated to the facts as provided in the police records for the limited purpose of the summary judgment motion. Moreover, we must interpret the insurance contract. Our review is therefore de novo. See Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004) (Where there is no factual dispute, appellate review of an order granting summary judgment is de novo.); see Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003) (Review of the interpretation of insurance contracts is unlimited.). Arguments According to the Benchmark policy’s initial grant of coverage, Benchmark agreed to pay: “damages for bodily injury or property damage for which you or any family member becomes legally responsible because of an auto accident.” The policy defined an auto accident as “an unexpected and unintended event that causes bodily injury or property damage and arises out of the ownership, maintenance or use of an auto or other motor vehicle.” After the policy’s initial grant of coverage, it excluded, among other things, “bodily injury caused intentionally by you or any family member or at your or any family member’s direction.” (Emphasis added.) Plaintiffs argue that the Court of Appeals majority erred in reversing the district court’s summary judgment order on the basis of this intentional act exclusion. While they admit Gutierrez drove recklessly or wantonly and at excessive speeds, they assert that her loss of vehicle control was not intentional. Plaintiffs claim that under the majority’s rationale, an insurance company could simply deny coverage any time a wreck occurred if the driver committed a traffic violation, e.g., speeding. As we understand Benchmark’s response, it takes no issue with the initial grant of coverage; rather, it simply argues that this intentional act exclusion barred coverage otherwise existing because the wreck and injuries were “natural and probable consequences” of Gutierrez’ intentional act of driving at an excessive rate of speed. It cites, inter alia, State Farm Fire & Cas. Co. v. Falley, 23 Kan. App. 2d 21,926 P.2d 664 (1996), rev. denied 261 Kan. 1086 (1997). Benchmark has the burden to demonstrate that the exclusion applies. See Buchanan v. Employer’s Mutual Liability Ins. Co., 201 Kan. 666, Syl. ¶ 2, 443 P.2d 681 (1968). Relying upon its interpretation of this court’s prior decisions, the Court of Appeals majority felt obligated to apply the natural and probable consequences test. It determined that the injuries were intentionally caused and therefore excluded coverage. 36 Kan. App. 2d at 418. The dissent essentially urged application of a test that required Gutierrez to have intended both the act and to cause some kind of injuiy or damage. Before proceeding with the analysis, a review is in order. Review Kansas public policy prohibits insurance coverage for intentional acts: “[A]n individual should not be exempt from the financial consequences of his own intentional injury to another.” Shelter Mut. Ins. Co. v. Williams, 248 Kan. 17, 28, 804 P.2d 1374 (1991); see Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 686, 512 P.2d 403 (1973)-. Consequently, die legislature has authorized motor vehicle liability insurers to exclude coverage “for any damages from an intentional act.” See K.S.A. 40-3107(i)(6). Such exclusionary clauses should be narrowly construed against the insurer. See Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 327, 961 P.2d 1213 (1998). “In a certain sense, all acts are intentional, save perhaps for involuntary muscle spasms.” Dykes, Occurrences, Accidents, and Expectations: A Primer of These (and Some Other) Insurance-Law Concepts, 2003 Utah L. Rev. 831, 846-47 (2003). See Falk v. Whitewater, 65 Wis. 2d 83, 221 N.W.2d 915 (1974) (Almost ah negligent conduct is composed of individual intentional components.). Accordingly, a distinction is drawn between intentional acts and the intent to cause injury. See Pachucki v. Republic Insurance Co., 89 Wis. 2d 703, 278 N.W.2d 898 (1979) (An intentional act is a separate legal consideration and must be distinguished from the intent to cause injury.) (citing Falk v. Whitewater, 65 Wis. 2d 83, 221 N.W.2d 915 [1974]). Kansas recognizes, for example, that an intentional act may nevertheless result in unintended injury. See Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. at 687. The parties agree upon Gutierrez’ intentional acts, e.g, driving her car at an excessive speed. Accordingly, we are concerned with the second step of the Kansas intentional act exclusion analysis: whether, through her intentional acts, she intentionally caused the injuries. If so, coverage is excluded. Short of direct evidence of Gutierrez’ intent to cause injury, i.e., through her testimonial admission, her intent to cause injury may be inferred. In Kansas, intent to cause injury may be inferred if the injury is the natural and probable consequence of her intentional acts. Particularly because the facts are stipulated to, we may make this intentional injury determination as a matter of law. See Roy v. Young, 278 Kan. at 247 (where there is no factual dispute, appellate review of an order granting summary judgment is de novo); Loveridge v. Chartier, 161 Wis. 2d 150, 468 N.W.2d 146 (1991) (whether defendant intended to injure plaintiff is matter of law based upon undisputed facts). In Harris v. Richards, 254 Kan. 549, 554, 867 P.2d 325 (1994), we stated that the natural and probable consequences approach had been developed in a series of cases, beginning with Rankin v. Farmers Elevator Mutual Insurance Company, 393 F.2d 718 (10th Cir. 1968). In Rankin, the driver of a pickup truck, after unsuccessfully trying to stop a motorcyclist traveling alongside, inten tionally turned his truck into the motorcyclist. The trucker argued that his insurance carrier’s coverage for the motorcyclist’s injuries was not excluded by a clause whose operative language was virtually identical to the instant case: excluding liability for “bodily injury or property damage caused intentionally by or at the direction of the insured.” 393 F.2d 719. The Tenth Circuit Court of Appeals disagreed, stating: “Here the driver of a track, while traveling at a speed of fifty miles an hour alongside of a motorcycle going in the same direction at the same speed, deliberately and purposefully threw his truck against the motorcycle and its rider. Persons are presumed to intend the natural and probable consequences of their acts. State v. Gordon, 151 Kan. 932, 101 P.2d 888 [1940].” (Emphasis added.) 393 F.2d at 720. The Tenth Circuit concluded: “The serious injury of the rider of the motorcycle was a consequence of the deliberate collision and should have been expected and hence intended. “. . . Where an intentional act results in injuries which are the natural and probable consequences of the act, the injuries, as well as the act, are intentional. See Wigginton v. Lumbermens Mutual Casualty Co., La. App., 169 So. 2d 170 [1964].” (Emphasis added.) 393 F.2d at 720. Since the Rankin decision in 1968, Kansas appellate courts have faithfully applied its “natural and probable consequences” test to various “intentional act exclusions” and have usually excluded coverage. One frequently addressed clause has provided exclusion from liability for “bodily injury . . . which is either expected or intended from tire standpoint of the insured.” (Emphasis added.) Apparently, the first Kansas appellate decision to apply the Rankin test to this particular exclusion was Casualty Reciprocal Exchange v. Thomas, 7 Kan. App. 2d 718, 647 P.2d 1361, rev. denied 231 Kan. 799 (1982). There, a homeowner shot a partygoer in the face at close range with a pistol. After reviewing the arguments, the Thomas court held that “[t]he better rule is found in Rankin, where it was held that where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional.” It excluded tire plaintiff s injury from coverage. 7 Kan. App. 2d at 721. Similarly, the following year in Bell v. Tilton, 234 Kan. 461, 674 P.2d 468 (1983), this court excluded coverage under this same “expected or intended” clause because the injury to the plaintiffs eye was the “natural and probable consequence” of playing a game where a playmate repeatedly shot at him with a BB gun. Relying upon Thomas, which in turn relied upon Rankin, the court held at 234 Kan. 461, Syl. ¶ 2: “[W]here an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional.” See Spivey v. Safeco Ins. Co., 254 Kan. 237, 865 P.2d 182 (1993) (test applied to claims of assault, battery, and infliction of emotional distress and bodily harm; coverage excluded under same clause); Harris v. Richards, 254 Kan. 549, 867 P.2d 325 (1994) (test applied to shooting shotgun at occupied cab of pickup; coverage excluded under same clause); Shelter Mut. Ins. Co. v. Williams, 248 Kan. 17, 28, 804 P.2d 1374 (1991) (jury instructions not clearly erroneous in school shooting case that provided shooter “would be presumed to have intended the natural and probable consequences of his actions”); see also First Financial Ins. Co. v. Bugg, 265 Kan. 690, 704, 962 P.2d 515 (1998) (Kansas has “adopted the natural and probable consequences test.”). In none of these cases did this court address whether there is a distinction between these two terms contained in the intentional act exclusion clause—“expected” or “intended.” Another “intentional act” exclusion clause has excluded liability for “any damages arising from an intentional act.” In State Farm Fire & Cas. Co. v. Falley, 23 Kan. App. 2d 21, 926 P.2d 664 (1996), rev. denied 261 Kan. 1086 (1997), the court addressed this particular clause and held that the Rankin natural and probable consequences test should be applied to determine whether coverage was excluded, i.e., because the plaintiffs injury was the “natural and probable consequence” of the insured’s intentionally driving his car with the plaintiff spread-eagled on the hood. Similarly, the Tenth Circuit Court of Appeals reviewed yet another “intentional act” exclusion clause in Freightquote v. Hartford Cas. Ins., 397 F.3d 888 (10th Cir. 2005). That particular clause excluded coverage for “ ‘[pjersonal and advertising injury arising out of an offense committed by, at the direction of or with the consent or acquiescence of the insured with the expectation of inflicting personal and advertising injury’ (the intentional act exclusion clause).” (Emphasis added.) 397 F.3d at 891. Citing Spivey and Harris—“ ‘[w]here an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional’ ”—the court applied Rankins test to a claim of tortious interference with contractual relations and excluded coverage. 397 F.3d at 893-94. The Rankin test represents a minority approach. As the Court of Appeals majority in the instant case suggests, citing Jeriy, Understanding Insurance Law § 63C (3d ed. 2002), three different views regarding intent have developed. Under one minority view (“minority view—negligence”), the classic tort doctrine of looking to the natural and probable consequences of the insured’s act determines intent. As Jerry explains, if the intentional act by the insured results in injuries or damage that are a natural and probable result of the act, the loss is intentional for purposes of the exclusion and no coverage exists. This approach, the Kansas approach, yields the narrowest coverage and the most pro-insurer results. See Understanding Insurance Law, § 63C, p. 483; 36 Kan. App. 2d at 417. Under the majority view, the insured must have intended both the act and to cause some kind of injury or damage. Intent can be actual, or intent to cause the injury or damage can be inferred from the nature of the act and the foreseeability that harm would result. It is not essential, however, that the harm be of the same character and magnitude as that intended. See Understanding Insurance Law, § 63C, p. 483; 36 Kan. App. 2d at 417. A third, minority approach (“minority view—intent”) provides the broadest coverage and the fewest pro-insurer results and represents the opposite end of the continuum from the Kansas approach. Under this view, for the exclusion to apply the insured must have had the specific intent not only to injure but also to cause the particular type of injury suffered. See Jerry, § 63C, p. 483; 36 Kan. App. 2d at 417. Kansas has expressly rejected the “specific intent” approach. See Harris v. Richards, 254 Kan. at 555. Critique of the Rankin test Kansas’ minority approach started with Rankin, which was based upon a 1940 Kansas criminal case, State v. Gordon, 151 Kan. 932, 101 P.2d 888 (1940), and a 1964 Louisiana case, Wigginton v. Lumbermens Mut. Cas. Co., 169 So. 2d 170 (La. 1964). Gordon, a manslaughter case, is of marginal support. It simply addressed the difference between “design” and “intent” in a criminal context, holding that design carries with it an idea of a plan, a scheme, or deliberate purpose, while intent does not necessarily do so. Accordingly, die court held: “While persons of sound mind are ordinarily presumed to intend the natural and probable consequences of their acts, it does not follow that design to effect the result is thereby presumed to exist.” 151 Kan. at 932. In Wigginton, an angry Louisiana driver revved his car engine and backed into a taxicab parked behind him, injuring the cab driver s hand. Although as a civil case it may be more relevant than the Gordon criminal case, Wigginton is also marginally supportive because the court made no mention of “natural and probable consequences.” It merely held that “[ujnder the facts disclosed by evidence in this case there is no question but that the injury was caused intentionally by the insured Millard. He knew the car was back of him and he chose to deliberately back into it.” Gordon, 169 So. 2d at 171. Accordingly, the court held that the following policy exclusion barred coverage: “ ‘[T]o bodily injury or property damage caused intentionally by or at the direction of the insured.’ ” Gordon, 169 So. 2d at 171. In Rankin itself, the truck driver’s conduct was clearly intentional, and the chances of it causing injury were virtually certain: swerving a truck into a motorcycle while both vehicles are moving at 50 m.p.h. The lowest of the three standards discussed by Jerry to be met by an insurance company to exclude coverage for an intentional injury—“natural and probable consequences” of the act—was therefore easily met. When measured against this lowest standard, the same can be said for the shootings in Williams— where a rifle and pistol-wielding student shot and killed a principal and wounded several others in school—and probably said for the shootings in Thomas, Bell and Harris. Indeed, the Minnesota Supreme Court has found that similar shootings have met that court’s higher “intentional injury” standard: “when the nature and circumstances of the insured’s act [are] such that harm [is] substantially certain to result.” See Woida v. North Star Mut. Ins. Co., 306 N.W.2d 570 (Minn. 1981) (court inferred intent to cause injury where the insured made a plan with others to fire shots at a truck he knew to be occupied and fired several shots at the truck with a rifle). In short, aside from the possible exception of Spivey, this court has rarely, if ever, been faced with “less severe” facts than the shootings in Thomas, Bell, Harris, and Williams. Accordingly, this court has not really needed to consider alternative approaches to Rankin’s natural and probable consequences test for determining whether an injuiy was intentionally caused. In our view, the present facts clearly are less severe than the actions of truck driver Rankin and the 14-year-old shooter in Williams who shot at least three people in his school hallway. They are arguably less severe than the shootings in Thomas, Bell, and Harris. As a result, we have been presented with an opportunity to consider the continued efficacy of the Rankin natural and probable consequences test. We begin by observing that in another context, this court has defined “natural and probable consequences” as follows: “Natural and probable consequences are those which human foresight can anticipate because they happen so frequently they may be expected to recur, while possible consequences are those which happen so infrequently that they are not expected to happen again.” (Emphasis added.) Rowell v. City of Wichita, 162 Kan. 294, 302, 176 P.2d 590 (1947). We next observe that the possibility of confusion exists because “natural and probable consequences” is a phrase used to describe not only our test for determining whether an injury is intentional, but also, as in Rowell, to determine proximate cause in the simple negligence context: “A rule often stated is that the test of proximate cause is that which determines an injury to be the proximate result of negligence only where the injury is the natural and probable consequence of the wrongful act, an additional condition sometimes stated being that it must appear the injury was anticipated or that it reasonably should have been foreseen by the person sought to be charged with liability. [Citations omitted.]” (Emphasis added.) Rowell, 162 Kan. at 302. A closely related problem with the natural and probable consequences approach for determining whether an injury was intentionally caused is its confusion with the concept of foreseeability: “[njatural and probable consequences are those which human foresight can anticipate” or “should have been foreseen.” 162 Kan. at 302. If foreseeability of injury alone were enough to activate the policy exclusion, then many acts of mere negligence would be excluded. We should hesitate to read “intentional act exclusion” clauses to exclude both intentional and negligent acts, or else virtually all insurance coverage would be excluded. Cf. Continental Western Ins. Co. v. Tool, 309 Minn. 169, 176, 244 N.W.2d 121 (1976) (Defining exclusionary clause’s “expected injury” as a foreseeable injury would have the effect of unduly hmiting coverage under a liability insurance policy since foreseeability is generally an essential element in establishing liability. Foreseeability could include an injury resulting from simple negligence. Therefore, “ ‘an expected injury’ as that term is used in an insurance exclusionary clause cannot be equated with foreseeable injury.”); cf. Poston v. U.S. Fidelity & Guarantee Co., 107 Wis. 2d 215, 222, 320 N.W.2d 9 (1981) (same) (If foreseeability of injury alone were enough to activate the policy exclusion, then many acts of mere negligence would be excluded. To so broaden the exclusion to exclude foreseeable injuries is unjustified.). As one commentator has elaborated upon the problems: “In a certain sense, all acts are intentional, save perhaps for involuntary muscle spasms. Thus, if taken literally, a proscription against coverage for the natural and probable consequences of the insured’s acts would eliminate almost all insurance coverage, because an ‘act’ (inadvertently leaving a candle burning at a neighbor’s home while house-sitting) can be negligent, and the ‘natural and probable consequences’ (the resulting house fire) are just what insurance is supposed to protect against. An older string of disconcerting Tenth Circuit cases shows how far afield a literal application of the ‘natural and probable consequences’ test can take us from the purpose of the insurance bargain.” (Emphasis added.) Dykes, Occurrences, Accidents, and Expectations: A Primer of These (and Some Other) Insurance-Law Concepts, 2003 Utah L. Rev. 831, 846-47 (2003). In one decision from the “older string of disconcerting Tenth Circuit cases,” that court candidly discusses the confusion caused by its past approach to identifying accidents which was “based upon the underlying maxim that everyone is constructively held to intend the natural and probable consequences of his acts; and, that which is intended or anticipated cannot be accidental.” Hutchinson Water Co. v. United States Fidelity & G. Co., 250 F.2d 892, 894 (10th Cir. 1957). Under this rationale, if the damage was the natural and probable consequence of the negligent act, then the damage was foreseeable, and therefore not accidental. On the other hand, if the damage was the unexpected, hence unforeseen result of the negligent act, it may have been an accident, but there was no liability under the policy for the negligence. The court conceded the problem its approach created: “In either instance, the insurer would be free of coverage and the policy would be rendered meaningless.” 250 F.2d at 894. Modifying Rankin The time has come to begin moving away from the problems caused by the Rankin test’s consideration of all injuries which are the “natural and probable” result of any intentional act as being “intentional” and therefore barred by “intentional act” or “intentional injuiy” exclusions. With this mission in mind, we observe that this court has previously used language which places a higher burden on the insurance company attempting to meet the intentional act exclusion. In Bell v. Tilton, our first decision which appeared to adopt the Rankin natural and probable consequences test (see 234 Kan. 461, Syl. ¶ 2), the body of the opinion actually stated as follows: “[I]t was not necessaiy for the garnishee insurance company to show [the shooter] specifically intended to strike [the victim] in the eye with a BB pellet in order to deny liability. Rather, if from the acts, circumstances and inferences of the case, it appeared [the shooter] had [1] the desire to cause the consequences of his acts or [2] he believed the consequences were substantially certain to result, his conduct was intentional and the policy exclusion was operative.” (Emphasis added.) 234 Kan. at 472. Although Bell cited no reference for this holding, the language is virtually identical to that contained in § 8A of the Restatement (Second) of Torts (1964) to define “intent”: “The word ‘intent’ is used throughout the Restatement of this subject to denote that the actor [1] desires to cause the consequences of his act, or that [2] he believes that the consequences are substantially certain to result in it.” Comment a to § 8A provides: “ ‘Intent,’ as it is used throughout the Restatement of Torts, has reference to the consequences of an act rather than the act itself. When an actor fires the gun in the midst of the Mojave Desert, he intends to pull the trigger; but when the bullet hits a person who is present in the desert without the actor’s knowledge, he does not intend that result. ‘Intent’ is limited, where it is used, to the consequences of the act.” Comment b provides further: “All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. “As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor’s conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282. All three have their important place in the law of torts, but the liability attached to them will differ.” (Emphasis added.) Other courts have adopted approaches consistent with § 8A of the Restatement (Second) of Torts. When considering intentional act exclusions of a liability policy in Minnesota, “die intent to injure may be established: (1) by proof of an actual intent to injure or (2) by inferring intent as a matter of law. . . . The general rule is that intent is inferred as a matter of law ‘when the nature and circumstances of the insured’s act [are] such that harm [is] substantially certain to result.’ ” (Emphasis added.) B.M.B. v. State Farm Fire and Cos. Co., 664 N.W.2d 817, 821-22 (Minn. 2003). The Minnesota court has correctly acknowledged that its “substantial certainty” is a higher standard than “natural and probable consequence.” As it stated in American Family Ins. Co. v. Walser, 628 N.W.2d 605, 613 (Minn. 2001): “The mere fact that the harm was a ‘natural and probable consequence’ of the insured’s action is not enough to infer intent to injure.” See also Lewis v. Allstate Ins. Co., 730 So. 2d 65, 68 (Miss. 1998) (When addressing whether an intentional acts exclusion precludes coverage, “[i]n Mississippi, ‘[an] act is intentional if the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result from it.’ ”); Erie Ins. Exchange v. Muff, 851 A.2d 919, 927-28 (Pa. Super. 2004) (For purposes of an exclusionary clause’s “ ‘expected or intended’ provision, ‘an insured intends an injury if he desired to cause the consequences of his act or if he acted knowing that such consequences were substantially certain to result.’ ”); Wiley v. State Farm Fire & Cas. Co., 995 F.2d 457, 460 (3d Cir. 1993) (same). Similarly, in Loveridge v. Chartier, 161 Wis. 2d 150, 168-69, 468 N.W.2d 146 (1991), the Wisconsin Supreme Court used language reminiscent of this court’s language in Bell when it stated: “In Wisconsin, an intentional-acts exclusion precludes insurance coverage only where the insured acts intentionally and intends some harm or injury to follow from the act. [Citations omitted.] An insured intends to injure or harm another if he ‘intend[s] the consequences of his act, or belieoe[s] that they are substantially certain to follow.’ Pachucki [v. Republic Ins. Co.,] 89 Wis. 2d [703] at 710, 278 N.W.2d 898 [1979] (citing Restatement (Second) of Torts, sec. 8A at 15 [1965]). In other words, intent may be actual (a subjective standard) or inferred by the nature of the insured’s intentional act (an objective standard). Pachucki, 89 Wis. 2d at 709. Therefore, an intentional-acts exclusion precludes insurance coverage where an intentional act is substantially certain to produce injury even if the insured asserts, honestly or dishonestly, that the did not intend any harm. [Citation omitted.] As Professor Prosser commented: ‘Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does. . . . The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. The practical application of this principle has meant that where a reasonable man in the defendant’s position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it.’ [Citation omitted.]” (Emphasis added.) The Loveridge court continued with a reference to its Pachucki decision, also reminiscent of our Bell decision: “Furthermore, the exclusion precludes coverage even if the harm that occurs is different in character or magnitude from that intended by the insured. [Citations omitted.] For example, in Pachucki, we held that an intentional-acts exclusion precluded insurance coverage for severe eye injuries even though the insured subjectively intended only to sting the plaintiff by firing a greening pin [similar to shooting paper clips with rubber bands] at his body. Pachucki, 89 Wis. 2d at 712.” 161 Wis. 2d at 169. In Bell, plaintiff argued that because the shooter testified he did not have the specific intent to injure plaintiff s eye when he fired die BB gun at plaintiff s face, then the injuiy was not intentional. In rejecting this argument, this court stated: “[T]he act of shooting another in the face with a BB pellet is one which is recognized as an act so certain to cause a particular kind of harm it can be said an actor who performed the act intended the resulting harm, and his statement to the contrary does nothing to refute that rule of law.” 234 Kan. at 471. Finally, the Loveridge court fully acknowledged the lack of scientific precision with this approach: “There is no bright-line rule to determine when intent to injure should be inferred as a matter of law. Rather, each set of facts: ‘must be considered on a case-by-case basis; the more likely harm is to result from certain intentional conduct, the more likely intent to harm may be inferred as a matter of law.’ [Citation omitted.]” (Emphasis added.) 161 Wis. 2d at 169-70. Based upon these authorities, we conclude that the “intentional act” or “intentional injuiy” exclusion test in Kansas should be as follows: The insured must have intended both the act and to cause some kind of injuiy or damage. Intent to cause the injury or damage can be actual or it can be inferred from the nature of the act when the consequences are substantially certain to result from the act. It is not essential, however, that the harm be of the same character and magnitude as that intended. See Understanding Insurance Law, § 63C p. 483; Loveridge v. Chartier, 161 Wis. 2d 150 (exclusion precludes coverage even if the harm that occurs is different in character or magnitude from that intended by the insured); Bell v. Tilton, 234 Kan. 461 (shooter argued that because he testified he did not have the specific intent to injure plaintiff s eye when he fired the BB gun at plaintiff s face, then injury was not as a matter of law “intentional”; court held it was not necessary for insurance company to show the shooter specifically intended to strike the victim in the eye with a BB pellet, if from facts it appeared shooter believed consequences were substantially certain to result). This revised test for intentional injury places Kansas more in line with the majority view. See 31 ALR 4th 957, § 5[a],[b],[c]; Understanding Insurance Law, § 63C p. 483 and nn.305 and 306 (“Under the majority view . . . the insured must have intended both the act and to cause some kind of injury or damage. Intent can be actual, or intent to cause the injury or damage can be inferred from the nature of the act and the foreseeability that harm would result. It is not essential, however, that the harm be of the same character and magnitude as that intended.”). This revised test for intentional injury also helps reduce some of the confusion associated with using “natural and probable consequences” in other contexts, e.g., determining proximate cause in simple negligence. It further helps to put “intentional” injury in its rightful place on the scale for measuring severity of conduct. See Comment b to Restatement (Second) of Torts § 8A (“If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor s conduct loses the character of intent, and becomes mere recldessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282.”); cf. Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 167 L. Ed. 2d 1045, 127 S. Ct 2201 (2007) (recklessness, a lesser standard of conduct than intentional, requires running a risk substantially greater than the risk making the conduct merely negligent or careless, citing, inter alia, Restatement [Second] of Torts § 500, p. 587 [1963-1964]). Having revised the test, we now apply it to the specific facts of this case. The Court of Appeals noted that Gutierrez was driving 100 m.p.h. “ ‘down Shawnee Drive all the way down to Maplehill Cemetery’ ” where the wreck occurred. Reyes indicated that when Gutierrez left Interstate 635 to eventually enter Shawnee Drive, she pulled into the lane of oncoming traffic—apparently driving against the traffic entering the interstate on an approach ramp— and then failed to stop at the end of the ramp before entering Shawnee Drive. She then drove down this street, which was a two-lane road, until the wreck occurred at the cemetery. Reyes indicated that the wreck occurred when Gutierrez, who was traveling 100 m.p.h., bottomed out at an intersection marked by a stop sign. It also noted that Reyes testified that he had warned Gutierrez of this very scenario: “[Q:] She was going 100 miles an hour through that intersection? “[A:] Yeah. We was flooring it all the way down until I told her—my last words to everybody in the car was we’re going to bottom out once we hit the stop sign. “[Q:] At what intersection? “[A:] . . . 38th and Shawnee Drive. “[Q:] 38th and Shawnee Drive? Okay. “[A:] And I thought we were going to bottom out and the next thing I know we bottomed out the car, slides—bottoms out and comes my way and really starts going backwards. And we hit the ditch and popped up . . . .” 36 Kan. App. 2d at 421. Accordingly, even under this higher standard for Benchmark to meet, we conclude it has nevertheless met its burden demonstrating application of the intentional act exclusion. Simply put, injury was substantially certain to result under these circumstances: driving the wrong way against traffic, failing to stop at a stop sign, and driving at 100 m.p.h. through neighborhoods. And as Benchmark points out, Reyes correctly predicted, and warned Gutierrez against, the precise consequence of her act—bottoming out at the approaching intersection—shortly before it happened. Cf. Continental Western Ins. Co. v. Tool, 244 N.W.2d 121, 122-23 (Minn. 1976) (intent to cause bodily injury could be inferred where insureds had planned armed robbery at a bowling alley and knew that their weapons were loaded and that someone might be harmed or killed, even though they did not specifically intend to shoot anyone during the robbery). Issue 2: Whether the illegal act exclusion bars coverage is moot. Benchmark argues that the Court of Appeals erred in concluding that the “illegal act” exclusion was not applicable. Given our ruling that the intentional act exclusion bars coverage, our consideration of this issue is unnecessary. The issue is moot. The judgment of the Court of Appeals is affirmed. The judgment of the district court is reversed. Johnson, J., not participating. Lockett, J., Retired, assigned.
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Per Curiam: This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator’s office against Respondent, Peter J. Antosh, a Dodge City attorney licensed to practice law in Kansas since December 2003. The formal complaint charged Respondent with violating Kansas Rules of Professional Conduct (KRPC) 1.7(a) (2006 Kan. Ct. R. Annot. 411) (conflict of interest, adverse clients); KRPC 8.4(b) (2006 Kan. Ct. R. Annot. 510) (criminal act reflecting adversely on fitness as lawyer); and KRPC 8.4(d) (misconduct prejudicial to the administration of justice). Respondent appeared in person and through counsel at his disciplinary hearing, and he stipulated to the facts and ethical violations set out in the formal complaint. The hearing panel filed its final hearing report in April 2007. “In a disciplinaiy 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. Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. [Citations omitted.] “This court views the findings of fact, conclusions of law, and recommendations made by die disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of tire evidence. [Citations omitted.]” In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003). The hearing panel made the following findings of fact based on two incidents of Respondent’s misconduct. The first incident involved a protection from abuse action filed Januaiy 9, 2006, by Dina Ramirez-Ortiz against her husband, Mauricio Albino-Ortiz. On that same day, District Judge E. Leigh Hood issued a temporary order of protection. A hearing on the PFA petition was set for Januaiy 18, 2006. Albino-Ortiz met with Respondent on January 12 regarding the PFA. He paid Respondent a fee of $100 for the initial consultation. Respondent agreed to represent Albino-Ortiz on the PFA, provided an additional fee of $200 was paid. Ramirez-Ortiz, who speaks only Spanish, believed that she needed to arrange to have an interpreter present at the hearing on the PFA. Because Respondent is fluent in Spanish, Ramirez-Ortiz contacted Respondent’s office to hire Respondent to communicate with the court for her. She paid Respondent $200. Respondent’s office staff arranged for Ramirez-Ortiz to meet with Respondent on January 17. On Januaiy 17, Respondent met with Ramirez-Ortiz, believing she had retained him to mediate a resolution of the case between her and Albino-Ortiz. During their meeting, Respondent attempted to persuade Ramirez-Ortiz to dismiss the PFA petition, on the condition that Albino-Ortiz participate in an anger management class. Later that same day, Respondent met with Judge Hood. Respondent advised the judge that he believed the parties had reached an agreement or would soon reach an agreement, and that there would be no further need for the temporary PFA order. From their conversation, the judge believed Respondent represented Ramirez-Ortiz. On January 18, the district court called the case for hearing. Respondent was not present; he was in Edwards County appearing in court on behalf of another client. The Edwards County hearing lasted longer than Respondent had expected it would. Relying on Respondent’s representations that the parties had reached an agreement, the court proceeded with the hearing without Respondent. Upon questioning by the court, Ramirez-Ortiz exhibited surprise and informed the court that she had not agreed to any mediation of the dispute. She also made clear that she did not want the PFA dismissed. The court rescheduled the hearing for the next day. Respondent appeared at the rescheduled hearing. When the court requested an explanation, Respondent stated he was representing both Ramirez-Ortiz and Albino-Ortiz and had accepted legal fees from both parties. Respondent also acknowledged that he had encouraged Albino-Ortiz to talk with Ramirez-Ortiz, which would have violated the temporary PFA order. On January 26, Respondent filed a motion to withdraw as counsel and stated that his “rationale for meeting with and charging both parties for legal services (to-wit: that he was serving as a de facto mediator and representing both of their interests) clearly is erroneous, improper, violates the rules of professional ethics and is not accepted by the Court.” The second incident involved Rosa Delgado and Carlos Martinez, owners and operators of La Buchanan Club, a tavern in or near Dodge City, who retained Respondent to determine if local law enforcement officers’ weekend investigations at the club were proper. According to Delgado and Martinez, law enforcement officers would enter the club, stop the music, and require all patrons to display their La Buchanan Club membership card and other identification. The other identification requested was intended to allow the officers to determine if the club’s patrons were lawfully present in the United States. On May 21, 2005, Respondent, his law partner, and his legal assistant went to La Buchanan Club to observe any law enforcement action. While waiting at the club, each of the three consumed alcohol. When officers arrived, Respondent approached them and engaged them in conversation, challenging their authority to conduct the anticipated investigation. Respondent persisted in his dialogue with the officers despite their orders to back away. Eventually, Respondent and the officers raised their voices, and a physical confrontation ensued. Respondent appeared to be intoxicated. Respondent, his partner, and his legal assistant were arrested. Re spondent was charged with assault, disorderly conduct, and obstruction. The city attorney of Dodge City approved Respondent’s request to participate in a diversion program. Respondent paid $900 in fees, costs, and fines and completed the terms and conditions of the diversion agreement. Based on the foregoing findings of fact and Respondent’s stipulation, the hearing panel concluded as a matter of law that Respondent violated KRPC 1.7(a) (2006 Kan. Ct. R. Annot. 411-12), which provides: “A lawyer shall not represent a client if the representation of that client will be directly adverse to another client unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation,” by accepting fees and attempting to represent both Ramirez-Ortiz and Albino-Ortiz, opposing parties in the same action. The hearing panel also concluded that Respondent violated KRPC 8.4(b), which provides: “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.” 2006 Kan. Ct. R. Annot. 510. Respondent had admitted that he committed criminal acts—specifically, assault, disorderly conduct, and obstruction. Finally, the panel concluded that Respondent violated KRPC 8.4(d), which provides that “[i]t is professional misconduct for a lawyer to . . . engage in conduct that it prejudicial to the administration of justice.” 2006 Kan. Ct. R. Annot. 511-12. The panel regarded Respondent’s criminal conduct as sufficient to violate this rule. “As an attorney, the Respondent is an officer of the court. When the Respondent committed the crimes of assault, disorderly conduct, and obstruction before members of the public, the Respondent engaged in the conduct that is prejudicial to the administration of justice.” In recommending discipline, the panel considered the following factors based on the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991) (Standards): “Duty Violated. The Respondent violated his duty of loyalty to his client. Additionally, the Respondent violated his duty to the legal profession to maintain personal integrity. “Mental State. The Respondent knowingly violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to his client, to the legal system, and to the legal profession.” The panel found the following aggravating factors present: “Vulnerability of Victim. Mr. and Mrs. Ortiz speak only Spanish. They were particularly vulnerable to the Respondent’s misconduct because of their language barriers. “Illegal Conduct. The Respondent engaged in illegal conduct. As a result, the Respondent was placed on diversion for assault, disorderly conduct, and obstruction.” The panel also considered the following mitigating factors: “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. “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. “Inexperience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 2003. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 2 years. Accordingly, the Hearing Panel concludes that the 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 tire Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Dodge City, 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 Respondent was placed in a diversion program for the criminal offenses. As a result of his participation in the diversion program, the Respondent paid $900.00 in fees, costs, and fines. “Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.” The panel also considered the following two Standards: “ ‘Reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer’s own interests, or whether the representation will adversely affect another client, and causes injury or potential injury to a client.’ Standard 4.33. “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.” The Deputy Disciplinary Administrator recommended published censure; Respondent joined the Deputy Disciplinary Administrator’s recommendation; and the hearing panel unanimously recommended that this court censure Respondent and that the censure be published in the Kansas Reports. We hold that the disciplinary hearing panel’s findings of fact and conclusions of law are amply sustained by the evidence and hereby adopt them as our own. Further, while the panel’s recommended discipline is advisory only and sanction is within our discretion, we agree with the unanimously recommended discipline of published censure in accordance with Supreme Court Rule 203(a)(3) (2006 Kan. Ct. R. Annot. 243) for the violations of KRPC 1.7(a) and 8.4(b) and (d). It Is Therefore Ordered that Peter J. Antosh be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2006 Kan. Ct. R. Annot. 243) for violations of KRPC 1.7(a) and 8.4(b) and (d). It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed to Respondent. Davis, J., not participating. Greene, J., assigned.
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Per Curiam: This is an original uncontested proceeding in discipline filed by the office of the Disciphnaiy Administrator against respondent, Cherie N. Crow, of Prairie Village, Kansas, an attorney admitted to the practice of law in Kansas in 1998. Respondent’s license to practice law in Kansas was temporarily suspended on October 6, 2004, for failure to pay the annual attorney registration fee, fulfill the required hours of continuing legal education, pay the noncompliance fee for the 2003-04 compliance period, and pay the annual CLE fee for 2004. The suspension remains in effect. A hearing was held before a panel of the Kansas Board for Discipline of Attorneys on July 24, 2007. The respondent did not appear. The hearing panel concluded that the respondent violated KRPC 8.1(b) (2007 Kan. Ct. R. Annot. 553) (failure to respond and to cooperate with investigation) and Supreme Court Rule 207(b) (2007 Kan. Ct. R. Annot. 288) (duty to cooperate). The panel unanimously recommends that the respondent be indefinitely suspended from the practice of law in the state of Kansas. 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 “2. In approximately June, 2004, James Chivers filed a complaint against the Respondent. Thereafter, on June 10, 2004, Frank D. Diehl, Deputy Disciplinary Administrator, wrote to the Respondent, informed her that a complaint had been filed, enclosed a copy of the complaint, and directed her to respond to the complaint in writing within 15 days. The Respondent failed to provide a written response to the complaint as directed. “3. On August 6, 2004, Mr. Diehl again wrote to the Respondent. Mr. Diehl reminded the Respondent that he had previously directed her to provide a written response to Mr. Chivers’ complaint. Mr. Diehl directed the Respondent to provide a written response to the complaint within ten days. The Respondent again failed to provide a written response to Mr. Chivers’ complaint. “4. Mr. Diehl referred Mr. Chivers’ complaint to the Johnson County Ethics and Grievance Committee for investigation. Frank L. Austenfeld, a member of the Johnson County Ethics and Grievance Committee, was appointed to investigate Mr. Chivers’ complaint. On August 30, 2004, Mr. Austenfeld wrote to the Respondent and directed her to provide a written response to Mr. Chivers’ complaint within seven days. The Respondent faded to provide a written response to Mr. Chivers’ complaint as directed. “5. On November 3, 2004, Mr. Austenfeld again wrote to the Respondent and directed her to provide a written response to Mr. Chivers’ complaint within ten days. The Respondent again failed to provide a written response to Mr. Chivers’ complaint. “6. On December 23, 2004, Mr. Austenfeld informed the Disciplinary Administrator’s office that the Respondent failed to cooperate in the investigation of Mr. Chivers’ complaint. Mr. Austenfeld recommended that the disciplinary proceedings commence, given the Respondent’s failure to cooperate. “7. On October 6, 2006, Terry L. Morgan, Special Investigator for the Office of the Disciplinary Administrator, wrote to the Respondent and directed her to contact him to schedule an interview. The Respondent failed to contact Mr. Morgan as directed. “8. On March 9, 2007, Mr. Diehl filed a Formal Complaint. On that same date, Mr. Diehl had a copy of the Formal Complaint and Notice of Hearing sent, via certified mail, to the Respondent at her last registration address. The package containing the copy of the Formal Complaint and the Notice of Hearing was returned by the United States Post Office to the Disciplinary Administrator’s office and marked ‘not deliverable as addressed, unable to forward, attempted— not known.’ “CONCLUSIONS OF LAW “1. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows: ‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.’ ‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’ In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. The package containing a copy of the Formal Complaint and the Notice of Hearing was returned by the United States Post Office, marked ‘not deliverable as addressed, unable to forward, and attempted— not known.’ The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require. “2. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirement 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 that she was required to forward a written response to the initial complaint — she had been repeatedly instructed to do so in writing by Mr. Diehl and Mr. Austenfeld. Because the Respondent knowingly failed to provide a written response to the complaint filed by Mr. Chivers as directed, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(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 her duty to the legal profession to cooperate in a disciplinary investigation. “Mental State. The Respondent knowingly violated her duty. “Injury. As a result of the Respondent’s misconduct, the Respondent caused potential harm 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 factor present: “Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. Mr. Diehl and Mr. Austenfeld sent the Respondent a number of letters directing her to provide a written response to the complaint. The Respondent never did so. The Hearing Panel, therefore, concludes that the Respondent obstructed the disciplinary proceeding by failing to comply with rules and orders of the disciplinary process. “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 circumstance present: “Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. “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 injury or potential injury to a client, the public, or the legal system.’ Standard 7.2. “RECOMMENDATION “The Deputy Disciplinary Administrator recommended drat the Respondent be indefinitely suspended. “The Respondent has completely failed to cooperate and communicate with the Disciplinar}' Administrator’s office. Because the Respondent has failed to provide any explanation whatsoever for her complete failure to cooperate and communicate, the Hearing Panel feels compelled to recommend that she be indefinitely suspended. An indefinite suspension will ensure that the public is protected from the Respondent until such time that she has established, at a reinstatement hearing, that she is in a position to practice law again. Thus, 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.” 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 Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304) (misconduct to be established by clear and. convincing evidence). The respondent did not file any exceptions to the panel’s final report. Accordingly, the final report is deemed admitted. Supreme Court Rule 212(d) (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 same. We note further that, contrary to Supreme Court Rule 212(d), respondent did not appear at the hearing before us or offer an explanation for her absence, although a copy of the hearing notification was mailed to her in accordance with our rules. With respect to the discipline to be imposed, the panel’s recommendation that the respondent be indefinitely suspended from the practice of law in the state of Kansas 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). After careful consideration, we conclude indefinite suspension is the appropriate discipline to be imposed herein. It Is Therefore Ordered that Cherie N. Crow be and she is hereby indefinitely suspended from the practice of law in the state of Kansas in accordance with Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261). It Is Further Ordered that respondent forthwith comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official'Kansas Reports.
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The opinion of the court was delivered by Greene, J.: Abraham P. Alderete appeals his conviction of abuse of a child, arguing that the district court erred in refusing to give a requested instruction for severity level 7 aggravated battery as a lesser included offense. A majority of the Court of -Appeals panel agreed with Alderete, reversing his conviction and remanding for a new trial. We granted the State’s petition for review on this issue only. We reverse the Court of Appeals and affirm the district court, concluding that severity level 7 aggravated battery under K.S.A. 21-3414(a)(l)(B) or (a)(1)(C) is not a lesser included offense of abuse of a child under K.S.A. 21-3609. Factual and Procedural Overview In September 2002, Alderete was in the process of moving belongings out of his estranged wife Rita’s home when an altercation occurred in the driveway of the home between him and his wife’s 17-year-old daughter, T.T. According to T.T., Alderete slammed her head against the bumper of his vehicle, struck her repeatedly on the head and back with a wooden T.V. tray, and lashed her twice with a medium dog leash chain. Rita testified that when she heard T.T.’s screaming, she exited the home only to be “whipped” by Alderete three times with the same dog leash chain. Both T.T. and her mother suffered severe bruising and lacerations as a result of Alderete’s actions. He was charged with and convicted of two counts of severity level 7 aggravated battery (one count each for T.T. and Rita) and one count of abuse of a child. In Alderete’s first appeal, he argued that his conviction of abuse of a child should be reversed due to the district court’s refusal to instruct on simple battery as a lesser included offense. Relying principally on State v. Allison, 16 Kan. App. 2d 321, 823 P.2d 213 (1991), the Court of Appeals reversed the conviction and remanded for a new trial, concluding that the instruction should have been given. The Court of Appeals also noted a “problem” in “bas ing two convictions [child abuse and aggravated battery] on the same act of violence.” State v. Alderete, case No. 90,535, unpublished opinion filed April 2, 2004 (Alderete I), slip op. at 9. The Court of Appeals suggested this issue be addressed on retrial. On remand, a second jury again found Alderete guilty of abuse of a child after the district court refused to give a requested instruction on aggravated batteiy as a lesser included offense. Based on the dicta from the Court of Appeals opinion in Alderete I, the district court dismissed the related count of aggravated battery on T.T. On his appeal of this second conviction, the Court of Appeals majority reversed and remanded for yet another trial, concluding that aggravated battery is a lesser included offense of child abuse. The court reasoned: “[W]e conclude that the elements of the applicable level of aggravated batteiy are substantially identical to those of the crime of abuse of a child, even though they are not linguistically identical. It strikes us that one who tortures, cruelly beats, or shakes a child under 18, resulting in great bodily harm or infliction of cruel and inhuman corporal punishment on the child, has also intentionally caused physical contact with that child either with a deadly weapon or in a manner in which great bodily harm, disfigurement, or death could be inflicted.” State v. Alderete, case No. 94,388, unpublished opinion filed January 12, 2007 (Alderete II), slip op. at 7. Judge Johnson dissented, suggesting that the panel in Alderete I implicitly, if not explicitly, found that aggravated batteiy was not a lesser included offense of abuse of a child by its citation of and reliance on State v. Riles, 24 Kan. App. 2d 827, 829, 956 P.2d 1346, rev. denied 264 Kan. 824 (1998), where the court held that “[ajbuse of a child and aggravated batteiy are two separate crimes.” We granted the State’s petition for review on this issue. Did the District Court Err in Denying the Defendant’s Request for a Jury Instruction on Aggravated Battery as a Lesser Included Offense of Abuse of a Child? The sole issue before us is whether severity level 7 aggravated batteiy as defined by K.S.A. 21-3414(a)(l)(B) or (C) is a lesser included offense of abuse of a child as defined by K.S.A. 21-3609. Whether a crime is a lesser included offense is a question of law over which this court exercises unlimited review. State v. Hebert, 277 Kan. 61, 104, 82 P.3d 470 (2004). . Lesser included offenses are defined by K.S.A. 2006 Supp. 21-3107(2) 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 State does not contend nor would we conclude that subsections (a), (c), or (d) apply here. The determinative question in this appeal is whether all the elements of severity level 7 aggravated battery are identical to some of the elements of abuse of a child. We have recently noted that the proper analysis of whether a crime is a lesser included offense of another crime has changed since the amendment of K.S.A. 21-3107 in 1998. Instead of examining whether the lesser crime is necessarily proven by the factual proof of the primary crime, the strict elements test limits the question to a comparison of the abstract elements of the offenses charged. The current test no longer takes into account the factual nuances of a specific case as they may bear on satisfaction of the statutory elements of both crimes under examination. See State v. McKissack, 283 Kan. 721, 727, 156 P.3d 1249 (2007). This statutory change has also undermined some of our case law predating 1998 wherein we conducted a lesser included offense analysis. Here, we are required to perform a straightforward comparison of the elements of these offenses, i.e., unless all the elements of either 21-3414(a)(l)(B) or (C) are identical to some of the elements of 21-3609, we must conclude that the former is not a lesser included offense of the latter. The statutory elements of these crimes are as follows: K.S.A. 21-3609: Abuse of a child “Abuse of a child is intentionally torturing, cruelly beating, shaking which results in great bodily harm or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.” K.S.A. 21-3414: Aggravated battery “(a) Aggravated battery is: "(1)(A) (B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or (C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” Comparing the elements of the respective offenses, and turning first to K.S.A. 21-3414(a)(l)(B), this offense clearly includes as an element “intentionally causing bodily harm.” This element is not included in K.S.A. 21-3609, which includes only intentional acts resulting in bodily harm. As we explained in State v. Hupp, 248 Kan. 644, 653, 809 P.2d 1207 (1991), K.S.A. 21-3609 “does not contain an element of intent to injure; it only requires an intent to do the act which caused injury. [Citation omitted.]” We emphasized that “[a]n intent to injure is not implicit in ‘cruelly beating or inflicting cruel and inhuman corporal punishment.’ It is the act of hitting and hurting that is made a crime.” 248 Kan. at 653. Although the statute has been amended since Hupp, an intent to injure is also not implicit in torturing or shaking; based upon the amendments, it is any of the acts of torturing, beating, and shaking that are made a crime. See L. 1995, ch. 251, sec. 12; L. 1993, ch. 291, sec. 60; L. 1992, ch. 298, sec. 37. We note that child abuse may be the result of actions that are not intended to cause injury. See, e.g., Benfer, Intentional Act, Unintended Injuries: Shaken Child Syndrome Cases, 31 J.K.T.L.A. 6 (2007). Applying K.S.A. 2006 Supp. 21-3107(2)(b), and finding that an element of 21-3414(a)(1)(B) is not among the elements of 21-3609, we must conclude that the former is not a lesser included offense of the latter. Examining the elements of K.S.A. 21-3414(a)(l)(C), this offense clearly includes at least two elements that are not included within K.S.A. 21-3609. First, K.S.A. 21-3414(a)(l)(C) includes as an element “physical contact.” This element is not an element of K.S.A. 21-3609, which may be committed through a host of methodologies that do not require any physical contact whatsoever, such as starvation, lock-up, or parental ostracism. Second, K.S.A. 21- 3414(a)(1)(C) includes as an element that the contact be “done in a rude, insulting or angry manner.” This element is also not an element of 21-3609, which may be committed purely out of frustration with a seemingly uncontrollable child and without any “rude, insulting, or angry” motive whatsoever. Having found that at least two elements of K.S.A. 21-3414(a)(l)(C) are not among the elements of K.S.A. 21-3609, the former is not a lesser included offense of the latter. The appellant urges us to affirm the Court of Appeals based upon the rationale of State v. Allison, 16 Kan. App. 2d 321, where the court concluded that simple battery under K.S.A. 21-3412 is a lesser included offense of abuse of a child. In Allison, the court acknowledged that the elements of the two crimes “are not described in identical language” but held that the statutory elements of battery are among tire statutory elements required to prove child abuse. 16 Kan. App. 2d at 323. Alderete urges us to apply this reasoning and result, arguing that the difference between battery and severity level 7 aggravated battery is merely the degree of bodily harm caused. For the same reasons that we conclude above that all the elements of aggravated battery are not within the elements of child abuse, we would also conclude that all the elements of simple battery are not within the elements of child abuse. To the extent Allison concluded otherwise, it is expressly disapproved, and to the extent Alderete I relied on Allison, it is also disapproved. Battery is not a lesser included offense of abuse of a child. Our analysis is consistent with State v. Riles, 24 Kan. App. 2d 827, where the Court of Appeals held that abuse of a child is not a lesser included offense of severity level 4 aggravated battery. There the court explained: “Aggravated batteiy involves the intent to injure and the actual infliction of bodily harm. Neither of. those are required to prove abuse of a child. [Citation omitted.] Abuse of a child involves cruel and inhuman corporal punishment, intentional torture, cruel beating, or severe shaking of a child under 18. This is a separate crime from aggravated battery, not a more specific version of that offense. The crimes are directed at two different actions. [Citation omitted.]” 24 Kan. App. 2d at 829. See also State v. Young, 14 Kan. App. 2d 21, 31, 784 P.2d 366, rev. denied 245 Kan. 788 (1989) (convictions for child abuse and ag gravated batteiy do not merge, because abuse of a child requires a showing that the victim was under 18 years of age and aggravated battery does not). The facts here provide an example of overlapping offenses; the elements necessary to prove abuse of a child and severity level 7 aggravated batteiy overlap in this case, in that both crimes involve intentional physical contact done in an angry manner which results in great bodily harm. Nevertheless, as we explained in State v. Schoonover, 281 Kan. at 498, the notion that there may be a factual overlap between the statutes does not necessarily lead to a conclusion that severity level 7 aggravated battery is a lesser included offense of abuse of a child. Rather, as our application of a strict elements test reveals, severity level 7 aggravated battery contains elements additional to those required to prove abuse of a child. The result is inescapable: severity level 7 aggravated battery under K.S.A. 21-3414(a)(l)(B) or (C) is not a lesser included offense of abuse of a child under K.S.A. 21-3609. Because severity level 7 aggravated battery is not a lesser included offense of abuse of a child, the district court correctly refused Alderete’s request for such an instruction. The Court of Appeals’ conclusion to the contrary must be reversed. Davis, Beier, and Johnson, JJ., not participating. Greene, and Buser, JJ., and Larson, S.J., assigned.
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The opinion of the court was delivered by Six, J.: The issues for review relate to a car stop and the K.S.A. 22-2402 concept of “reasonable suspicion” prior to defendant Timothy Potter’s arrest. Potter contends: (1) The arresting officer did not have reasonable suspicion to stop the car as required by K.S.A. 22-2402; and (2) the stop, which resulted in his arrest, was invalid. Potter was convicted of aggravated robbery, K.S.A. 21-3427. The trial court denied Potter’s pretrial motions to quash his arrest and to suppress the evidence seized and the statements he made. We affirm the trial court. The stop and the search that followed were based upon reasonable suspicion. The provisions of K.S.A. 22-2402 were not violated. Facts At approximately 2:00 a.m. on February 15, 1988, a convenience store in north Sedgwick County was robbed by two men dressed in camouflage suits and with black greasepaint on their faces. Joseph Lang, a Sedgwick County deputy sheriff, received the report of the robbery over his radio. Lang was assigned to the southeastern part of Sedgwick County during the late night hours of February 14 and the early morning hours of February 15. Shortly before 4:00 a.m., Lang was patrolling the area of South 47th and Clifton when he noticed a Chevrolet Camaro which he thought was “suspicious.” He testified that the area of 47th and Clifton had been subject to gas run-offs, vandalism, and auto thefts. During a ten-minute period, Lang noticed a Camaro pass through a Kwik Shop parking lot and drive through the parking lot of a small shopping center several times. The Kwik Shop was open; however, all the businesses in the shopping center were closed. He also noted that the car circled around several other businesses which were on the street. In Lang’s opinion, the persons in the vehicle were either lost or engaged in some type of criminal activity. Lang pulled up behind the vehicle as it turned onto a residential street and noticed that the vehicle did not have a license tag. Although the vehicle did have a piece of paper in the rear window, the rear window was fogged over and, therefore, he could not tell what the paper was. Lang turned on his red lights and the vehicle pulled over. Lang testified that, although a temporary permit is six inches wide, due to the slant of the rear window of the Camaro, the slip of paper appeared to be only two to three inches wide. As Lang approached the vehicle, he discovered that the slip of paper was, in fact, a valid 30-day permit. As he looked into the rear window, Lang noted that the person in the back seat was wearing a camouflage outfit and had black greasepaint on his face. Lang then noticed that the individual seated in the front passenger seat was also dressed in camouflage and had black greasepaint on his face. Remembering the previous radio report, Lang stepped back from the vehicle, drew his revolver, and told the occupants of the vehicle to place their hands on the ceiling of the vehicle while he called for backup. The previous radio report had stated that the robbers were armed with a knife and what appeared to be a .22 caliber pistol. Potter was identified by Lang as the person in the front passenger seat of the car, dressed in a green camouflage shirt and pants and with black greasepaint on his face. Lang testified that he did not observe any moving violations prior to stopping the vehicle. Potter’s motion to suppress evidence seized and statements made and his motion to quash his arrest were denied. The parties entered into a stipulation of facts. The relevant portions have been set out in the opinion. K.S.A. 22-2402 and Reasonable Suspicion K.S.A. 22-2402 states: “(1) Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions. “(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may search such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.” In his motion to suppress and motion to quash before the trial court, Potter argued that the arrest was in violation of his Fourth and Fifth Amendment rights under the United States Constitution. In his appellate brief, he does not raise the constitutional argument but does contend that Lang did not have reasonable suspicion as required by K.S.A. 22-2402, and, therefore, the stop was invalid. Both parties cite State v. Jackson, 213 Kan. 219, 222, 515 P.2d 1108 (1973), in which we stated, “[E]ven though ‘stop and frisk’ has now been codified in 22-2402, police conduct in a ‘stop and frisk’ situation must be judged under the reasonable searches and seizures clause of the Fourth Amendment to the Constitution of the United States.” In Jackson, the defendant was stopped by a deputy sheriff as he was walking along a deserted stretch of highway at approximately 3:00 a.m. Upon searching the defendant, the deputy discovered about fifteen sets of car keys in the defendant’s left pocket. The deputy arrested the defendant for vagrancy. The keys were discovered to have been burglarized from a car dealership and defendant was subsequently charged with burglary. We observed that, although the incident occurred early in the morning, there was no evidence presented that there had been burglaries in the area and defendant did not act in a furtive manner. His conduct was not suspicious. We held that the stop authorized by K.S.A. 22-2402 requires that a law enforcement officer must have prior knowledge of facts or observe conduct of a person which causes the officer to reasonably suspect that such person is committing, has committed, or is about to commit a crime. In order to justify the search for weapons authorized under the provisions of subsection (2) of 22-2402, the officer must have prior knowledge of facts or observe conduct of the person or receive responses to the limited interrogation authorized by subsection (1) which, in the light of his experience, would cause the officer to reasonably suspect that his personal safety requires such search. 213 Kan. at 225. We stated: “The reasonableness of a search is, in the first instance, a substantial determination to be made by the trial court from the facts and circumstances of the case. [Citation omitted.] In the light of officer O’Dell’s testimony in the instant case it cannot be said the trial court erred in suppressing the evidence in question.” 213 Kan. at 225. In the case at bar, although Lang did not at first associate the Camaro with the earlier robbery in north Sedgwick County, he testified that the area in which he saw the Camaro had previously been subject to vandalism and other crimes. In addition, the Camaro drove through the parking lot of a shopping mall in which all the businesses were closed. It also drove through the parking lot of another business that was open, without stopping. In State v. Epperson, 237 Kan. 707, 703 P.2d 761 (1985), a Wichita police officer was patrolling an area that had been the site of several recent burglaries when he noticed an expensive automobile, with two occupants, legally parked on the street. This court found that the officer s actions constituted a “stop” and that the trial court was correct in its determination that the stop was not based on a reasonable or articulable suspicion of criminal activity. 237 Kan. at 713. The State and Potter both cite Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). In Terry, a plainclothes detective noticed the defendant and another man. The behavior of the two men was described as follows: “[The detective] saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece — in all roughly a dozen trips.” 392 U.S. at 6. The United States Supreme Court found that the detective had reasonable grounds to believe that the two individuals were “casing” the store for a holdup and that he was therefore justified in detaining the two men and patting them down for weapons. The activity observed by Lang in Potter’s case is sufficient to invoke the application of the Terry rule. The instant case activity is characterized as more suspicious than the behavior observed either in Jackson or in Epperson. Potter’s case carries a distinguishing factual situation from Jackson and Epperson. Deputy Lang had reason to believe that the vehicle in which Potter was a passenger was not properly tagged. Lang testified that he did not turn on his lights to pull the car over until he had ascertained that there was no permanent tag on the vehicle. He could not determine if there was a temporary permit attached to the rear window. In Delaware v. Prouse, 440 U.S. 648, 663, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979), the United States Supreme Court held: “[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion.” Deputy Lang had reasonable suspicion pursuant to K.S.A. 22-2402. His initial stop of the vehicle was therefore valid. Affirmed.
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The opinion of the court was delivered by Six, J.: The first issue for review relates to whether we have jurisdiction under K.S.A. 1989 Supp. 44-556(a) to hear the appeal. We find that we have jurisdiction. The second issue for review is one of statutory construction, in a workers compensation context, to determine the meaning of “a full hearing on the claim” as set out in K.S.A. 1989 Supp. 44- 534a. The claimant Corrine Sawyer’s interpretation was not persuasive with either the administrative law judge, the director, or the trial court. We are extending a fourth tier of consideration to the issue. We agree with the three previous decisions and affirm. Corrine Sawyer appeals from the judgment of the trial court denying her: (1) medical and disability compensation for the period of September 19, 1985, through January 23, 1987, pursuant to a January 1983 preliminary hearing order, and (2) penalties for nonpayment. Her employer, its insurance carrier, and the Workers Compensation Fund (the Fund) are the respondents. The demand for penalty payments was filed by Sawyer under K.S.A. 1989 Supp. 44-512a. She asserts no claim against the Fund. The issues considered present questions not previously addressed by an appellate court of this state. Facts The facts are not in dispute but are stated here to provide an understanding of the claims of the parties. The facts are adequately set out in the April 11, 1988, order of the administrative law judge: “Claimant was injured December 17, 1981. A preliminary hearing was held before a Special Administrative Law Judge, December 29, 1982, at which time temporary total disability benefits, in the amount of $186.68 per week, were ordered paid by the respondent [Oldham’s Farm Sausage Company] and insurance carrier [Argonaut Insurance Company] until further order, commencing November 9, 1982, as well as medical treatment until further order. The order was dated January 3, 1983. “On June 8, 1983, respondent’s application to terminate temporary total disability compensation was heard and denied. On January 11, 1985, another application by respondent and insurance carrier to terminate temporary total disability compensation was heard and likewise denied. “Terminal dates were set for the completion of the taking of evidence and, on or about September 19, 1985, an award was made for temporary total disability benefits, at the increased rate of $187.00 per week, and medical benefits. A review of the Administrative Law Judge’s award was taken by the respondent, insurance carrier and fund to the Director, pursuant to K.S.A. 44-551(b), within 10 days after the award was made. Pending the outcome of the review at the Director’s level, the respondent and insurance carrier ceased paying temporary total disability benefits, which it had been dutifully paying, pursuant to the orders on preliminary hearing, pursuant to K.S.A. 44-534a. The temporary total disability benefits were terminated as of October 16, 1985. “On June 19, 1986, claimant’s attorney made demand upon respondent and insurance carrier for payment of the temporary total disability benefits ordered by the Special Administrative Law Judge, January 3, 1983. At that point, there had not been an order entered by the Director on review. The Director’s order came down January 23, 1987, modifying the award of September 19, 1985, making an award for 21.71 weeks of temporary total disability compensation and no permanent partial disability compensation. Respondent and insurance carrier paid some $36,000.00 in compensation to claimant under the preliminary hearing order, some $32,000.00 in excess of what was ultimately found to be due to claimant. In essence, claimant contends that the Administrative Law Judge’s order entered pursuant to the preliminary hearing remained in effect notwithstanding the award made September 19, 1985.” A district court (the record does not specify which district court) affirmed the director’s final award of 21.71 weeks of temporary total disability compensation on April 6, 1987. Apparently, neither the director nor the district court addressed the issue raised in this appeal at the time of the final award. The April 6, 1987, order of the district court affirming the director’s award was never appealed by Sawyer. Sawyer’s request for penalties was denied by the administrative law judge. Sawyer requested the director’s review, as provided for in K.S.A. 44-551(b). The director affirmed the order of the administrative law judge. Sawyer then petitioned for review to the district court of Jackson County. The district court affirmed the decision of the director. Jurisdiction The Fund argues that we do not have jurisdiction to hear this appeal. The Fund contends that, because Sawyer did not appeal from the April 6, 1987, district court decision affirming the director’s award, the case is moot. The administrative law judge’s ruling on Sawyer’s claim for penalties and additional compensation was made on April 11, 1988, more than one year after the trial court’s affirmance of the director’s award. K.S.A. 1989 Supp. 44-556(a) provides in part: “Any action of the director pursuant to the workers compensation act shall be subject to review in accordance with the act for judicial review and civil enforcement of agency actions. Such review shall be upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented . . . .” (Emphasis added.) “Decisions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases.” K.S.A. 77-623. Since K.S.A. 1989 Supp. 44-556 provides for judicial review of any action of the director, we have jurisdiction to hear this appeal. “In the appeal of a workmen’s compensation case under G. S. 1957 Supp. 44-556, the supreme court has full authority to review questions of law.” Roth v. Hudson Oil Co., 185 Kan. 576, Syl. ¶ 1, 345 P.2d 627 (1959). This appeal involves the nonpayment of temporary total disability benefits that were awarded on a preliminary basis but were later determined not to be owed. Under the April 6, 1987, final award of the district court, Sawyer has already received benefits greatly in excess of what was ultimately determined to be owed to her. She did not appeal from this judgment of the district court, but demanded back payments and penalties pursuant to the preliminary order. We do not know why the issues raised herein were not considered by the administrative law judge, the director, or the trial court in its April 6, 1987, affirmance of the final award. Those proceedings are not in the record before us. We view K.S.A. 1989 Supp. 44-556 as controlling. The director took action on Sawyer’s claims for benefits and penalties after the April 6, 1987, district court affirmance; consequently, we have jurisdiction. K.S.A. 1989 Supp. 44-534a Pursuant to a preliminary hearing, Sawyer was awarded temporary total disability benefits of $186.68 a week in January 1983. K.S.A. 1989 Supp. 44-534a provides in part: “After filing an application for a hearing pursuant to K.S.A. 44-534 and amendments thereto, the employee may make application for a preliminary hearing, in such form as the director may require by rules and regulations, on the issues of the furnishing of medical treatment and the payment of temporary total disability compensation .... Upon a preliminary finding that the injury to the employee is compensable and in accordance with the facts presented at such preliminary hearing, the director or administrative law judge may make a preliminary award of medical compensation and temporary total disability compensation to be in effect pending the conclusion of a full hearing on the claim. . . . No such preliminary findings or pre liminary awards shall be appealable by any party to the proceedings, and the same shall not be binding in a full hearing on the claim, but shall be subject to a full presentation of the facts.” (Emphasis added.) “The fundamental rule of statutory construction is that the intent of the legislature governs. [Citation omitted.] When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Hill v. Hill, 13 Kan. App. 2d 107, 108, 763 P.2d 640 (1988). A regular hearing was held, and the administrative law judge made his award on September 19, 1985. The September 19 award marked the “conclusion of a full hearing on the claim” as contemplated by K.S.A. 1989 Supp. 44-534a. The preliminary award was terminated as of that date. Pursuant to K.S.A. 44-551(b), the respondents made a timely application to the director for review of the administrative law judge’s award. In Harper v. Coffey Grain Co., 192 Kan. 462, Syl. ¶ 3, 388 P.2d 607 (1964), we held that: “an award of the examiner in a workmen’s compensation case does not become the final award of the director until the expiration of ten days after it is filed, or until a request for review, filed within the ten-day period by an interested party, is determined by the director.” The Harper court held that, until a workers compensation award becomes a final award pursuant to the rule stated above, the compensation is not due the claimant and the claimant cannot invoke the provisions of 44-512a. K.S.A. 1989 Supp. 44-512a sets out the procedure under which an injured employee can enforce the award of compensation when the employer or its insured has failed to pay compensation when due. This action arose because of a demand for payment of compensation filed by Sawyer pursuant to K.S.A. 1989 Supp. 44-512a. Sawyer contends that, because the September 1985 award did not become a final award pursuant to the Act until the review by the director, the January 1983 award remained in effect. The respondents contend that the September 1985 award terminated the January 1983 award. The parties seem to agree that if the September 1985 award terminated the temporary January 1983 award, the respondent was not obligated to make any payments to Sawyer pending the final order of the director. Sawyer argues that, because an award does not become final until review by the director pursuant to K.S.A. 44-551, “the conclusion of a full hearing on the claim” has not occurred until the director has reviewed the award. The respondents argue that K.S.A. 1989 Supp. 44-534a is unambiguous. They contend that if the legislature had meant for a preliminary award to remain in effect until the final award of the director, the statute would have said “final award of the director,” rather than “the conclusion of a full hearing on the claim.” Sawyer reasons that to disallow the payment of preliminary benefits during the pendency of review of the award of final benefits would be contradictory to the purpose and intent of the Workers Compensation Act. “This court has long been committed to the rule of liberal construction of the Workmen’s Compensation Act in order to award compensation to a workman where it is reasonably possible to do so.” Chapman v. Wilkenson Co., 222 Kan. 722, Syl. ¶ 2, 567 P.2d 888 (1977). The administrative law judge, the director, and the district court concluded that Sawyer was not entitled to any more benefits. In fact, Sawyer, according to the administrative law judge, received approximately $32,000 in excess of what was ultimately determined to be owed to her. She now seeks penalties pursuant to K.S.A. 1989 Supp. 44-512a for nonpayment of benefits to which she is not entitled. The district court made the following analysis: “As it so happens in this case, the award was made for temporary total disability compensation, the same as was ordered in the Special Administrative Law Judge’s order following the preliminary hearing. In most cases, however, an award is made for permanent partial disability compensation rather than ongoing temporary total disability compensation. To put the matter into perspective, if the award had been for, say, twenty one (21) weeks of temporary total disability compensation and three hundred ninety four (394) weeks of permanent partial disability compensation, at the rate of 10%, can there be any serious doubt but what the award would have superseded the preliminary hearing order? It would appear that the Respondent and Insurance Carrier under such circumstances would have a right to make no payment under the award until the matter was ruled upon by the Director. During the interim, surely no remedy would lie by the Claimant for the enforcement of an order for temporary total disability compensation entered prior to the award, which was contradictory to it. Using the same analogy here, Claimant’s request for penalties should fail.” The administrative law judge, the director, and the district court all agreed that the respondents did not owe penalties under K.S.A. 1989 Supp. 44-512a. “We give great weight and judicial deference under the doctrine of operative construction to the interpretation of a statute by the adminstrative body charged with enforcing the statute.” National Gypsum Co. v. Kansas Employment Security Bd. of Review, 244 Kan. 678, 682, 772 P.2d 786 (1989). The phrase, “the conclusion of a foil hearing on the claim,” appearing in K.S.A. 1989 Supp. 44-534a, refers to the date of the award entered by the administrative law judge as a result of the hearing held after the preliminary hearing. The “preliminary award” referred to in K.S.A. 1989 Supp. 44-534a is terminated as of that date. The review by the director referred to in K.S.A. 44-551(b) does not determine “the conclusion of a full hearing on the claim.” Affirmed.
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The opinion of the court was delivered by Lockett, J.: Maynard Patterson (plaintiff/appellant) appeals the entry of summary judgment for Richard W. Brouhard (defendant/ appellee) in a personal injury action. The district court sustained Brouhard’s motion for summary judgment on the theory that Patterson’s negligence claim should have been brought as a compulsory cross-claim against Brouhard in the case of John Hoffer Chrysler Corporation v. Maynard L. Patterson and Richard W. Brouhard, a limited actions claim filed in Shawnee County. That case had been dismissed with prejudice at the request of plaintiff John Hoffer Chrysler Corporation. On March 5, 1986, after vehicles driven by Brouhard and Patterson collided in an intersection, one or both of those vehicles collided with a vehicle owned by John Hoffer Chrysler Corporation (Hoffer). On February 5, 1987, Hoffer filed a limited action against Patterson and Brouhard seeking $775.42 for property damage. Both defendants were served, and the action was set on the limited action appearance docket for March 9, 1987. At the docket call, an attorney entered an appearance for defendant Patterson. Prior to any formal responsive pleading, based on plaintiff Hoffer’s motion, the limited action was dismissed by the court with prejudice on April 13, 1987. Judge Thomas Regan signed the journal entry which stated that “no settlement or compromise exists as to any claims the defendants may have against each other or any third party.” Prior to the dismissal of the action, no cross-claim had been filed by Patterson in the limited action for damages caused by Brouhard. On February 18, 1988, Patterson filed this action against Brouhard under the Code of Civil Procedure, K.S.A. 60-101 et seq. Brouhard filed an answer on July 25, 1988. Approximately one year later, Brouhard was allowed to amend his answer to assert that Patterson had failed to file a compulsory cross-claim in the prior limited action. On April 5, 1989, Brouhard moved for summary judgment, claiming that Patterson’s negligence action was barred as a matter of law because it was not asserted as a cross-claim in the prior limited action. On June 23, 1989, the district judge, relying on Banister v. Carnes, 9 Kan. App. 2d 133, 675 P.2d 906 (1983), granted summary judgment for Brouhard. Patterson appeals. Banister was a small claims action where a dentist sued his patient for professional fees. In Banister, the trial court entered a default judgment against the former patient when she failed to make an appearance. A year later the patient filed a malpractice action against the dentist. Based on the prior default judgment in small claims court, the dentist moved to dismiss under K.S.A. 61-2705, which provides that defendants in small claims actions “shall file” counterclaims against plaintiffs which arise “out of the same transaction or occurrence.” Banister, 9 Kan. App. 2d. at 135. The Kansas Court of Appeals affirmed the trial court’s entry of summary judgment based on “the language of the statute” which made the counterclaims compulsory. Banister, 9 Kan. App at 135. To overcome the harshness of the decision in Banister, the 1990 legislature amended 61-2705 by H.B. 2439, so that a counterclaim exceeding the amount allowed in a small claims action may be filed as a counterclaim in the small claims action or brought in a separate action. Patterson contends the district court’s reliance on Banister in deciding that the failure to file a compulsory cross-claim in a limited action bars a subsequent suit is misplaced. He argues that the holding in Banister is to be narrowly applied only to compulsory counterclaims in small claims actions; therefore, the Banister rationale should not be extended to cross-claims in a limited action. We agree with the district court’s reasoning that, even though Banister involved a small claims counterclaim, the Banister rationale also applies to the failure to file a compulsory cross-claim in a limited action; however, we disagree with the district court’s grant of summary judgment. 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. Danes v. St. David’s Episcopal Church, 242 Kan. 822, 830, 752 P.2d 653 (1988); Hollingsworth v. Fehrs Equip. Co., 240 Kan. 398, 400, 729 P.2d 1214 (1986). When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Danes v. St. David’s Episcopal Church, 242 Kan. at 830; Hollingsworth v. Fehrs Equip. Co., 240 Kan. at 401. The legislature has provided three separate procedures to resolve civil claims, the Small Claims Procedure Act, K.S.A. 61-2701 et seq.; the Code of Civil Procedure for Limited Actions, K.S.A. 61-1601 et seq.; and the Code of Civil Procedure, 60-101 et seq. The Small Claims Procedure Act provides a simple method for recovery of money or personal property where the value does not exceed $1,000. K.S.A. 1989 Supp. 61-2703. The trial of all small claims actions is to the court, and no party to the action is allowed to be represented by an attorney prior to judgment. K.S.A. 1989 Supp. 61-2707. The Code of Civil Procedure for Limited Actions may be used where the amount in controversy or otherwise claimed as damages, excluding cost and interest, does not exceed $5,000. K.S.A. 61-1603. It allows the parties the right to a six-person jury trial, if requested. K.S.A. 61-1716. Certain specific actions are excluded from the jurisdiction of the Code of Civil Procedure for Limited Actions. K.S.A. 61-1603. Any civil action may be brought under the Code of Civil Procedure, K.S.A. 60-101 et seq. The legislature stated that each of the acts is to be liberally construed to secure the just, speedy, and inexpensive determination of every action or proceeding. Certain provisions of the Code of Civil Procedure are incorporated by statute into both the Small Claims Procedure Act and the Code of Civil Procedure for Limited Actions. The Civil Procedure for Limited Actions adopts by reference certain provisions of article 2 of chapter 60 of the Kansas Statutes Annotated. The pleadings allowed in a limited action are set forth in K.S.A. 61-1706, which incorporates pleadings set forth in K.S.A. 60-207, i.e., a petition and an answer; a reply to a counterclaim; an answer to a cross-claim, if the answer contains a cross-claim; a third-party petition, if a person who was not an original party is summoned; and a third-party answer, if a third-party petition is served. However, the only pleading required in a limited action is a petition filed by the plaintiff, except that a defendant who seeks affirmative relief by way of setoff or counterclaim, or who asserts an affirmative defense, shall file appropriate pleadings. K.S.A. 61-1706. Recause K.S.A. 61-1709 incorporates 60-213(g) into the procedure for limited actions, when the comparative negligence of the parties to the limited action is an issue, a cross-claim against a co-party is compulsory. Here, both of the defendants in the limited action had been served with summonses, and their attorneys had entered appearances for their clients. Because they had no setoff, counterclaim, or affirmative defense to the plaintiffs claim, neither defendant was required to file an answer to the plaintiffs petition. The procedure for a plaintiff to dismiss a limited action is stated in K.S.A. 60-241, which is incorporated into the Code by reference in K.S.A. 61-1725(f). K.S.A. 60-241 states in part: “(a) Voluntary dismissal; effect thereof (1) By plaintiff; by stipulation. Subject to the provisions of subsection (e) of K.S.A. 60-223 and of any statute of the state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Where the dismissal is by stipulation the clerk of the court shall enter an order of dismissal as a matter of course. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. “(2) By order of court. Except as provided in paragraph (1) of this subsection, an action shall not be dismissed at the plaintiffs instance save upon order of the judge and upon such terms and conditions as the judge deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiffs motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.” K.S.A. 60-241 provides the methods by which a plaintiff may dismiss his action. The plaintiff may dismiss the action prior to service of an answer by a defendant or the filing of a motion for summary judgment. If an answer or a motion for summary judgment has been filed, the plaintiffs right to unilaterally dismiss the action has ended and to dismiss the action the plaintiff must obtain permission from all parties or an order of the court. When the attorneys entered their appearances for Patterson and Brouhard at the limited action docket call, their entries of appearance constituted a general denial of the plaintiffs claim. To dismiss the action, K.S.A. 60-241(a) required the plaintiff to obtain approval of all the parties or obtain an order of the court allowing the dismissal of the action. The journal entry of dismissal submitted and approved by the court states: “Now on this 13th day of April, 1987, comes on for hearing the plaintiff s oral motion to dismiss all of his claims and causes of action against the defendants, Maynard Patterson and Richard Brouhard, in the above-captioned matter. “Thereupon, counsel for plaintiff advises the Court that the parties have been able to reach an agreeable compromise settlement of all of the known and unknown claims, demands and causes of action that the plaintiff may have against the defendants arising out of an accident on March 3, 1986 in Topeka, Shawnee County, Kansas, as more folly described and set forth in the plaintiffs Petition. Counsel for plaintiff further advises the Court that since the parties have now been able to reach a full and complete compromise settlement, limited to the property damage, no settlement or compromise exists as to any claims the defendants may have against each other or any third party. Plaintiffs claims and causes of action against the defendants in the above-captioned matter should be dismissed with prejudice. “After hearing the statements of counsel and being advised of the law and the premises surrounding the matter the Court finds and orders that the plaintiffs motion should be and is hereby sustained and that all of the plaintiffs claims and causes of action against the defendants in the above-captioned action are dismissed with prejudice. The costs of this action are assessed to the plaintiff. “IT IS SO ORDERED. isi_:_ Honorable Thomas W. Regan” Hoffer, under K.S.A. 60-241(a)(2), had the action dismissed by order of the judge, upon such terms and conditions the judge deemed proper. Whether a dismissal should be granted rests in the sound discretion of the court, but, unless the defendant will suffer some plain legal prejudice, the dismissal should ordinarily be granted. Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, 326, 469 P.2d 272 (1970). In order to alleviate any harm to defendant which might result from dismissal, the statute also gives the court discretion to dismiss the action without prejudice “upon such terms and condition as the judge deems proper.” Cheek v. Hird, 9 Kan. App. 2d 248, 251, 675 P.2d 935 (1984). Patterson claims that because the journal entry in the limited action stated that “no settlement exists as to any claims the de fendants may have against each other or any third party,” the district judge clearly intended to preserve Patterson’s cause of action against Brouhard. Patterson then concludes that the dismissal of the limited action without a judicial determination of comparative fault and Judge Regan’s language in the order dismissing that action allowed him to file his claim against Brouhard in the second action. On the other hand, Brouhard characterizes the journal entry as an ex parte order which, if allowed, would permit Patterson to defeat the statutory requirement to litigate all claims in one lawsuit. Under the facts of this case, we disagree with Brouhard’s characterization of the judge’s order and conclusions of the legislature’s intent. The legislature, by adopting K.S.A. 60-258a, imposed individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even where one or more parties cannot be joined formally as a litigant or held legally responsible for his or her proportionate fault. It was also the intent of the legislature to fully and finally litigate in a single action all causes of actions and claims for damages arising out of any act of negligence. It is the public policy of this state that all parties are entitled to a just, speedy, and inexpensive determination of every action or proceeding. Neither the legislature nor this court ever intended to place form over substance and preclude an injured party from proceeding against a tortfeasor when there had been no judicial determination of comparative fault. Mathis v. TG&Y, 242 Kan 789, 751 P.2d 136 (1988). A motion for voluntary dismissal by order of the court is addressed to the sound discretion of the court, with relief to be awarded consistent with justice and equity, and the decision is to be in accordance with what is the fairest result and causes the least hardship to the other parties. When a plaintiff moves for dismissal of an action, the court must consider whether the dismissal would be conducive to the fair administration of justice; whether undue expense, inconvenience, or prejudicial consequences to defendants would be involved; and whether reasonable terms and conditions are just to the rights of the defendants. Dismissal of a plaintiffs action should be allowed even where the defendant suffers the prospect of a second lawsuit. It is no bar to the dismissal even if the plaintiff may obtain some tactical advantage by such dismissal, or that the defendant may lose the defense, a period of limitation, or suffer a second lawsuit. Gideon v. Bo-Mar Homes, Inc., 205 Kan. at 326. The terms and conditions which the district court may impose upon dismissal of an action at the instance of the plaintiff are for the protection of the substantive rights of the defendants. The district court must weigh all the equities of the case, including the rights of the parties and how they will be affected, and what benefits or injuries may result to the respective sides in the controversy if a dismissal is granted. Upon review by an appellate court, the inquiry whether the district court abused its discretion in granting the plaintiffs motion to dismiss his action against the defendants with prejudice and preserving any claim existing between the other parties to the lawsuit is confined to whether the situation and circumstances clearly show an abuse of discretion, i.e., an arbitrary action that failed to apply the appropriate equitable and legal principles under the facts and circumstances of the case. After reviewing the record, we find that the district court’s prior dismissal of the limited action without prejudice to the rights of the defendants was not an abuse of judicial discretion; therefore, the district court’s granting of summary judgment in this action because of the prior dismissal must be reversed. Reversed and remanded for further proceedings.
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The opinion of the court was delivered by Allegrucci, J.: Petitioner, Mid-America Pipeline Company (Mid-America), brought this action seeking a mandatory injunction ordering appellees to remove four buildings constructed over petitioner’s pipeline easement and a preventive injunction prohibiting further construction. The trial court found that appellees violated the easement and ordered construction be halted but, instead of ordering the buildings removed, ordered that the pipelines be relocated with petitioner paying the majority of the costs. The Court of Appeals affirmed the district court in an unpublished opinion filed August 4, 1989. We granted Mid-America’s petition seeking review of the decision of the Court of Appeals approving the order to relocate the pipelines. Petitioner Mid-America is a common carrier pipeline company that transports LPG products and anhydrous ammonia through high-pressure pipelines. In 1960, it was granted an easement to construct, operate, and maintain pipelines across realty presently owned by appellees. Mid-America constructed three pipelines pursuant to the easement before appellees acquired the realty. The easement provides, in part: “It is agreed that the pipeline or pipelines to be laid under this grant shall be constructed at sufficient depth below the surface of the ground to permit normal cultivation, and Grantor shall have the right to fully use and enjoy the above described premises, subject to the rights herein granted. “Grantee shall have the right to clear and keep clear all trees, undergrowth and other obstructions from the herein granted right of way, and Grantor agrees not to build, construct or create, nor permit others to build, construct or create any buildings or other structures on the herein granted right of way that will interfere with the normal operation and maintenance of the said line or lines.” The Wiethams purchased the property in 1971. Although the previous owner of the real estate testified that the pipeline easement was discussed at the time the Wietharns examined the property and decided to buy it, Galen Wietharn testified that he did not realize the pipelines existed when he acquired the farm. Nonetheless, the easement was properly recorded with the register of deeds in Clay County at the time the Wiethams purchased the farm. The Wietharns began to develop a hog operation in 1973 by building a finishing floor, which had a concrete slab floor located over the easement. In 1978, Galen Wietharn constructed a second building to hold the sows until they had litters, followed by a third building, a grower/finishing building. Both buildings were located over the easement. A fourth building, built in the mid-1970s and referred to in the record as building No. 4, was not over the easement. Building No. 5, a farrowing house or maternity ward, was built in 1983 over the easement. The Wiethams built four additional structures in the same area that were not over the easement. Finally, in 1987, when the Wiethams were in the process of building the 10th building in this complex, Mid-America filed suit asking for a temporary and a permanent injunction to stop construction over the easement. The district court issued a temporary restraining order. The Wietharns answered the petition and counterclaimed, asking the district court to order Mid-America to remove the pipelines from under the Wietharns’ buildings at Mid-America’s expense. The parties stipulated that the easement existed when the Wietharns purchased the property and that the Wietharns constructed buildings on the easement in 1973, 1978, and 1983. A trial to the court was held on May 26 and 27 and on July 14, 1988. Galen Wietharn testified that he first became aware of the presence of the pipelines in 1973 during construction of building No. 1, when a trencher hit a pipeline while digging a hole for installation of the water line. Mid-America patched the line. At the trial, Galen Wietharn testified that Jim Patterson, a terminal operator for Mid-America, came to the farm whenever construction occurred between 1973 and 1987, except for once when Patterson apparently was on vacation. Galen noted that Patterson was always concerned about the pipelines and informed the Wietharns that they should not be building over the easement. According to Galen, Patterson stated: “Just wish you wouldn’t build on it. Damn, this pipeline is dangerous. It might blow up.” This comment was repeated “a bunch of times” and Patterson was always frightened of the construction over the pipelines. Patterson testified that, when he was called to the Wietharns’ farm, he refused to spot lines if this assisted building a facility over the pipelines. Each time Patterson became aware that the Wietharns were building over the pipelines, he reported this to his superiors. In 1978, when he reported that the Wietharns were constructing building No. 3, Patterson’s superiors told him to be sure that the Wietharns knew that what they were doing was illegal. Patterson testified that the company was concerned from the beginning and, over time, concluded that it had no choice but to sue the Wietharns to stop their construction. Patterson also recognized that pilots flew over the pipeline easement at least every other week and probably would have reported the construction. Kent Fisher, also an employee of Mid-America, went to the farm in 1983 to put up warning and caution signs along the easement, both inside and outside of the buildings. Fisher indicated he knew Galen Wietharn’s son, Bob, from high school. When Bob told Fisher that they intended to build more buildings over the easement, Fisher tried to convince Bob not to do so because, if a leak occurred, it would be necessary to dig up the pipelines, which would involve digging through the buildings. Fisher indicated Bob Wietharn seemed to think he was joking about the seriousness of the problem of building over the pipelines. The manager of the central division of Mid-America, which included the Wietharns’ farm, became aware in the early 1980s that the Wietharns were building over the lines. According to him, it was not a policy of Mid-America to allow people to build over the lines. Previously, Mid-America always convinced people not to build over the pipelines after talking with them. Mid-America sued in 1987 because the Wietharns ignored Mid-America’s warning not to build over the easement and that was the only way Mid-America knew to stop the construction. In a journal entry filed on October 4, 1988, the trial court found Mid-America was entitled to an injunction to halt construction of additional structures on the pipeline easement but refused a mandatory injunction to remove the buildings already constructed. Considering equitable principles, the district court ordered that the pipelines be moved with the Wietharns paying the lesser of $50,000 or 40% of the relocation costs. Mid-America appealed the decision of the district court and the Wietharns filed a notice of cross-appeal concerning the portion of the pipelines’ relocation costs assessed against them. Mid-America raises several issues in this appeal; however, we need address only the first as it is dispositive of this appeal. Appellant contends that the district court erred in denying injunctive relief to remove buildings constructed over the easement and instead ordering the pipelines moved. At trial, the Wietharns argued that the easement was unclear in stating that construction was not permitted “that will interfere with the normal operation and maintenance of the said line or lines.” The Wietharns argued they were not aware of the easement when they began constructing building No. 1. When Mid-America failed to halt construction while the Wietharns built this and additional buildings, they believed this construction did not “interfere with the normal operation and maintenance of” the lines. In their cross-appeal, the Wietharns do not challenge the decision by the trial court that they violated the easement. Failure to challenge this issue on appeal precludes any argument by the Wietharns that they did not violate the easement. Mid-America sought an injunction to stop further construction and to remove buildings located on the easement. An injunction is an order to do or refrain from doing a certain act. K.S.A. 60-901. Injunctions apply to future events rather than to past or completed acts. Mandatory injunctions require performance of an act, while preventive, or prohibitory, injunctions require a party to refrain from doing an act. To obtain injunctive relief from prospective injury, a party must show that a reasonable probability of injury exists and that an action at law will not provide adequate remedy. Mere apprehension or possibility of wrong or injury ordinarily does not warrant the granting of an injunction. State ex rel. Stephan v. Pepsi Cola Gen'l Bottlers, Inc., 232 Kan. 843, 845, 659 P.2d 213 (1983); Clawson v. Garrison, 3 Kan. App. 2d 188, 195-96, 592 P.2d 117 (1979). The district court incorrectly concluded that it did not have the power to enter a mandatory injunction requiring the Wietharns to remove the buildings already built on the right-of-way. A mandatory injunction is an extraordinary remedy used to effectuate full and complete justice by commanding the performance of a positive act. Although the granting of a mandatory injunction is governed by the same rules as the granting of preventive injunctions, courts are more reluctant to grant a mandatory injunction. Therefore, usually only prohibitory injunctions are entered. A party seeking a mandatory injunction must clearly be entitled to that form of relief. Prophet v. Builders, Inc., 204 Kan. 268, 273, 462 P.2d 122 (1969). The decision to grant or deny a mandatory injunction rests within the discretion of the trial court and should not be disturbed on appeal unless an abuse of discretion is shown. Because an injunction is an equitable remedy, equitable principles apply to the decision of whether to grant a mandatory injunction. In Cave v. Henley, 125 Kan. 214, 217, 264 Pac. 25 (1928), this court stated: “[W]here the interference of a court of equity would cause the encroaching defendant ruinous and needless loss and expense, and where equity’s refusal to interfere would cause little or no practical inconvenience to the party sustaining the encroachment, and where all damage to the latter could be adequately compensated by a plain remedy at law, the rule is that the aggrieved party will be remanded to his action at law, and relief by mandatory injunction denied.” In Cave, the evidence at trial indicated that the only encroachment was cement that seeped over onto plaintiff’s property along the lot line and hardened before defendant had an opportunity to remove it. The court concluded that the damage sustained by plaintiff was small compared to the cost of removal of the building and that plaintiff did not show he was without adequate remedy at law for the encroachment. 125 Kan. at 217-18. In denying the mandatory injunction here, the trial court relied upon the decision in State ex rel. Stephan v. Pepsi Cola Geni Bottlers, Inc., 232 Kan. 843, which, as the Court of Appeals correctly pointed out, is distinguishable from the situation at hand. In Pepsi Cola, plaintiff challenged an advertising promotion that had ceased. Because no evidence indicated a similar campaign would be conducted in the future, the issuance of a mandatory injunction would not have been appropriate. 232 Kan. at 844-45. Here, the Wiethams’ construction of buildings on Mid-America’s easement created a continuing violation that did not cease with the completion of the building. Furthermore, the Wiethams indicated their desire to build additional buildings over the right-of-way. The issuance of a mandatory injunction was appropriate to protect Mid-America’s rights under the easement while a preventive injunction could be issued to prohibit further construction on the easement. A mandatory injunction was issued in Aladdin Petroleum Corporation v. Gold Crown Properties, Inc., 221 Kan. 579, 561 P.2d 818 (1977), where the grantor or seller of the real estate preserved a right-of-way easement for access to his property. The court recognized that the creation of an easement of a definite width, length, and location controlled, and any additional attempt to determine reasonableness of the width was inconsistent with the nature of the easement granted. 221 Kan. at 585. The court in Aladdin noted that an obstruction or disturbance of an easement is anything that wrongfully interferes with the privilege to which the owner of the easement is entitled by making its use less convenient and beneficial than before. To be actionable, however, the interference with the easement must “ ‘be of a material character such as will interfere with the rea sonable enjoyment of the easement/ ” 221 Kan. at 588 (quoting 28 C.J.S., Easements § 96, pp. 778-79). Thus, the owner of a right-of-way has no right to erect buildings on the right-of-way even if their presence does not interfere with its use as a mere passageway. The court noted: “ ‘The rights of the owner of the servient estate in this regard are limited to the erection of such structures as are compatible with the rights of those entitled to use the way. If by the terms of the grant or reservation the way must be of a certain width, no structures can be erected which encroach on the width stated. Where, however, there is merely a general undefined right of way, it is only necessary that there should be sufficient space left to afford a convenient passage.’ ” Aladdin, 221 Kan. at 588 (quoting 28 C.J.S., Easements § 97, p. 779). The court held that construction of carports over a portion of the easement for passage of a definite width wrongfully impaired and interfered with the privilege of passage held by the owner of the definite easement. Plaintiff was entitled to a mandatory injunction ordering the carports removed. 221 Kan. at 588. The easement here provided for “a right of way sixty (60) feet in width, said right of way being twenty (20) feet on the North/ West side and forty (40) feet on the South/East side of a line (to be) (as) surveyed and definitely established by the centerline of the initial pipeline constructed.” This was a right-of-way of a definite width. The Wietharns’ buildings were wrongfully constructed on the easement. The Court of Appeals correctly found that the trial court erred in concluding that mandatory injunctive relief was not available. Having determined that the district court had the power to order the buildings removed, the question arises whether it could order alternative remedies. Because circumstances allowing the issuance of a mandatory injunction arise under equitable principles when remedies at law are not available to remedy the wrong, the trial court could fashion an appropriate solution to the problems that arose. To the trial court, the appropriate solution was to issue a mandatory injunction which required Mid-America to move the pipelines and, concurrently, required the Wietharns to grant Mid-America a new easement and to pay up to 40% of the cost or a maximum of $50,000 for movement of the pipes. The district court limited Mid-America’s recovery for the Wietharns’ violation of the easement because Mid-America did not file a lawsuit immediately to enjoin the Wiethams from infringing upon the easement but, instead, allowed them to continue building their hog facility. Also, because the 10 buildings were situated for maximum efficiency in the operation of pig production, removal of the four buildings located over the pipeline right-of-way would damage the entire operation, involving more than just the expense of moving the buildings situated on the easement. The Court of Appeals concluded that, even though the trial court erroneously found that no power existed to issue a mandatory injunction, Mid-America’s delay in filing suit still provides grounds for denying a mandatory injunction ordering removal of the buildings. Although the decisions by the district court and the Court of Appeals are confusing in their use of estoppel, the Court of Appeals correctly noted that, although the parties discuss at length the application of the principle of equitable estoppel, the doctrine was not applied because Mid-America was not precluded from recovery. However, the Court of Appeals approved the trial court’s consideration of Mid-America’s delay when determining the interests of the parties in this case, noting: “ ‘Equity aids the vigilant and not those who slumber on their rights.’ ” Quoting Rex v. Warner, 183 Kan. 763, 771-72, 332 P.2d 572 (1958). Relief may be denied “ ‘where the individual, having knowledge of rights which he may assert, has failed to act, with the result that another has acted upon the assumption that such rights do not exist or will not be asserted.’ ” Quoting 27 Am. Jur. 2d, Equity § 130, pp. 658-59. Here, the decision of the appropriate relief to be granted rested within the discretion of the trial court and should not be disturbed on appeal unless abuse of discretion is shown. In determining whether a trial court abused its discretion, an appellate court must consider whether no reasonable person would agree with the trial court. If any reasonable person would agree, then the appellate court should not disturb the trial court’s decision. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988). The problem here is that the trial court incorrectly found that it had no power to issue a mandatory injunction but, by ordering the pipelines moved, it did issue a mandatory injunction. Furthermore, the trial court used principles of equitable estoppel in formulating the remedy apparently without realizing that equitable estoppel would bar recovery by Mid-America. Finally, the trial court ignored repeated attempts by Mid-America employees, short of filing a lawsuit, to convince the Wietharns to stop further building and to inform them of the danger being created by building over the right-of-way. In Neiman v. Davis, 170 Kan. 208, 225 P.2d 124 (1950), this court concluded that mere silence by a plaintiff cannot work as an estoppel against her but, instead, plaintiff must do something or conceal something which defendants did not know. Mere inactivity is not sufficient to allow the operation of the principles of laches or estoppel. Thus, when defendants moved a partition fence several hundred feet onto plaintiffs property and made permanent improvements, plaintiff, who had not objected, was not barred in filing a lawsuit over nine years later to stop defendants from obtaining title by adverse possession. The trial court found Mid-America’s delay in asserting its claims to be “inequitable in the extreme” because it knew for 14 years that the Wietharns were constructing buildings on the easement. Although the trial court could consider Mid-America’s lack of diligence, it erred in characterizing the conduct of Mid-America as doing nothing. Galen Wietharn admitted that Jim Patterson came to the property several times, was always concerned about construction over the pipelines, and was afraid the pipelines might explode. Bob Wietharn also testified that he was aware Jim Patterson was concerned that building over the pipelines was dangerous. Mid-America argues that the trial court should not have balanced equities after finding that the easement rights were violated because the Wietharns could not claim to be innocent respondents. The easement was recorded at the time the Wietharns purchased the property; therefore, they were charged with constructive knowledge of the existence of the pipelines. Furthermore, the Wietharns struck the pipelines during construction of their first building, yet continued to build over the right-of-way for the next 14 years. Mid-America argues the trial court should have ordered the buildings removed without further consideration of the equities. For support, Mid-America directs this court’s attention to several decisions of other jurisdictions. In Papanikolas Bros. Ent. v. Sugarhouse Shopping Ctr. A., 535 P.2d 1256, 1259 (Utah 1975), the court stated: “The benefit of the doctrine of balancing the equities, or relative hardship, is reserved for the innocent defendant, who proceeds without knowledge or warning that he is encroaching upon another’s property rights. Where the encroachment is deliberate and constitutes a wilful and intentional taking of another’s land, equity may require its restoration, without regard for the relative inconveniences or hardships which may result from its removal.” The restrictive covenant in Papanikolas involved land used for automobile parking that defendants sought to encumber by construction of a service station. Defendants argued that laches should bar enforcement by plaintiffs because a sign announcing upcoming construction of the service station was erected months earlier and plaintiffs did nothing. Plaintiffs observed construction in August of 1970, when a prefabricated building was being erected. Counsel for the parties exchanged letters during August and September of 1970, and the action was filed in March 1972. The trial court concluded that laches did not apply because plaintiffs took no action that worked to the disadvantage of defendants, and the Utah Supreme Court approved that decision. The Washington Supreme Court upheld a trial court’s refusal to balance equities when defendants built an apartment building in violation of plaintiffs’ riparian rights and over plaintiffs’ protest. Plaintiffs had sought a temporary injunction pending trial on the merits. That injunction was denied and defendants continued building during the period before the case came to trial. The trial court issued a mandatory injunction ordering removal of the apartment building even though the maximum possible loss to defendants greatly exceeded the possible loss to plaintiffs. In affirming the trial court, the appellate court noted: “The benefit of the doctrine of balancing the equities, or relative hardship, is reserved for the innocent defendant who proceeds without knowledge or warning that his structure encroaches upon another’s property or property rights.” Bach v. Sarich, 74 Wash. 2d 575, 582, 445 P.2d 648 (1968). Cf. Warsaw v. Chicago Metallic Ceil ings, Inc., 35 Cal. 3d 564, 199 Cal. Rptr. 773, 676 P.2d 584 (1984). We agree with Mid-America that the district court should not have ordered alternative remedies. Here, Mid-America did nothing to mislead the respondents or to misrepresent or conceal material facts. Nor did Mid-America induce respondents to erect the four buildings on the easement. In fact, it did just the opposite by repeatedly informing the respondents that they should not build on its easement. Even if Mid-America had not repeatedly warned the respondents, silence or inaction, absent misrepresentation or concealment of material facts, does not constitute estoppel. Neiman v. Davis, 170 Kan. 208. In addition, the respondents had constructive and actual notice of Mid-America’s easement, and both parties agree the construction of the buildings on the easement created a dangerous situation that must be corrected. Mid-America also argues its delay in filing suit does not bar the availability of relief by a mandatory injunction because the Wietharns were attempting to extinguish the easement by adverse possession. Pursuant to K.S.A. 60-503, the statutory time period for divestment of an interest in real property is 15 years. An easement is an interest that one person has in the land of another. Potter v. Northern Natural Gas Co., 201 Kan. 528, 530, 441 P.2d 802 (1968). The action was filed within 15 years of when the Wietharns first began to build over the easement. Furthermore, the Wietharns. continued to build over the easement up to the time Mid-America filed this suit and obtained a temporary injunction. Respondents respond that adverse possession does not apply in that respondents have not taken any interest belonging to Mid-America. Respondents contend they did not appropriate Mid-America’s easement, thus depriving Mid-America of its pipeline. Respondents also contend that Mid-America’s silence on adverse possession is misplaced because respondents’ actions were not adverse to Mid-America’s easement, arguing: “In the present case, the Wietharns had every right to be upon the property covered by the easement, as the language of the easement did not prohibit them from coming upon the property, nor did it prohibit building per se. The only prohibition was building over the easement that would hinder normal operation or maintenance of the pipeline. This type of language in the easement, followed by the actions of the parties, indicated that it was unclear what type of building over the pipeline would be permitted by the easement. ” We do not agree. The easement clearly precludes the construction of “any buildings or other structures on the herein granted right of way that will interfere with the normal operation and maintenance of the said line or lines.” In Smith v. Hams, 181 Kan. 237, 311 P.2d 325 (1957), this court recognized that an easement can be terminated by adverse possession. The court, in reversing the trial court’s finding that an express easement created by a written driveway agreement had been terminated, said: “An easement may be terminated in other ways, such as by abandonment — where there must be an intention to abandon the easement and acts manifesting such intention, all of which does not appear from the record before this court. No assertion is made by the defendants that the easement has been abandoned. An easement may be terminated by adverse possession — which requires strong action on the part of the owners of the servient estate such as would entitle the owners of the dominant estate to maintain an action for obstructing their enjoyment of the easement. (28 C.J.S., Easements, § 63, p. 729.) While it is unnecessary to go into detail on this point and burden the opinion, since the trial court found specifically that the defendants had asserted rights of adverse possession against the plaintiffs or their predecessors in title for a period of less than fifteen years, the evidence in all fairness does not indicate such assertion until about April, 1950, approximately twenty-six months prior to the time this lawsuit was filed. Whether or not rights have been acquired by reason of adverse possession is a question of fact for the trial court and will not be disturbed on appeal, unless all the competent and creditable evidence compels a different conclusion. (Tucker v. Hankey, 173 Kan. 593, 250 P.2d 784.) We must, therefore, conclude that the express easement created by the written driveway agreement was not terminated by adverse possession.” 181 Kan. at 251. In Rueckel v. Texas East. Transm. Corp., 3 Ohio App. 3d 153, 444 N.E.2d 77 (1981), plaintiffs sought damages for pine trees damaged or destroyed in the course of maintenance operations on the pipeline right-of-way carried out by defendant. Plaintiffs planted the trees, intending to eventually sell them as commercial timber for a profit, but when removed they were of no commercial value. The rights-of-way had been maintained for 25 years free and clear of trees, or other obstructions, and had been used for planting corn. The trial court determined that plaintiffs were not entitled to grow trees along the rights-of-way, and defendant had the right to remove trees that obstructed, unreasonably burdened, and interfered with the exercise of their rights as easement owners. Although the trial court examined damages needed to compensate the plaintiffs for removal of the trees, the appellate court found this totally inconsistent with the prior findings, stating: “If, in fact, the court is going to restrict the landowners from engaging in activities which are inconsistent with or interfere with the easement rights of the defendants, then it follows, that if the plaintiffs plant trees on their property which obstruct, unreasonably burden and interfere with the exercise of the easement, including the right to engage in appropriate pipeline maintenance operations, then the growing of such trees is inconsistent with the easement rights of defendants and is prohibited under the rights-of-way grants and plaintiffs are not entitled to compensation for the trees that are removed.” 3 Ohio App. 3d at 158. Clearly, in the present case Mid-America could have maintained an action against the respondents for obstructing its enjoyment of the easement. Thus the respondents, by constructing the buildings on the easement, asserted rights of adverse possession against Mid-America. For that reason, Mid-America’s delay in taking affirmative action to stop the construction was relevant only to whether the easement was terminated by adverse possession. Here, the trial court, having found the respondents violated the easement, mistakenly believed that it did not have the power to grant a mandatory injunction, yet it entered such an injunction by ordering that the pipelines be moved. In so doing, the trial court ignored its findings that the respondents knowingly violated the easement; that Mid-America repeatedly warned the respondents not to build on the easement; that the construction of the four buildings created a continuing danger; and that a leak occurring at this point in the pipeline could require demolition of all or part of the buildings to effect the repair. The respondents were not innocent parties acting without knowledge of the easement or the pipeline. It is difficult, if not impossible, to imagine how the construction of buildings or structures could interfere more with the normal operation and maintenance of the pipeline than the buildings constructed by the respondents in the present case. To find otherwise would render the previously quoted lan guage in the easement meaningless and Mid-America’s rights thereunder illusory. Since Mid-America has clearly defined rights under the easement that are recognized and protected by law, the district court should not have balanced the equities. Where, as in the present case, the remedy at law is inadequate, equity will fashion a remedy that enforces that legal right. However, in so doing, equity will follow the law and not ignore it. Osment v. Trout, 156 Kan. 120, 131 P.2d 640 (1942). We conclude that the district court erred by ordering that the pipeline be relocated rather than issuing a mandatory injunction ordering that the four buildings be removed from the easement. The judgment of the Court of Appeals is reversed. The judgment of the district court is reversed, and the case is remanded with directions that the district court issue a mandatory injunction ordering the removal of the four buildings from the easement and that the respondents be enjoined from constructing any type of building or structure on the petitioner’s easement.
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Per Curiam: This is an original proceeding in discipline filed by the office of the disciplinary administrator against Allan D. Morphett, of Prairie Village, an attorney admitted to the practice of law in Kansas. Three separate cases are included in the formal complaint. The facts are not disputed. In November 1987, complainant retained respondent to defend her in a lawsuit filed in the District Court of Johnson County, Kansas. The complainant paid respondent a retainer of $200 and hand-delivered the check to him on or about November 16, 1987. Respondent informed complainant that she had good defenses to the lawsuit and that the case was fairly simple. Respondent filed no written answer, affirmative defenses, or counterclaims to the petition and served no discovery requests. Complainant heard nothing further from respondent. She became concerned about a court date and made numerous attempts to contact respondent by telephone without success. On February 29, 1988, respondent was served with notice of trial setting. The trial was set for March 24, 1988, at 10:00 a.m. in Johnson County District Court. Respondent did not notify complainant of the trial. On March 24, 1988, a default judgment was entered against complainant in the amount of $1,508.35 plus interest and costs. Respondent did not appear for trial and did not notify complainant that a default judgment had been entered against her. The journal entry of default was filed March 30, 1988. Fifteen days after the entry of default, on April 8, 1988, respondent filed a motion to set aside the judgment. Respondent represented to the court that he was made aware that default judgment had been entered approximately 30 minutes after the same had occurred. Respondent indicated he had missed the court date due to clerical error. The motion to set aside the judgment was denied after a hearing to the court on April 15, 1988, and the order was filed on May 9, 1988. Respondent did not notify complainant of the hearing or the results of the hearing. On or about May 31, 1988, complainant’s employer was served with an order of garnishment. This was the first notice complainant had that judgment had been entered against her. She made numerous attempts to contact respondent by telephone and left messages on his answering machine but was unsuccessful in reaching him. Respondent did not return her telephone calls or return the retainer. Orders were subsequently obtained directing complainant to pay, and her wages were garnished throughout 1988 and 1989 to satisfy the judgment. At her initial consultation with respondent, complainant also had sought his services to assist her in negotiating repayment of her student loan incurred for her education at Platt College. Complainant’s income tax refund has been held by the government to apply toward the loan. Respondent never communicated with her regarding this matter. In the second complaint, on or about August 24, 1988, complainant retained respondent to renegotiate a lease for his business. Respondent requested a retainer of $200, which was paid. Respondent told complainant that he would write a letter to complainant regarding the renegotiation of the lease and assist him. Complainant began calling respondent to learn of the status of the negotiations approximately one week after meeting with him. Respondent did not return his telephone calls and did not correspond with complainant. On October 7, 1988, complainant sent respondent a certified return-receipt letter advising him his services were no longer needed and requesting return of the $200 retainer fee and the documents provided to respondent. Respondent did not return the money or reply to the letter. Complainant retained other counsel to renegotiate his lease. On October 28, 1988, and November 21, 1988, complainant’s counsel wrote to respondent and made demand on behalf of complainant for return of the documents and retainer. Respondent did not reply to the correspondence and has never repaid the $200. In the final complaint, complainant retained respondent to probate the estate of his mother. Complainant was advised respondent would require a retainer of 5% to 10% of the value of his mother’s estate as a “good starting point.” Respondent prepared a petition for probate of will under the Kansas Simplified Estates Act and filed the petition on October 14, 1987. Complainant was the sole heir under the will to his mother’s estate. On November 12, 1987, respondent and complainant attended the hearing on the petition for probate of will and the appointment of complainant as executor. Respondent requested and was paid by check the sum of $1,500 as a retainer that same day. Respondent cashed the check. Complainant heard nothing further from respondent. He made numerous attempts to contact respondent by telephone, but his messages went unanswered. On or about May 2, 1988, complainant received an inheritance tax closing letter from the Kansas Department of Revenue advising him of Kansas inheritance tax due. At the time complainant had retained him, respondent advised complainant that there would be no inheritance taxes on his mother’s estate. In September 1988, complainant was able to reach respondent and met with him in person. Respondent advised complainant he was having personal problems but assured him he would “finish the job” and maintain weekly contact with complainant. Complainant heard nothing further from respondent. Complainant retained the services of another attorney to complete the probate proceedings. He wrote to respondent on March 13, 1989, discharging him and requesting an itemization of legal services performed as of that date. Respondent did not reply to the letter and has never returned any portion of the retainer to complainant. In each case, respondent failed to return the telephone calls or to respond to correspondence from the attorney appointed to investigate the complaints. A formal complaint was filed by the disciplinary administrator against the respondent on September 12, 1989. A hearing was held before the Kansas Board for Discipline of Attorneys on October 20, 1989. The respondent appeared neither in person nor by counsel. The panel concluded that there was clear and convincing evidence that respondent’s actions with respect to the first complaint were a violation of Supreme Court Rule 225, DR 1-102(A)(1), (4), and (5) (1989 Kan. Ct. R. Annot. 147); DR 6-101(A)(3) (1989 Kan. Ct. R. Annot. 169); DR 7-101(A)(2) and (3) (1989 Kan. Ct. R. Annot. 174); DR 9-102(B)(2) and (3) (1989 Kan. Ct. R. Annot. 185); MRPC 1.1 (1989 Kan. Ct. R. Annot. 196); MRPC 1.3 (1989 Kan. Ct. R. Annot. 199); MRPC 1.4(a) (1989 Kan. Ct. R. Annot. 200); MRPC 1.15(a), (b), and (d)(1) and (2) (1989 Kan. Ct. R. Annot. 226); MRPC 8.4(a), (c), (d), and (g) (1989 Kan. Ct. R. Annot. 268); and Supreme Court Rule 207 (1989 Kan. Ct. R. Annot. 125). Respondent’s actions with respect to the second complaint were a violation of MRPC 1.1; MRPC 1.3; MRPC 1.4(a); MRPC 1.15(a), (b), and (d)(1) and (2); MRPC 8.4(a), (c), (d), and (g); and Supreme Court Rule 207. Respondent’s actions with respect to the final complaint were a violation of DR 1-102(A)(1), (4), (5), and (6); DR 6-101(A)(3); DR 7-101(A)(2) and (3); DR 9-102(B)(2), (3), and (4); MRPC 1.1; MRPC 1.3; MRPC 1.4(a); MRPC 1.15(a), (b), and (d)(1) and (2); MRPC 8.4(a), (c), (d), and (g); and Supreme Court Rule 207. The panel unanimously recommended that respondent be disciplined by disbarment from the practice of law pursuant to Supreme Court Rule 203(a)(1) (1989 Kan. Ct. R. Annot. 120). Respondent was directed to appear before this court pursuant to Supreme Court Rule 212(d) (1989 Kan. Ct. R. Annot. 132), but failed to do so. After carefully reviewing the record in this action, we agree with and adopt the panel’s findings, conclusions, and recommendations. It Is Therefore Ordered that Allan D. Morphett be and he is hereby disbarred from the practice of law in this state, and the clerk of the appellate courts is directed to strike his name from the roll of attorneys authorized to practice law in Kansas. It Is Further Ordered that respondent shall comply with the provisions of Rule 218 (1989 Kan. Ct. R. Annot. 138). It Is Further Ordered that the costs of the proceeding be assessed to the respondent, and that this order be published in the official Kansas Reports.
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The opinion of the court was delivered by Allegrucci, J.: This is an original action in mandamus brought by the attorney general against the Kansas Racing Commission (Commission), individual members of the Commission, and James R. Cobler, Director of Accounts and Reports. At issue is the $250,000 deposit paid by Sunflower Racing, Inc., (Sunflower) pursuant to K.S.A. 1989 Supp. 74-8815(d). The attorney general is asking this court to find that the statute mandates forfeiture of the deposit and requests an order compelling respondents to perform their duty pursuant to the statute by refraining from obtaining or delivering the $250,000 deposit to Sunflower. The facts are not in dispute. On November 4, 1986, the Kansas Constitution was amended to permit horse and greyhound racing with a parimutuel system of wagering. Kan. Const, art. 15, § 3b. The Kansas Parimutuel Racing Act, K.S.A. 1989 Supp. 74-8801 et seq. was enacted on May 28, 1987. Members of the Commission, which conducted its first regular meeting in August 1987, included former Kansas Supreme Court Chief Justice Alfred Schroeder, former Wyandotte County Sheriff and Highway Patrol Superintendent Bert Cantwell, former Representative H. Philip Martin, former District Court Judge Kay Arvin, and former veterinarian and University of Kansas Professor Harry Anthony. All are respondents in this action. On March 3, 1988, The Racing Association of Kansas-Southeast (TRAK) filed an application for an organization license to conduct greyhound races, and Sunflower Racing, Inc., (Sunflower) filed an application for facility owner and facility manager licenses to construct, own, operate, and manage a greyhound racing facility in Pittsburg, Crawford County, Kansas. TRAK contracted with Sunflower to conduct its races at Sunflower’s track. Initially, R.D. Hubbard and Richard J. Boushka owned equal stock in Sunflower. Sunflower’s owner and facility manager applications were accompanied by a nonrefundable application fee of $5,000 for each license for a total of $10,000. K.S.A. 1989 Supp. 74-8815(c). Sunflower also filed a deposit of $500,000, which was an appropriate amount for a racing schedule that would include more than 150 racing days in a year. K.S.A. 1989 Supp. 74-8815(d). When a conditional license was subsequently issued for less than 150 racing days during the calendar year, it was established that the deposit need be only $250,000; the excess $250,000 was refunded to Sunflower, which the attorney general concedes was appropriate. The deposit at issue in this action is the remaining $250,000. On March 7, 1988, two additional groups applied for licenses to construct and operate a greyhound racing facility in Crawford County, Kansas. The Little Balkans Foundation filed an application for an organization license, Camptown Racing, Inc., filed for a facility manager license, and Camptown Development Limited Partnership filed for a facility owner’s license. This group will hereinafter be referred to as Camptown/Little Balkans. In addition, O.G.B. Charities, Inc., (OGB) applied for an organization and facility owner’s license, and Crawford County Racing, Inc., for a facility manager license. On September 16, 1988, the Commission conditionally granted the following three licenses: An organization license to TRAK pursuant to K.S.A. 1989 Supp. 74-8802(n) and K.S.A. 1989 Supp. 74-8813, and facility owner and facility manager licenses to Sunflower pursuant to K.S.A. 1989 Supp. 74-8802(f) and (g) and K.S.A. 1989 Supp. 74-8815. The TRAK organization license is not at issue in this action. Applications of the two competing groups, Camptown/Little Balkans and OGB, were denied. The owner and manager licenses issued to Sunflower were expressly conditioned upon providing a financial commitment approved by the Commission as required by K.S.A. 1989 Supp. 74-8815(j). 'The order, which gave Sunflower 150 days from the date of licensing to submit a commitment for financing, stated: “(a) Sunflower Racing, Inc., shall promptly enter final negotiations with its lender or lenders and shall file with the commission within 150 days following the date of this order final loan documents of all lenders participating in the loan commitment, security documents and all other evidence of indebtedness, guarantees or assurances necessary to obtain closing of the construction loan described in the verified application. The documents shall be substantially in the form described in the verified application. Closing of the loan shall be completed to the commission’s satisfaction and approval within 150 days of this date, unless this order is extended. “(d) Sunflower Racing, Inc., shall adhere to the plans and specifications and the construction schedule set forth in the application except as approved by the commission after applicant files a revised schedule with the commission in the same format used for its application. Applicant shall diligently pursue the planning, acquisition, construction and completion of each phase of the project on the date set forth in the schedule subject to strikes, accidents, acts of God, weather conditions, documented shortage of labor and materials, litigation or other actions and circumstances beyond the control of the two applicants.” (Emphasis added.) In the order, the Commission concluded that issuance of licenses to Sunflower for a greyhound racing facility in Pittsburg/ Crawford County would facilitate management development and minimize operating cost because Sunflower was similarly licensed in Kansas City, Kansas. Finally, the order provided that failure to abide by the terms of the license and the conditions set forth therein would be just cause for the Commission to pursue statutory remedies. Kansas Racing Management, Inc., and Wyandotte County Economic Development, who were unsuccessful applicants for organization and facility owner licenses in the Kansas City, Kansas, area, appealed the Commission’s denial of their applications (KRM appeal). The Commission and Sunflower were both respondents in that litigation. The KRM appeal, which was decided February 27, 1989, in Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 770 P.2d 423 (1989), decided many, but not all, issues that were presented in Camptown/Little Balkans litigation involving the Pittsburg/Crawford County racetrack. Immediately after the Commission granted Sunflower a facility owner license, the Little Balkans Foundation petitioned this court for review of that decision, filing its petition on October 14, 1988. Camptown Racing, Inc., and Camptown Development Limited Partnership filed separate petitions for review with this court on October 17, 1988. These three cases were consolidated for briefing. Meanwhile, on October 28, 1988, the Commission approved a change in stock ownership in Sunflower Racing, Inc., with R.D. Hubbard owning 60% and and Richard J. Boushka owning 40% of the stock but with the voting control remaining equally divided by proxy agreement. On January 27, 1989, Sunflower requested a minimum 60-day extension for presentation of financing documents for approval by the Commission. In light of the pending litigation regarding Sunflower and the Pittsburg/Crawford County facility, as well as other contingencies, on February 3, 1989, the Commission agreed to extend the time for approving TRAK’s financing documents until April 14, 1989, “with the understanding that the track would be built as scheduled, that the lender would be the same as the Kansas City facility and that the non-profit group was provided notice and was in agreement.” Pursuant to K.S.A. 1989 Supp. 74-8815(j), the Commission can authorize additional time for a facility owner licensee to submit a commitment for financing. The statute does not prescribe a minimum nor a maximum period of time or limit the Commission to a single extension. On March 11, 1989, Sunflower asked the Commission for an additional six months in which to file its loan documentation for the Pittsburg/Crawford County facility, pointing out that the pending appeals had caused potential lenders to refuse to finalize loans for the construction of the Pittsburg facility. The Commission took the request under advisement. On April 21, 1989, Camptown/Little Balkans objected to any additional time for Sunflower’s submission of a financial commitment, but the Commission tabled the request for one week. On April 28, 1989, the Commission granted Sunflower an extension of six months to file financing documents or by the 15th day after an opinion issued by this court in the Pittsburg area licensing appeal. Thereafter, on May 2, 1989, Camptown/Little Balkans voluntarily dismissed their Pittsburg area licensing appeal. By this time, Sunflower’s original proposed lender, a Miami, Florida, bank, had withdrawn its financial support of the Pittsburg/Crawford County facility. On May 12, 1989, the Commission granted Sunflower an extension until June 23, 1989, to seek alternative financing and to file financing documents. Documents were filed with the Commission on June 22, 1989, that included an assignment to a new partnership including a buyout of R.D. Hubbard’s interest in the Kansas City track. A principal of one of the new partners was Paul W. Bryant, Jr., who would assume primary responsibility for financing the Pittsburg/Crawford County racetrack. Bryant presented a $12 million letter of commitment from First Alabama Bank. The Commission was asked to approve an agreement in which TRAK assumed a management agreement identical to its previous one with Sunflower. The request included a complete audit of Sunflower. Pursuant to K.S.A. 1989 Supp. 74-8815(e), the Commission must find at the time of licensure that the means and sources of financing the facility are “sufficient to convince the commission that such plans are feasible.” On June 23, 1989, Sunflower requested modification of its license order for the Pittsburg/Crawford County racetrack because it was not possible to obtain financing due to the pending litigation. On June 30, 1989, the Commission granted conditional approval of the proposal to buy out R.D. Hubbard’s interest in the Kansas City and Pittsburg/ Crawford County tracks by the Greene Group, Inc., which was led by Bryant. The Commission gave the parties until August 1, 1989, to file finance and partnership documents. The approval, which was journalized in an order of July 14, 1989, was conditioned in part upon Bryant’s decision of whether to complete the proposed acquisition, which decision would be made after an audit but before July 31, 1989. In an order of July 14, 1989, the Commission approved assignment of the facility owner and the facility manager licenses of Sunflower Racing, Inc., to Sunflower Racing Partnership, a partnership to be formed by Sunflower Racing, Inc., and a subsidiary of the Greene Group, Inc. Loan documents submitted by Sunflower contained a commitment for financing by First Alabama Bank that reflected a 90% ownership by Kansas Pari-Mutuel Management, Inc., a wholly-owned subsidiary of the Greene Group, Inc., and only 10% ownership by Sunflower Racing, Inc., a limited partner. The officers of the Kansas Pari-Mutuel Management, Inc., would be Bryant, Sam M. Phelps, and A. Wayne May. Sunflower’s limited partnership gave the general partner the right to dismiss any and all managers from employment, to sell the assets of the partnership without the consent of the limited partner, and to keep the books and records of the partnership in Alabama. On August 4, 1989, Bryant and Sam Phelps, of the Greene Group, and R.D. Hubbard, of Sunflower, addressed the Commission, answering questions about financing and construction of parimutuel greyhound racing tracks. The Commission tabled the decision to consider the status of the $500,000 deposit, the fi nancing documents, and the allegations of Camptown/Little Balkans. The Sunflower Racing Limited Partnership (Sunflower/ Bryant) proposal would have changed the seating, parking, and other aspects of the Pittsburg/Crawford County racing facility. On or about August 4, 1989, after Assistant Attorney General Janet Chubb advised the Commission that Sunflower had filed final loan documents, the Commission exercised its discretion and rejected the Sunflower/Bryant proposal. On August 11, 1989, Sunflower distributed a letter asserting its desire to have the Commission approve its financing proposal, but offered to voluntarily return the conditional manager and owner licenses for Crawford County in exchange for the return of Sunflower’s $500,000 application deposit. In the letter, Sunflower recognized that the $500,000 deposit was $250,000 more than was needed for a racing schedule that involved fewer than 150 days of racing in a calendar year but explained that it left the overdeposit of $250,000 in the account as a good faith gesture with the Commission on the chance that extensions of the racing season would be sought. The Commission’s statutorily assigned legal counsel from the attorney general’s office then requested a formal attorney general’s opinion regarding the following inquiries: “(1) What is the status of the application deposit required by K.S.A. 1988 Supp. 74-8815(d) if the facility owner licensee voluntarily returns the conditional facility owner license to the commission? May the deposit be refunded, and if so, under what circumstances and statutory procedure!?] “(2) What is the status of the organization licensee’s license, K.S.A. 1988 Supp. 74-8813, when the facility owner licensee and facility manager licensee, contracted to construct and operate a racetrack, voluntarily return the conditional facility owner and conditional facility manager licenses to the commission!?]” Potential competitors Crawford County Racing, Inc., OGB, and Camptown/Little Balkans favored refunding to Sunflower its entire deposit. On August 25, 1989, the attorney general issued his opinion, No. 89-108, that the $250,000 application deposit required by K.S.A. 1989 Supp. 74-8815(d) is forfeited upon voluntary surrender of a facility owner’s license. The opinion concluded that a deposit is not forfeited unless the licensee failed to complete the racetrack facility in accordance with the terms of the license as provided by K.S.A. 1989 Supp. 74-8815(d). The opinion rejected the argument that no failure occurred by the facility owner licensee if the Commission requested a voluntary surrender of the license. Instead, the opinion stated: “[T]he commission generally should not be in a position of having to request surrender of a license if problems with the license do not exist.” Att’y Gen. Op. No. 89-108. Thus, the opinion concluded that the application deposit required by K.S.A. 1989 Supp. 74-8815(d) “is forfeited if the facility owner licensee voluntarily surrenders the license to the commission.” Att’y Gen. Op. No. 89-108. In response to this opinion, Sunflower’s offer to surrender the license for a racing facility in Pittsburg, Kansas, was withdrawn. The Commission tabled the issue of modification of the Sunflower license for four weeks pending an update of information from the KBI on Bryant and the Greene Group. On September 22, 1989, the Commission rejected the proposal of the Bryant group to restructure and refinance TRAK’s facility owner and manager, which was to be done by the Greene Group and Sunflower. At that time, Sunflower had fully complied with the orders of the Commission to submit financing documents. On October 13, 1989, the Commission determined that, if Sunflower’s $250,000 deposit was forfeited, it would not be used to benefit the racing industry but, instead, would go to the state gaming revenue funds. The Commission voted to request return of the facility owner and facility manager licenses from Sunflower because Sunflower had acted in good faith, but litigation and the Commission’s disapproval of the Bryant proposal prevented Sunflower’s fulfillment of the conditions. The Commission voted unanimously to accept Sunflower’s offer to return the licenses. When the attorney for Sunflower then asked for the remaining $250,000 application deposit, the Commission voted to return it because Sunflower complied with the Commission’s request for the license. The Commission also gave TRAK 60 days to propose a new facility owner/facility manager for the Crawford County racetrack project. Sunflower never began construction of the Pittsburg/Crawford County racetrack facility. At no time did the Commission find Sunflower’s means and sources of financing were not feasible under K.S.A. 1989 Supp. 74-8815(e), but instead exercised its discretion in rejecting the Sunflower/Bryant proposal. The Commission’s formal order disapproved assignment of the facility owner and facility manager licenses of Sunflower Racing, Inc., to Sunflower Racing Partnership, a partnership to be formed by Sunflower Racing, Inc., and a subsidiary of the Greene Group, Inc. The petition for mandamus was filed on October 18, 1989. This court denied the attorney general’s motion for a peremptory order but granted a temporary restraining order. We must first determine if mandamus is an appropriate remedy. Mandamus is a proceeding “to compel some inferior court, tribunal, board, or some corporation or 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.” K.S.A. 60-801. The Kansas Supreme Court is granted original jurisdiction in proceedings in mandamus by the Kansas Constitution, art. 3, § 3. This court has consistently recognized that mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that another adequate remedy at law exists. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 52, 687 P.2d 622 (1984); Board of Sedgwick County Commr's v. Noone, 235 Kan. 777, 779, 682 P.2d 1303 (1984); Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 26, 643 P.2d 87 (1982). Due to its summary and drastic nature, several safeguards have been developed to regulate use of the writ of mandamus. Issuance of the writ is discretionary with the court and a writ should not issue unless a respondent’s legal duty is clear. Huser v. Duck Creek Watershed Dist. No. 59, 234 Kan. 1, 4-5, 668 P.2d 172 (1983). Mandamus is not available to require performance of an act that involves the exercise of discretion by the public official. This court has stated that “mandamus may not be invoked to control discretion and neither does it lie to enforce a right which is in substantial dispute, and further, that resort to the remedy may be had only when the party invoking it is clearly entitled to the order which he seeks.” Lauber v. Firemens Relief Assn. of Salina, 195 Kan. 126, 128-29, 402 P.2d 817 (1965). The only acts of public officials that the courts can control by mandamus are those strictly ministerial, meaning the public officer or agent is required to perform based upon a given set of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion about the propriety or impropriety of the act to be performed. Arney v. Director, Kansas State Penitentiary, 234 Kan. 257, 261, 671 P.2d 559 (1983). Respondents argue that mandamus is not appropriate here because the legislature has given the Commission enormous discretion. Numerous provisions in the statutes delegate broad discretion to the Commission, such as the granting or denial of licenses, K.S.A. 1989 Supp. 74-8813(e). This broad discretion was recognized by this court in Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. at 346. Although the legislature did give the Commission broad discretion in regulating the racing industry in Kansas, the question presented by this mandamus action does not involve the exercise of that discretion. The question presented is whether the statute requires forfeiture of the deposit submitted with the application for a license. If the statute is interpreted as urged by the attorney general, forfeiture of this deposit will be a ministerial act mandated by the language of the statute and will not involve the exercise of discretion by the Commission. In many ways this case is similar to State ex rel. Stephan v. Smith, 242 Kan. 336, 347-49, 747 P.2d 816 (1987), which was an original action in mandamus against two judges regarding their orders establishing rules and panels for indigent defense services. The judges argued that they were merely exercising their broad discretion in appointing attorneys to represent indigent defendants. This court recognized that the regulations concerning appointment of counsel in criminal cases gave the trial court broad discretion but also contained several nondiscretionary duties. The issue before the court was whether the statutory and regulatory requirements concerning appointment of counsel for criminal defendants were constitutional and enforceable. We concluded that the mandamus action, which sought an interpretation of the law to guide public officials and concerned a matter of great public importance statewide, was an appropriate and a proper means for presenting the issues raised. Similarly, although the Commission here was given broad discretion by the legislature, the attorney general’s interpretation of the statute would require forfeiture of this deposit without involving the exercise of the Commission’s discretion. The issue is whether the language of this statute places a ministerial duty on the Commission to forfeit the deposit once the license is issued regardless of the reasons why a racetrack facility is not built. This concerns a matter of public importance and of statewide interest because of the racing Commission’s ongoing efforts to regulate the racing business in Kansas. We conclude that mandamus is an appropriate and proper means to decide this issue and interpret the law to guide the Commission in the performance of its duties. We turn to the issue of whether K.S.A. 1989 Supp. 74-8815(d) requires forfeiture of the $250,000 deposit once a license is issued, but a racetrack is not completed. The issue presented by the attorney general requires this court to interpret the provisions of K.S.A. 1989 Supp. 74-8815(d). The pertinent part of the statute provides: “If an applicant for a facility owner license is proposing to construct a racetrack facility, such applicant, at the time of submitting the application, shall deposit with the commission, in such form as prescribed by rules and regulations of the commission, the sum of . . . (2) $250,000, if such number of racing days applied for is less than 150 days; .... If the application is denied by the commission, the deposit, and any interest accrued thereon, shall be refunded to the applicant. If the license is granted by the commission in accordance with the terms of the application or other terms satisfactory to the applicant, the deposit, and any interest accrued thereon, shall be refunded to the licensee upon completion of the racetrack facility in accordance with the terms of the license. If the licensee fails to complete the racetrack facility in accordance with the terms of the license, the deposit, and any interest accrued thereon, shall be forfeited by the applicant.” (Emphasis added.) K.S.A. 1989 Supp. 74-8815(d). This same language is contained in K.S.A. 1989 Supp. 74-8813(b), regulating issuance of an organization license for a nonprofit organization. Because we are required to construe the language of K.S.A. 1989 Supp. 74-8815(d), we will first summarize the rules of statutory construction. The interpretation of a statute is a question of law. The function of the court is to interpret the statute, giving it the effect intended by the legislature. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984). The cardinal rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature govern when the intent can be ascertained from the statute. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987); In re Estate of Estes, 239 Kan. 192, 194-95, 718 P.2d 298 (1986); Kansas Krude Oil, 236 Kan. at 455. In construing statutes, the legislative intent must be determined from a general consideration of the entire act. If possible, effect must be given to all provisions of the act, and different provisions must be reconciled in a way that makes them consistent, harmonious, and sensible. Adee, 241 Kan. at 829; Estes, 239 Kan. at 195. The language of a statute that is designed to protect the public must be construed in light of the legislative intent and is entitled to a broad interpretation so that its public purpose may be fully carried out. Furthermore, a construction that makes part of the legislative act surplusage should be avoided if reasonably possible. Adee, 241 Kan. at 829. In determining legislative intent, we may look at the purpose to be accomplished, the necessity and effect of the statute, and the effect the statute may have under the various constructions suggested. Estes, 239 Kan. at 195; Kansas Krude Oil, 236 Kan. at 458; Jackson v. City of Kansas City, 235 Kan. 278, 319, 680 P.2d 877 (1984). A statute should not be given a construction that leads to uncertainty, injustice, or confusion if possible to construe it otherwise. Words and phrases used in a statute should be construed according to context and the approved usage of the language, which means that words in common use are to be given their natural and ordinary meaning. Jackson, 235 Kan. at 319. The Commission notes that, in Weinzirl v. The Wells Group, Inc., 234 Kan. 1016, 1018, 677 P.2d 1004 (1984), this court recognized that neither the district court nor the appellate court may substitute its judgment for that of the administrative tribunal. Usually, the legal interpretation of a statute by an administrative board or agency that is charged by the legislature with the authority to enforce the statute is entitled to great judicial de ference. Ordinarily, the court will give deference to the agency’s interpretation of the law, but, when reviewing questions of law, the trial court may substitute its judgment for that of the agency. Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 809, 667 P.2d 306 (1983). In Kansas Ass’n of Public Employees v. Public Employees Relations Bd., 13 Kan. App. 2d 657, 659, 778 P.2d 377 (1989), the Court of Appeals recently held that an agency’s interpretation of a challenged statute may be entitled to “controlling significance in judicial proceedings” (citing Pittsburg State, 233 Kan. at 809). This court has recognized that, when a statute is ambiguous, the interpretation placed upon it by an administrative agency whose duties are to carry the legislative policy into effect should be given great weight and may be entitled to controlling significance when the scope and limitations of the powers of the agency must be determined in judicial proceedings. Cities Service Gas Co. v. State Corporation Commission, 192 Kan. 707, 714, 391 P.2d 74 (1964); Southwestern Bell Telephone Co. v. Employment Security Board of Review, 189 Kan. 600, 607, 371 P.2d 134 (1962). In response to arguments that this court must construe K.S.A. 1989 Supp. 74-8815(d), the attorney general recognizes that statutory construction is a matter of law and that a statute should be given the effect intended by the legislature, Kansas Krude Oil, 236 Kan. at 455, but argues that the statute here is plain and unambiguous and needs no judicial construction. The seventh sentence of K.S.A. 1989 Supp. 74-8815(d) clearly provides that, if the licensee “fails to complete the racetrack facility in accordance with the terms of the license,” the deposit shall be forfeited. The attorney general notes that “[n]o legislative history or extrinsic evidence of how the act evolved is necessary or relevant where the act contains no unrelated or unworthy matters and is clear on its face.” State ex rel. Stephan v. Board of Lyon County Comm’rs, 234 Kan. 732, 740, 676 P.2d 134 (1984). Let us examine the arguments of respondents in light of the attorney general’s position and the rules of statutory interpretation as herein summarized. The Commission argues that the provisions of K.S.A. 1989 Supp. 74-8815(d) required a “forfeiture,” which is a divestment of property without compensation imposed as a consequence of a default or an offense which is provided by the legislature to restrain the commission of the offense and to aid in its prevention. 36 Am. Jur. 2d, Forfeitures and Penalties § 1. The following rules of statutory construction apply when construing a forfeiture statute: “It is a generally accepted rule of law that forfeitures are not favored; they are considered harsh exactions, odious and to be avoided when possible. A statute imposing a forfeiture should be construed strictly and in a manner as favorable to the person whose property is to be seized as is consistent with fair principles of interpretation. Courts will not search for a construction to bring about a forfeiture, nor will a constrained construction be indulged in order to create a forfeiture. For a statute to be construed so as to work a forfeiture, its language must clearly show such an intent, and forfeiture is never to be inferred from doubtful language. Courts will not force upon a forfeiture statute a construction which amounts to a reading into the law provisions not inserted therein by the legislature. (37 C.J.S. 8 to 10; 23 Am. Jur. 601-602.)” Christiansen v. Virginia Drilling Co., 170 Kan. 355, 360, 226 P.2d 263 (1951). Because K.S.A. 1989 Supp. 74-8815(d), as interpreted by the attorney general, would require Sunflower to forfeit its deposit, the statute must be interpreted as favorably toward Sunflower as is consistent with fair principles of interpretation. To find that the statute requires forfeiture of this property, its language must clearly show the legislature intended to impose a forfeiture under the facts of this case. The Commission further argues that, when the interpretation of one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, even though that requires disregarding the strict letter of the law. The Commission here argues that other provisions of the statute show the legislature could clearly require forfeiture of a fee if it intended to do so. In K.S.A. 1989 Supp. 74-8815(c), the legislature specified that the $5,000 application fee would be nonrefundable and provided that a license would not issue until the applicant paid any additional costs incurred in the investigation. Alternatively, in subsection (d) of 74-8815, the legislature merely required the applicant to deposit a sum of either $250,000 or $500,000, depending upon the number of racing days anticipated. The legislature did not refer to this deposit as “nonrefundable.” Nor did the legislature specify that the deposit “shall not be refundable except” in certain situations. Instead, the Commission argues that the legislature included the seventh sentence of 74-8815(d) to avoid “half-finished racetracks in wheat fields.” The Commission further argues that use of the phrase “fails to complete” could have a variety of meanings. The Commission asserts that the legislature was concerned about a licensee beginning construction of a racetrack but leaving it “half-finished in wheat fields.” The Commission argues that these concerns are not applicable when a conditional license is granted but construction never begins because the conditions required by the license are not fulfilled. Here, the Commission granted a conditional license to Sunflower requiring, among other things, that Sunflower present an acceptable plan for financing construction of the racetrack. The Commission rejected the plan presented by Sunflower. This occurred before Sunflower began construction of the racetrack. The Commission and Sunflower urge this court to interpret the phrase “fails to complete” to apply to those cases in which actual construction of the racetrack begins. In support of their position, Sunflower and the Commission argue that the license granted to Sunflower contained several conditions precedent that had to be performed before actual construction of the racetrack was to begin. The parties argue that the phrase “in accordance with the terms of the license” requires that the license issued to Sunflower be incorporated into the seventh sentence of subsection (d) of 74-8815. They argue that, because the license was conditional and the conditions were not met, the licensee, Sunflower, did not fail under the terms of the license and, therefore, the deposit cannot be forfeited. We fail to see the merits in this argument. All regulatory licenses issued by the State are conditional because the licensee must meet certain standards and obligations. Various sanctions are imposed for a failure to meet those obligations and standards. Here, the consequences for failing to meet the conditions imposed by the Commission are not at issue. At issue is the consequence for failing to construct the racetrack after the license was issued. That consequence is the forfeiture of the $250,000 deposit. Sunflower argues that it complied with all the requirements of the condition by presenting its financial loan documents prior to July 31. The Commission agrees that Sunflower met its requirements, but the Commission refused the loan proposal. Because the Commission did not accept this loan proposal, the conditions of the license were never met, and Sunflower never became obligated to begin construction of the racetrack. In other words, under the conditional license, Sunflower was never obligated to begin construction until the conditions precedent were fulfilled, including approval of the financing proposal. Although the Commission was unable to cite any Kansas cases dealing with the refund of a licensing fee in a case such as this, the Commission argues that the law concerning conditions precedent in contracts is analogous and applicable to conditional licenses, and should apply to the case at hand. We do not agree. We are not dealing with a contract but with a license created by statute. We find no support for respondents’ arguments in the legislative history of K.S.A. 1989 Supp. 74-8815(d). The initial draft, which was prepared by a staff attorney for the Kansas Department of Revenue, did not contain a deposit requirement as appears in 74-8815(d). A subsequent draft by the nine-member State Task Force on Parimutuel also contained no deposit requirement. This draft was included in the report of the State Task Force on Parimutuel to the governor. Language that required an advance deposit of taxes and license fees and a definite financing commitment to be included with an application for a facility manager license was added as the bill worked its way through the committees in both houses of the legislature. The provisions contained in K.S.A. 1989 Supp. 74-8815(d) that this court must interpret in this case were added by a conference committee during the final hours of the legislative process, resulting in enactment of the racing act. Sen. J. 1987, pp. 795-96. There is no documentation of the legislature’s intent in amending this subsection and adding the sentences at issue here. Sunflower, however, argues that the statute does not clearly create a ministerial duty to forfeit the deposit in this case because the legislature gave the Commission such broad discretion in controlling racing in Kansas. Sunflower reasons that this grant of great discretion shows the legislature’s intent to allow the Commission an inherent right to control licensing under the racing act, including the right to ask that a license be returned in a case such as this. To support its argument, Sunflower points to the interpretation of the act in Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. at 358. This court held that the provisions enacted by the legislature did not create a liberty or property interest in an application for a license. Once a facility owner license or a facility manager license is issued, the holder of that license has a property right and has a protected right to notice and a due process hearing if the Commission refuses to renew the license. K.S.A. 1989 Supp. 74-8815(1). In some instances, an application for licensure may rise to the level of a constitutionally protected property or liberty interest where state laws require a license to be conferred if an applicant meets specific minimum requirements. The Kansas Parimutuel Racing Act creates no entitlement. Licenses are not issued to all who meet prescribed standards but, instead, are discretionary with the Commission. This court stated: “The legislature intended that, even where one or all of the applicants meet the requirements, the Commission has discretion to withhold a license.” 244 Kan. at 358. Regarding the discretion given to the Commission by the legislature, this court stated: “It must be remembered that the legislature delegated to the Commission the task of selecting licensees from a group of qualified applicants. The legislature presumably vested the Commission with the sole discretion for issuing licenses because of the expertise it possesses in this area. In performing this task, the Commission had to balance many competing interests, which we cannot reweigh on appeal. It would have been easier for this court to review the decision below had the Commission’s order provided a more detailed reasoning for its choice. However, it is clear that the Commission found the personal investment of $12.9 million by the principal shareholders of Sunflower and the proposed dual racetrack facility to be important factors in the licensing decision.” 244 Kan. at 369. Sunflower reasons that, in light of the sole discretion the legislature placed with the Commission to determine whether a license should be issued at all, a concomitant authority and dis cretion must exist to allow the Commission to seek return of a license if the circumstances change. However, assuming Sunflower’s reasoning to be correct, it would not follow that such concomitant authority and discretion would include the refunding of the deposit. Sunflower notes that a person who has been granted a license is entitled to notice and a due process hearing if the Commission seeks to revoke the license, but Sunflower concedes that it makes no protest about the procedure used by the Commission in asking that the license be returned. Nor does it follow that the Commission has the authority to refund the deposit because it has the authority to seek a return of the license. Finally, Sunflower offers two alternative theories to support the Commission’s refunding of the deposit. First, Sunflower argues that the terms of the license excused Sunflower’s performance when the attempts to secure financing failed. Sunflower argues that the statute does not create a clear, ministerial duty for the Commission to forfeit the deposit but, instead, contains a negative implication that the deposit should be returned unless Sunflower’s failure to complete the racetrack is a breach of terms of the license. As support, Sunflower notes cases that hold a court cannot supply what appears to be an omission to a statute even though the question was never contemplated by the legislature. State v. Wood, 231 Kan. 699, 702-03, 647 P.2d 1327 (1982) (when terms of habitual violator statute specify inclusion of violations of city ordinance under the subsection relating to DUI, city ordinance convictions of other violations listed in the statute would not be counted toward the three convictions necessary to make the person a habitual violator). If the attorney general were attempting to collect a deposit or to force Sunflower to perform under the contract, then this theory might have merit. Here, the State has a $250,000 deposit, and the legislature specifically addressed what was to happen to the deposit in the event the racetrack was not completed. Next, Sunflower argues that the doctrine of commercial frustration relieves Sunflower of its obligation to perform under the contract. Before making this argument, Sunflower makes clear its belief that the Commission drafted the license in anticipation of litigation problems and relieved Sunflower of its obligation to build the track in this case. But if the court rejects this position, Sunflower alternatively argues that it should be relieved of its obligation to perform under the contract because the events causing frustration of the contract were neither reasonably foreseeable nor capable of being controlled. To apply this doctrine, Sunflower urges this court to find that Sunflower could not reasonably foresee and was not capable of controlling the litigation by the rejected applicants, which caused delay in obtaining financing and resulted in Sunflowers original financier’s backing out. Sunflower directs this court to State Highway Construction Contract Cases, 161 Kan. 7, 66-67, 166 P.2d 728 (1946), which involved an attempt by several construction companies to have their contracts with the State Highway Commission cancelled on grounds of impossibility of performance due to hardships and increased prices incidental to our country’s involvement in World War II. The court rejected the argument, finding that the evidence established the work could be done, although it would take longer and cost more. 161 Kan. at 67. The court quoted the controlling rule as follows: “ ‘The doctrine of commercial frustration is predicated upon the premises of giving relief in a situation where the parties could not reasonably protect themselves by the terms of a contract against the happening of subsequent events, but it has no application to a situation where the event that has supervened to cause the alleged frustration was reasonably foreseeable and could and should have been controlled by provisions of such contract.’ ” 161 Kan. at 66 (quoting Berline v. Waldschmidt, 159 Kan. 585, Syl. ¶ 2, 156 P.2d 865 [1945]). The doctrine of commercial frustration is not applicable here. Sunflower notes in its brief that it anticipated the possibility of litigation. Furthermore, the license issued by the Commission anticipated litigation. Even though litigation was anticipated, and thus reasonably foreseeable by the parties, Sunflower entered into the contract. The statute provides for the granting of continuances and, as previously mentioned, are not limited in number or length. We conclude that the provisions of K.S.A. 1989 Supp. 74-8815(d) are clear and unambiguous. The statute mandates that the $250,000 deposit shall be forfeited if the licensee fails to complete the racetrack facility. The legislature chose not to differentiate between a conditional and an unconditional license, nor did it make any exceptions to the forfeiting of the deposit in the event the racetrack facility was not completed. We concur with the attorney general that the respondent Commission had no authority or discretion to return the deposit. Sunflower Racing, Inc., was granted the license and, because it failed to complete the racetrack facility, the deposit was forfeited pursuant to K.S.A. 1989 Supp. 74-8815(d). The petition for mandamus is granted. The respondent Kansas Racing Commission is ordered to rescind the orders directing the return of the $250,000 deposit to Sunflower Racing, Inc., and to order said money and any interest accrued thereon forfeited by operation of law.
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The opinion of the court was delivered by Six, J.: The defendant, Jimmy Jack Searles, appeals from his convictions of felony murder, K.S.A. 21-3401, and attempted rape, K.S.A. 21-3301; K.S.A. 21-3502. The issues for our review are whether (1) the trial court improperly allowed the State to comment on Searles’ exercise of his privilege against self-incrimination; (2) the trial court erred in allowing the prosecution to introduce K.S.A. 60-455 evidence arising from two prior crimes charged against Searles, one of which resulted in an acquittal and the other in a mistrial with no retrial; (3) the trial court erred in giving a PIK Crim. 2d 52.06 limiting instruction on the K.S.A. 60-455 evidence which stated that evidence had been admitted tending to prove that Searles committed other crimes; and (4) the trial court erred in admitting the blood analysis testimony of the State’s experts. We find no error and affirm. FACTS The decomposed body of Roxanne G., the mother of three young children, was found beside a county road outside of Par sons, Kansas, ten days after her disappearance. An autopsy revealed that Roxanne had died from a blow to the head. The night she disappeared, Roxanne spent the evening with her neighbor, Midge. They decided to go to Joe’s Club to be with Midge’s husband. Midge’s eldest daughter, Sheila, babysat at Roxanne’s home with her younger siblings and Roxanne’s children. A short time after Roxanne arrived at the club, Jimmy Jack Searles, the defendant, approached her and asked her to dance. After the dance, Roxanne returned to sit with Midge. Roxanne wanted to dance again. Midge suggested that Roxanne ask Searles to dance. Roxanne and Searles had danced several times when Roxanne told Midge that she was leaving with Searles to go to another bar, the Midnight Factory. Midge cautioned Roxanne against leaving with a man she had just met, but Roxanne responded that she would be all right because she would know a hundred people at the Midnight Factory. Midge noticed it was 11:43 p.m. when Roxanne left with Searles. When Midge arrived home, she noticed Roxanne’s car parked where Roxanne had left it. Midge immediately went over to Roxanne’s apartment. She told Sheila that Roxanne had gone to the Midnight Factory and would be home later. A couple of hours later, Midge was awakened by Sheila. Roxanne still had not returned home and her three-week-old baby was crying. Midge returned to Roxanne’s apartment with Sheila to find some formula for the baby and then went back to bed. Sheila woke her mother a second time at 7:00 in the morning to tell her that Roxanne had not returned. Roxanne’s brother and his wife came over a few hours later. The police were called later that evening. The case was initially investigated as a missing persons report. Searles was interviewed by the police. His pickup truck was taken into custody with his consent. Searles told the police that he had gone to Joe’s Club at 7:00 that evening, met and danced with Roxanne, and left with her at approximately 11:05 p.m. Instead of going directly to the Midnight Factory, Searles took Roxanne to a friend’s house. The friend, Jim Lane, confirmed that Searles and a woman introduced as Roxanne came to his house late that night. According to Lane, Searles arrived shortly after midnight to talk to him about a combine they owned together and left approximately an hour later. Searles stated that after they left Lane’s house, he decided he did not want to go dancing. He said he dropped Roxanne off at the Midnight Factory before returning home to his wife. The Midnight Factory was under surveillance that night. A special agent for the Kansas Bureau of Investigation (KBI) was working on an undercover investigation at the club. She was inside to observe and to attempt to purchase narcotics. She was at the club until 1:45 a.m. but did not see Roxanne. None of the officers stationed in various places outside saw Roxanne dropped off at the Midnight Factory by Searles. However, the officers testified that the club was very busy and many vehicles, including pickup trucks similar to the one Searles drove, pulled into the parking lot that night. They did not notice anyone being dropped off outside the club, although such a drop-off would have been unusual enough that they thought they would have remembered it. Ten days later, the body of a deceased female was found in a weed-filled ditch about fifteen feet from a gravel road in Labette County. The body did not appear to have been moved. It was decayed and had been damaged by animals. The body was propped up with the buttocks partly in the air and appeared to have been in that position for some time. According to the county coroner, who had been summoned to the scene, he had to use a flashlight to see the body. He saw no garments on the body, with the exception of a piece of an undergarment that appeared to be ripped on one thigh. The sheriff, however, testified that a shirt was found on the body in the vicinity of the neck. In the coroner’s opinion, a violent sexual act had occurred, as well as a murder. This opinion was based upon the fact that the deceased was a young female with her clothing removed and upon the position of the body. The coroner said that, based on his experience, even when a body remains exposed for prolonged periods of time “the articles of clothing do not simply come off, do not become removed spontaneously.” Dr. William Eckert, a forensic pathologist from Wichita, viewed the scene. The body was taken to Wichita for an autopsy. Dr. Eckert determined the body was Roxanne’s by a comparison of the teeth with Roxanne’s dental records. The examination of the body was limited due to the advanced state of decomposition and the damage done to the body by animals. It was not possible to perform medical tests to see if there was semen or sperm in the vagina or rectum. However, Dr. Eckert was able to determine the cause of death to be a skull fracture caused by a blunt instrument. Dr. Eckert observed that there was a curve to the fracture which would suggest that the object used to make the fracture had a curve to it. Dr. Eckert also concluded that a lug wrench found in Searles’ truck could have made the curved indentation on the skull. Finally, he concluded that, although the exact time of death could not be determined, the state of decomposition of the body was consistent with the period of time Roxanne was last seen alive. Shortly after the autopsy, Searles’ truck was searched a second time. During the initial search of the truck the officers had seized several tools, including a lug wrench and a section of rope and wire. The second search of the truck was conducted by a KBI agent who used luminal to search for blood on the truck. Luminal is a chemical that reacts with blood and is used on metal, fabric, and wood to help locate blood or blood residue. If blood is present the area will glow. The test does not ascertain whether the blood is animal or human. When the bed of the truck was first sprayed, specific areas glowed indicating the presence of blood. Those areas were between the back of the truck and the left wheel well, along the side wall, and on top of the back bumper. Scrapings were taken and sent to the KBI lab for evaluation. Another search of the truck was conducted. During the third search, more blood was located on the bumper, but this time it was found on the inside or back side of the rear bumper. Again, scrapings were taken. Searles was interviewed a second time and he was read his Miranda rights. He elected to speak with the police. Searles related basically the same story at the second interview, except he stated that his wife told him he arrived home at 1:30 a.m. instead of between midnight and 12:30 a.m. as he originally thought. Searles also told the officers that he was not attracted to Roxanne. According to the officer, Searles’ demeanor at this interview was very cold and his actions were very calm. Searles’ initial claim of trial error arises from this interview. Eileen Burnau, a criminalist with the KBI, performed tests to identify the genetic marking or blood grouping of the blood found on Searles’ truck, blood taken from Searles, and blood taken from Roxanne’s parents. More tests on the blood were done by Dr. Edward Blake, a forensic serologist. Blake received several items, including a scraping of blood from the bumper of Searles’ truck, a specimen of hair from Roxanne, three small pieces of bloodstained rope, and blood samples from Searles and from Roxanne’s parents. STATE’S COMMENT ON POST-ARREST SILENCE At trial, during the direct examination of Officer Tucker, the State elicited testimony concerning the second interview of Searles. This interview took place at the Law Enforcement Center eight days after the victim’s body had been found and lasted for over three hours. At that time Searles was read his Miranda rights. Searles indicated he understood those rights and agreed to speak with the officers. About three-fourths of the way through the interview, Searles was asked if he had killed Roxanne. According to Officer Tucker, Searles did not respond for a long period of time and finally said no. Searles then asked, “If I did what you say I did, what happens now?” In response, Officer Tucker told Searles that he just wanted to hear Searles’ story of what actually had happened, but no promises or deals could be made. After a long silence, the conversation ended when Searles replied that in that case, “I have nothing to say.” After Tucker related this statement at trial, the State immediately went on to other questions. The fact that Searles had stated, “I have nothing to say,” was never raised again. Searles first claims that allowing the State to introduce this evidence of his post-arrest/post-Miranda silence was violative of due process of law. Searles admits he did initiate conversation with the police by asking, “What happens now?” He complains on appeal of the admission of his statement, “I have nothing to say. ” Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), held that the State’s use of post-arrest/post-Miranda silence for impeachment purposes was constitutionally impermissible. A Doyle violation occurs when a defendant’s post-arrest silence is used to impeach the defendant when an exculpatory explanation is subsequently offered at trial. We recognized Doyle in State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976). In Mims, we found harmless error when the prosecutor on cross-examination asked the defendant why he did not tell his alibi story to the police at the time of his arrest. Mims’ stories were consistent. He had clearly offered his alibi story to the police at that time. Recently, in State v. Higgins, 243 Kan. 48, 755 P.2d 12 (1988), we extended the holding in Doyle and Mims. In Higgins, the defendant’s post-arrest silence was first introduced during defense cross-examination of a police detective. The detective testified that, because the defendant would not sign a waiver of his rights, the detective could not obtain a statement from him. On redirect, the prosecution proceeded to question the detective in detail about the defendant’s refusal to speak with him after the defendant’s arrest. The defense objection was overruled on the grounds that the defendant had waived his right to object by introducing the defendant’s post-arrest silence in his cross-examination. Again, in its closing argument, the State commented on the defendant’s silence. While acknowledging that one is allowed to exercise the right to remain silent, the State asked why the defendant had not denied the crime or given an alibi if innocent. We held that, under Doyle and Mims, the testimony concerning the defendant’s post-arrest silence and the State’s comments constituted reversible error. We attached importance to the comments of the prosecutor during closing argument and the emphasis placed on the post-arrest silence. The United States Supreme Court addressed the scope of Doyle in Greer v. Miller, 483 U.S. 756, 97 L. Ed. 2d 618, 107 S. Ct. 3102, reh. denied 483 U.S. 1056 (1987). In Greer, the majority held that a Doyle violation occurs when a trial court allows specific inquiry or comment on an accused’s post-Miranda silence. If the trial court attempts to cure such conduct through a sustained objection or limiting instruction, the conduct does not violate Doyle but is prosecutorial misconduct which may or may not rise to the level of a due process violation. Greer, 483 U.S. at 764-65. The question about which Searles complains is similar to the situation in State v. Taylor, 223 Kan. 261, 574 P.2d 210 (1977). In Taylor, we stated: “The questioning really had nothing to do with defendant’s silence after arrest and after receiving the Miranda warnings. His silence at that stage was not emphasized and was not used for impeachment purposes contrary to Doyle.” 223 Kan. at 265. In the present case, where there was only one question concerning Searles’ statement that he had nothing to say and no further comment on his answer, there was no Doyle violation. Searles also claims the State’s comment upon his privilege against self-incrimination was statutorily impermissible in violation of K.S.A. 60-425 and K.S.A. 60-439. Searles contends that by informing the arresting officers that he would not answer that question, Searles, in addition to asserting a constitutional right, was exercising a statutory privilege “to refuse to disclose in an action or to a public official . . . any matter that will incriminate such person.” K.S.A. 60-425. K.S.A. 60-439 provides: “If a privilege is exercised not to testify or to prevent another from testifying, either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing any matter, the judge and counsel may not comment thereon, no presumption shall arise with respect to the exercise of the privilege, and the trier of fact may not draw any adverse inference therefrom. In those jury cases wherein the right to exercise a privilege, as herein provided, may be misunderstood and unfavorable inferences drawn by the trier of the fact, or may be impaired in the particular case, the court, at the request of the party exercising the privilege, may instruct the jury in support of such privilege.” State v. Nott, 234 Kan. 34, 669 P.2d 660 (1983), states plainly that K.S.A. 60-439 is limited to a situation where a comment is made on a privilege in the trial where the privilege is asserted. While the State did elicit the fact that at one point Searles stated he had nothing to say, the State did not comment on that assertion. The trial court’s ruling on this issue was correct. OTHER CRIMES EVIDENCE — K.S.A. 60-455 Prior to trial, the State moved to admit evidence of other crimes pursuant to K.S.A. 60-455, contending that the other crimes were relevant to the issue of identity. At trial the State was permitted to present evidence showing that Searles had stood trial for rape in Craig County, Oklahoma, in April of 1980; and that in October of 1984, he had been tried for assault and attempted rape in Montgomery County, Kansas. The Oklahoma case resulted in a hung jury; Searles was not retried. He was acquitted on the Montgomery County charges. Searles claims error on grounds that the evidence of the prior charges was not relevant to prove a disputed fact. He contends the risk of undue prejudice outweighed the probative value of the evidence. He also argues that the introduction of the other crimes evidence violated his rights under the double jeopardy clause of the Fifth Amendment. Finally, Searles contends that the testimony offered at trial went beyond the evidence proffered at the motion to admit other crimes evidence and was impermissibly prejudicial. a. P.A.’s Testimony — The Hung Jury Case At trial, evidence of the Oklahoma incident was introduced through the testimony of P.A. In December 1979, P.A. was 22 years old, divorced, and living in a trailer house with her three-year-old son. P.A. knew Searles, having been introduced to him through her ex-husband. Searles was married and his wife was expecting a child. P.A. had gone to bed about 1:00 a.m. She was awakened later that morning at approximately 3:30 by the sound of breaking glass. She then went to the back door of the trailer house and saw that an arm was stuck through the window trying to reach the door knob. P.A. grabbed the wrist and asked who it was. Searles said it was Jim and that he needed to talk to her. She recognized Searles’ voice and told him to go to the front door to talk to her there. When P.A. opened the front door, Searles opened the screen door and came in. Searles had been drinking and still had a beer bottle in his hand. He first sat down and told P.A. he needed to talk to her about his wife. When she replied that he did not need to talk to her, he needed to talk to his wife, he stated that he had really come to make love to her. At that point, P.A.’s three-year-old son started crying. She went to the bedroom, picked him up, and carried him back to the living room. Searles, in the meantime, had gone to the kitchen, opened the back door of the trailer, and vomited outside. He then came back in and sat on the arm of the chair where P.A. was sitting with her son. As she got up to move away from him, he grabbed her arm. Searles threw P.A. to the floor, removed her underwear, and began choking her. Searles raped her as she tried to comfort her son. The rape stopped when Searles passed out. P.A. left with her son to find help from a friend. Searles was tried for rape the next spring. The case ended in a mistrial. The trial was rescheduled for the following fall. In the meantime, P.A. had moved to Idaho and did not return to Oklahoma for the rescheduled trial. P.A. stated that she did not return because she had already been through enough harassment and humiliation. Instead of being the victim, she said, she had become the villain. b. T.M.’s Testimony — The Acquittal Case T.M. testified regarding the Montgomery County incident. T.M. and her daughter were living in Coffeyville, Kansas, with T.M.’s mother, T.M.’s three younger sisters, and a younger brother. At approximately 10:30 p.m. on March 21, 1984, T.M. went out to a local club. While there, she met Searles and the girl with whom he lived at the time, both of whom she already knew. After about an hour, she went to another bar where she was to meet her mother. At the second bar, she again ran into Searles and his girlfriend. At one point in the evening, Searles asked T.M. to meet him at the front door of the club, but she declined. She went home a little after midnight and put on her night clothes and went to bed. She was awakened later by dogs barking and a pounding and yelling at the front door. A friend, who was sleeping on the couch, told T.M. that it sounded like Searles. T.M. opened the door. When T.M. let Searles in she knew that he had been drinking. As he came in he leaned over and kissed her, and she turned to get away from him. When T.M. tried to turn on some lights, Searles stumbled into her, and they fell onto the floor in another room. Searles attempted to pull her nightgown up and tore a leg out of her underpants. T.M. began crying and begged him to quit. Searles momentarily stopped his struggle. T.M. told him that his girlfriend was at home and to get out. The next thing T.M. knew, Searles was choking her. She passed out. As a result of the incident, assault and attempted rape charges were filed. T.M. wanted only the assault charges to be filed, because she did not want to go through the humiliation of a jury trial in a small town where everybody knew her. At one point she asked the county attorney to dismiss the case, but he would not do so. The case was tried to a jury, and Searles was found not guilty. c. Test for Admissibility of Other Crimes Evidence In ruling on the admissibility of other crimes evidence 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 crime or civil wrong evidence against its tendency to prejudice the jury. State v. Nunn, 244 Kan. 207, 211, 768 P.2d 268 (1989); State v. Breazeale, 238 Kan. 714, 714 P.2d 1356 (1986). (1.) Relevance The trial court, at Searles’ trial, found that the evidence of the prior crimes was relevant to prove “identity” in the attempted rape charge. “Identity” is one of the facts specified in the statute. In State v. Nunn, 244 Kan. 207, 212, 768 P.2d 268 (1989), this court noted: “In State v. Bly, 215 Kan. 168, 523 P.2d 297 (1974), the leading case on the admissibility of evidence pursuant to K.S.A. 60-455, Justice Prager set forth eleven ■ basic principles to be considered. Principle number eleven reads: “ 11. Where a similar offense is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses. In other words to show that the same person committed two offenses it is not sufficient simply to show that the offenses were violations of the same or a similar statute. There should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. As pointed out by Mr. Justice Kaul in State v. Johnson, 210 Kan. 288, 502 P.2d 802: “The quality of sameness is important when pondering the admission of other crimes to prove identity, (p. 294.)” ’ 215 Kan. at 177.” In Searles’ case, all of the crimes occurred in the early morning hours after Searles had been out drinking. The incident in Oklahoma occurred sometime after 3:30 a.m. The Montgomery County incident occurred at approximately 1:30 a.m. The attempted rape in the instant case occurred sometime after 12:30 a.m. but before 1:30 a.m., when Searles says he arrived home. In each situation the victim was a divorced mother of a young child. P.A. had a three-year-old son living with her. T.M.’s daughter was living with her. The victim in the present case was a mother of three children, ages four years, two years, and three weeks. In each case, the victim knew Searles prior to the crime. In each case, the crime occurred in or very near the town where Searles was living. At the time of the Oklahoma incident, Searles was married and his wife was expecting a child. At the time of the Montgomery County incident, Searles was living with his girlfriend. At the time of the attempted rape in the present case, he was married. His wife had a two-year-old at home and was expecting another child. The crimes were perpetrated in a similar manner. In each case, Searles expected to have sexual intercourse with the victim, whom he knew. He had conversation with the victim before the rape or attempted rape occurred. In the Oklahoma case, Searles took off the victim’s underwear; he tore the victim’s underpants off of one leg in the Montgomery County case; and in the present case, the victim was found with her underpants torn from one leg and still hanging around the other leg. Searles points to a number of dissimilarities in the prior cases and the present crime. He states the fact that the victims were single is almost inherent in the nature of the crime. Searles also notes that the majority of rapes occur between acquaintances. The cases in which prior crimes have been used to prove identity have emphasized that the crimes need not be identical. It is sufficient if they were similar. State v. Williams, 234 Kan. 233, 670 P.2d 1348 (1983). In the case at bar, the prior crimes are sufficiently similar to the present offense so as to raise a reasonable inference that Searles committed all the offenses. The test of relevancy has been met. (2.) Disputed Material Fact “Identity” was an issue in the present case. The disputed material fact was whether or not the defendant was the one who committed the crime. (3.) Probative Value Versus Prejudicial Effect Before prior crimes evidence is admissible under K.S.A. 60-455, the trial court must also find that the probative value of the evidence — for the limited purpose for which it is offered — outweighs its prejudicial effect. As Breazeale pointed out, the evidence should not be admitted if the potential for natural bias and prejudice overbalances the contribution to the rational development of the case. 238 Kan. at 723. In the present case, it did not. The evidence of the prior crimes was not merely cumulative. The evidence of the prior crimes was an important and natural part of the whole trial. Searles argues that he was unduly prejudiced by the admission of the prior crimes evidence because he had not been convicted of the prior crimes. However, in State v. Bly, 215 Kan. 168, 177, 523 P.2d 397 (1974), we stated in a summary of the basic principles of K.S.A. 60-455: “To be admissible under 60-455 it is not necessary for the State to show that the defendant was actually convicted of the other offense. The statute specifically includes other crimes or civil wrongs. In fact an acquittal of the defendant of a prior offense does not bar evidence thereof where otherwise admissible. The acquittal bears only upon the weight to be given such evidence.” A ruling on the admissibility of prior crimes evidence pursuant to K.S.A. 60-455 is within the discretion of the trial judge. That ruling will not be interfered with on review unless that discretion was abused, or unless the trial judge admitted evidence that clearly had no bearing on any of the issues. State v. Nunn, 244 Kan. at 211. In the present case that discretion was not abused, d. Double Jeopardy — Collateral Estoppel When the prosecutor seeks to admit evidence of a prior offense of which the defendant has been acquitted, the court must also determine whether the doctrine of collateral estoppel bars admission of the evidence. The United States Supreme Court in Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970), defined collateral estoppel: “[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit.” 397 U.S. at 443. The Court went on to explain that “the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” 397 U.S. at 444. Searles contends that, here, the trial court ignored the fact that the issue of “consent” in the previous cases was synonymous with the issue of “identity” because by acquitting Searles on the ultimate issue of consent, the jury in reality found that no crime had been committed. He argues the jury found that no violent, nonconsensual sexual offense had occurred. Thus, it could not be used to prove identity in the present case — a case involving a violent crime. Searles’ argument is similar to the situation in State v. Irons, 230 Kan. 138, 630 P.2d 1116 (1981). The defendant in Irons steadfastly denied committing the crime. Thus, the issue of his identity was presented at trial. We found that the acquittal had to be based on the finding that he did not commit the prior offense. The issue of the defendant’s participation in the crime was settled, and collateral estoppel protected him against having to defend himself a second time. Irons, 230 Kan. at 144. Recently the United States Supreme Court, in Dowling v. United States, 493 U.S. _, 107 L. Ed. 2d 708, 110 S. Ct. 668 (1990), revisited the issue of the admissibility of testimony from a prior trial in which the defendant was acquitted. Dowling, in our view, furnishes further support to the State’s position in the instant case. Reuben Dowling had allegedly robbed a bank in the Virgin Islands while wearing a ski mask and carrying a small handgun. He was tried in the federal district court for various crimes, including bank robbery. The prosecution, relying on Fed. R. Evid. 404(b) (similar to K.S.A. 60-455), offered testimony by a woman who stated that (1) two men had entered her house two weeks after the bank robbery, one of them wearing a knitted mask, of a different color from that worn by the bank robber, and carrying a small handgun; (2) she had unmasked this man after a struggle; and (3) defendant Dowling was the man she unmasked. The prosecution reasoned that this testimony was proper for the purposes of (1) strengthening the identification of Dowling as the bank robber by showing him wearing a mask and carrying a gun similar to those used by the robbery, and (2) linking Dowling to the other man involved in the intrusion at the woman’s home. The other man had also been spotted at the scene of the bank robbery in what the prosecution believed had been the intended getaway car. Dowling contended that his prior acquittal of charges stemming from the house intrusion precluded the prosecution from introducing into evidence the woman’s testimony at trial in the bank robbery case. The Court commented: “We disagree because, unlike the situation in Ashe v. Swenson, the prior acquittal did not determine an ultimate issue in the present case. This much Dowling concedes, and we decline to extend Ashe v. Swenson and the collateral estoppel component of the Double Jeopardy Clause to exclude in all circumstances, as Dowling would have it, relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted.” 107 L. Ed. 2d at 717. Searles’ defense in the Oklahoma case and in the Montgomery County case turned on the issue of consent. Searles, in his own brief, states, “However, in both of the other charges [the defendant] asserted that he did not sexually assault the women because the women consented to the sexual activity.” The issue in Searles’ two prior trials was consent. Searles admitted the sexual activity. Consent is not at issue in the present case. The issue that Searles now seeks to foreclose from consideration, identity, was not an issue in the prior cases. The trial court followed the guidelines mandated by Ashe and Irons. Prior to trial, the trial court had available to it the transcripts from the prior cases. In allowing the evidence of the prior crimes, the court stated: be given, and that’s what I’m going to do. So that’s my response for the record.” “He’s answered the issue of collateral estoppel. The issue in the other cases was consent. In this case it’s identity. He’s just covered all the bases. I can’t help but agree with him. Even though there may be some prejudicial effect, there always is. And that’s why it’s required that a limiting instruction The admission of prior crimes evidence, when a trial resulted in an acquittal, is a matter of discretion for the trial judge if the evidence is otherwise admissible and the collateral estoppel doctrine does not bar its introduction. The collateral estoppel component of the double jeopardy clause was not violated. The K.S.A. 60-455 evidence was properly admitted. e. The Scope of the Proffer Prior to trial, at the hearing on the State’s motion to introduce K.S.A. 60-455 evidence, the trial court held that the evidence to be introduced at trial was restricted to what was proffered by the prosecutor at the hearing. The prosecutor proffered transcripts of the Oklahoma and Montgomery County cases. At trial, however, the prosecutor was allowed to elicit testimony regarding why one of the cases was not retried and why the witnesses in both cases did not want to testify. Searles contends that this evidence was not relevant to this case and merely served to unduly prejudice him. Searles also contends that, because the testimony went beyond the proffer or the permissible use of evidence introduced pursuant to K.S.A. 60-455, his convictions must be set aside. K.S.A. 60-401 defines relevant evidence as “evidence having any tendency in reason to prove any material fact.” The evidence here was relevant to refute Searles’ claim that the prior trial did not mean anything because the victim had not appeared for the second trial on the matter. Its use was proper. There was no error in allowing this testimony. THE K.S.A. 60-455 LIMITING INSTRUCTION Searles’ counsel objected to the trial court giving the PIK Crim. 2d 52.06 instruction, which stated: “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 identity.” Defendant’s trial counsel objected to this instruction because Searles had been acquitted of one charge and the other was dismissed after the jury was unable to reach a verdict. Counsel proposed that the trial court instruct the jury that Searles had been acquitted of one and the other was dismissed and that evidence of those cases could be considered solely for the purpose of attempting to prove identity. Counsel’s argument was that the language of PIK Crim. 2d 52.06 as applied to this case was wrong because it inferred, or at the very least left the impression, that Searles committed the other crimes and got away with them. In State v. Macomber, 244 Kan. 396, 405, 769 P.2d 621 (1989), we stated: “A trial court does not have the time to give the thought and do the research which has been put into the preparation of the Pattern Criminal Jury Instructions by the Advisory Committee on Criminal Jury Instructions to the Kansas Judicial Council. Therefore, where ‘pattern jury instructions are appropriate, a trial court should use them unless there is some compelling and articulable reason not to do so.’ ” This is what the trial court did in this case. The instruction given follows PIK Crim. 2d 52.06 exactly. The record shows it was made clear to the jury that Searles had been acquitted of one of the prior charges and the other charge was dismissed following a mistrial. Although we view Searles’ requested instruction as a preferred statement covering the instant fact situation, the trial court did not commit error in giving PIK Crim. 2d 52.06. BLOOD TEST TESTIMONY/GENETIC MARKINGS Eileen Burnau, a criminalist with the KBI, performed tests to identify the genetic markings on blood found on Searles’ truck and on blood taken from Searles and from the victim’s parents. Specifically, Burnau tested the blood found on the bumper of the truck and compared it to the genetic markings of Searles and the parents. The blood on the bumper was determined to be EAP type B or EAP type CB, but, since the marker was not clear enough for positive identification, Burnau could not be certain which type it was. However, from her tests, Burnau concluded that, if the blood on the bumper was EAP type B blood, it would be consistent with the blood type Roxanne could have, and, if the blood on the bumper was EAP type CB, it could not have come from Roxanne. Burnau then testified that based upon population studies, only .48 percent of the overall population would have the same blood characteristics as found in that particular scraping. Dr. Edward Blake, a forensic serologist, also testified regarding tests he had performed on the blood found on the bumper of the truck. From his tests, Dr. Blake concluded the blood could have been, or was consistent with, Roxanne’s blood. Dr. Blake then combined the results of his tests with Burnau’s and concluded that .025 percent of the population, or one of 4,000 individuals, could have produced the bloodstain found on the bumper. Defense counsel lodged a continuing objection to this evidence on the grounds the statistics were based on the assumption or the initial speculation that the blood was EAP type B, and not EAP type CB, which would have excluded the victim as the donor. The trial court noted the objection, but overruled it. This court in State v. Washington, 229 Kan. 47, 622 P.2d 986 (1981), held that expert testimony of mathematical probabilities that a certain combination of events will occur simultaneously is generally inadmissible when based on estimations rather than on established facts. However, population percentages on the possession of certain combinations of blood characteristics, based upon established facts, are admissible as relevant to identification. 229 Kan. 47, Syl. ¶ 3. Burnau explained the B/CB evaluation, and readily stated that she could only say it was a B or a CB type in the EAP system. Dr. Blake further explained the difficulty sometimes’ encountered in determining the B/CB type. Both experts pointed out that it is still a useful genetic marker system because, even if there is some ambiguity, it can be used to eliminate four other types. This can be seen in the present case. In the EAP system, Searles is a type A. The scrapings from the bumper were either type B or CB in the EAP system. Thus, Searles was eliminated from being the donor of the blood on the bumper. At the same time, even though the blood on the bumper could only be said to be either an EAP type B or type CB, this finding did not eliminate Roxanne from being the donor of that blood. Searles errs in assuming that “the statistics were based on the assumption or the initial speculation that the blood was EAP type B,” or that “this typing [EAP type B] was the crucial fact upon which all other conclusions followed.” This is not accurate. Burnau took into account in her figures that the blood could contain either EAP type B or EAP type CB. She also accounted for the statistic that only .48 percent of the population have blood characteristics that match those on the bumper by noting that the .48 percent includes people with EAP type B and those with EAP type CB blood. The statistics, or the percent of the population that could have produced the bloodstain on the bumper, were based upon population studies for each of the genetic markers. This method of calculating the percentage of the population, the so-called “product rule” of probability, which has, in combination, a number of genetic factors, has been specifically approved in State v. Stukey, 242 Kan. 204, 208, 747 P.2d 137 (1987). Under State v. Washington, 229 Kan. at 59, challenges to the reliability of the testing affect the weight, not the admissibility, of the testimony. In this case also, the problem with the B/CB type affects the weight of the evidence and not its admissibility. Neither of the experts stated that the blood on the bumper was the victim’s blood. What they said was that the blood on the bumper was consistent with blood that could have been Roxanne’s. There was no error in admitting the testimony of Eileen Burnau or of Dr. Blake. Affirmed.
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The opinion of the court was delivered by McFarland, J.: Steve R. Colwell appeals from his jury trial conviction of felony first-degree murder (K.S.A. 21-3401) and abuse of a child (K.S.A. 21-3609). Kelli Gates was bom on September 29, 1980, to the marriage of Brenda and Larry Gates. She was bom six weeks prematurely and was in poor health for much of her first two years. A second daughter, Lindsay, was bom to the Gates family on January 30, 1983. In October of 1984, the Gates’ marriage ended in divorce with Brenda being granted custody of the two children. Brenda met defendant Steve Colwell in November 1984 and married him on March 9, 1985. The Gates girls attended a day care center commencing in August of 1984. Its proprietor, Melissa Spaid, observed changes in Kelli commencing in late December 1984 or early January 1985. The child was losing weight, appeared frailer than usual, and started having bruises on her face. The bruising pattern described was consistent with her face being squeezed by fingers. The child complained of not feeling well. Brenda took Kelli to a Wichita pediatrician, Dr. Katherine Pennington, in March 1985. The doctor suggested Kelli be seen by a specialist in child hematology if the bruising continued. By April, bruises had appeared on other parts of the child’s body. On May 9, 1985, Larry Gates took Kelli to her appointment with Dr. Pennington. He asked if the bruising could be from child abuse. The doctor stated she did not think so and attributed the bruising to a blood abnormality. In May 1985, Kelli fell from a swing at the day care center and was treated for a broken collarbone. No blood disease showed up in tests performed at that time. During Larry’s visitation with his children about June 15, 1985, he noticed bruises on Kelli’s buttocks. He took her to a hospital for treatment. On June 17, 1985, he reported suspected child abuse of Kelli to the Wellington Social and Rehabilitation Services office. A caseworker investigated the complaint, found no evidence of child abuse, and closed her file. Kelli’s condition deteriorated and she became very weak. About July 15, 1985, Larry advised Brenda he was very concerned about the child. Brenda advised she had talked to Dr. Pennington about hospitalizing Kelli for tests. On the morning of July 17, 1985, the two girls and their stepfather, defendant, were home alone. Kelli became unconscious and stopped breathing. She was taken by ambulance to the Wellington hospital, then airlifted to Wesley Medical Center in Wichita. She died the following day. An autopsy was performed on July 18, 1985, by Dr. David Dejong. He observed multiple bruises on various parts of her body. She had a new fracture to the collarbone which was close to the healing fracture. Death was found to have been caused by rebleeding from a subdural hematoma. The original injury was estimated to be several weeks old, and the rebleeding was fresh. He believed two traumas were involved and concluded Kelli’s brain injuries were the result of child abuse. On June 29, 1987, defendant was charged with felony murder and child abuse. For reasons not found in the record, this action was filed and prosecuted by an assistant attorney general. Defendant was found guilty on both counts and appeals therefrom. Other facts will be set forth as necessary for the discussion of particular issues. For his first issue, defendant contends our decision in State v. Lucas, 243 Kan. 462, 759 P.2d 90 (1988), affirmed on rehearing in State v. Lucas, 244 Kan. 193, 767 P.2d 1308 (1989), precludes his conviction of felony murder based upon the underlying felony of child abuse. The State’s only eyewitness, Lindsay Gates, testified Kelli died after having been beaten by defendant. The State proceeded on the theory that defendant inflicted cruel corporal punishment upon Kelli on July 17, 1985, and that this caused the rebleed from the subdural hematoma which resulted in Kelli’s death. In State v. Lucas, we held: “The purpose of the felony-murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and the doctrine should not be extended beyond its rational function which it was designed to serve.” Syl. ¶ 1. “In order to apply the felony-murder doctrine: (1) the underlying felony must be one which is inherendy dangerous to human life; and (2) the elements of the underlying felony must be so distinct from the homicide so as not to be an ingredient of the homicide.” Syl. ¶ 2. “A single assaultive incident of abuse of a child (K.S.A. 1987 Supp. 21-3609) which results in the death of a child merges with killing and constitutes only one offense. The coupling together of prior acts of abuse of a child with the lethal act of abuse into one collective charge of abuse of a child does not prevent the operation of the merger rule. Language to the contrary found in State v. Brown, 236 Kan. 800, 696 P.2d 954 (1985), is disapproved.” Syl. ¶ 5. Lucas was followed by State v. Prouse, 244 Kan. 292, 767 P.2d 1308 (1989), and held to be controlling. The case herein was tried prior to the time our decision in Lucas was announced. K.S.A. 21-3401 was amended by the 1989 Legislature to provide felony murder may be predicated upon abuse of a child, but that has no bearing on the issue before us as the events herein preceded the amendment. The State asks that we overrule Lucas. This we decline to do. As Lucas is controlling, the conviction for felony first-degree murder must be reversed. Some of the other issues by defendant relate only to the felony-murder conviction. These are rendered moot by our reversal of the felony murder and will not be discussed. The balance of the opinion will be devoted to issues raised as are relevant to the child abuse conviction. Defendant claims the trial court erred in requiring defense counsel to accept the State’s offer to stipulate that Dr. William Eckert was a qualified expert in the field of pathology. We agree. In State v. Wilson, 215 Kan. 28, 523 P.2d 337 (1974), we held as follows: “In a criminal prosecution an offer by the defendant to stipulate remains merely an offer unless accepted by the prosecution.” Syl. ¶ 4. “In a criminal prosecution the making of an admission by the defendant does not bar the state from proving the fact independently as though no admission had been made.” Syl. ¶ 5. In Barnes v. St. Francis Hospital & School of Nursing, 211 Kan. 315, 319, 507 P.2d 288 (1973), we said that the weight given to an expert witness’ testimony “was a matter for the jury to decide, and in determining that question, the jury was entitled to consider the degree, the depth and the sources of his knowledge in those areas about which he testified.” Eleven pages of the record herein are taken up with the State’s qualification questions to its pathologist, Dr. Dejong. It was the conclusion of Dr. Dejong that Kelli’s rebleed (and resulting death) was caused by child abuse occurring July 17, 1985. Dr. Dejong was the pathologist who actually performed the autopsy. The defense presented Dr. Eckert, who is known to this court to have a national reputation in the field of forensic pathology. The jury was prevented, by the trial court’s ruling, from learning of Dr. Eckert’s credentials. To the jury, he was merely a pathologist who examined Dr. Dejong’s records and reached the conclusion that Kelli did not die as the result of child abuse. Interestingly, Dr. Dejong changed his mind on his conclusion that Kelli died from child abuse a few months after the trial. One of the factors involved in Dejong’s position change was he had learned that Dr. Eckert had not agreed with his findings, and Dejong had a great respect for Eckert’s experience and reputation. Which expert the jury believed was crucial in this case. The only other witness to testify as to any child abuse resulting in Kelli’s death was Lindsay, who, at age four years and nine months, testified she had seen defendant beat Kelli on the day in question. Lindsay was testifying as to events occurring when she was not quite two and a half years old. We conclude that an offer by the State to stipulate to the qualifications of an expert witness called by the defendant is merely an offer unless accepted by the defendant. Absent such acceptance, the defendant has the right to present the witness’ qualifications to the jury. Does this trial error constitute reversible error? Errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining do not require reversal when substantial justice has been done. State v. Bell, 239 Kan. 229, Syl. ¶ 2, 718 P.2d 628 (1986). See K.S.A. 60-261. We conclude defendant’s conviction for child abuse must be reversed as the error may well have affected the outcome of the trial. Because certain other issues involve matters which may occur again upon any retrial herein, we deem it appropriate to discuss those issues. Defendant contends the trial court abused its discretion in finding Lindsay was competent to testify. Prior to trial, defendant filed a motion in limine to have Lindsay declared incompetent to testify as a witness because of her tender years. Lindsay was, at the time of Kelli’s death, two years and five and one-half months old. At trial, a hearing was conducted out of the hearing of the jury to determine Lindsay’s competency. Counsel for the State and defendant each questioned Lindsay, following which defense counsel stated that Lindsay passed the “bare minimum requirement of State v. Thrasher [233 Kan. 1016, 666 P.2d 722 (1983)] as to the duty to tell the truth.” Defense counsel, however, reserved all other objections to her proposed testimony. The trial court then held Lindsay was competent to testify. K.S.A. 60-407 provides in pertinent part: “Except as otherwise provided by statute (a) every person is qualified to be a witness, and . . . (c) no person is disqualified to testify to any matter . . . .” The disqualification of a witness is codified in K.S.A. 60-417, which provides: “A person is disqualified to be a witness if the judge finds that (a) the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or her, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provisions of this article relating to witnesses.” In State v. Thrasher, 233 Kan. 1016, a four-year-old boy was permitted to testify against the defendant. On appeal, we upheld the testimony, stating: “Kansas law does not disqualify a witness simply because of age. “Under K.S.A. 60-407 a witness, no matter how young, is presumed competent to testify. The burden of establishing incompetency rests on the challenger. State v. Poulos, 196 Kan. 253, 263, 411 P.2d 694, cert. denied 385 U.S. 827 (1966). K.S.A. 60-417, in turn, directs to the discretion of the trial court the disqualification of a witness for any of the enumerated reasons. State v. DeLespine, 201 Kan. 348, 351, 440 P.2d 572 (1968). See also State v. Jones, 204 Kan. 719, 727-28, 466 P.2d 283 (1970); State v. Whiting, 173 Kan. 711, 713, 252 P.2d 884 (1953); State v. Gaunt, 98 Kan. 186, 157 Pac. 447 (1916). Thus, in order for a witness to be disqualified, the trial court must be convinced the witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury, or is incapable of understanding the duty of a witness to tell the truth. State v. Poulos, 196 Kan. at 264.” 233 Kan. at 1018. The test, therefore, for the disqualification of a witness is whether or not the witness (1) is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury, or (2) is incapable of understanding the duty of a witness to tell the truth. Since defendant conceded that Lindsay understood the duty to tell the truth, our examination concerns her capability of expressing herself concerning the matter so as to be understood by the judge and jury. At the time of her testimony, Lindsay was four years and nine and one-half months old. Lindsay testified she was able to remember the ambulance coming and gave her perception of why Kelli died: “From him [defendant] beating up [Kelli].” When she did not remember something, she so stated. She testified that she did not go outside to play on the day Kelli died. This latter testimony was important as defendant testified that the girls were outside playing that morning, after which Kelli came in the house and immediately collapsed. Lindsay testified they had not been outside, and that Kelli had been struck by defendant inside the house. As the cause of the trauma resulting in the rebleeding was at the heart of the issue herein, such testimony was significant. Lindsay’s testimony was not script perfect and lacked some continuity, but this is a matter of the weight to be afforded her testimony rather than her competency to testify. We find no abuse of discretion on this issue. For his next issue, defendant contends that a child psychologist, Dr. David Seifert, was improperly allowed to vouch for the credibility of Lindsay. Admission of expert testimony is governed by K.S.A. 60-456(b) and (d): “(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness. (d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.” The basis for the admission of expert testimony is necessity arising out of the particular circumstances of the case. To be admissible, expert testimony must be helpful to the jury. Where the normal experience and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible. State v. Hodges, 239 Kan. 63, 67, 716 P.2d 563 (1986). An expert’s opinion, pursuant to K.S.A. 60-456, is admissible up to the point where an expression of opinion would require him to pass upon the credibility of witnesses or the weight of disputed evidence. State v. Lash, 237 Kan. 384, Syl. ¶ 1, 699 P.2d 49 (1985). Although an expert may give an opinion on an ultimate issue as provided in K.S.A. 60-456(d), such witness may do so only insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence. An expert witness may not pass on the weight or credibility of evidence, for those matters are strictly within the province of the jury. State v. Moore, 230 Kan. 495, Syl. ¶ 1, 639 P.2d 458 (1982). The admissibility of expert testimony lies within the sound discretion of the trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion. State v. Stukey, 242 Kan. 204, Syl. ¶ 1, 747 P.2d 137 (1987). In State v. Lash, 237 Kan. 384, the defendant was accused of sexually molesting his fifteen-year-old son. A psychologist who interviewed the son gave expert testimony. He was asked for his opinion, based on testing and interviewing the son, whether the son had been sexually molested by the father. Over defendant’s objection, the court permitted the psychologist to testify as to whether he had an opinion whether the son had been sexually molested but would not permit the expert to testify as to whether the son had been sexually molested by the father. 237 Kan. at 384-85. The defendant was acquitted. The State appealed on a question reserved as to whether the trial court erred in not permitting the expert to testify that in his opinion the son had been sexually molested by the father. We affirmed the lower court’s ruling, stating that the prosecutor’s question was improper because it called for an opinion which would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. 237 Kan. at 386. In State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986), the trial court permitted two expert witnesses, social workers with expertise in child abuse treatment, to testify that “in their opinions the child was telling the truth and in their opinions the defendant committed the acts of molestation with which he was charged.” 239 Kan. at 470. We reversed the conviction, stating that the experts attempted to serve as human lie detectors for the child and each told the jury that the child was truthful and the defendant was guilty as charged. We said, “We are convinced that it was the function of the jury to hear the testimony of the witnesses as to what the child said, and then to make a determination of the reliability of the child’s statements.” 239 Kan. at 470. In State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), defendant was accused of sodomizing an eleven-year-old child. Defendant denied any act of sodomy had taken place. A mental health therapist, with expertise with sexually abused victims, saw the victim in counselling seven times. Over defendant’s objection, he testified that the boy’s progress in therapy was consistent with what he would expect when a young boy was sodomized under such circumstances. 241 Kan. at 78-79. We found the testimony to be proper, reasoning: “Although the complained-of testimony was close to the line of impermissibility, it does not cross the line. The witness did not give an opinion as to whether or not P.V. was telling the truth. Rather, the testimony may be compared to a situation where a patient tells his treating physician he had been held without food and water in a certain type of environment, and the physician testifies the victim’s initial condition and progress in treatment are consistent with the events related to him by the patient. The physician, under such circumstances, is not testifying that any particular person committed a criminal act against his patient or that his patient is telling the truth as to how or by whose acts he suffered injury. The door is thus left open to cross-examination relative to other causal circumstances which might also be consistent with the physician’s opinion as to his patient’s condition and progress.” 241 Kan. at 80. Dr. Seifert testified herein that he had seen Lindsay over an extended period of time. As a result of his observations and testing, he concluded Lindsay was capable of distinguishing the truth from a lie. He did not testify that he believed Lindsay was telling the truth in her narration of the events involved in Kelli’s death. The witness testified Lindsay had suffered emotional trauma in witnessing “the demise of her sister.” This would be traumatic to a child, whatever the circumstances involved, and is not impermissible. The witness gave the following testimony: “Q [By State’s attorney] And based upon your conversations with her in the clinical setting, could you relate to us what exactly it is that she saw? “A According to her accounts, she saw her sister beated that led to that death. “Q What did Lindsay relate to you with regard to that? “A A variety of things. She was in the immediate vicinity of the final stages of Kelli being removed from the house as well as alleging that she saw some of the events leading up to it. “Q Did she indicate to you that she, at least in her opinion, knew how Kelli had died? “A Yes. “Q And what was her opinion with regard to that? “A That Steve Colwell had, ‘Beated her dead.’ Beated her dead in quotes.” The witness was repeating what the child said without comment as to its credibility. In its totality, this witness’ testimony came close to being an improper comment on Lindsay’s credibility but did not cross over the line. Defendant next contends the trial court improperly excluded testimony as to Lindsay’s relationship with the defendant after Kelli’s death. For six months after Kelli’s death, Lindsay was in foster care with Bethany Hostetler. During this period of time, Lindsay was visited by defendant at least once a week. Defense counsel called Ms. Hostetler as a witness to testify as to her observations as to the interactions between Lindsay and defendant. The trial court excluded such testimony on the ground it was immaterial. It is difficult to see the basis for this ruling. Lindsay testified she was “scared” of defendant. This arose from the death of Kelli. One test for the credibility of this young child’s words would be if they were consistent with her actions in defendant’s presence after the event giving rise to her stated fear. A two- or three-year-old child presumably would have considerable difficulty maintaining a consistent position contrary to her true feelings about a person in such traumatic circumstances. Unfortunately, defense counsel did not make a formal proffer as to what Ms. Hostetler’s testimony in this regard would be. As she was called as a defense witness, obviously, defense counsel anticipated her testimony would be favorable. However, the record herein is devoid of any basis upon which reversible error could be predicated as to the exclusion of the Hostetler testimony in the claimed regard. The final claim of error relates to the trial court’s denial of a new trial based upon newly discovered evidence. In support of the motion, defense counsel presented Dr. Dejong’s changed conclusion in regard to child abuse being the cause of Kelli’s death, witnesses who saw the girls playing in the back yard that morning, and other matters. Inasmuch as the convictions herein are reversed and any proper new evidence could be admitted at any subsequent retrial, there is no purpose served by determining this issue. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. Miller, C.J., and Six, J., concurring in the result. Herd, J., dissenting.
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The opinion of the court was delivered by McFarland, J.: Richard M. Rios and William S. Johnson appeal their jury trial convictions of one count each of jointly making a false writing (K.S.A. 21-3711); one count each of individually making a false writing (K.S.A. 21-3711); and one count each of theft by deception (K.S.A. 21-3701[b]). The State has filed a cross-appeal challenging the jury instruction permitting the jury to merge multiple counts into single counts under the single larceny doctrine. The relevant facts are quite complex. William S. Johnson was the store manager of Dillard’s Towne West Department Store (Towne West) in Wichita, Kansas, from March 1986 until his resignation on June 3, 1987. Richard Rios was the store manager of Dillard’s Towne East Department Store (Towne East) in Wichita from sometime in 1984 until August 17, 1987. Johnson went to Towne East quite often between January and June of 1987. Johnson and Rios were business associates and friends. On May 22, 1987, Kay Griffen, the Towne West Credit Manager and head of the cash room, saw Johnson enter the store’s training room carrying a cash register ribbon. The training room is used solely for training store personnel to operate cash registers. He asked her if there were more ribbons in the stockroom. After fifteen or twenty minutes, Johnson emerged from the training room and told Ms. Griffen he would change the cash register ribbon, something Ms. Griffen knew the store manager would not do. Johnson thereafter moved the training cash register from the training room to a location behind his office. When the Towne West’s personnel director, Joyce Cooper, returned from vacation on May 27, 1987, Ms. Griffen told her about the incident concerning Johnson and the cash register ribbon and said she would look for the ribbon. The following , day, May 28, 1987, Cooper and Griffen went into Johnson’s office during his absence and searched for “what we thought we were looking for, the ribbon.” In Johnson’s briefcase they found a stack of thirty-six refund vouchers that had been rung up on a cash register but did not have the customer portion of the voucher filled out. The customer portion of the refund voucher contains the customer’s name, address, store where the item was purchased, why it was returned, the salesperson who sold it, and the customer’s signature. A “rung up” voucher contains the store department number, the salesperson’s number, the amount of tax, and the total amount of money refunded. Ms. Cooper copied down the vouchers’ serial numbers and the money amount which had been rung up on each voucher. The cash register ribbon was subsequently found by the investigating duo on top of the credenza in Johnson’s office. The next day, May 29, 1987, Cooper compared the refund vouchers from the cash room with the list of vouchers in Johnson’s briefcase and discovered that one voucher for $147 had been cashed at 5:20 p.m. that day. The cash room is the location where all store cash, checks, and vouchers are processed. The cash room is always locked. All store money is kept inside the safe in the cash room. The lower part of the safe, containing a minimal amount of cash, is left open during the day. The store manager (Johnson), the operations manager (Griffen), and two area sales managers have free access to the cash room and safe. Refund vouchers come to Towne West from Dillard’s corporate headquarters in Little Rock, Arkansas, and are numbered sequentially. Refund vouchers are kept in the cash room and checked out in a series with a record made of who is checking them out. Dillard’s uses refund vouchers to make a record of refunds that are given to customers who return merchandise. On June 1, 1987, Cooper found that more of the refund vouchers found in Johnson’s briefcase had been cashed on May 30, 1987. She notified Bob Appleby, a Dillard’s official at the corporate headquarters, of the suspicious facts she had uncovered. On June 3, 1987, Appleby, along with other Dillard’s corporate officials, went to Wichita to investigate the list of refund vouchers provided by Cooper and Griffen. They met with Johnson, Cooper, and Griffen. Johnson confessed to cashing the refund vouchers. He stated he did it “for the obvious reason, I needed the money.” Richard Willey, one of the Dillard’s corporate officials present, testified Johnson explained that he had taken customer names and addresses and had rung up fraudulent vouchers on the training register. Johnson stated that he would then place a voucher in the safe and remove money in the amount of the voucher. It was estimated about $3,000 had been taken on the prior weekend. Johnson admitted to the taking and he indicated he would repay that amount. Johnson resigned that same day, June 3, 1987. Following his resignation, Griffen found packages of refund vouchers in Johnson’s office file cabinet, and found a full box of refund vouchers in a storeroom adjacent to Johnson’s office. On June 4, 1987, Johnson spoke with Kevin Fisher, Dillard’s corporate internal auditor. Fisher, who had come to Wichita from Little Rock to investigate the alleged misuse of refund vouchers at Towne West, was responsible for evaluating the company’s accounting systems and controls for their adequacy in protecting the company’s assets. Johnson described to Fisher the procedures he used to ring up refund vouchers on the training register at Towne West. He used tape to prevent the register from printing numbers on the vouchers which would indicate what register had been used and what store had processed the refund. After Fisher returned to Little Rock, he conducted a review of refund vouchers cashed at the two Wichita Dillard’s stores between January 1, 1987, and June 4, 1987, seeking evidence of Johnson’s procedures with the refund vouchers. He found that numerous refund vouchers without store identification data had been cashed at both Towne West and Towne East. Further corporate investigations revealed that the refund vouchers had come from Towne West, when Johnson was manager, and Towne East, when Richard M. Rios was manager. Fisher subsequently returned to Wichita and turned the refund vouchers over to the Wichita Police Department. Fisher also provided Detective Tom Burnett with records containing handwriting of both Johnson and Rios. Following a police investigation, Johnson and Rios were charged, on December 9, 1987, in a 111-count information. Johnson was charged with 59 counts of making a false writing (K.S.A. 21-3711) and four counts of theft by deception (K.S.A. 21-3701[b]). Rios was charged with 47 counts of making a false writing and 19 counts of theft by deception. The offenses were alleged to have been committed between January 17, 1987, and May 30, 1987. The State had in its possession between six and seven hundred of these bogus refund vouchers. The State elected to proceed on only 88 of the vouchers on false writing charges. Both defendants were charged jointly on some vouchers, which accounts for the discrepancy between the number of vouchers and false writing counts. The State subsequently filed a motion to admit all the uncharged vouchers to show plan, intent, lack of mistake, etc. Also, said evidence would buttress its case as to the handwriting identification. The motion was denied. At the same hearing, the defendants’ motions for severance of their trials was denied. In addition to his testimony concerning Johnson’s description of his methodology in ringing up refund vouchers, Kevin Fisher testified to the standard procedures for handling refund transactions. He testified that when a refund is rung up the register number, store number, transaction number, clerk number, dollar amount, and merchandise number are printed on a refund voucher and transferred to the Little Rock central processing area. If a customer wants a cash refund, he or she must take the refund voucher to the store credit office and get cash from a clerk. A refund slip is then placed in the register, and the register is still in balance for accounting purposes. Ringing up refunds on training registers did not have an impact on physical inventory or the financial reporting system of Dillard’s. Fisher did not know whether the bogus refund vouchers were exchanged for cash or merchandise; however, he knew that either cash or merchandise had to have been exchanged for each refund voucher that was “cashed,” as otherwise the cashier’s report would not have been in balance for the days the refund vouchers were “cashed.” Finally, Fisher testified that Towne East had a $257,000 overage of inventory and that Towne West had a $184,422 overage. This overage could not be explained. Expert evidence on handwriting was introduced to tie Johnson and/or Rios to particular vouchers. All refund vouchers were altered in precisely the same manner, which was consistent with Johnson’s statements as to how he had proceeded. Evidence was introduced that each defendant had entered his store’s cash room at unusual times. Over the State’s objection, the jury was given an instruction on the single larceny theory. The jury, under the instruction, merged the multiple counts into one conviction each of making a false writing (individually), making a false writing (jointly), and theft by deception. In this consolidated appeal, the defendants appeal from their convictions and the State cross-appeals from the trial court’s giving of the single larceny instruction. Numerous claims of error are asserted by the defendants herein. Two fundamental questions immediately surface from the multiple issues. Does the conduct of the defendants, as established at trial, legally constitute either the crime of theft by deception or the making of a false writing? THEFT RY DECEPTION K.S.A. 21-3701 provides, in pertinent part: “Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property: (a) Obtaining or exerting unauthorized control over property; or (b) Obtaining by deception control over property; or (c) Obtaining by threat control over property; or (d) Obtaining control over stolen property knowing the property to have been stolen by another.” In State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1978), this court examined the historical background of our consolidated theft statute (K.S.A. 21-3701) and analyzed the elements of theft by deception. Finch had been observed by a security guard in a department store removing price tags from certain merchandise and placing them on similar, but higher priced merchandise. The cashier was warned to be on the lookout for Finch and to let her pass through the checkout stand unchallenged, paying only the lowered prices. As Finch was leaving the store, she was stopped by the security guard and returned to the store for arrest. She was subsequently charged with and found guilty of theft by deception. On appeal, Finch claimed her alleged acts were insufficient to constitute the crime of theft by deception. This court agreed, stating: “At the outset we should examine the Kansas statutes which pertain to the crime of theft by deception to determine the elements of the crime. K.S.A. 21-3701 was enacted in 1969 (effective July 1, 1970) as a consolidated theft statute to combine the former crimes of larceny, embezzlement, false pretenses, extortion, receiving stolen property and the like into a single crime of theft. There is a comprehensive discussion of the historical background of the statute and the objective sought in the consolidation of the state’s theft laws in an excellent article by Professor Paul E. Wilson. (Thou Shalt Not Steal: Ruminations on the New Kansas Theft Law, 20 Kan. L. Rev. 385 [1972].) The statute is also discussed in State v. Bandt, 219 Kan. 816, 549 P.2d 936. The crime of theft by deception is covered under K.S.A. 21-3701(b) which states in pertinent part as follows: “ ‘21-3701. Theft. Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property: (b) Obtaining by deception control over property; . . .’ K.S.A. 21-3110 defines several of the words used in the theft statute: “ ‘21-3110. General definitions. The following definitions shall apply when the words and phrases defined are used in this code, except when a particular context clearly requires a different meaning. “ ‘(5) “Deception” means knowingly and willfully making a false statement or representation, express or implied, pertaining to a present or past existing fact. “ ‘(11) “Obtain” means to bring about a transfer of interest in or possession of property, whether to the offender or to another. “ ‘(12) “Obtains or exerts control” over property includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property.’ “Because section (b) of 21-3701 is the only provision in the 1970 criminal code dealing with the crime of obtaining property by deception or fraud, it is clear that that subsection incorporates therein the former crime of obtaining property by false pretenses. That offense was previously defined and made a crime in K.S.A. 21-551 (Corrick 1964) which was repealed when the new criminal code became effective. In prosecutions under the former statute the state was required to prove the following four elements to establish the crime of obtaining property by false pretenses: (1) There must be an intent to defraud; (2) there must be an actual fraud committed; (3) false pretenses must have been used for the purpose of perpetrating the fraud; and (4) the fraud must be accomplished by means of the false pretenses made use of for the purpose, that is, they must be the cause, in whole or in part, which induced the owner to part with his money or property. (State v. Handke, 185 Kan. 38, 340 P.2d 877; State v. Matthews, 44 Kan. 596, 25 Pac. 36; State v. Metsch, 37 Kan. 222, 15 Pac. 251.) The requirement of a reliance upon the false pretenses which induced the owner to part with his property is generally considered to be an essential element of the crime of false pretenses throughout this country. In State v. Handke, supra, the court noted the following general rule as stated in 35 C.J.S. False Pretenses § 6, p. 811: “ ‘Generally speaking, to constitute the crime of obtaining property by false pretenses there must be a false representation or statement of a past or existing fact, made by accused or someone instigated by him, with knowledge of its falsity and with intent to deceive and defraud, and adapted to deceive the person to whom it is made; and there must be, further, a reliance on such false representation or statement, an actual defrauding, and an obtaining of something of value by accused or someone in his behalf, without compensation to the person from whom it is obtained. . . .’ “It is clear that under the facts of this case, the defendant could not have been convicted of the crime of false pretenses under the former statute. The state’s failure to show actual deception and reliance would sustain, at most, a conviction of an attempt to obtain property by false pretenses. (State v. Visco, 183 Kan. 562, 331 P.2d 318.) “The first question which we must determine is whether the legislature, by incorporating the former crime of obtaining property by false pretenses within the crime of theft by deception in K.S.A. 21-3701(b), intended to require the state to prove as an element of the crime of theft by deception that the defendant’s false representation was the instrumentality or means by which he received or obtained possession of the property, that is, that the owner was genuinely deceived by the defendant’s representations, and relied thereon in surrendering control over his property to the defendant. An examination of the cases from other jurisdictions which have enacted consolidated theft acts leads to the conclusion that in every such jurisdiction the basic elements of the various theft crimes included within the particular consolidated theft statute have not been changed, absent a clear showing of a contrary legislative intent. (People v. Ashley, 42 Cal. 2d 246, 267 P.2d 271, 279 [1954], cert. den. 348 U.S. 900 [1954]; State v. Gale, 322 S.W.2d 852 [Mo. 1959]; People v. Karp, 298 N.Y. 213, 81 N.E.2d 817 [1948]; State v. McCormick, 7 Ariz. App. 576, 442 P.2d 134, 139, vacated on other grounds, 104 Ariz. 18, 448 P.2d 74 [1968].) “Professor Paul E. Wilson, in his article on the consolidated theft act, makes the following observations: “Theft” is a term that was not employed by the common law of crimes; at least, the term was not used to identify a common law offense. By the definition of a statutory crime of theft, was it intended to broaden significantly the scope of the traditional crimes within its purview? Consolidation does not mean enlargement. There is authority that simplified stealing statutes neither broaden the crime of larceny nor proscribe conduct previously legal and that the fact of consolidation does not change the elements of the several offenses consolidated. The drafters of the Kansas statute did not generally intend to prohibit conduct that was not criminal prior to the enactment of the code. . . . “ ‘. . . [T]here was no intent, nor is there evidence of an intent, to change the basic natures of the crimes the new act comprehends. . . . “ ‘. . . At the same time, the elements of the several types of theft merged together have not been changed, and a judgment of conviction based on a general verdict of guilty can be sustained only if the evidence discloses elements of one of the consolidated offenses.’ (20 Kan. L. Rev. 398-400.) “Professor Wilson’s conclusions in this regard are referred to in State v. Bandt, supra. The issue involved here was not before us in State v. Adair, 215 Kan. 54, 523 P.2d 360. We find no language in the statute which demonstrates a legislative intention to change the elements of the several offenses which were consolidated in the new theft statute. “On the contrary, it is our judgment that the words contained in the statute, when construed in accordance with the statutory definitions or when given their natural and ordinary meanings, show clearly that the legislature intended to require the state to prove that the intended victim was actually deceived and actually relied upon the false representation in order for the defendant to be found guilty of theft by deception. K.S.A. 21-3701 requires that the defendant obtain by deception control over property with the intent to deprive the owner permanently of the possession, use, or ownership of his property. The state in the present case was required to show that the defendant obtained control over the property of Richman-Gordman by deception. The word ‘by’ has several natural and ordinary meanings which are universally accepted. (Webster’s Third New International Dictionary, unabridged, pp. 306-307.) The word ‘by’ is sometimes used to express a relation of time and sometimes to signify place or position. (12 C.J.S. By, p. 865.) Here it is clear that the word ‘by’ is not used in the statute to express a relation of time or place. It is obviously used as indicating an agency or instrumentality as a causative factor. See for example Ballentine, Law Dictionary with Pronunciations, Second Edition, where the word ‘by’ is defined as follows: “ ‘The word may mean “through the means, act, or instrumentality of.” . . . Thus, “an injury by accident” is synonymous with “an injury caused by accident.” See Carroll v. Industrial Commission, 69 Colo. 473, 19 A.L.R. 107, 109, 195 Pac. Rep. 1097.’ (p. 180.) “The term ‘by’ has been judicially construed where it is used in statutes making it a crime to obtain property by false pretenses. In Commonwealth v. Walker, 108 Mass. 309 (1871), the Supreme Judicial Court of Massachusetts states that the words ‘by a false pretense’ as used in the criminal statute were substantially equivalent to the words ‘by means of a false pretense.’ A California statute was construed in a similar manner in People v. Harrington, 92 Cal. App. 245, 267 Pac. 942 (1928), and most recently in People v. Lorenzo, 64 Cal. App. 3d Supp. 43, 135 Cal. Rptr. 337 (1976). “The factual circumstances in Lorenzo are quite similar to those in the present case. There the defendant was observed by the manager of a supermarket to switch price tags from one kind of glove to another kind of glove and also to switch price tags placed on chickens. He was arrested by the manager in the parking lot after having paid the amount indicated on the switched price tags. He was charged with the offense of theft by false pretenses. In setting aside a conviction of theft by false pretenses, the Court of Appeals held that the defendant could not have been convicted of theft by false pretenses since the manager of the supermarket at no time relied upon the defendant’s conduct. Since the manager was the agent of the market owner, his knowledge was held to be that of the market owner. The California Court of Appeals determined, however, that the offense of attempted theft by false pretenses had been established. “Another quite similar case is State v. Hauck, 190 Neb. 534, 209 N.W.2d 580, 60 A.L.R.3d 1286 (1973). In Hauck the defendant, with the knowledge of the owner, changed price tags between two cartons, placing the lower price tag on the carton which he took to the checkout counter and attempted to purchase at that price. He was immediately arrested. In the course of the opinion the Supreme Court of Nebraska observed that, if the defendant had been successful in carrying out and completing the transaction as intended, he would have been guilty of obtaining property by false pretenses in violation of the state statute. The court pointed out, however, that an essential element of obtaining property by false pretenses is that there is reliance upon the representations made and stated that ‘the pretense must be an effective cause in inducing the owner to part with his property, and if the owner has knowledge of the truth, the offense has not been completed. ’ (State v. Bohannon, 187 Neb. 594, 598, 193 N.W.2d 153 [1971].) “We have concluded that in order to convict a defendant of theft by deception under K.S.A. 21-3701(b) the state must prove that the defendant with the required intent obtained control over another’s property by means of a false statement or representation. To do so the state must prove that the victim was actually deceived and relied in whole or in part upon the false representation.” 223 Kan. at 399-404. As stated in State v. Finch, theft by deception, as defined by K.S.A. 21-3701(b), incorporates the prior crime of obtaining money by false pretenses (K.S.A. 21-551 [Corrick]). Accordingly, in order to prove theft by deception, the State would have to prove that the defendants obtained control over Dillard’s money by means of a false statement or representation, that the false statement or representation deceived Dillard’s, and that Dillard’s relied in whole or in part upon the false statement in giving up control of the money to the defendants. PIK Crim. 2d 59.01 states this element as follows: “That the defendant obtained control over the property by means of a false statement or representation which deceived_ who had relied in whole or in part upon the false representation or statement of the defendant . . . .” That element is lacking herein. The owner (Dillard’s) placed defendants in charge of the respective stores. There is no deception claimed to be involved in the obtaining of these positions. In such capacity, each defendant had access to the respective safes, cash room, and vouchers in his store. Each was the highest ranking Dillard’s employee in his respective store. The bogus vouchers were used to cover up the thefts, not to cause the corporation to part with the monies represented by the vouchers. The acts of the defendants herein, as claimed by the State, would have constituted embezzlement pursuant to K.S.A. 21-545 (Corrick), which provides in pertinent part: “[A]ny officer, clerk, agent, employee or servant of any corporation ... or any person employed in such capacity . . . who shall embezzle or convert to his own use, or shall take, make away with, or secrete, with intent to convert to his own use, without the assent of his employer, any money . . . shall upon conviction thereof be punished in the manner prescribed by law for stealing property . . . .” This statute was repealed in 1969 when embezzlement became a part of the consolidated theft statute (K.S.A. 21-3701). The former crime of embezzlement is now included in section (a) of K.S.A. 21-3701 relating to obtaining or exerting unauthorized control over property. An analogy would perhaps be illustrative. A farmer hires a fox to be in charge of his chicken house. There is no deception by the fox in obtaining his position. The fox has full access to all parts of the operation as a part of his job. Let us assume the fox starts stealing eggs from the egg storage area. To cover up the thefts, he replaces each stolen egg with a plastic one, or, perhaps, falsifies the records as to how many eggs have been laid. In such case, no theft by deception has occurred. The farmer has not been induced to part with the control of property through deception. The crime of embezzlement, now included within K.S.A. 21-3701(a), has been committed. By contrast, let us suppose a fox con artist approaches the farmer, stating he represents a wealthy eccentric who will pay twice the market price for eggs but who will only deal anonymously through the fox. The farmer turns his eggs over to the fox on the latter’s promise that he will return the following morning with payment therefor in cash. The fox never returns. The farmer is a victim of theft by deception as he parted with his property as the result of the false statements. In the case before us, defendants should have been charged under K.S.A. 21-370I(a) rather than K.S.A. 21-3701(b). The elements of the latter statute are not satisfied by the evidence herein and hence the evidence is insufficient to support the convictions of theft by deception. These convictions must be reversed. MAKING A FALSE WRITING K.S.A. 21-3711 provides: “Making a false writing is making or drawing or causing to be made or drawn any written instrument or entry in a book of account with knowledge that such writing falsely states or represents some material matter or is not what it purports to be, and with intent to defraud or induce official action.” The complaint/information and jury instructions do not contain the wording “or induce official action.” The charges are thus limited to making the false writings “with intent to defraud.” There are two basic questions involved in determining whether the conduct involved herein legally constitutes the making of a false writing. The first problem concerns the nature of the instruments themselves. The second concerns the intended and actual use of the instruments. Previous cases of making a false writing coming before us involved: statements in an application for a bank loan, State v. Roberts-Reid, 238 Kan. 788, 714 P.2d 971 (1986); statements in a false bank loan extension intended by bank officials to deceive bank examiners, State v. Kee, 238 Kan. 342, 711 P.2d 746 (1985); statements made on city license and sales tax registration applications, State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979); and statements in campaign finance reports, State v. Doyen, 224 Kan. 482, 580 P.2d 1351 (1978). In each of these cases, the charged defendant was alleged to have written or caused to be written an instrument containing false statements. The false statements were related to the defendant’s own business or affairs. In contrast, the instruments herein were on Dillard’s forms, each of which was made to appear to have been filled out at the request of a named customer seeking a refund of monies paid for merchandise and each of which carried what appeared to be the signature of the customer. In short, the vouchers were forged instruments. K.S.A. 21-3710 provides: “(1) Forgery is knowingly and with intent to defraud: (a) Making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed by another person, either real or fictitious, and if a real person without the authority of such real person; or altering any written instrument in such manner that it purports to have been made at another time or with different provisions without the authority of the maker thereof; or making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed with the authority of one who did not give such authority; or (b) Issuing or delivering such written instrument knowing it to have been thus made, altered or endorsed; or (c) Possessing, with intent to issue or deliver, any such written instrument knowing it to have been thus made, altered or endorsed.” Forgery is a class E felony. Making a false writing is a class D felony. Clearly, the legislature intended that the conduct proscribed by K.S.A. 21-3711 deserves a more severe penalty than does the conduct proscribed by K.S.A. 21-3710. The State herein apparently believes it is free to elevate any forgery to the making of a false writing at whim as the latter statute includes all forgeries. We do not agree. The forgery statute specifically proscribed the making of an instrument which appears to have been made by another without that person’s consent. Such other person may be real or fictitious. This is precisely what defendants are alleged to have done herein, and, hence, the conduct cannot also constitute the making of a false writing contrary to K.S.A. 21- 3711. We conclude that the conduct proscribed by K.S.A. 21-3711 does include conduct defined as forgery under K.S.A. 21-3710. The second problem inherent in the making of a false writing conviction lies in the element that the false writing be made with “intent to defraud.” K.S.A. 21-3110(9) contains the following definition: ‘Intent to defraud’ means an intention to deceive another ■ person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.” Defendants did not obtain the money represented on each voucher because of the voucher. Dillard’s was not induced and was not intended to be induced to part with the money shown on the voucher by presentation of the voucher. Dillard’s had been deprived of the money shown on the voucher before the voucher was processed by Dillard’s. Each voucher was created for and used to cover up the theft of the money shown on its face. Intent to defraud requires that the maker of the instrument intended to deceive another person and to induce such person, in reliance upon the deception, to assume, create, transfer, alter, or terminate a right, obligation, or power with reference to property. The evidence herein does not satisfy this element. It may be argued that the cover-up of each theft by means of a voucher allowed each such theft to remain undiscovered and, hence, permitted the defendants to remain in the employ of Dillard’s with the opportunity to commit new thefts. However, the statutory definition of intent to defraud is not broad enough to include the facts herein. Whereas a tort statute may be construed liberally in order to give effect to its remedial purpose, a criminal statute, with its punitive effect, must be strictly construed against the State and in favor of the accused. State v. Trudell, 243 Kan. 29, Syl. ¶ 2, 755 P.2d 511 (1988). A penal statute subject to strict construction should not be read so as to add that which is not readily found therein, or to read out what, as a matter of ordinary language, is in it. State v. Haug, 237 Kan. 390, Syl. ¶ 1, 699 P.2d 535 (1985). It should be noted that intent to defraud is also an element of forgery as defined by K.S.A. 21-3710. On the grounds previously set forth, we must conclude that the evidence herein was insufficient to support the convictions of making a false writing and the same must be reversed. The other issues raised in the appeal and cross-appeal need not be addressed by virtue of the reversal of all convictions herein. The judgment of the district court in each of the consolidated cases is reversed and the cases are remanded for further proceedings.
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The opinion of the court was delivered by Nuss, J.: Ray Stevens appeals his conviction for operating or attempting to operate his vehicle under the influence of alcohol. The Court of Appeals affirmed his conviction, with one judge dissenting. See State v. Stevens, 36 Kan. App. 2d 323, 138 P.3d 1262 (2006). We granted Stevens’ petition for review and the State’s cross-petition for review; our jurisdiction is pursuant to K.S.A. 20-3018(b). Between Stevens and the State, they present seven issues on appeal. Those issues, and our accompanying holdings, are as follows: 1. Did the district court err in failing to require the State to elect either (a) operating or (b) attempting to operate as the theory of prosecution, thus depriving Stevens of his right to a unanimous jury verdict? No. 2. Did the district court err in refusing to grant Stevens’ motion for a new trial based on the admission of the deficient breath test results? No. 3. Did the district court err in refusing to grant a continuance based upon the State’s failure to produce records of the deficient breath sample as well as the maintenance records of the Intoxilyzer 5000? No. 4. Does sufficient evidence support Stevens’ conviction for driving under the influence in Crawford County? Yes. 5. Did the district court err in admitting Stevens’ confession into evidence? No. 6. Did cumulative error deprive Stevens of his right to a fair trial? No. 7. Did the district court err in ordering Stevens to pay attorney fees to the Board of Indigents’ Defense Services (BIDS) before taking into account his financial situation? Yes. Accordingly, the judgment of the district court is affirmed regarding issues 1-6; the judgment regarding issue 7 is reversed and remanded for further proceedings as directed in the opinion. We affirm the Court of Appeals. FACTS During the afternoon of April 18, 2004, Officer Dave Justice of the Pittsburg Police Department was called to a residence for a criminal trespass complaint. Upon arrival, Justice saw a Jeep parked in the street with two people sitting in its front seat. As he approached, he saw Ray Stevens exit the driver’s side and stumble toward the rear of the Jeep in the direction of the residence. Justice unsuccessfully attempted to get Stevens’ attention as he walked toward the front door of the residence. While Stevens knocked, Justice moved directly behind him and again yelled to get his attention. As Stevens turned around, Justice informed him that the resident of the house did not want him on the property. Justice noticed a strong odor of alcohol coming from Stevens. When asked, Stevens admitted he had been drinking. He refused, however, to explain why he got out of the driver’s side of the Jeep. After backup arrived, Justice approached the Jeep to contact the passenger. Justice then saw alcoholic beverage cans in both the driver’s side and passenger’s side door cup holders. He also noticed a brown paper bag that appeared to contain a liquor bottle with the seal broken. When the passenger handed Justice the bag, he discovered it contained a half-empty bottle of whiskey. The Jeep key was in the ignition. At that time, Justice believed that Stevens was under the influence of alcohol. According to Justice, Stevens stated that he had driven the vehicle to the residence. Initially, Stevens agreed to take a field sobriety test. Justice first asked Stevens to touch the top of Justice’s pen with his right index finger. Stevens smirked and at tempted to touch the pen with his small finger; however, he missed the pen. When Justice asked him to redo the test, Stevens was able to touch the pen with the correct finger. Justice then asked Stevens to follow a pen with his eyes. Stevens, however, only focused on Justice and refused to follow the pen. Stevens also refused to complete balance tests. Justice placed Stevens under arrest and took him to the police station. There, after Justice read Stevens the implied consent advisoiy, Stevens submitted to an Intoxilyzer 5000 test. Although Stevens agreed to take the breath test, he initially refused to blow into the machine. When Stevens did blow, he failed to provide enough air for a sufficient sample. According to the machine printout, Stevens blew a “deficient sample” with a .205 blood alcohol concentration. The next day Stevens was charged with operating or attempting to operate a motor vehicle while under the influence of alcohol in violation of K.S.A. 2006 Supp. 8-1567(a)(3), and transporting an open container of alcoholic beverage in violation of K.S.A. 8-1599. The same day, defense counsel filed a motion to suppress the breath test. The court denied the motion on present showing, allowing Stevens to later raise the issue. The case proceeded to jury trial on September 23, 2004. Prior to voir dire, defense counsel asked that the State be required to choose its theory of prosecution, i.e., either operating or attempting to operate a vehicle while under the influence. The court, however, allowed the State to proceed under both theories. Over defense counsel’s objection, the court also admitted the deficient sample breath test results during the testimony of Sergeant David Roughton, the sergeant in charge of records and maintenance for the Intoxilyzer 5000. Stevens was convicted of operating or attempting to operate a vehicle while under the influence of alcohol but was acquitted of the open container charge. Stevens moved for a judgment of acquittal or, alternatively, for a new trial; the district court denied the motions. He was subsequently sentenced to 12 months’ probation with an underlying jail term of 12 months. A majority of a Court of Appeals panel affirmed Stevens’ conviction. The majority held: (1) The deficient breath test was admissible to establish a conviction under K.S.A. 2006 Supp. 8-1567(a)(3); (2) the district court did not err in refusing to grant a continuance or new trial based upon the deficient sample; (3) driving or attempting to drive while under the influence is an alternative means situation and the evidence was sufficient to support either means; (4) Stevens’ voluntary statements to the officer that he had been drinking and, later, that he had driven to the residence were elicited during the investigational phase and not while Stevens was in custody; (5) there was no cumulative error; and (6) a district court is unable to adequately determine a defendant’s ability to pay attorney fees to BIDS when it fails to first tax a specific amount claimed by BIDS. Because of the BIDS issue, the majority remanded the case for further proceedings. Then Judge, now Justice, Johnson dissented, arguing the evidence was insufficient to support the conviction upon the alternative means of attempting to operate a vehicle. Stevens, 36 Kan. App. 2d at 344-48. ANALYSIS Issue 1: The district court did not err in failing to require the State to elect either (a) operating or (b) attempting to operate as the theory of prosecution. Stevens argues that the district court erred in failing to require the State to elect its theory of prosecution, thus depriving him of his right to a unanimous jury verdict. “This court exercises unlimited review over issues of jury unanimity. [Citation omitted.]” State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005). The trial court allowed the State to proceed under a charge of operating or attempting to operate a motor vehicle while under the influence of alcohol in violation of K.S.A. 2006 Supp. 8-1567(a)(3), which provides in relevant part: “(a) No person shall operate or attempt to operate any vehicle within this state while: (3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle.” Consistent with the statute, the jury was instructed as follows: “The defendant is charged with the crime of operating or attempting to operate a vehicle while under the influence of alcohol. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: 1. That the defendant drove or attempted to drive a vehicle; 2. That the defendant, while driving or attempting to drive, was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle; and 3. That this act occurred on or about the 18th day of April 2004, in Crawford County, Kansas.” (Emphasis added.) As noted by the Court of Appeals, Stevens did not object to the instruction. 36 Kan. App. 2d at 336. In fact, he suggested a similar instruction. Further, he did not request a unanimity instruction, nor did he object to the failure to give it.-This court uses a clearly erroneous standard to review a party’s failure to object to a given instruction and to review a trial court’s failure to give an instruction where the party neither requested it nor objected to its omission. K.S.A. 2006 Supp. 22-3414(3); State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). Instructions are clearly erroneous only if the appellate court is firmly convinced that there is a real possibility that the jury would have rendered a different verdict if the trial error had not occurred. Cooperwood, 282 Kan. at 581. But obviously if there is no error, there is no need to apply the clearly erroneous standard. See generally State v. Sappington, 285 Kan. 158, 163-65, 169 P.3d 1096 (2007). Pursuant to K.S.A. 22-3421, a criminal defendant has the right to a unanimous jury verdict. Although Stevens failed to request a separate juiy instruction, he suggests that because operating or attempted operating were set out together, there is no way to know of which act the jury actually convicted him. As also noted by the Court of Appeals, Stevens’ argument suggests he views this as a multiple acts case. In such cases, several acts are alleged and any one of them could constitute the crime charged; the jury must be unanimous as to which act or incident constitutes the crime. State v. Voyles, 284 Kan. 239, 244-45, 160 P.3d 794 (2007). Our threshold question is whether we are presented with a multiple acts case. This determination is a question of law over which an appellate court exercises unlimited review. 284 Kan. 239, Syl. ¶ 1. An appellate court asks whether the defendant’s conduct is part of one act or represents multiple acts which are separate and distinct from each other. “ ‘Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by a “fresh impulse.” ’ ” Kesselring, 279 Kan. at 683. Here, Stevens’ conduct did not consist of multiple acts; rather, it was a continuing course of conduct not motivated by a fresh impulse. Thus, a further multiple acts analysis is unwarranted. In an alternative means case, on the other hand, a single offense may be committed in different ways. There must be juiy unanimity as to guilt for the single crime charged, but not as to the particular means by which the crime was committed. See State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). Like the Court of Appeals, we conclude that we have an alternative means case: violation of K.S.A. 2006 Supp. 8-1567(a)(3) by more than one means (operating or attempting to operate). As another preliminary consideration, we note that prior to oral argument Stevens filed a Rule 6.09 (2006 Kan. Ct. R. Annot. 45) letter of additional authority. Among other things, he argued that the charge against him was duplicitous. As this court explained in State v. Daniels, 278 Kan. 53, 71-72, 91 P.3d 1147, cert, denied 543 U.S. 982 (2004): “ ‘A complaint which charges two separate and distinct offenses in a single count is duplicitous. Duplicity is the joinder of two or more separate and distinct offenses in the same count, not the charging of a single offense involving a multiplicity of ways and means of action. Duplicitous charging is a bad practice because it confuses the defendant as to how he or she must prepare a defense, and it confuses the jury.’ [Citation omitted.]” In support, Stevens points out that for other crimes, attempt is not part of the definition of the crime; rather, it is a separate statute. For example, Stevens notes that the focus of K.S.A. 2006 Supp. 65-4159 is the successful manufacture of a controlled substance, rather than a mere overt act toward the perpetration of a crime as required under the attempt statute, K.S.A. 2006 Supp. 21-3301. As added support, Stevens cites Schad v. Arizona, 501 U.S. 624, 632, 115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991). There, the defendant challenged Arizona’s characterization of .first-degree murder as a single crime for which a verdict was not limited to any one statutory alternative; he argued that premeditated murder and felony murder are separate crimes for which the jury must return separate verdicts. 501 U.S. at 630-31. We acknowledge that the Schad Court recognized that there is a “point at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the Constitution requires to be treated as separate offenses.” 501 U.S. at 633. However, that point was not reached in Schad under Arizona’s scheme. Nor is that point reached in the instant case. In Schad, Arizona agreed with Kansas and many other states that “ ‘it was not necessary that all the jurors should agree in the determination that [1] there was a deliberate and premeditated design to take the life of the deceased, or [2] in the conclusion that the defendant was at the time engaged in [a] the commission of a felony, or [b] an attempt to commit one: it was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute.’ [Citations omitted.]” 501 U.S. at 641 (citing, among other cases, State v. Wilson, 220 Kan. 341, 552 P.2d 931 [1976]). The Court concluded that “the jury’s options in this case did not fall beyond the constitutional bounds of fundamental fairness and rationality.” 501 U.S. at 645. We similarly observe that in Kansas’ first-degree murder statute, K.S.A. 21-3401, the legislature has defined that crime as the killing of a human being committed (1) intentionally and with premeditation; or (2) (a) in the commission of, or (b) in the attempt to commit an inherently dangerous felony. Approval of this specific statutory approach was inherent in Schad. We therefore conclude that if a first-degree murder conviction can constitutionally stand when a jury has not been required to specify whether a defendant was convicted of committing intentional premeditated murder or felony murder simply because a death occurred during the attempt to commit a particular felony, then a fortiori the instant statute allowing conviction of mere DUI—for commission (operating) or for mere attempt—is also constitutional. Our conclusion necessarily rejects Stevens’ Daniels-based argument that the charge, and resultant jury instruction, is duplicitous. Now that we have concluded that the DUI statute, like the first-degree murder statute, provides alternative means of committing the same crime, the issue becomes whether sufficient evidence supports both means of committing that crime. See Kesselring, 279 Kan. 671, Syl. ¶ 2 (Unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means.). The court must determine whether a rational trier of fact could have found that each means was proved beyond a reasonable doubt; the court must also review all the evidence in the light most favorable to the prosecution. As we stated in Kesselring, 279 Kan. at 679: “ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” (Emphasis added.) After reciting this standard, the Kesselring court held “there was sufficient evidence to support a rational jury’s belief that the defendant committed first-degree murder under either a theory of premeditation or felony murder.” 279 Kan. at 679; see also Timley, 255 Kan. at 290 (“There was sufficient evidence, viewed in the light most favorable to the prosecution, that a rational factfinder could have found Timley guilty beyond a reasonable doubt of the crimes of rape and aggravated criminal sodomy either by the means of force or by the means of fear.”). The same standard of review applies in the area of attempted crimes. See State v. Peterman, 280 Kan. 56, 59-60, 118 P.3d 1267 (2005). Operating Officer Justice saw Stevens exit the driver’s side of the Jeep and stumble toward its rear in the direction of the residence. While speaking with Stevens, Justice noticed a strong odor of alcohol coming from him. When asked, Stevens admitted he had been drinking. Stevens refused, however, to explain why he got out of the driver s side of the Jeep. Justice saw the key in the ignition and an alcoholic beverage can in both the driver’s side and passenger’s side door cup holders. He also noticed a brown paper bag that appeared to contain a liquor botde with the seal broken; when it was handed to him, he observed that it contained a half-empty whiskey bottle. According to Justice, Stevens stated that he had driven the Jeep to the house. He did not reside there. Initially, Stevens agreed to take field sobriety tests; however, he was unable to complete the tests. Stevens submitted to an Intoxilyzer 5000 test; the deficient sample breath test registered an alcohol concentration of .205. Based upon the foregoing, when viewed in the light most favorable to the prosecution, sufficient evidence supports Stevens’ conviction under the “operating” means. Attempting to Operate Based upon the same evidence, the Court of Appeals majority concluded that sufficient evidence also supported the “attempt to operate” means. The majority noted that “ ‘[mjovement of the vehicle is not required in order to convict a defendant of DUI under the theory that defendant attempted to operate the vehicle.’ [Citation omitted.]” 36 Kan. App. 2d at 337-38. Judge Johnson disagreed: “The majority is persuaded that the following facts are substantial evidence that Stevens tried but failed to drive his vehicle: (1) Stevens was occupying the driver’s seat when Officer Justice arrived; (2) another person occupied the passenger seat; (3) the key was in the vehicle ignition; and (4) the vehicle was parked in front of another person’s residence. I do not perceive these facts as creating a reasonable inference of a failed attempt to operate the vehicle. See State v. Johnson, 33 Kan. App. 2d 490, 502, 106 P.3d 65 (2004) (an inference may not rest upon another inference). To the contrary, the established fact that Stevens’ vehicle was parked in front of another’s residence creates the inference that Stevens was successful in driving his vehicle to that location. Stevens’ actions in exiting the vehicle, proceeding to the front door of the residence, and knocking on the door support the inference that he drove there, rather than that he failed to drive. Indeed, that is the inference the prosecutor wanted the jury to draw when he argued that the more ‘reasonable way to look at it is [Stevens] was in front of a house where he was not welcome, he just drove up, he was just jumping out wanting to make contact because he was not aware that he was not welcome there.’ “Unlike the situation in [State v.] Kendall, [274 Kan. 1003, 58 P.3d 660 (2002)], Stevens’ vehicle was not in the middle of the street, its engine was not running, its transmission was not in neutral, and its headlights and brake lights were not illuminated. Further, in closing argument, the prosecutor did not even suggest that Stevens made a failed attempt to drive the vehicle. When we review an alternative means case, we must consider whether a rational trier of fact could have found each alleged means of committing the crime to have been proved by the State beyond a reasonable doubt. See State v. Morton, 277 Kan. 575, 580, 86 P.3d 535 (2004). Here, the State failed to prove beyond a reasonable doubt that Stevens attempted to operate his vehicle, as opposed to actually operating the vehicle. Therefore, I would reverse and remand for retrial upon the sole means of committing DUI by operating a vehicle while under the influence.” 36 Kan. App. 2d at 347-48. We first observe that the dissent’s reliance upon Morton fails to fully appreciate an important appellate court consideration, i.e., we must review the evidence in the light most favorable to the prosecution. Additionally, we must not reweigh the evidence or pass on the credibility of the witnesses. Kesselring, 279 Kan. 671, Syl. ¶ 3 (When reviewing the sufficiency of the evidence on alternative means, “this court will not reweigh the evidence. It is the jury’s function, not ours, to weigh the evidence and determine the credibility of witnesses.”). We next observe that an attempt to commit a crime does not require much effort. K.S.A. 2006 Supp. 21-3301(a) defines attempt as “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” (Emphasis added.) See PIK Crim. 3d 55.01. In Peterman, 280 Kan. at 60-61, we acknowledged that “Kansas law does not provide definitive rules as to what constitutes an overt act for attempting crime. The overt act necessarily must extend beyond mere preparations made by the accused and must approach sufficiently near to the consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense. State v. Hedges, 269 Kan. 895, 905, 8 P.3d 1259 (2000).” The Peterman court also observed: “Each case is dependent on its particular facts and the reasonable inferences the jury may draw from those facts.” 280 Kan. at 61 (citing State v. Garner, 237 Kan. 227, 238, 669 P.2d 468 [1985]). We conclude that the charge of an attempt to operate a vehicle under the influence of alcohol is sufficiently supported by the evidence. Stevens was sitting in the driver’s side of the parked Jeep with the key in the ignition and another individual in the front. Alcoholic beverage containers were found inside the jeep. Stevens admitted he had been drinking and admitted further that he had driven the Jeep to the house where he did not reside. He was unable to satisfactorily complete the field sobriety tests and refused to explain why he had exited the Jeep from the driver’s side. In viewing this evidence in the light most favorable to the prosecution, a jury could have reasonably inferred that by placing or leaving the key in the ignition and leaving the passenger in the Jeep’s front seat as he knocked on the door, Stevens had intended to drive away from a house, where clearly he did not reside, within a short period of time after exiting the driver’s seat. The key’s placement, together with his consumption of alcoholic beverages, constituted the overt acts, i.e., steps in a direct movement toward the completed crime. The arrival of Officer Justice prevented the crime’s execution. Issue 2: The district court did not err in refusing to grant Stevens’ motion for a new trial. Stevens next argues that the district court erred in denying his motion for a new trial based upon the admission of the deficient breath test results into evidence. The decision to grant or deny a motion for a new trial rests in the sound discretion of the district court. State v. Flynn, 274 Kan. 473, 513, 55 P.3d 324 (2002). Judicial discretion is abused only when no reasonable person would take the view of the district court. The party who asserts abuse of discretion bears the burden of showing it. See State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006)., 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). Moreover, resolution of this issue also necessitates interpretation of K.S.A. 2006 Supp. 8-1567 and K.S.A. 2006 Supp. 8-1013. Interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Rogers, 282 Kan. 218, 222, 144 P.3d 625 (2006). In Stevens’ pretrial motion to suppress the breath test results, he claimed that the deficient sample was not reliable evidence. The district court determined that it lacked sufficient evidence to determine whether the amount of the alcohol concentrate should be excluded. Although the court denied the motion, it granted Stevens “leave to present evidence to the court, either prior to trial or at trial, that the amount of alcohol concentrate shown by the Intoxilyzer should be excluded.” The court later found: “It is a deficient sample and it—and it is because of its deficiency, the measurement of the alcohol blood content is skewed, [if] the machine doesn’t measure it correctly because it is deficient then it is inadmissible evidence. The jury can’t speculate on that. You’ve [the State has] got to prove to me before I’m ever going to let you present that that [sic] you’ve got to lay a foundation and prove that even though he blew a deficient sample into the machine the machine is certified, it is operated by someone who knows what they are doing and we can depend on the sample.” The State introduced the deficient sample breath test results into evidence during the testimony of Sergeant Roughton, the officer in charge of records and maintenance of the Intoxilyzer 5000. The court held: “Okay. Well, the—this witness has presented sufficient certification of the Intoxilyzer. The previous witness has testified that he personally observed the certified operator, and the officer is not here, and observed the protocol and so a proper foundation has been laid so the objection is overruled, subject to your cross-examination.” Post-trial, Stevens relied upon the then recently decided case of State v. Herman, 33 Kan. App. 2d 46, Syl. ¶ 1, 99 P.3d 632 (2004). There, the Court of Appeals held that a deficient sample breath test could not be admitted as “other competent evidence” during a prosecution under subsection (a)(1) of 8-1567, which states: “No person shall operate or attempt to operate any vehicle within this state while [t]he alcohol concentration in the person’s blood or breath as shown by any competent evidence, including other competent evidence, as dfined in paragraph (1) of subsection (f) ofKS.A. 8-1013, and amendments thereto, is .08 or more.” (Emphasis added.) The district court denied Stevens’ motion for a new trial, holding that Herrman was not controlling because Herrman had been prosecuted under subsection (a)(1) of 8-1567, whereas Stevens was prosecuted under subsection (a)(3). Subsection (a)(3) simply states: “No person shall operate or attempt to operate any vehicle within this state while . . . under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle.” The court concluded that under the plain statutory language, a partial sample breath test is admissible so long as the defendant is not prosecuted under (a)(1). The Court of Appeals agreed. Like the Court of Appeals, we begin by noting that K.S.A. 8-1005 addresses evidence that can be used in a criminal prosecution for operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both. K.S.A. 8-1006(a) provides, however, that “[t]he provisions of K.S.A. 8-1005, and amendments thereto, shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or drugs, or both.” (Emphasis added.) As used in the statutes relating to driving under the influence of alcohol or drugs, “ ‘[o]ther competent evidence’ includes: (1) [a]lcohol concentration tests obtained from samples taken two hours or more after the operation or attempted operation of a vehicle; and (2) readings obtained from a partial alcohol concentration test on a breath testing machine.” (Emphasis added.) K.S.A. 2006 Supp. 8-1013(f). The Court of Appeals has held that “a deficient breath test [is] equated with a partial alcohol concentration test,’ as used in K.S.A. 8-1013(f)(2).” Herrman, 33 Kan. App. 2d at 49 (citing State v. Maze, 16 Kan. App. 2d 527, 533-34, 825 P.2d 1169 [1992]). We agree with the lower courts that the plain language of the statute defeats Stevens’ argument. See State v. Denney, 283 Kan. 781, 789, 156 P.3d 1275 (2007) (When language is plain and unambiguous, there is no need to resort to statutory construction.). Unlike subsection (a)(1) of 8-1567, subsection (a)(3) does not limit the introduction of “other competent evidence” to that found in 8-1013(f)(l), i.e., late-taken samples. Thus, the “other competent evidence” contained in 8-1013(f)(2), e.g., readings obtained from a partial alcohol concentration test on a breath testing machine— which includes a deficient sample—may be admissible in a prosecution under (a)(3). Accordingly Herrman, where (a)(1) was at issue, is also easily distinguishable. For these reasons, the district court did not err in introducing evidence of the deficient sample nor did it abuse its discretion in denying the motion for new trial. Stevens also argued to the Court of Appeals that allowing a deficient sample breath test into evidence would render subsection (a)(1) meaningless. He opined that the State could avoid the limitations of (a)(1) by simply charging under (a)(3) instead. The Court of Appeals disagreed, stating: “Under K.S.A. 2005 Supp. 8-1567(a)(1), the State needs only to prove that the alcohol concentration in a person’s blood or breath is .08 or more to show that a person is in violation of this subsection. The language under this particular subsection indicates that the legislature intended for the alcohol concentration to be proved by a test conducted on a complete sample of an individual’s blood or breath. Under K.S.A. 2005 Supp. 8-1567(a)(3), however, the State can use a variety of evidence to show that an individual was driving under the influence of alcohol to a degree that rendered him or her incapable of safely driving a vehicle. A deficient sample breath test, while not conclusive evidence that an individual was committing tire crime of driving under the influence of alcohol, can be used in conjunction with a variety of circumstances to establish a DUI violation under K.S.A. 2005 Supp. 8-1567(a)(3).” (Emphasis added.) 36 Kan. App. 2d at 329-30. We agree with the Court of Appeals’ conclusion that “Stevens’ argument on this issue really lies with the legislature.” 36 Kan. App. 2d at 330. Issue 3: The district court did not err in refusing to grant a continuance. Stevens alternatively asserts that the district court erred in refusing to grant a continuance after ruling that the breath test results would be admitted into evidence. In a criminal case, the decision to continue a case lies within the sound discretion of the district court. State v. Cook, 281 Kan. 961, 986, 135 P.3d 1147 (2006). Judicial discretion is abused only when no reasonable person would take the view of the district court, and the party who asserts abuse of discretion bears the burden of showing it. See Moses, 280 Kan. at 945. The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions. White, 279 Kan. at 332. Prior to trial, the district court ordered the State to furnish Stevens copies of all relevant information that would aid in the preparation of a defense, including copies of scientific reports or lab reports. The State, however, failed to deliver a copy of the deficient sample breath test results to Stevens until the morning of trial. Defense counsel admitted that he had previously known about the deficient test results and was not prejudiced by this late receipt. He argued, however, that he was prejudiced by the State’s failure to produce maintenance records of the Intoxilyzer 5000 machine. According to him, the State’s failures required the court either to exclude the witnesses from testifying about the deficient sample or to grant a continuance if one was requested. The district court denied the motion on present showing, but ordered the State to immediately turn over the machine’s records; the State did so. Before the State called its first witness, the court revisited the issue and asked how Stevens was prejudiced by not receiving the maintenance records. Apparently, after having reviewed the just-received records, defense counsel noted that the officer performing the test failed to record it in a log book. Based upon this failure, counsel argued that he would have called an expert to say that the accepted procedure for all tests, including a deficient sample test, is to record the test in a log. As with the test results, the district court held that the State’s delay in providing the maintenance records did not prejudice Stevens. The court denied Stevens’ similar post-trial motions alleging prejudice by the State’s delay in providing documents. In affirming the district court, the Court of Appeals discussed the State’s duty to disclose exculpatory evidence, as stated by this court in State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918 (1986): “ ‘A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is material to the guilt or innocence of the defendant. Suppression of such evidence is a violation of the defendant’s Fourteenth Amendment due process rights. Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant.’ ” 36 Kan. App. 2d at 332. The Court of Appeals noted that Stevens-was not prejudiced by the State’s failure to produce the deficient sample breath test results because defense counsel knew about the results prior to trial. 36 Kan. App. 2d at 332; see State v. Barncord, 240 Kan. 35, 43, 726 P.2d 1322 (1986). Regarding the Intoxilyzer 5000 maintenance records, the court stated: “[Djuring cross-examination, Sergeant David Roughton, who was the custodian of the Intoxilyzer 5000 maintenance records at the Pittsburg Police Department, testified that the officer performing Stevens’ breath test was supposed to record it in tire log book but failed to do so. An expert witness was unnecessary when the records custodian himself admitted that the officer administering the breath test failed to follow procedure. Defense counsel failed to establish that there was anything in the paperwork for the Intoxilyzer 5000 which might require further investigation to aid Stevens’ defense.” 36 Kan. App. 2d at 332. We agree with the Court of Appeals’ reasoning. Although the State failed to produce the records ordered by the district court in a timely fashion, Stevens cannot demonstrate that he was clearly prejudiced by the delay. See Barncord, 240 Kan. at 43 (evidence not disclosed to the defendant before trial is not suppressed or withheld by the State if the defendant has personal knowledge thereof, or if the facts become available to the defendant during trial and if he or she is not prejudiced in defending against those new facts). As the Court of Appeals noted, the records custodian himself admitted that the proper procedure was not used. For these reasons, the district court did not abuse its discretion in failing to grant Stevens a continuance. Issue 4: Sufficient evidence supports Stevens’ conviction for driving under the influence in Crawford County. Stevens next claims that there was insufficient evidence to support his conviction because the State failed to prove that the crime was committed in Crawford County. We previously stated our standard of review for sufficiency of the evidence: “ ‘[Wjhether, after review of all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” Kesselring, 279 Kan. at 679. Venue is a question of fact to be decided by the juiy. State v. McElroy, 281 Kan. 256, 264, 130 P.3d 100 (2006). It “may be established by proof of facts and circumstances introduced in evidence from which the place or places of commission of the crime or crimes may be fairly and reasonably inferred. [Citations omitted.]” (Emphasis added.) State v. Pencek, 224 Kan. 725, 729, 585 P.2d 1052 (1978). Accordingly, venue need not to be established by a specific question and answer that the offense occurred in the particular county; rather, it may be established through other competent evidence. State v. Griffin, 210 Kan. 729, 731, 504 P.2d 150 (1972). Officer Justice testified that he worked for the Pittsburg Police Department in Crawford County. On the night of the incident, he was on patrol duty when he was dispatched to a residence located at 118 West Madison for a criminal trespass complaint. He arrived within minutes. After gathering evidence, he arrested Stevens and transported him to the Pittsburg police station for testing. The jury was instructed that to find Stevens guilty of driving or attempting to drive under the influence of alcohol, it had to find that, among other things, the act occurred “in Crawford County, Kansas.” The Court of Appeals concluded that, based upon this evidence, tire jury could have reasonably inferred that the events occurred in Crawford County. Additionally, there was no evidence that Justice had been dispatched outside of his jurisdiction to respond to a call concerning criminal trespass, and generally he would not have the authority to make an arrest as a law enforcement officer outside of his jurisdiction. 36 Kan. App. 2d at 335 (citing State v. Miller, 257 Kan. 844, 849, 896 P.2d 1069 [1995]). We agree that when the evidence is viewed in the light most favorable to the prosecution, it was sufficient to establish that Stevens committed the crime in Crawford County. Issue 5: The district court did not err in allowing Stevens’ confession into evidence. Stevens asserts that the district court erred in allowing his “confession” into evidence. Specifically, he argues that his statements at the scene, i.e., that he had driven the Jeep to the residence and that he had been drinking, were not knowingly and voluntarily given because he was not given warnings prior to custodial interrogation pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). As the Court of Appeals noted, Stevens never formally moved to suppress his statements, nor did he object to their admission at trial. As a general rule, a party must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal. State v. Kunellis, 276 Kan. 461, 477, 78 P.3d 776 (2003); see K.S.A. 60-404. This is true even if the district court had already denied a motion to suppress evidence prior to trial. State v. Holmes, 278 Kan. 603, 610, 102 P.3d 406 (2004). Here, because Stevens failed to move to suppress the statements prior to trial, and failed to object to the admission of the statements at trial, he failed to preserve the issue for appeal. Stevens argues for application of an exception to the general rule: when consideration of the theory is necessary to serve the ends of justice or to prevent denial of a fundamental right. See State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005). Under this case’s facts, we see no need to apply this exception. See State v. Bornholdt, 261 Kan. 644, 932 P.2d 964 (1997). In Bomholdt, as in the instant case, the defendant failed to object at trial to the introduction of his confession into evidence on K.S.A. 60-460(f) grounds or raise any question that his statements were other than voluntarily given. Nor, as in the instant case, was there any sort of voluntariness hearing, e.g., pursuant to K.S.A. 22-3215. The Bomholdt court held: “If this were not a case where a hard 40 sentence had been imposed, this issue would fail because of our rule that in order to raise the admissibility of evidence as an issue on appeal, the record must show a timely and specific objection. K.S.A. 60-404; see McKissick v. Frye, 255 Kan. 566, Syl. ¶ 3, 876 P.2d 1371 (1994).” (Emphasis added.) 261 Kan. at 651. Furthermore, State v. Miles, 233 Kan. 286, 296, 662 P.2d 1227 (1983), states: “Kansas procedure does, consistent with the United States Constitution, require that appellant’s confession be challenged prior to or during the trial or not at all. The appellant’s failure to request a hearing or timely object to the admission of his confession waives his right to raise that issue for the first time on appeal unless the opportunity to object did not exist.” The district court did not err in admitting evidence of these statements. Issue 6: Stevens was not deprived of his right to a fair trial hy cumulative error. Stevens also argues that cumulative error requires reversal of his conviction and remand for a new trial. Cumulative trial error requires reversal when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. However, if the evidence is overwhelming against the defendant, reversal is not required. State v. Bryant, 276 Kan. 485, Syl. ¶ 7, 78 P.3d 462 (2003). Having found no previous error, Stevens’ cumulative error argument fails. See State v. Torres, 280 Kan. 309, 335, 121 P.3d 429 (2005). Issue 7: The district court erred in ordering Stevens to pay attorney fees to BIDS before taking into account his financial condition. In its cross-petition for review, the State argues that the Court of Appeals erred in reversing the district court’s order concerning the attorney fees to be reimbursed to BIDS. The State’s argument necessitates interpretation of K.S.A. 2006 Supp. 22-4513 and K.S.A. 2006 Supp. 21-4603d(i). The interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Rogers, 282 Kan. 218, 222, 144 P.3d 625 (2006). At sentencing, the district court generally ordered Stevens to reimburse BIDS for “attorney fees” incurred on his behalf as a condition of his probation. Before determining the monthly payment amount, the district court questioned Stevens about his income at his current job. Stevens stated that his net income was approximately $400 eveiy 2 weeks. Based upon this figure, the court ordered Stevens to pay not less than $50 per month in fines, court costs, and attorney fees. The court did not, however, state the specific amount of attorney fees to be reimbursed to BIDS. On appeal, Stevens argued that the district court erred in assessing the amount of attorney fees to reimburse BIDS. Specifically, he asserted that the court’s failure not only to assess the specific amount of attorney fees at sentencing but also to include those fees when considering the amount he could pay violated the requirements of both K.S.A. 2006 Supp. 22-4513 and K.S.A. 2006 Supp. 21-4603d(i). The first statute cited by Stevens, K.S.A. 2006 Supp. 21-4603d(i), discusses dispositions for crimes committed after July 1, 1993. It requires a district court to order a defendant to reimburse BIDS for attorney fees and other defense services. The statute provides: “[T]he court shall order the defendant to reimburse the state general fund for all or a part of the expenditures by the state board of indigents’ defense services to provide counsel and other defense services to the defendant. In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant’s immediate family, the court may waive payment of all or part of the amount due or modify the method of payment. The amount of attorney fees to be included in the court order for reimbursement shall be the amount claimed by appointed counsel on the payment voucher for indigents’ defense services or the amount prescribed by the board of indigents’ defense services reimbursement tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is less.” Similarly, the second statute cited by Stevens, K.S.A. 2006 Supp. 22-4513, requires a district court to order a convicted defendant to reimburse BIDS for attorney fees and other defense services: “(a) If the defendant is convicted, all expenditures made by the state board of indigents’ defense services to provide counsel and other defense services to such defendant or the amount allowed by the board of indigents’ defense reimbursement tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is less, shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases. “(b) In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant’s immediate family, the court may waive payment of all or part of the amount due or modify the method of payment.” K.S.A. 2006 Supp. 22-4513 was discussed in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). There, we held: “A sentencing court assessing fees to reimburse the Board of Indigents’ Defense Services under K.S.A. 2005 Supp. [now 2006 Supp.] 22-4513 must consider on the record at the time of assessment the financial resources of the defendant and the nature of tire burden that payment of the fees will impose.” 281 Kan. 538, Syl. ¶ 1. This court further noted that the legislature, in 22-4513(a), stated unequivocally “that the BIDS fees ‘shall’ be taxed against the defendant.” 281 Kan. at 543. The Court of Appeals agreed with Stevens: “The reasoning in Robinson is applicable here. K.S.A. 2005 Supp. 22-4513(a) imposes a mandatory duty on the trial court to tax BIDS fees against the defendant. This language is not conditional. Moreover, there is no indication that the defendant must request that the trial court tax the BIDS fees before considering the defendant’s financial resources and the burden that payment of the fees will impose. Therefore, this issue may be raised for the first time on appeal. “We read K.S.A. 2005 Supp. 22-4513(a) as requiring the trial court to first tax as costs the amount claimed by BIDS or the amount set forth in the BIDS reimbursement tables, whichever amount is less. In her concurring opinion in Robinson, Justice Luckert noted that the plain language of K.S.A. 2005 Supp. 22-4513(a) requires the trial court ‘to assess either (a) the amount of actual expenditures for providing counsel and other defense services or (b) the amount allowed by the BIDS’ defense reimbursement tables, whichever is less.’ 281 Kan. at 550. Once this figure has been taxed, K.S.A. 2005 Supp. 22-4513(b) requires the trial court, in setting the amount and payment method of the fees, to consider the defendant’s financial resources and the nature of the burden that repayment of those costs will impose on the defendant. Consequently, K.S.A. 2005 Supp. 22-4513(b) requires the repayment of those costs be balanced against the defendant’s financial ability to repay them. When the trial court has failed to tax a specific amount claimed by BIDS, the trial court is unable to adequately evaluate the amount of such sum the defendant is able to pay.” 36 Kan. App. 2d at 343-44. Consequently, the Court of Appeals reversed and remanded for the district court to tax a specific amount of attorney fees claimed by BIDS and to then determine the amount and method of payment of such sum that Stevens is able to pay. 36 Kan. App. 2d at 343-44. In criticizing the Court of Appeals’ opinion, the State again argues that Stevens failed to ask for relief from the trial court, thereby barring relief on appeal. In the alternative, it argues that the court did not commit reversible error by failing to assess the exact amount of the attorney fees against Stevens. We acknowledge that as a general rule, an issue not raised before the district court will not be considered on appeal. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). Here, because the statute places mandatory duties upon the district court, consideration is necessary to serve the ends of justice. See State v. Wiegand, 275 Kan. 841, 844-45, 69 P.3d 627 (2003). As the Court of Appeals points out, K.S.A. 2006 Supp. 22-4513(a) requires that the district court first tax as costs the lesser of two particular amounts as BIDS reimbursement. Once that amount has been taxed, the repayment of those costs must be balanced against the defendant’s financial ability to repay them per subsection (b). When the district court initially fails to tax a specific amount of attorney fees claimed by BIDS, then obviously that court is unable to adequately evaluate the amount of such unknown sum that the defendant is able to pay. Accordingly, we affirm the Court of Appeals. We reverse and remand for the district court to tax a specific amount of attorney fees claimed by BIDS and to determine the amount and method of payment of such sum that Stevens is able to pay. Affirmed in part, reversed in part, and remanded for further proceedings. Johnson, J., not participating. Larson, S.J., assigned.
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The opinion of the court was delivered by ROSEN, J.: Donnie Ventris petitioned this court to review the Court of Appeals’ decision affirming his convictions for aggravated robbery and aggravated burglary. Ventris asserts that the district court improperly admitted impeachment testimony from a jailhouse informant who had been surreptitiously planted in his jail cell by the State; that the district court improperly admitted evidence in violation of K.S.A. 60-455; and that his sentence should be reversed because the determination of his criminal history was not proven to a juiy beyond a reasonable doubt. The following facts are taken from the Court of Appeals’ decision: “Sometime in the last part of 2003, Ventris met and began living with Rhonda Theel in a romantic relationship. At some point, Theel learned from another friend, Kim Eytcheson, about the victim in this case, Ernest Hicks. She heard that Hicks was abusing the children of his live-in girlfriend, Helen Cargile. She also heard that Hicks was wealthy and carried $500 to $600 on his person. Eytcheson was also a friend of Cargile. “On January 6, 2004, and into the early morning hours of January 7, 2004, Theel and Ventris were using methamphetamine and marijuana at their home. Neither had slept for a couple of days. At approximately 6 a.m., Theel suggested to Ventris that they go to Hicks’ residence so she could talk to Hicks about die alleged child abuse. Theel called Eytcheson to find out when Cargile’s children left for school. Theel also called another friend, Martha Denton, and asked Den-ton to meet her and Ventris at Tump Station Road.’ Theel wanted Denton to give her and Ventris a ride to Hicks’ residence, because she thought it would be best not to drive Ventris’ car all the way to Hicks’ house. “Denton did not know why Theel wanted to meet her at Pump Station Road. Nevertheless, she proceeded to the meeting place with her boyfriend, Keith Holt. By this time, Ventris and Theel had arrived at the meeting place in Ventris’ truck and began watching Hicks’ residence, waiting for Cargile to leave with her children. When Denton and Holt arrived, Theel asked Holt to take her and Ventris to Hicks’ residence and told Denton to take Ventris’ truck with her. Denton and Holt complied. “Theel gave Holt directions to Hicks’ residence. She also told him that she and Ventris were going there so a guy could show them a dog. As they arrived at Hicks’ residence, Theel noted that Hicks’ truck was in the driveway and told Holt to drive past the house, turn around, head back towards the residence, and turn into the driveway next to Hicks’ truck. Ventris ‘never said a word.’ “After Holt pulled into the driveway, Theel exited the vehicle and told Ventris to wait while she went to the door and knocked. Theel had also told Holt he could leave, because the guy living at the house was supposed to give her and Ventris a ride back. According to Holt’s trial testimony, Ventris waited behind a black pickup while Theel knocked on the door. As Holt pulled out of the driveway, he saw Ventris pull a ski mask down over his face, but Holt could not tell whether the ski mask left Ventris’ face open or covered everything but his eyes. The outside temperature was 5 to 10 degrees that morning. “While Theel and Ventris were inside Hicks’ residence, one or both of them shot and killed Hicks with a .38 revolver, took his wallet containing approximately $300, and a cell phone. Theel drove herself and Ventris in Hicks’ truck to a secluded spot in Oklahoma where she sprayed the truck with cleaner to get rid of any fingerprints. The two of them then walked to a convenience store. On the way, Theel tried unsuccessfully to disassemble the murder weapon. One of them disposed of the gun in a culvert. “At the convenience store, Theel called Denton and asked her for a ride home. Denton and Holt eventually picked Theel and Ventris up at the store and took them back to their home in Kansas. Sometime later, Denton and Holt contacted the police after developing a suspicion that Theel and Ventris had something to do with Hicks’ murder. Police arrested both Theel and Ventris and charged them each with several crimes. “Theel entered into a plea bargain in exchange for her testimony against Ventris. Specifically, she pled guilty to aggravated robbery and aiding a felon. The State tried Ventris before a jury on charges of felony murder, aggravated robbery, aggravated burglary, felony theft, and misdemeanor theft. Theel, Ventris, and a former cellmate of Ventris’ all testified at trial. Both Ventris and Theel denied taking a gun to Hicks’ residence, and they both claimed the reason for going to the residence was for Theel to talk to Hicks about the alleged child abuse. However, each related a different version of the events that occurred after arriving at Hicks’ residence. “Highly summarized, Theel testified as follows. As she was waiting for Hicks to come to the door, she saw a frightened look on Hicks’ face and then Ventris quickly passed her and entered the house. She then entered and almost immediately saw Hicks on the floor and Ventris standing over him. She heard them arguing. She then saw that Ventris had a .38 revolver and heard him ask Hicks about money. She attempted to stop the two from arguing by dousing them with a cleaner she retrieved from the kitchen and by also hitting Hicks with a stick. Hicks produced a wallet and Ventris said, ‘All this for 40 or 50 dollars?’ The two men walked to the bedroom after Hicks said he had more money there. Theel then heard two shots and saw Ventris come out of the bedroom. She claimed Ventris said, T have to shoot him again,’ to which she responded, ‘Okay.’ According to her testimony, she then left the house and at some point heard a third shot. Ventris then came out of the house and threw Hicks’ truck keys to her. She used the keys to gain access to Hicks’ truck and drove herself and Ventris away from tire scene. “Ventris, as one might anticipate, offered a different version as follows. He testified that he only went with Theel on the day in question to ‘shut her up’ since she had been talking for days about Hicks committing child abuse. He denied hearing about Hicks and his money. He also denied taking a gun with him and did not know if Theel had one. He denied knowing that Theel had called Denton to arrange a ride, but he admitted going to the meeting place where they met Denton and Holt. There he and Theel entered Holt’s car and traveled to Hicks’ house. Once there, Hicks became agitated with Theel over her accusations of child abuse. A scuffle ensued between himself and Hicks, and Theel threw a liquid in Hicks’ face and hit him with a stick. Theel then pulled out a gun and asked Hicks for his wallet. Ventris asked her what she was doing, and she replied that he should mind his own business. Hicks said his wallet was in the bedroom, and she told him to go get it. Theel and Hicks went into the bedroom, and Theel shot him. Ventris started to leave and then heard two more shots. He denied taking anything with him when he left. He got into the truck with Theel only after she said she would take him to his truck. Nevertheless, they continued on to a gas station where he purchased gas with money Theel gave him. “As stated earlier, the State also offered at trial the testimony of Johnnie Doser, Ventris’ former cellmate, as a rebuttal witness. Prior to trial, the State recruited Doser to share a cell with Ventris and to ‘keep [his] ear open and listen’ for incriminating statements. According to Doser, Ventris told him that he and his girlfriend ‘went to rob somebody and that it went sour.’ Ventris allegedly said he shot a guy in the head and chest and took his keys, his wallet, about $350, and a vehicle. In exchange for Doser’s testimony, the State released him from probation. Ventris objected to the testimony, claiming the State had obtained the statements in violation of his Sixth Amendment right to counsel. The State conceded the Sixth Amendment violation but argued the testimony could be used for impeachment purposes. The trial court allowed Doser to testify. “Prior to closing arguments, the trial court instructed the jury to ‘consider with caution’ the testimony of both Doser and Theel. The jury deliberated for approximately 2 hours and acquitted Ventris of felony murder and misdemeanor theft. However, the jury found him guilty of aggravated burglary and aggravated robbery. The court had previously dismissed the felony theft charge due to a lack of evidence. Later, the court sentenced Ventris to 247 months for aggravated robbery and 34 months for aggravated burglary.” Slip op at 3-8, State v. Ventris, No. 94,002, unpublished opinion filed September 15, 2006. The Court of Appeals affirmed Ventris’ convictions and sentences. Ventris, slip op. at 17. Ventris petitioned this court to review the Court of Appeals’ decision, and we granted his petition. For his first issue, Ventris claims that the district court erroneously admitted testimony from his former cellmate, who had been surreptitiously placed in Ventris’ jail cell to obtain incriminating statements. Ventris claims that his former cellmate’s testimony violated his Sixth Amendment right to counsel. When an appellate court reviews the district court’s decision regarding the suppression of evidence, it gives deference to the trial court’s factual findings but applies a de novo standard to the ultimate legal determination of whether the evidence should have been suppressed. State v. Coleman, 275 Kan. 796, 805, 69 P.3d 1097 (2003). The State concedes that it violated Ventris’ Sixth Amendment right to counsel when it surreptitiously planted Doser in Ventris’ jail cell as a human listening device. Nevertheless, the State argues that the evidence is only precluded from its case-in-chief. The State asserts that it can use the illegally obtained statements in rebuttal to impeach Ventris’ testimony. To support its argument, the State relies on Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971). In Harris, the defendant was charged with selling heroin to an undercover police officer. After Harris was arrested, he made several incriminating statements to the officers without the benefit of proper Miranda warnings. Harris testified in his defense, stating that he had sold baking powder to the officers as part of a scheme to defraud drug purchasers. On cross-examination, the State attempted to impeach Harris’ testimony by inquiring about several contradictoiy statements Harris had made after his arrest. The State conceded that the statements were inadmissible in its case-in-chief because they were obtained without Miranda warnings but asserted that the statements were admissible for impeachment. 401 U.S. at 223-24. In a five-to-four decision, the United States Supreme Court agreed with the State. Harris, 401 U.S. at 224-25. The Harris Court relied on Walder v. United States, 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354 (1954), which allowed the admission of illegally obtained physical evidence to impeach the defendant even though the evidence was not admissible in the government’s case-in-chief. Harris, 401 U.S. at 224-26. Stating that “[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from risk of confrontation with prior inconsistent utterances,” the Harris Court concluded that the Court’s truth-seeking function outweighed the protection against self-incrimination afforded by Miranda. 401 U.S. at 226. In Oregon v. Hass, 420 U.S. 714, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975), the United States Supreme Court extended the holding in Harris to include statements made in violation of a defendant’s Fifth Amendment right to counsel. Hass was arrested for stealing bicycles. The police advised Hass of his Miranda warnings at the time of his arrest. Hass requested to speak with his attorney and was advised that he could call an attorney when they arrived at the police office. On the way there, Hass pointed out the houses where the bicycles had been stolen and the location of a stolen bicycle. At trial, Hass testified that he did not know his friends were going to steal bicycles or from where the bicycles had been stolen. To impeach this testimony, the State admitted the statements Hass had made after his arrest. 420 U.S. at 715-17. The Hass Court affirmed the use of the defendant’s statements to im peach his testimony, finding no evidence or suggestion that the statements were involuntary or coerced. 420 U.S. at 722. This court has applied the United States Supreme Court’s analysis in Harris and Hass. In State v. Osbey, 213 Kan. 564, 573-74, 517 P.2d 141 (1973), the defendant claimed that the trial court erroneously admitted portions of his confession because there had been no hearing outside the presence of the juxy to determine the voluntariness of the confession. Relying on Harris, the State claimed that the confession was properly admitted as rebuttal evidence to impeach the defendant. The Osbey court agreed with the State, concluding that the statements were properly admitted as rebuttal evidence even though they were not admissible in the State’s case-in-chief. 213 Kan. at 574. See also State v. Andrews, 218 Kan. 156, 159, 542 P.2d 325 (1975) (same issue). The facts in State v. Boone, 220 Kan. 758, 768-69, 556 P.2d 864 (1976), are similar to those in Hass. Boone requested to speak with an attorney after he was arrested and the officers had given him Miranda warnings. However, before Boone had an opportunity to talk to an attorney, the officers obtained a statement from Boone regarding his whereabouts prior to his arrest. At trial, Boone testified differently about his whereabouts before his arrest, and the State offered the officer’s testimony to impeach him. The Boone Court relied on Harris and Hass in concluding that the evidence was properly admitted to impeach Boone, even though it was inadmissible in the State’s case-in-chief. Boone, 220 Kan. at 768-69. See also State v. Graham, 244 Kan. 194, 203-04, 768 P.2d 259 (1989) (allowing statements made without Miranda warnings to be used to impeach the defendant’s testimony); State v. Greene, 214 Kan. 78, 82, 519 P.2d 651 (1974) (admitting statements made with improper Miranda warnings to be used for impeachment); State v. Robinson, 4 Kan. App. 2d 428, 433, 608 P.2d 1014 (1980) (assuming that the defendant did not properly and effectively waive his Miranda rights but allowing the State to use the statements to impeach the defendant); State v. Stoops, 4 Kan. App. 2d 130, 134-35, 603 P.2d 221 (1979) (affirming the admission of statements made to police after the defendant invoked his right to counsel to impeach the defendant). Cf. State v. Roberts, 223 Kan. 49, 57-58, 574 P.2d 164 (1977) (distinguishing Harris and Hass and precluding the admission of involuntary statements to impeach the defendant). In keeping with its decisions in Harris and Hass, the United States Supreme Court extended the Fifth Amendment analysis to a Sixth Amendment issue in Michigan v. Harvey, 494 U.S. 344, 350-51, 108 L. Ed. 2d 293, 110 S. Ct. 1176 (1990). Two months after Harvey had been arraigned on two counts of rape, he told a police officer that he would like to make another statement but did not know if he should talk to his attorney. The officer told Harvey that he did not need to speak with his attorney because his attorney would get a copy of the statement anyway. After signing portions of a constitutional rights waiver indicating that he understood his right to remain silent and have an attorney present during the questioning, Harvey made statements that were inconsistent with his later trial testimony. The State conceded that Harveys statements were not admissible during its case-in-chief, but argued that under Harris, the statements were admissible to impeach Harvey. 494 U.S. at 346-47. In another five-to-four decision, the Harvey Court agreed with the State but remanded the matter for factfinding to determine whether Harvey had knowingly and voluntarily waived his Sixth Amendment right to counsel. 494 U.S. at 354. The Harvey Court noted the prophylactic rule from Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), which requires the exclusion of any statements made to police after the Sixth Amendment right to counsel has attached if the police initiated the conversation. Reasoning that the Jackson prophylactic rule was analogous to the Miranda prophylactic rule, the Harvey Court extended its holding in Harris to apply to Sixth Amendment violations. 494 U.S. at 349, 351. The Harvey Court stated that the “ ‘search for the truth in a criminal case’ outweighs the ‘speculative possibility that exclusion of evidence might deter future violations of rules not compelled directly by the Constitution in the first place,” 494 U.S. at 351-52. The dissenting justices in Harvey refused to reduce the Sixth Amendment right to counsel to the status of a prophylactic rule, stating: “The exclusion of statements made by a represented and indicted defendant outside the presence of counsel follows not as a remedy for a violation that has preceded trial but as a necessary incident of the constitutional right itself. ‘[T]he Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.’ Strickland v. Washington, 466 U.S. 668, 684, [80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)]. It is not implicated, as a general matter, in the absence of some effect of the challenged conduct on the trial process itself. [Citations omitted.] It is thus the use of the evidence for trial, not the method of its collection prior to trial, that is the gravamen of the Sixth Amendment claim.” 494 U.S. at 362-63. In this case, the State’s reliance on Harris and its progeny does not reconcile the factual distinction between those cases and this case. In Harris, Hass, and Harvey, the defendant dealt directly with law enforcement officers. In contrast, the statements at issue in this case were made to a jailhouse informant who was surreptitiously acting as an agent of the State. We believe this factual distinction is significant. The United States Supreme Court addressed the impact of jailhouse informants on the Sixth Amendment right to counsel in United States v. Henry, 447 U.S. 264, 65 L. Ed. 2d 115, 100 S. Ct. 2183 (1980). In Henry, government agents sought assistance from an jailhouse informant who had provided confidential information to the government for over a year. The government agents aslced the jailhouse informant to be “alert to any statements” made by Henry and other federal prisoners. 447 U.S. at 266. Henry confided in the jailhouse informant about his involvement in a bank robbery and sought the informant’s assistance in breaking out of jail. The jailhouse informant testified against Henry at his trial. The Henry Court held that the admission of the jailhouse informant’s testimony violated Hemy’s Sixth Amendment right to counsel. 447 U.S. at 274. The Henry Court relied on Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964), which held that the government cannot use a defendant’s incriminating statements when the statements are obtained by a surreptitious informant working as an agent for the government. Noting that the “concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply in the context of communications with an undisclosed undercover informant acting for the Gov emment,” the Henry Court concluded that Henry’s statements “should not have been admitted at trial.” (Emphasis added.) 447 U.S. at 273-74. The Henry Court distinguished between Fourth and Fifth Amendment cases, stating that “those cases are not relevant to the inquiry under the Sixth Amendment here—whether the Government has interfered with the right to counsel of the accused by ‘deliberately ehciting’ incriminating statements.” 447 U.S. at 272. Unlike the Court’s analysis in Harris, Hass, and Harvey, the Henry Court did not consider whether the government violated a prophylactic rule or a constitutional right. Neither this court nor the United States Supreme Court has previously addressed the issue presented by the facts of this case. Although the Harvey Court addressed a related issue, it specifically left open the question presented by the facts in this case, stating,' “we need not consider the admissibility for impeachment purposes of a voluntary statement obtained in the absence of a knowing and voluntary waiver of the right to counsel.” 494 U.S. at 354. However, a few other jurisdictions have squarely addressed the issue. In United States v. McManaman, 606 F.2d 919 (10th Cir. 1979), the Tenth Circuit allowed the admission of statements the defendant made to an undercover informant for the purpose of impeaching the defendant’s testimony. Deciding the issue without the benefit of the Henry decision, the McManaman court refused to extend the Massiah rule, which precludes the admission of evidence obtained by an undercover informant while the defendant is represented by counsel. Instead, the McManaman court relied on the reasoning in Walder, stating that a defendant is not free to make a sweeping denial of the charges by “possibly peijurious testimony, in reliance on the Government’s inability to challenge his credibility because its rebuttal evidence was illegally secured.” 606 F.2d at 925. Likewise, in United States v. Langer, 41 M.J. 780 (A.F. Ct. Crim. App. 1995), the United States Air Force Court of Criminal Appeals allowed the admission of the defendant’s statements to an undercover informant to impeach the defendant’s testimony. Relying on Harvey, the Langer court stated: “We see no significant distinction between a Sixth Amendment violation committed in a station house, by police officers who have identified themselves to a suspect, and a covert one committed by an undercover agent. In each instance, society demands that the prosecution pay a price so that future violations maybe deterred. That price is exclusion of the tainted evidence from the prosecution case-in-chief. However, society should not be made to suffer a Sixth Amendment violation as a license for an accused to commit perjury without fear of contradiction. Such a cost is too high.” 41 M.J. at 784. In United, States v. Martin, 974 F. Supp. 677 (C.D. Ill. 1997), a federal district court in Illinois ruled that the Government could use the defendant’s statements to an undercover agent to impeach the defendant’s testimony. The Martin court concluded that the defendant’s statements to the undercover agent were voluntary but that he had not made a knowing and voluntary waiver of his right to counsel. Nevertheless, the Martin court reasoned that barring the defendant’s statements “would diminish the Court’s truth-seeking purpose in a criminal trial and would give too little weight to antipeijury considerations.” 974 F. Supp. at 684. In contrast, the Supreme Court of Maine held that the State could not use surreptitiously recorded statements obtained in violation of the defendant’s right to counsel to impeach the defendant’s testimony. State of Maine v. York, 705 A.2d 692 (Me. 1997). Concluding that offering the evidence amounted to a constitutional violation rather than the violation of a prophylactic rule because the defendant did not waive his right to counsel, the York court distinguished Harvey and refused to admit the evidence for any purpose. 705 A.2d at 695. From these cases, we have discerned two analytical approaches for resolving the issue. The first approach focuses on the court’s truth-seeking function by denying the defendant an opportunity to commit perjury without contradiction. This approach ignores Henry and tire requirement that defendants make a knowing and voluntary waiver of their Sixth Amendment right to counsel. The second approach requires a knowing and voluntary waiver of the Sixth Amendment right to counsel. The knowing and voluntary waiver is not dependent upon whether the defendant will have an opportunity to commit perjury. The Court of Appeals followed the first approach, focusing on the court’s truth-seeking function and preventing perjury. While this approach is supported by McManaman, Longer, and Martin, it fails to harmonize the United States Supreme Court’s decisions in Henry and Harvey. The Harvey Court refused to address the admission of statements made without a knowing and voluntary waiver of the Sixth Amendment right to counsel. The Henry Court concluded that a defendant cannot knowingly and voluntarily waive his Sixth Amendment rights if he or she is dealing with an undercover informant. Considering Harvey in conjunction with Henry leads us to conclude that the second approach applied by the York court is more constitutionally sound. A criminal prosecution commences when a complaint is filed and a warrant issued. The defendant’s Sixth Amendment right to counsel attaches at that point. State v. McCorgary 218 Kan. 358, 361, 543 P.2d 952 (1975) cert, denied 429 U.S. 867 (1976). Once a criminal prosecution has commenced, the defendant’s statements made to an undercover informant surreptitiously acting as an agent for the State are not admissible at trial for any reason, including the impeachment of the defendant’s testimony. Cf. State v. Pennington 276 Kan. 841, 846, 80 P.3d 44 (2003) (allowing statements from an undercover jailhouse informant acting as an agent for the State because the defendant had not been charged with the crime at issue). Although trial judges are called upon to determine the admissibility of evidence to effectuate the courts’ truth-seeking function, there is nothing in our federal or state constitutions that requires us to malee truth-seeking the overriding principle that trumps our constitutionally protected rights. By following the first approach, the Court of Appeals primarily focused on admissibility of rebuttal evidence rather than the impact of such a glaring violation of a constitutional right. Without a knowing and voluntary waiver of the right to counsel, the admission of the defendant’s uncounseled statements to an undercover informant who is secretly acting as a State agent violates the defendant’s Sixth Amendment rights. We disagree with the conclusion that the admission of such statements merely violates a prophylactic rule. Unlike Harris, the State did not simply fail to give Ventris Miranda warnings, and, unlike Harvey, the State did not merely interrogate Ventris after his right to counsel had attached. Rather, the State purposely circumvented the requirement for a knowing and voluntary waiver of Ventris’ right to counsel when it recruited Doser to surreptitiously obtain statements from Ventris in his jail cell. Allowing the admission of this testimony as rebuttal evidence would invite the State to engage in clandestine behavior in gathering evidence in violation of our constitutional rights. The purity of justice under our Sixth Amendment’s constitutional right to counsel cannot be polluted by the subversive conduct of deceitful acquisition of evidence. The State seeks to limit our analysis to whether Ventris’ statements to Doser were voluntary. However, the State’s argument misstates the applicable test for Sixth Amendment violations. Voluntariness of the statement is a test for Fifth Amendment violations. See Hass, 420 U.S. at 722. The test for Sixth Amendment violations is whether the defendant knowingly and voluntarily waived the right to counsel. See Harvey, 494 U.S. at 354. Waiver is valid only when it reflects “ ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” Patterson v. Illinois, 487 U.S. 285, 292, 101 L. Ed. 2d 261, 108 S. Ct. 2389 (1988) (quotingJohnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed 1461, 58 S. Ct. 1019 [1938]). In this case, there are no facts to support a finding that Ventris knowingly and voluntarily waived his right to counsel even though his statements to Doser may have been voluntary. In reaching our conclusion that the district court erroneously admitted testimony from a jailhouse informant in this case, we find it necessary to emphasize the fact that the jailhouse informant in this case was recruited to be an agent for the State. The fact that the State initiated the contact with the jailhouse informant and arranged to secretly monitor the defendant’s statements distinguishes this case from a case where the jailhouse informant approaches the State with information and offers to testify against the defendant. We find the State’s conduct to be particularly egregious in this case, particularly because the State knew that its actions violated Ventris’ Sixth Amendment rights. Nevertheless, we do not intend for the rule in this case to deter testimony from all informants. Rather, the rule is meant to prohibit the State from recruiting undercover informants to obtain statements once a prosecution has commenced without a knowing and voluntary waiver of the defendant’s Sixth Amendment right to counsel. This rule does not apply when informants approach the State with relevant information that is otherwise admissible. Ventris properly argues that the district court erroneously admitted testimony from a jailhouse informant who had been surreptitiously placed in Ventris’ jail cell to obtain incriminating evidence. The admission of the evidence violated Ventris’ Sixth Amendment right to counsel. However, an error of constitutional magnitude does not require reversal if it is harmless. The erroneous admission of evidence in violation of a constitutional right is governed by the federal constitutional error rule, which provides that an error is harmless only if the reviewing court is able to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the outcome of the trial. State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004). The jailhouse informant’s testimony directly contradicted Ventris’ version of events. The jury had to decide whether to believe Theel’s story that Ventris masterminded the robbery or Ventris’ story that Theel orchestrated the events in which he was not a willing participant. The jailhouse informant’s testimony was admitted solely to impeach Ventris’ credibility. Although the verdict indicates that the jury did not fully believe Theel, we cannot conclude beyond a reasonable doubt that the admission of the jailhouse informant’s testimony would not have changed the result of the trial. Without the jailhouse informant’s testimony, the jury might have considered Ventris’ story more believable and acquitted him on all of the counts. Accordingly, we must find that the error was not harmless and Ventris’ convictions must be reversed. Although the first issue is dispositive of Ventris’ convictions, we must address the second issue because it may arise again at Ventris’ next trial. Ventris argues that the district court erroneously admitted Theel’s testimony that Ventris had forcibly strip-searched Theel approximately 1 month before Hicks was killed. Ventris argues that the evidence was admitted in violation of K.S.A. 60-455 without a motion or a limiting instruction. According to Ventris, the evidence was highly prejudicial because it implied that Ventris was a dominating partner. The State argues that the evidence was properly admitted as res gestae to explain the relationship between Theel and Ventris. The Court of Appeals concluded that the district court abused its discretion by admitting the evidence but determined that the error was harmless. Ventris, slip op. at 16. When analyzing a district court’s decision to admit evidence, an appellate court first considers whether the evidence is relevant. Once relevance is established, the court applies the evidentiary rules either as a matter of law or in the exercise of the district court’s discretion, depending on the contours of the rule in question. State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006). Once relevance has been established, an appellate court reviews the admission of evidence pursuant to K.S.A. 60-455 as a question of law, subject to de novo review. 282 Kan. at 47-48. Ventris first claims that the evidence could not be admitted because the State failed to file a motion seeking the admission of the evidence. Ventris cites no authority for this claim. Without any supporting argument or authority, we decline to address this argument. See State v. Baker, 281 Kan. 997, 1015, 135 P.3d 1098 (2006). Next, Ventris asserts that the evidence violated K.S.A. 60-455, which 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.” Pursuant to K.S.A. 60-455, evidence of other crimes and civil wrongs is not admissible if it is not relevant to a disputed material fact. Relevance is established by some material and logical connection between the asserted fact and inference or result it is intended to establish. Gunby, 282 Kan. at 47. The district court admitted the evidence independently of K. S. A. 60-455, relying on the concept of res gestae. However, we put an end to the practice of admitting evidence of other crimes or civil wrongs independently of K.S.A. 60-455 in Gunby. 282 Kan. at 57. We also rejected res gestae as a legal basis for admitting evidence, stating: “This case provides an opportunity to end this particular confusion of thought, and we hereby do so. The concept of res gestae is dead as an independent basis for admissibility of evidence in Kansas. That evidence may be part of the res gestae of a crime demonstrates relevance. But that relevance must still be measured against any applicable exclusionary rules. Gunby, 282 Kan. at 63. The Court of Appeals concluded that the trial court committed error. However, the Court of Appeals concluded that the error was harmless. We decline to make that determination at this point. We have already concluded that Ventris is entitled to a new trial on other grounds. If the State seeks admission of this evidence at Ventris’ new trial, the district court must address the test for admitting evidence of other crimes or civil wrongs. Specifically, the district court must determine whether the evidence is relevant to any disputed material fact. If so, the court must then determine whether the evidence is more probative than prejudicial. If the district court concludes that the evidence survives these hurdles, it must give the jury a limiting instruction. See Gunby, 282 Kan. at 56-57. Because we have reversed Ventris’ convictions and vacated his sentences, we do not need to address his claim that his sentences are unconstitutional because they are dependent on the determination of his criminal history which was not proven beyond a reasonable doubt to a jury. Davis and Johnson, JJ., not participating. McAnany, J., and Larson, S.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 the respondent, Jeffrey T. Pittman, of Galena, Kansas, an attorney admitted to the practice of law in the state of Kansas in 2001. Respondent’s license to practice law in Kansas was suspended on October 11,2006, for failure to pay the annual attorney registration fee, fulfill the required hours of continuing legal education, pay the noncompliance fee for the compliance period, and pay the annual CLE fee. The suspension remains in effect. A hearing was held before a panel of the Kansas Board for Discipline of Attorneys on June 28, 2007. The respondent did not appear. After hearing the evidence presented at the hearing, the hearing panel concluded that the respondent violated KRPC 1.1 (2007 Kan. Ct. R. Annot. 384) (competence); KRPC 1.3 (2007 Kan. Ct. R. Annot. 398) (diligence); KRPC 1.4 (2007 Kan. Ct. R. Annot. 413) (communication); KRPC 1.15(b) (2007 Kan. Ct. R. Annot. 473) (safekeeping property); KRPC 1.16(d) (2007 Kan. Ct. R. An-not. 487) (declining or terminating representation); KRPC 3.2 (2007 Kan. Ct. R. Annot. 503) (expediting litigation); KRPC 8.1(b) (2007 Kan. Ct. R. Annot. 553) (disciplinary matters); KRPC 8.4(b) (2007 Kan. Ct. R. Annot. 559) (committing a criminal act); Supreme Court Rule 207(b) (2007 Kan. Ct. R. Annot. 288) (duty to cooperate); and Supreme Court Rule 211(b) (2007 Kan. Ct. R. Annot. 304) (requiring service of answer to complaint). The panel unanimously recommends that the respondent be disbarred. The 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 “Representation of E. W. “2. On February 5, 2005, [Ms. E. W.] retained the Respondent to file a post-divorce motion to change custody. During [Ms. W.]’s marriage to [Mr. W.], two children were bom: [J. R. W.] and [K. M. W.] Following the divorce, the Court awarded [Mr. W.] with primary residential custody of their children. [Ms. W.] was interested in seeking and obtaining primary residential custody. [Ms. W.] paid the Respondent an [advance] fee of $750.00. “3. [Ms. W.] believed that there was a significant change in circumstances that would warrant a change in custody. The change in circumstances included: [Mr. W.] was unable to maintain stable employment, [Mr. W.] continually moved, and their son missed a large number of days of school and was considered truant. On the other hand, [Ms. W.] was in a stable personal relationship with her boyfriend of six years, she maintained the same job for a period of three years, and she had purchased her own home. [Ms. W.] provided the Respondent with a number of personal papers and documents which supported her request for a change of custody. “4. On April 1, 2005, the Respondent filed a motion to modify child custody, in behalf of [Ms. W.] However, the Respondent did not include the information contained in ¶ 3 above in the motion. Despite the fact that he filed the motion with the Court, the Respondent failed to take action to have die motion heard by the Court. “5. In the meantime, [Mr. W.] persuaded the authorities to pursue a child in need of care case, alleging wrongdoing by [Ms. W.] Through the child in need of care case, [Mr. W.] sought to have [Ms. W.]’s visitation limited to supervised visitation. The Court scheduled a hearing on the child in need of care petition for July 5, 2005. “6. Beginning in April, 2005, and continuing throughout the period of representation, [Ms. W.] was unable to contact the Respondent. She called the Respondent numerous times. The Respondent failed to return [Ms. W.’s] telephone calls. [Ms. W.] went to the Respondent’s office on several occasions, hoping to malee contact with the Respondent and find out about the status of the motion to change custody. However, [Ms. W.] was never able to locate the Respondent at his office. When [Ms. W.] went to the Respondent’s office, she taped notes to the Respondent’s door, asking him to make contact with her and provide her with a status update. The Respondent failed to call [Ms. W.] in response to the notices she left on his door. “7. While [Ms. W.]’s motion to modify custody did not proceed, the child in need of care case did. On July 5, 2005, the Court held a hearing on the petition in the child in need of care case. During the hearing, the judge determined that there were common issues involved in the divorce proceeding. The Court contacted the Respondent by telephone and instructed him to appear in Court. When the Respondent arrived, he was agitated and he advised [Ms. W.] [to] agree to supervised visitation. “8. Sometime following the hearing in July, 2005, [Mr. W.] moved with the children. [Mr. W.] failed to inform [Ms. W.] of their location. “9. Because the Respondent took no action to get [Ms. W.]’s motion heard and because the Respondent would not contact [Ms. W.] regarding her case, [Ms. W.] sought new counsel. However, because [Ms. W.] is of limited means, she could not immediately retain new counsel. After obtaining $1,000.00 from her mother, [Ms. W.] retained Samuel Marsh. Mr. Marsh was able to locate [Mr. W.] in Toledo, Ohio. ‘TO. Mr. Marsh attempted to proceed on the motion to modify child custody. However, because the children had been living in Ohio for some time, the Court in Kansas denied the relief sought based on a lack of jurisdiction. “11. Despite repeated requests to do so, the Respondent failed to return the personal papers and documents to [Ms. W.] “Criminal Conduct “12. On April 30, 2007, the Respondent was charged with domestic assault in the second degree, a class C felony, for choking Callie Parazine, in the Jasper County, Missouri, Circuit Court. The Court issued a warrant for the Respondent’s arrest. Thereafter, on May 7, 2007, the sheriff s department arrested the Respondent. After the Respondent posted bond, the sheriff s department released the Respondent. “13. On May 30, 2007, the Respondent appeared in court for arraignment and a public defender was appointed to represent the Respondent. The Court ordered the Respondent to appear in Court on June 13, 2007. “14. On June 13, 2007, the Court reset the case to June 27, 2007. While the outcome of the June 27, 2007, hearing on the felony assault was unknown at the time of the hearing on the Formal Complaint, it appears that the charge remains pending against the Respondent. “15. In 2006, the Respondent was charged with drug offenses in the District Court of Ottawa County, Oklahoma. Thereafter on June 4,2007, the Respondent entered a plea of nolo contendere to misdemeanor drug offenses related to his possession of materials used to make methamphetamine. At that time, the Court ordered that the Respondent spend one year in jail. However, the Court suspended all but 30 days of the jail term. The Court further ordered the Respondent to report to jail to serve the 30 days on June 12, 2007. “16. On June 12, 2007, the Respondent failed to report to the jail as ordered. Consequently, the Court issued a warrant for the Respondent’s arrest. To date, the Respondent has not been apprehended. “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 1.15(b), KRPC 1.16(d), KRPC 3.2, KRPC 8.1(b), KRPC 8.4(b), Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b), as detailed below. “2. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows: ‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney s most recent registration, or at his or her last known office address. ‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’ In this case, the Disciplinaiy Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. On May 10, 2007, the package containing the Formal Complaint and Notice of Hearing sent to the Respondent by certified mail was returned to the Disciplinary Administrator’s office ... as ‘unclaimed.’ The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require. “3. 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. W.] when he failed to exercise appropriate thoroughness in prosecuting the motion to change custody. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1. “4. 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. W.] when he failed to diligently prosecute her post-divorce motion to change child custody. Because the Respondent failed to act with reasonable diligence and promptness in representing [Ms. W.], the Hearing Panel concludes that the Respondent violated KRPC 1.3. “5. 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 [Ms. W.j’s telephone calls and when he failed to contact her after receiving notes on his door. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a). “6. Lawyers must keep the property of their clients safe. See KRPC 1.15. ‘(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 die 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.’ In this case, the Respondent received personal papers and other documents from [Ms. W.] in support of her motion to change child custody. [Ms. W.] repeatedly requested that die Respondent return the papers and documents. To date, the Respondent has failed to do so. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.15(b) by failing to ‘promptly deliver to [Ms. W.] other property that [Ms. W.] is entided to receive.’ “7. 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.’ Ry failing to surrender [Ms. W.]’s personal papers and other documents and by failing to refund any unearned advanced fee, die Hearing Panel concludes that, accordingly, the Respondent violated KRPC 1.16(d). “8. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. In this case, the Respondent failed to expedite [Ms. W.]’s post-divorce motion for a change of child custody. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.2. “9. ‘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 was convicted of misdemeanor drug offenses for being in possession of items used to make methamphetamine. Accordingly, the Hearing Panel concludes that the Respon dent committed criminal acts and those criminal acts reflect directly on the Respondent’s fitness as a lawyer, in violation of KRPC 8.4(b). “10. 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 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 knowingly failed to provide a written response to the initial complaint filed by [Ms. W.] 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). “11. The Kansas Supreme Court Rules also require attorneys to file Answers to the Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirement: ‘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 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). “AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS “In making this recommendation for discipline, the Hearing Panel considered tire 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 client to provide competent and diligent representation. Additionally, the Respondent violated his duty to his client to provide adequate communication. Finally, the Respondent violated his duty to the public and to the legal profession to maintain his personal integrity. “Mental State. The Respondent intentionally violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual serious injury to his client. Further, the Respondent caused actual serious 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: “Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15(b), KRPC 1.16(d), KRPC 3.2, KRPC 8.1(b), KRPC 8.4(b), 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 a written response to the complaint filed by [Ms. W.] and the Respondent never filed such a response. Further, the Kansas Supreme Court rules require that the Respondent file an Answer to the Formal Complaint. Because the Respondent failed to provide a response to the initial complaint and because the Respondent failed to provide an Answer to the Formal Complaint, die Hearing Panel concludes that the Respondent obstructed the disciplinary proceeding. “Vulnerability of Victim. Because of her limited means, [Ms. W.] was particularly vulnerable to the Respondent’s misconduct. “Indifference to Making Restitution. To date, the Respondent has made no effort to malee restitution to [Ms. W.] for failing to fulfill the representation. “Illegal Conduct, Including that Involving the Use of Controlled Substances. In this case, the Respondent was convicted of having committed criminal offenses. Clearly, 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 no mitigating circumstances. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.’ Standard 4.11. ‘Disbarment is generally appropriate when: ‘(a) k lawyer abandons the practice and causes serious or potentially serious injury to a client; or ‘(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injuiy to a client; or ‘(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.’ Standard 4.41. ‘Disbarment is generally appropriate when a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client.’ Standard 4.51. ‘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. ‘Disbarment is generally appropriate when a lawyer knowingly engages in conduct drat is a violation of a duty owed to the profession with the intent to obtain a benefit for die lawyer or another, and causes serious or potentially serious injuiy to a client, the public, or the legal system.’ Standard 7.1.” “RECOMMENDATION “The Deputy Disciplinary Administrator recommended that the Respondent be disbarred. Additionally, the Deputy Disciplinary Administrator recommended that the Respondent be ordered to pay the Client Protection Fund $750.00 and that the Respondent return the personal papers to [Ms. W.] “While it is important to note tiiat the Respondent has not previously been disciplined for attorney misconduct, die facts of this case warrant the most severe sanction available. [Ms. W.] has suffered and will continue to suffer serious injuiy as a result of the Respondent’s misconduct. The Respondent failed to participate in the disciplinary process. Finally, die Respondent has brought disrepute to the legal profession through his criminal conduct. As such, die Hearing Panel unanimously recommends that the Respondent be disbarred from the practice of law in the state of Kansas.” 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 Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304) (misconduct to be established by clear and convincing evidence). The respondent did not file any exceptions to the panel’s final 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). 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 same. Further, we note respondent did not appear at the hearing before us, contrary to Supreme Court Rule 212(d). With respect to the discipline to be imposed, the panel’s recommendation that the respondent be disbarred from the practice of law in the state of Kansas 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). After careful consideration, the majority of the court concludes that the appropriate discipline is disbarment. A minority would impose a lesser discipline. It Is Therefore Ordered that the respondent, Jeffrey T. Pittman, 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 Jeffrey T. Pittman from the roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that Jeffrey T. Pittman comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337). 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. “In addition to affording the Respondent the notice that the rules require, the Disciplinary Administrator’s office also attempted to provide the Respondent with actual notice. The Disciplinary Administrator’s office sent a copy of the Formal Complaint and Notice of Hearing to the Respondent’s residential address in Joplin, Missouri. The copy of the Formal Complaint and Notice of Hearing that was sent to the Respondent’s residential address was also returned, it was marked ‘undeliverable as addressed.’ ” Additionally, the Respondent failed to appear at the jail to serve his sentence as ordered by the Court. Further, in [Missouri], the Respondent is facing a felony crime against a person.” “Although the Respondent has not returned the unearned fees, [Ms. W.] filed a claim with the Client Protection Fund. Earlier, the Client Protection Fund issued [Ms. W.] a payment in the amount of $750.00.”
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Per Curiam: This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator against respondent, Frederick J. Petzold, an attorney admitted to the practice of law in Kansas in July 1965. The respondent’s last registration address filed with the Clerk of the Appellate Courts of Kansas is in Overland Park, Kansas. A hearing was held before a panel of the Kansas Board for Discipline of Attorneys on October 19,2006. In its final hearing report, the panel concluded that the respondent had violated KRPC 1.16(a)(1) (2006 Kan. Ct. R. Annot. 448) (declining representation), KRPC 5.5(a) (2006 Kan. Ct. R. Annot. 494) (unauthorized practice of law), and Kansas Supreme Court Rule 211(b) (2006 Kan. Ct. R. Annot. 284) (requiring service of answer to complaint within 20 days). The hearing panel unanimously recommended that the respondent be indefinitely suspended from the practice of law in the State of Kansas. The panel’s findings of fact, conclusions of law, and recommendations for discipline are reproduced in part as follows: “FINDINGS OF FACT “2. The Respondent was admitted to the practice of law in the state of Kansas on July 1, 1965. On November 20, 1980, the Kansas Supreme Court suspended the Respondent for failing to pay the annual registration fee. On July 9,1984, the Court reinstated the Respondent’s license to practice law. “3. On January 6,1993, the Court, again, suspended the Respondent’s license to practice law. The Court suspended the Respondent’s license to practice law in 1993 because he failed to comply with the annual CLE requirements. On November 9, 1994, the Court reinstated the Respondent’s license to practice law. “4. On November 5,1996, the Court suspended the Respondent’s license for a third time. The Court suspended the Respondent’s license because he failed to pay the annual registration fee, he failed to pay the annual CLE fee, and he failed to comply with tire annual education requirements. Thereafter, on November 24, 1997, the Court, again, reinstated the Respondent’s license to practice law. “5. On November 4, 1999, the Court suspended the Respondent’s license once again. The Court suspended the Respondent’s license because the Respondent failed to pay the annual registration fee, the Respondent failed to comply with the annual education requirements, and the Respondent failed to pay the CLE late fee. The Respondent’s license remains suspended. “6. On August 11, 2005, the Respondent sent a demand letter, in behalf of Rustie Ann Miller, to the City of Holton, Kansas, to the Mayor of Holton, Kansas, to the City Manager of Holton, Kansas, to the Police Chief of Holton, Kansas, and to Jay Budde, a Police Officer employed by Holton, Kansas. “7. The Respondent’s letter provided, in part, as follows: T represent Rustie Ann Miller of Holton, Kansas, in connection with her claim for damages for the deprivation of her civil rights by the illegal actions, all under color of state law, taken by: (1) Police Officer Jay Budde, by tire inappropriate use of his handgun in her presence; (2) By said Officer’s assault of my client by his intentional swerving of his patrol car at her while she was driving in the opposite direction in her vehicle; (3) By said Officer stopping and issuing to my client a harassing warning ticket; (4) For further damages on account of the city’s reckless failure to prevent further incidents subsequent to Officer Budde’s aforementioned inappropriate use of his handgun; and (5) For further additional damages on account of the city’s reckless hiring of Officer Budde when a routine check on his previous employment would have shown him to be a problem officer with numerous serious incidents. “We view these illegal actions to be of a most serious nature for which compensatory and punitive damages would be awarded with attorney’s fees. ‘Accordingly, demand is hereby made for the payment to my client in the amount of $650,000.00. In the event that the undersigned does not receive an affirmative reply to this demand within ten (10) weekdays from your receipt of this letter with satisfactory assurance of prompt payment, suit will be immediately [filed] in the United States District Court for the District of Kansas, where a much larger amount of compensation and punitive damages and attorney’s fees will be sought.’ “8. On the second page of the Respondent’s letter, he included a heading identifying himself as an ‘Attorney at Law.’ “9. On August 16, 2005, the Respondent called Marlin A. White, City Attorney for Holton, Kansas, regarding his demand letter. The Respondent inquired as to what action the city might be taking regarding his letter. Following the Respondent’s telephone call, Mr. White called the Disciplinary Administrator’s office to determine whether the Respondent was licensed to practice law. At that time, Mr. White was informed that the Court suspended the Respondent’s license in 1999. “10. Also on August 16, 2005, Mr. White forwarded a copy of the Respondent’s letter along with a letter of complaint regarding the Respondent’s unauthorized practice of law to the Disciplinary Administrator’s office. “11. The Respondent terminated his representation of Ms. Miller after advising her that her damages were insignificant. The Respondent never advised Ms. Miller that his license to practice law was suspended. “12. On September 16, 2005, the Respondent responded to the complaint in writing. The Respondent admitted that he practiced law while he was suspended and that his actions were improper. “13. On August 23, 2006, the Disciplinary Administrator filed a Formal Complaint and Notice of Hearing in this case. On that same date, the Disciplinary Administrator sent a copy of the Formal Complaint and the Notice of Hearing to the Respondent via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. The envelope with the Formal Complaint and Notice of Hearing sent to the Respondent at his last registration address was returned unopened. “14. On September 6, 2006, a copy of the Formal Complaint and Notice of Hearing was mailed, via certified United States mail, postage prepaid to an address in Topeka. On September 7, 2006, the Respondent signed the return receipt. “15. The Respondent failed to file a written Answer to the Formal Complaint. On October 19, 2006, a hearing was held on the Formal Complaint. The Respondent failed to appear at the hearing.” The hearing panel’s conclusions of law are as follows: “CONCLUSIONS OF LAW “1. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows: ‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address. ‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’ In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. Additionally, the Disciplinary Administrator provided actual notice to the Respondent by forwarding a copy of the Formal Complaint and Notice of Hearing to an address in Topeka. Accordingly, the Hearing Panel concludes that the Respondent was afforded not only the notice that the Kansas Supreme Court Rules require but actual notice. “2. KRPC 1.16(a)(1) provides: ‘[A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct or other law.’ Attorneys are prohibited from representing clients when that representation will result in a violation of the Kansas Rules of Professional Conduct or other law. In this case, the Respondent’s representation of Ms. Miller violated KRPC 5.5 (the unauthorized practice of law). Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.16(a)(1). “3. KRPC 5.5(a) prohibits the unauthorized practice of law. The Respondent provided legal advice to Ms. Miller, wrote a demand letter in her behalf, held himself out as an ‘Attorney at Law,’ and called Mr. White in relation to his representation of Ms. Miller. Because the Respondent practiced law when his license to do so had been suspended, the Hearing Panel concludes that the Respondent violated KRPC 5.5(a). “4. The Kansas Supreme Court Rules require attorneys to file Answers to the Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirement: ‘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 provide 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 recommending indefinite suspension as the appropriate discipline in this case, the hearing panel considered the following factors outlined by the American Bar Association Standards for Imposing Lawyer Sanctions: “Duty Violated. The Respondent violated his duty to the legal profession to comply with the rules of the Court. Additionally, the Respondent violated his duly to his client. “Mental State. The Respondent knowingly violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused potential injury to Ms. Miller and 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: “Prior Disciplinary Offenses. The Respondent has been previously disciplined on one occasion. In 1980, the Disciplinary Administrator informally admonished the Respondent for engaging in conduct that was ‘entirely unbecoming to a lawyer’ by engaging in ‘indecent activities with a minor female.’ “Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. Because the Respondent failed to file a written Answer to the Formal Complaint and because the Respondent failed to appear at the hearing held on the Formal Complaint, the Hearing Panel concludes that the Respondent engaged in bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with the disciplinary rules. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1965. Prior to his latest suspension, the Respondent had an active license to practice law for approximately 28 of the 41 years since he was admitted. 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, f®und the following mitigating circumstance present: “Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness do not appear to be motivating factors in this case. “Remoteness of Prior Offenses. The discipline imposed in 1980 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 Standard: ‘Suspension is generally appropriate when a lawyer laiowingly 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.’ Standard 7.2. “The Deputy Disciplinary Administrator recommended that the Respondent be indefinitely suspended from the practice of law. “Based upon the findings of fact, conclusions of law, and the Standard listed above, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law in the state of Kansas. “Costs are assessed against die Respondent in an amount to be certified by the Office of the Disciplinary Administrator.” DISCUSSION In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of 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 Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284) (misconduct to be established by clear and convincing evidence). The respondent did not file any exceptions to the panel’s final report. Accordingly, the final report is deemed admitted. Supreme Court Rule 212(d) (2006 Kan. Ct. R. Annot. 295). We conclude the hearing panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law, and we adopt the same. With respect to the discipline to be imposed, the panel’s recommendation that the respondent be indefinitely suspended from the practice of law in the state of Kansas 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. Supreme Court Rule 212(f). The respondent’s conduct in writing the letter to the City of Holton, wherein he stated he was an attorney representing a client and demanding $650,000 or else he would file suit, constitutes the blatant and audacious unauthorized practice of law. At the time, respondent had been suspended from the practice of law in Kansas for more than 5 years. A majority of the court accepts the discipline of indefinite suspension recommendation of the panel. A minority would disbar the respondent. It Is Therefore Ordered that Frederick J. Petzold be indefinitely suspended from the practice of law effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2006 Kan. Ct. R. Annot. 243). It Is Further Ordered that respondent forthwith comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports. Davis, J., not participating. McAnany, J., assigned.
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Per Curiam-. This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Patrick S. Bishop, of Fort Scott, an attorney admitted to the practice of law in Kansas in 1979. A hearing panel of the Kansas Board for the Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211 (2007 Kan. Ct. R. An-not. 304). The healing panel concluded that Bishop violated Kansas Rules of Professional Conduct (KRPC) as follows: KRPC 1.1 (2007 Kan. Ct. R. Annot. 384) (competence); KRPC 1.3 (2007 Kan. Ct. R. Annot. 398) (diligence); KRPC 1.4 (2007 Kan. Ct. R. Annot. 413) (communication); KRPC 3.2 (2007 Kan. Ct. R. Annot. 503) (expediting litigation); KRPC 8.1(b) (2007 Kan. Ct. R. Annot. 553) (bar admission and disciplinary matters); KRPC 8.4(c) and (d) (2007 Kan. Ct. R. Annot. 559) (misconduct). Additionally, Bishop was held to have violated Kansas Supreme Court Rule 207(b) (2007 Kan. Ct. R. Annot. 288) (duties of the bar and judiciary). The hearing panel unanimously recommended that Bishop be suspended from the practice of law for a period of 1 year. Bishop filed exceptions to the final hearing report pursuant to Supreme Court Rule 212 (2007 Kan. Ct. R. Annot. 317). Hearing Panel’s Findings of Fact Bishop practices law in Fort Scott, Kansas. David and Diana Fletcher are residents of Fort Scott, and because they were acquaintances of Bishop, they hired him in two separate matters. This action arose out of complaints regarding Bishop’s handling of those two cases; the complaints were docketed separately with the Disciplinary Administrator’s office as DA9675 and DA9866. DA9675 On June 10, 1999, Mr. Fletcher was injured when the pickup truck he was driving was struck by another vehicle. The driver of the other vehicle ran a stop sign and was traveling at a high rate of speed. As a result of the accident, Mr. Fletcher sustained a broken bone in his hand, an injury to his elbow, an injury to his shoulder, and an injury to his back. He also incurred associated medical expenses. Mr. Fletcher’s truck was damaged to an extent that exceeded the truck’s value. At the time of the accident, Mr. Fletcher worked as an over-the-road driver. Because of the accident, however, Mr. Fletcher was unable to work and incurred lost wages. Following the accident, Mr. Fletcher retained Bishop to file suit against the other driver. Mr. Fletcher paid Bishop $300 for the representation. Bishop failed to reduce the fee agreement to writing. Two days before the statute of limitations ran on Mr. Fletcher’s claim, Bishop filed a lawsuit on behalf of Mr. Fletcher in the District Court of Crawford County, Kansas. Bishop failed to obtain service of process on the defendant despite the fact that the defendant resided in Crawford County. Because Bishop failed to obtain service, the district court dismissed the case on September 13, 2001. At the hearing on the formal complaint, Bishop admitted that the liability of the other vehicle was “clear cut,” and the only issue remaining was the amount of damages due Mr. Fletcher. Bishop did not inform Mr. Fletcher of the dismissal until August 2005. From the time Bishop was retained and continuing to August 2005, Mr. Fletcher repeatedly asked Bishop for updates regarding the status of his lawsuit. Bishop responded by repeatedly providing false information regarding the status of the case. Some of the false explanations included: a trial date had been continued to a new date; the courthouse was being remodeled; the judge retired and the case was on hold until a new judge was appointed; a criminal case scheduled for trial took priority; and discovery issues had arisen in the case when, in fact, no discovery was ever exchanged or conducted. Finally, Bishop falsely told Mr. Fletcher the case was scheduled for trial August 6, 2005. At the time Bishop made each of the statements to Mr. Fletcher, he knew the case had been dismissed and that the statements were false. Because Mr. Fletcher personally knew Bishop, he did not question the extreme delays in the case. While representing Mr. Fletcher, Bishop took a job with the Kansas Department of Social and Rehabilitation Services as a Child Support Enforcement Agent. Bishop failed to inform Mr. Fletcher that he was closing his private practice and failed to provide his contact information. Mr. Fletcher happened to find Bishop at his office when he was packing. At that time, Bishop assured Mr. Fletcher that he would still be able to represent him as he had been granted such permission from his employer: When Mr. Fletcher asked Bishop about his failure to inform him of his new job and address, Bishop claimed to have sent him the information in a letter. Mr. Fletcher said he never received such a letter, so Bishop promised to send Mr. Fletcher another letter with the contact information. Bishop failed to do so. In August 2005, Bishop sent Mr. Fletcher a letter finally informing him that the case had been dismissed years before. The letter provided: “I wanted to advise you that there will be no trial next week, or for that matter, on any other date. Unfortunately the case was dismissed some time ago as I was never able to get the defendant served with process. I apologize for misleading you. I perfectly understand if you believe that there are steps that must be taken to seek recompense for your damages. “Under the circumstances I do not believe it would be best for us to meet as I believe it would be a rather contentious situation. I will copy my file and forward it to you.” Subsequently, Mr. Fletcher sought advice and representation from another lawyer and then filed suit against Bishop. At the time of the formal hearing, the suit remained pending, and settlement negotiations were underway. DA9866 In the second case, Mrs. Fletcher retained Bishop to assist her in post-divorce matters by preparing and filing a Qualified Do mestic Relations Order (QDRO). The QDRO was to divide Mrs. Fletchers former husband’s stock and pension plans between Mrs. Fletcher and her former husband. Mrs. Fletcher paid Bishop $200 for the representation. From 1995 to early 2006, the Fletchers asked Bishop on numerous occasions for an update on the status of the QDRO. In response to their inquiries, Bishop provided false excuses. He falsely told the Fletchers that he was working on it and also that the QDRO was in the mail. In the August 2005 letter in which he told the Fletchers of his failure to act, he stated: “I have sent another QDRO to Ennis Business Forms so hopefully Diana’s matter will finally be resolved.” Despite these representations, Bishop failed to complete the QDRO during the 11-year period of representing Mrs. Fletcher. On March 12, 2006, Mrs. Fletcher filed a complaint with the Disciplinary Administrator’s office. On March 29, 2006, the Disciplinary Administrator wrote to Bishop and informed him that he was required to provide a written response to the complaint within 20 days, yet Bishop provided no written response. In January 2007, Jeffrey Chubb, the investigator appointed to investigate Mrs. Fletcher’s complaint, wrote to Bishop. Chubb directed Bishop to provide a written response to the complaint and requested that he complete his client file within 30 days. Bishop still failed to provide a written response to Mrs. Fletcher’s complaint. At the formal hearing, Bishop offered to pay the fees associated with having another lawyer complete the QDRO. Hearing Panel’s Conclusions of Law Based upon the findings of fact, the hearing panel concluded Bishop violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.2, KRPC 8.1(b), KRPC 8.4(c) and (d), and Supreme Court Rule 207. KRPC 1.1 requires lawyers to provide competent representation to their clients and states that “[cjompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessaiy for the representation.” 2007 Kan. Ct. R. Annot. 384. Because Bishop failed to obtain service of process on the defendant in Mr. Fletchers case, the hearing panel concluded that Bishop failed to exercise appropriate thoroughness and the preparation reasonably necessary for the representation. The hearing panel also found that Bishop failed to competently represent Mrs. Fletcher by fading to exercise the requisite thoroughness and preparation necessary to follow through with the approval of a QDRO by the plan administrators. Next, the hearing panel found that Bishop violated KRPC 1.3, which states: “A lawyer shall act with reasonable diligence and promptness in representing a client.” 2007 Kan. Ct. R. Annot. 398. The hearing panel found that Bishop failed to provide ddigent representation to both Mr. Fletcher and Mrs. Fletcher when he failed to take steps necessary to fulfill the representations. Regarding Mr. Fletcher, Bishop failed to timely obtain service of process. Liability was clearly established in that case; therefore, only the issue of damages remained. Bishop’s lack of diligence led to the case’s dismissal and cost Mr. Fletcher any chance to recover against the defendant. Likewise, the hearing panel found Bishop lacked diligence in his representation of Mrs. Fletcher, whom he represented for 11 years. The hearing panel focused on the fact that Bishop never completed the QDRO. Next, the hearing panel concluded that Bishop violated KRPC 1.4(a), which provides that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” 2007 Kan. Ct. R. Annot. 413. This conclusion was based on Bishop’s failure to provide the Fletchers with honest updates regarding their representations. An attorney violates KRPC 3.2 if he or she fails to make reasonable efforts to expedite litigation consistent with the client’s interests. 2007 Kan. Ct. R. Annot. 503. The hearing panel concluded that Bishop violated this rule because he failed to expedite Mr. Fletcher’s personal injury litigation and that, because of this failure, the case was dismissed. The hearing panel further concluded that Bishop violated KRPC 8.4(c), which states: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” 2007 Kan. Ct. R. Annot. 559. Once again, the panel focused on Bishop’s misrepresentations to the Fletchers, noting there were numerous false representations that began in 1995 and continued until 2006. The hearing panel further concluded that Bishop violated KRPC 8.4(d), which states: “It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” 2007 Kan. Ct. R. Annot. 559. The hearing panel found that Bishop engaged in such misconduct when he failed to achieve service of process on the defendant in Mr. Fletcher’s personal injury case. Finally, the hearing panel concluded that Bishop violated KRPC 8.1(b) and Kansas Supreme Court Rule 207(b). KRPC 8.1(b) provides that a lawyer in connection with a disciplinary matter “shall not . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority.” 2007 Kan. Ct. R. An-not. 553. Supreme Court Rule 207(b) provides: “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.” 2007 Kan. Ct. R. Annot. 288. The hearing panel found that Bishop knew he was required to forward a written response to the initial complaint filed by Mrs. Fletcher, pointing out that he had done so regarding Mr. Fletcher’s complaint, he had been instructed to do so in writing by the Disciplinary Administrator, and he had been instructed to do so in writing by the attorney investigator. In deciding what discipline to recommend, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (1991), stating: “Duty Violated. The Respondent violated his duty to his client to provide competent and diligent representation, the Respondent violated his duty to his client to provide adequate communication regarding the representation, and the Respondent violated his duty to his client, the public, and the legal profession to maintain his personal integrity. “Mental State. The Respondent knowingly violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused serious actual injury to his clients. Additionally, the Respondent caused actual injury to the reputation of the legal profession.” Next, the hearing panel considered the aggravating and mitigating factors which the ABA Standards identify as considerations for determining the degree of discipline to be imposed. The panel considered the following aggravating factors that may justify an increase in the degree of discipline to be imposed: “Prior Disciplinary Offenses. The Respondent has been previously disciplined on one occasion. On April 14, 2004, the Respondent entered into the attorney diversion program for having violated KRPC 1.1, KRPC 1.2, KRPC 1.3, and KRPC 1.4. The Respondent successfully completed the diversion. “Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by dishonesty and selfishness. The Respondent repeatedly provided his clients with false information regarding the status of the representations. The Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty and selfishness. “A Pattern of Misconduct. Included in this case are two complaints. The complaints involve similar misconduct. Additionally, the Respondent has previously been disciplined on one occasion. The previous case includes violations of the rules violated in this case. Thus, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct. “Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.2, KRPC 8.1(b), KRPC 8.4(c), KRPC 8.4(d), and Kan. Sup. Ct. R. 207(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 a written response to the complaint filed by Mrs. Fletcher. The Respondent never filed such a response. The Hearing Panel, therefore, concludes that the Respondent obstructed the disciplinary proceeding. “Vulnerability of Victim. Mr. and Mrs. Fletcher personally knew the Respondent. As a result of their acquaintance with the Respondent, Mr. and Mrs. Fletcher accepted his false explanations for the incredible delays. Thus, because they had a personal relationship with the Respondent, Mr. and Mrs. Fletcher were particularly vulnerable to the Respondent’s misconduct. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1979. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for more than 20 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 Malang Restitution. To date, tire Respondent has made no effort to make restitution to Mr. Fletcher for the loss he suffered as a result of the Respondent’s misconduct. Additionally, the Respondent has not refunded the unearned fees to Mr. and Mrs. Fletcher, in a total amount of $500.00.” The panel also identified some mitigating circumstances that may justify a reduction in the degree of discipline to be imposed: “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. Other than failing to provide a written response to Mrs. Fletcher’s complaint, 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 Fort Scott, 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 ABA Standard 4.42 regarding suspension after a lawyer knowingly fails to perform services for a client and causes injury or potential injury or after a lawyer engages in a pattern of neglect and causes injury or potential injury; Standard 4.62 regarding suspension after a lawyer knowingly deceives a client and causes injury or potential injury; and Standard 7.2 regarding suspension after a lawyer knowingly engages in conduct that violates a duty owed to the profession and causes injury or potential injury to a client, the public, or the legal system. Based upon these standards, the Deputy Disciplinary Administrator recommended that Bishop be suspended from the practice of law for a period of 3 years and further recommended that Bishop not be reinstated until he has also paid restitution to the Fletchers. Bishop requested to be placed on probation. The hearing panel found probation would not be an appropriate sanction. After carefully reviewing Bishop’s plan of probation, the panel concluded it was not workable, substantial, or detailed. The panel noted Bishop failed to comply with the requirements of Su preme Court Rule 211 (2007 Kan. Ct. R. Annot. 304), regarding probation plans, in that he did not comply with each of the terms and conditions of the probation plan and thereby did not put the proposed plan of probation into effect prior to the hearing on the formal complaint. Additionally, observing that Bishop engaged in dishonest conduct for a number of years, the hearing panel found that dishonesty cannot be prevented by probation. Finally, it concluded that placing Bishop on probation is not in the best interests of the legal profession and the citizens of Kansas. Based upon the findings of fact, conclusions of law, and the ABA Standards listed above, the hearing panel unanimously recommended that Bishop be suspended from the practice of law for 1 year. The hearing panel further recommended that Bishop not be reinstated until he provides written evidence to this court and to the Disciplinaiy Administrator that he has refunded the unearned fees to the Fletchers, and, in the event judgment is entered against Bishop in Mr. Fletcher’s malpractice suit, that he provides written evidence that he has satisfied the judgment. Analysis 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 the KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactoiy evidence. In re Trester, 285 Kan. 404, 408, 172 P.3d 31 (2007); In re Comfort, 284 Kan. 183, 190, 159 P.3d 1011(2007); Supreme Court Rule 211(f). This court views the findings of fact, conclusions of law, and recommendations made by the hearing panel as advisory only, but we give the final hearing report the same dignity as a special verdict by a juiy or as findings of a trial court. Therefore, the hearing panel’s report will be adopted where amply sustained by the evidence, but not where it is 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 eval uate their demeanor. We do not reweigh the evidence or assess the credibility of witnesses. Comfort, 284 Kan. at 190. Rather, this court examines any disputed findings of fact and determines whether clear and convincing evidence supports the panel’s findings. If so, the findings will stand. Moreover, it is not necessary to restate the entire record to show substantial competent evidence to support the hearing panel’s findings. In re Kellogg, 269 Kan. 143, 153, 4 P.3d 594 (2000). After the final hearing report was issued, Bishop filed exceptions to the report. Typically, when exceptions are taken to a hearing panel report, the panel’s findings are not deemed admitted, and we must determine whether substantial competent evidence supports the disputed finding. See Supreme Court Rule 212(d) (2007 Kan. Ct. R. Annot. 317). Although Bishop filed the exceptions, in his subsequent brief he abandoned most of these arguments by indicating “he chooses not to dispute the [various findings with which he had some disagreement] as they probably would not have a significant impact on the outcome one way or the other.” Bishop argued only two points in his brief, even though several more exceptions had been stated in his initial filing. Supreme Court Rule 212(e)(4) provides that a respondent who files exceptions to the final hearing report but who does not file a brief “will be deemed to have conceded that the findings of fact made by the hearing panel are supported by the evidence.” (2007 Kan. Ct. R. Annot 318). This requirement is consistent with the general rule that an issue not briefed on appeal is deemed waived or abandoned. Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 859, 137 P.3d 486 (2006). Here, although Bishop filed a brief, he does not advance his arguments or provide any citation to the record to support his exceptions. We, therefore, deem all exceptions abandoned except for the two he preserved in his brief. Neither of these two arguments relates to Case No. DA9675, the personal injury case. In fact, after noting he does not “for the most part” dispute the facts in tire final hearing report, Bishop specifically admits the material facts that underlie the complaint: he represented Mr. Fletcher; he failed to obtain service on the driver defendant; the case was dismissed; and, subsequent to the dismissal of the case, he “[misled] the complainant into believing that the case was still pending, when indeed it was not.” The two exceptions he asserts relate to Case No. DA9866, the post-divorce case. Specifically, he disputes that he was paid a retainer and that the QDRO was not completed. Regarding the retainer, Bishop admits this allegation in his answer to the supplement to the formal complaint. In addition, at the hearing on the formal complaint, Mrs. Fletcher testified that she paid Bishop $200 in 1994 to prepare the QDRO. Regarding whether there was a completed QDRO, in his brief to the court Bishop explains he sent a proposed QDRO to the plan administrator, and the plan administrator rejected the proposed order. Bishop states he prepared a “modified one that would have undoubtedly been accepted if submitted, which it was not.” He implies that having modified the QDRO he had “completed” the QDRO. This assertion is contrary to other explanations Bishop gave regarding the QDRO. In his August 2005 letter to the Fletchers, after explaining there would be no trial in the personal injury action, Bishop stated: “I have sent another QDRO to Ennis Business Forms so hopefully Diana’s matter will finally be resolved.” A different explanation is found in Bishop’s answer to the supplement to the formal complaint in which he stated that after the first QDRO was rejected by the plan administrator he “did not prepare a corrected QDRO that would have been approved by the plan administrator.” Nevertheless, even if we accept that he corrected the QDRO, we cannot accept Bishop’s argument that this was a “completed” QDRO. His argument ignores reality and the potential harm Bishop’s lack of action could have had; a draft QDRO tucked away in a file did nothing to protect Mrs. Fletcher’s interest in her ex-husband’s stock and pension plan. There is considerable evidence that Mrs. Fletcher had to consult with another attorney in order to obtain a valid, “completed” QDRO. In regard to the two exceptions argued in Bishop’s brief, we conclude clear and convincing evidence supports the hearing panel’s findings of fact. Regarding other findings of the hearing panel, no exception was taken and those findings are deemed ad mitted (Supreme Court Rule 212[c]) and will be adopted by the court. Before this court, Bishop does not contest the panel hearing’s finding that he violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.2, KRPC 8.1(b), and KRPC 8.4(c) and (d). Nor does he take exception to die panel’s conclusion that he violated Kansas Supreme Court Rule 207(b) (2007 Kan. Ct. R. Annot. 288). We therefore find Bishop has violated these provisions. With respect to the discipline to be imposed, the hearing panel’s disciplinary recommendation 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. Supreme Court Rule 212(f); In re O’Neill, 285 Kan. 474, 483, 172 P.3d 1179 (2007). Bishop takes exception to the hearing panel’s recommendation of a 1-year suspension and requests published censure. Bishop points out that he is no longer working in private practice; he is a Child Support Enforcement Agent for the Kansas Department of Social and Rehabilitation Services. According to Bishop, his actions are monitored closely by a supervising attorney. In support of his request for published censure, Bishop cites In re Arbuckle, 283 Kan. 887, 156 P.3d 668 (2007). In that disciplinary case, the respondent received published censure after his client’s case was dismissed because the respondent faded to respond to discovery, a court order imposing sanctions, and a motion to dismiss. While the circumstances in Arbuckle share similarities with those in this case to the extent both involved a lack of diligence and a loss of a client’s remedy, there are several notable distinctions. Most significantly, Bishop deceived his clients for at least a decade and there is no finding of deceptive practices in Arbuckle. As we have stated on several occasions, each disciplinary sanction must be based upon the specific facts and circumstances of the violations and the aggravating and mitigating circumstances presented in the case. Because each case is unique, past sanctions provide little guidance. In re Bailey, 268 Kan. 63, 64-65, 986 P.2d 1077 (1999). Under the facts and circumstances of this case, censure is not an appropriate discipline. Reprimand is generally appropriate when a lawyer engages in negligent conduct that causes injury or potential injury to a client. See ABA Standards 4.43, 4.63, 7.3. Bishop’s conduct was not negligent. Rather, Bishop engaged in clearly intentional conduct that caused serious injury. Bishop knowingly failed to perform services for a client and, for years, knowingly lied about that conduct. Bishop’s deceptions continued even after the complaints as seen by the varied explanations Bishop gave during the course of these proceedings. Additionally, Bishop has been disciplined once previously. Given the facts of this case, particularly the long period of intentional deception, we conclude indefinite suspension is appropriate. It Is Therefore Ordered that Patrick S. Bishop be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective 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 Patrick S. Bishop shall comply with 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); he shall provide written evidence of payment of Mr. Fletcher’s civil judgment and of $200 to Mrs. Fletcher; he shall demonstrate that he knows, understands, and is willing to comply with the Kansas Supreme Court rules; and he shall demonstrate he is 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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On December 9, 2005, the court ordered that the respondent, Amy R. Mitchell, be suspended from the practice of law in the state of Kansas for a period of 1 year. The suspension was stayed, and the respondent was placed on supervised probation for a period of 2 years subject to the terms and conditions recommended by the hearing panel. In re Mitchell, 280 Kan. 656, 123 P.3d 1279 (2005). On January 22,2008, the respondent filed a motion for discharge from probation along with affidavits from the respondent and the supervising attorney demonstrating compliance during the period of probation. The Disciplinary Administrator has filed a response to the respondent’s motion confirming that the respondent has fully complied with all conditions imposed upon her by the court and recommending that the respondent be discharged from probation. This court, having reviewed the motion, the affidavits, and the recommendation of the office of the Disciplinary Administrator, finds that the respondent, Amy R. Mitchell, should be discharged from probation. It Is Therefore Ordered that the respondent 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 that the costs herein be assessed to the respondent, Amy R. Mitchell.
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The opinion of the court was delivered by Luckert, J.: Previn J. Araujo seeks reversal of his conviction, arguing the trial court erroneously admitted out-of-court statements given to police officers during a 911 call and during the investigation prompted by the call. Araujo argues admission of these statements violated the Confrontation Clauses of the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Citing Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), Araujo argues that the State is barred from using testimonial out-of-court statements against a criminal defendant unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant. He suggests that statements made to officers in the course of an investigation are testimonial. We do not reach the issue of whether statements made to officers receiving and responding to a 911 call are testimonial however, because, in this case, the trial court admitted the statements for the limited nonhearsay purpose of explaining the officers’ actions of approaching the defendant, who was believed to be the suspect in the assault reported by the 911 caller. This interaction led to the discovery of drugs and to Araujo’s arrest and conviction on drug charges. Because the out-of-court statements of the 911 caller were not admitted for the truth of the matter asserted and were not hearsay, Araujo’s right of confrontation is not implicated. Facts The trial of this matter was consolidated with an evidentiary hearing on Araujo’s motion to suppress. At the trial, Wichita Police Officers Seiler and Crowe testified they were dispatched to a residence in response to a 911 call made by James Lewis. Lewis was not present during the trial. Both a transcript and a recording of the 911 call were admitted into evidence, and Officers Seiler and Crowe testified about what Lewis told them when they arrived at the residence. Officer Seiler testified that Lewis stated “a black male, who [Lewis] knew as PJ, was threatening him.” Lewis told the officers that PJ was known to carry weapons, specifically guns. While Officer Crowe continued speaking with Lewis regarding the threat, Officer Seiler examined their surroundings in the residence to ensure their safety and, while doing so, noticed a picture of a black male in a nearby photograph. He pointed out the man to Lewis and Lewis indicated the man was PJ. Officer Crowe testified that Lewis told them PJ was the boyfriend of another resident of the house, Tracy Drake. Lewis explained he had been staying at the house for 3 or 4 nights. When the officers began to testify regarding Lewis’ statements, Araujo, through defense counsel, objected to both officers’ testimony based on hearsay grounds because Lewis, despite being under subpoena, was absent. During the first officer’s testimony, the trial court overruled the objection, ruling that Lewis’ statements were “admissible to show this officer’s behavior, and they go to the probable cause for talking with [Araujo].” After the objection to the second officer’s testimony regarding Lewis’ statements, the trial court found tire statements were “admissible to show what the officers did, why they did what they did later.” The judge further stated: “I’m not taking [the statements] for the truth of what Mr. Lewis said.” After testifying regarding the conversations with Lewis, the officers testified regarding the events that led to Araujo’s arrest and the seizing of tire evidence drat is subject to the motion to suppress. They explained that at approximately the same time as Lewis was identifying the man in the photograph as PJ, a car, which Officer Seiler recognized as belonging to Drake, pulled into the driveway. Drake got out on the driver’s side and started walking to the front door, but when she looked up and saw Officer Seiler, she turned around and retreated toward tíre car. Seiler then stepped onto the porch and commanded Drake to stop so he could speak with her. Officer Crowe remained inside the house with Lewis. As Drake turned around, Officer Seiler noticed a black male passenger inside tire car. When he pointed his flashlight at the windshield, the officer saw the man place his hand in his pocket and reach under the seat. Focusing his attention on the passenger, Officer Seiler started to approach the car and recognized the man as tire person in the photograph that Lewis had used to identify PJ. Seiler ordered the passenger to place his hands where the officer could see them. The man did so momentarily but then reached into his pocket. Seiler pointed his gun at the passenger and ordered him to display his hands. The passenger complied. Officer Seiler radioed for backup and, when the additional officers arrived, ordered the passenger to step out of the car. Seiler patted him down for weapons. Then, looking inside the vehicle’s interior, Seiler saw a plastic bag of marijuana on the passenger seat. This discovery led to Araujo’s arrest for possession of marijuana. Officer Seiler also reached under the passenger’s seat to scan for a weapon and, instead, discovered a plastic bag of crack cocaine. Ultimately, a search warrant was issued for the house. A safe was located and a crack pipe, cocaine, methamphetamine, and marijuana were found in the safe. When Araujo was booked into jail, he had keys to the house and the safe in his possession. At the conclusion of the evidence, the trial court made several findings. First, the court found “it more probably true than not true that James Lewis told the officers that this defendant had threatened him” and had identified the defendant in a photograph. The court then recounted the course of events as testified to by the officers, concluding that the officer had “an obligation to check it out” when he saw Tracy Drake and knew the man identified as PJ might be with her. The trial court then found the passenger s behavior was suspicious and consistent with someone hiding guns or drugs and concluded that for the officer’s protection, he was justified in searching the defendant. In other words, the court found that Officer Seiler had probable cause to detain and, subsequently, investigate Araujo. The motion to suppress was, therefore, denied. The trial court then turned to the question of Araujo’s guilt or innocence and no more mention was made of Lewis’ statements. Based upon Araujo’s suspicious actions, his proximity to the drugs in the car, and his possession of keys to the house and safe, the court found Araujo guilty of possession of marijuana with intent to sell, possession of cocaine, possession of methamphetamine, and three drug tax stamp violations. On appeal, Araujo raised the Confrontation Clause issue now before us. The Court of Appeals affirmed his convictions, holding that Lewis’ statements were not testimonial and further holding that the statements were not offered for the truth of the matter asserted and, therefore, were not hearsay. State v. Araujo, 36 Kan. App. 2d 747, 756-57, 144 P.3d 66 (2006). Araujo petitioned for review, arguing that the statements were hearsay and that statements made to officers in the course of an investigation are testimonial. Based upon these arguments, this court granted Araujo’s petition for review. See K.S.A. 60-2101(b); K.S.A. 20-3018(b). Analysis Issues related to the right to confrontation provided by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights raise questions of law over which this court exercises de novo review. State v. White, 284 Kan. 333, Syl. ¶ 5, 161 P.3d 208 (2007); State v. Henderson, 284 Kan. 267, Syl. ¶ 2, 160 P.3d 776 (2007). The Sixth Amendment’s Confrontation Clause provides that “ ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” 541 U.S. at 42. This federal principle is applied to the States through the Fourteenth Amendment to the United States Constitution. Pointer v. Texas, 380 U.S. 400, 403-06,13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). Similarly, a criminal defendant in Kansas has the right to “meet the witness face to face.” Kansas Const. Bill of Rights, § 10; see also State v. Blanchette, 35 Kan. App. 2d 686, Syl. ¶ 5, 134 P.3d 19, reo. denied 282 Kan. 792 (2006), cert, denied 127 S. Ct. 1302 (2007) (right of confrontation under federal Constitution and right to meet witnesses face to face under Kansas Constitution are satisfied when defendant has had opportunity to cross-examine witnesses against defendant). Historically, the United States Supreme Court has held that the Confrontation Clause does not apply when the evidence is “not hearsay under traditional rules of evidence.” Tennessee v. Street, 471 U.S. 409, 413, 86 L. Ed. 2d 425, 105 S. Ct. 2078 (1985). In Street, an accomplice’s confession was introduced during the State’s rebuttal to establish that the defendant’s statement was not coercively derived from the accomplice’s statement. The trial court twice instructed the jury that the confession was not to be considered for the purpose of proving the truthfulness of the statement, but for the limited purpose of rebutting Street’s testimony that the Sheriff had read from the accomplice’s written statement and directed Street to say the same thing. The Supreme Court concluded: “The nonhearsay aspect of [the accomplice’s] confession—not to prove what happened at the murder scene but to prove what happened when respondent confessed—raises no Confrontation Clause concerns. The Clause’s fundamental role in protecting the right of cross-examination [citation omitted] was satisfied by [the Sheriff s] presence on the stand. If respondent’s counsel doubted that [the accomplice’s] confession was accurately recounted, he was free to cross-examine tire Sheriff. ... In short, the State’s rebuttal witness against respondent was not [the accomplice], but [the Sheriff].” 471 U.S. at 414. As this analysis indicates, the rationale of the conclusion that the Confrontation Clause is not implicated when evidence is not of fered for the truth of the matter asserted is that the declarant is not a “witness” against the accused. See Crawford, 541 U.S. at 51; United States v. Hansen, 434 F.3d 92, 100 n.9 (1st Cir. 2006); United States v. Davis, 890 F.2d 1373, 1380 (7th Cir. 1989). The decision of the United States Supreme Court in Crawford changed several aspects of Confrontation Clause analysis and overruled some prior decisions, holding that the Confrontation Clause bars the introduction of testimonial hearsay against a criminal defendant, unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant. 541 U.S. at 53-54. However, the Crawford Court did not alter the rule that the Confrontation Clause does not apply to nonhearsay evidence. In fact, citing Street, the Court noted that even if a statement is testimonial it may still be admissible if it is not hearsay because the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” 541 U.S. at 59 n.9. This statement rebuts an analysis, suggested in the parties’ arguments, that determination of whether the statements are offered for the truth of the matter asserted is an aspect of determining whether the statements are testimonial. The Crawford Court referenced “testimonial statements” and stated those statements could be introduced if they were not offered for the truth of the matter asserted. In other words, Crawford does not bar testimonial out-of-court statements, it bars testimonial hearsay unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant. Post-Crawford, several courts have refrained from addressing the testimonial aspect of the analysis when considering statements that were offered for a purpose other than the truth of the matter asserted, concluding the Confrontation Clause is not implicated. See, e.g., United States v. Paulino, 445 F.3d 211, 218 (2d Cir. 2006) (testimony admitted to explain course of events); State v. Smith, 215 Ariz. 221, 159 P.3d 531 (2007) (coroner’s testimony regarding prior report not admitted for truth of the matter); Jennings v. State, 285 Ga. App. 774, 776, 648 S.E.2d 105 (2007) (testimony admitted to explain why defendant’s photograph was included in photo lineup); State v. Walker, 170 N.C. App. 632, 634-35, 613 S.E.2d 330 (2005) (ballistics report which could have been asserted for truth of matter stated was admitted for a limited purpose). But see State v. Mason, 160 Wash. 2d 910, 922, 162 P.3d 396 (2007) (Without citing to the statement in Crawford exempting nonhearsay statements from the holding, the court applied the Crawford analysis, stating, “[W]e are not convinced a trial court’s ruling that a statement is offered for a purpose other than to prove the truth of the matter asserted immunizes the statement from confrontation clause analysis.”). The cases exempting nonhearsay statements from a Confrontation Clause analysis are consistent with the analysis utilized in Kansas. In State v. Davis, 283 Kan. 569, 575, 158 P.3d 317 (2007), this court stated: “After [Davis v. Washington], the test to determine whether the admission of a hearsay statement violates a defendant’s rights under the Confrontation Clause turns on whether the statement is testimonial.” (Emphasis added.); see also State v. Adams, 35 Kan. App. 2d 439, 443-44, 131 P.3d 556 (2006) (concluding statements in case were hearsay, but noting that Crawford would not apply if statements were not hearsay). Testimony is not inadmissible as hearsay evidence when it is not offered to prove the truth of the matter asserted. State v. Francis, 282 Kan. 120, 148-49, 145 P.3d 48 (2006); K.S.A. 2006 Supp. 60-460 (defining “hearsay” as “[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated”). In Kansas, statements of dispatchers or informants, offered only to explain the course of action of an investigating officer, have been held admissible as nonhearsay. State v. Crowley, 220 Kan. 532, 536-37, 552 P.2d 971 (1976); State v. Ritson, 215 Kan. 742, 748, 529 P.2d 90 (1974); State v. Hollaway, 214 Kan. 636, 638-39, 522 P.2d 364 (1974); see also State v. Vontress, 266 Kan. 248, 253, 970 P.2d 42 (1998) (if an out-of-court statement is offered “merely for the purpose of establishing what was then said, and not for the purpose of estabhshing the truth of the statement, the statement is not hearsay”). Here, it is not necessary to engage in an extensive analysis of whether Lewis’ statements were offered for the truth of tire matter stated because the trial court indicated the limited purpose for winch the evidence was admitted. K.S.A 60-406 recognizes evidence inadmissible for one purpose can be admissible for a limited purpose, stating: “When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” In making the findings in this case, the trial court, while simultaneously considering the motion to suppress and conducting the trial, found the evidence admissible to determine whether the officers had probable cause for talking with Araujo. Moreover, in making findings, the trial court relied upon the statements that the officers were justified in making contact with Araujo because of the reported assault. Specifically, the trial court stated that “because of what Mr. Lewis told [the officer], [the officer] has an affirmative duty to investigate an assault, and he also has a duty to protect himself from someone who might be carrying a weapon.” The trial court, when making findings relating to the defendant’s guilt, did not reference Lewis’ statements; rather, the court relied upon Araujo’s proximity to the drugs in the car and upon Araujo’s possession of keys to the house and safe where other drugs were found. Thus, for the purposes for which the evidence was admitted— to establish whether the officers were justified in detaining Araujo—the witnesses against Araujo were the officers, not Lewis. Whether Araujo actually assaulted Lewis is of no probative value. What was at issue was whether Lewis had told the officers that Lewis had threatened him and identified Araujo as the suspect. The officers were available for cross-examination on whether these statements were made. Also, it does not matter that Lewis’ statements might have been used to prove the truth of several aspects of what was stated—e.g., who was staying at the house and, therefore, circumstantially was linked to items in the household—because the trial court properly admitted the evidence for a limited, permissible nonhearsay purpose. Thus, that portion of the Court of Appeals’ decision concluding the statements were not hearsay is affirmed. From that point, the Court of Appeals’ analysis of whether the statements were testimonial is dicta. Because the Confrontation Clause does not apply to nonhearsay statements, it does not matter whether the statements were testimonial, and we refrain from discussing this issue. Affirmed. Davis and Johnson, JJ., not participating. Brazil, S.J., and McAnany, J., assigned.
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Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Clyde E. Lee, of Texarkana, Texas, an attorney admitted to the practice of law in Kansas. The formal complaint filed against the respondent alleged violations of Kansas Rule of Professional Conduct (KRPC) KRPC 1.15(d) (2007 Kan. Ct. R. Annot. 473) (safekeeping property). The formal complaint was served upon Clyde Evans Lee by registered mail at his address in Texarkana, Texas. The return receipt was signed by respondent indicating the complaint was delivered to him on December 10, 2007. In the proceeding before this court, Deputy Disciplinary Administrator, Janith A. Davis, appeared. The respondent did not appear although he had been served with a final report of the hearing before a panel of the Kansas Board for Discipline of Attorneys. On the day of this hearing, respondent Clyde E. Lee contacted the Clerk of the Kansas Appellate Courts to report that while he meant no disrespect to the court he would be unable to attend the hearing “due to logistics.” At the hearing held before a panel of the Kansas Board for Discipline of Attorneys, the office of the Disciplinary Administrator was represented by Janith A. Davis. The respondent did not appear. Upon the conclusion of the hearing, the panel made the following findings of fact and conclusions of law together with its recommendations to this court: “FINDINGS OF FACT “The Hearing Panel finds the following facts, by clear and convincing evidence: “1. Clyde E. Lee (hereinafter ‘tire Respondent’) is an attorney at law. . . . His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Texarkana, Texas. . . . The Respondent’s current address is . . . Texarkana, Texas. . . . The Respondent was admitted to the practice of law in the State of Kansas on September 14, 1978. The Respondent has never engaged in the active practice law of law in Kansas. In 1987, and thereafter, the Respondent failed to comply with the annual licensing requirements in the State of Kansas. As a result, the Respondent’s license to practice law in the State of Kansas has been suspended for nearly 20 years. “2. The State Bar of Texas admitted the Respondent to the practice of law on November 12,1979. . . . The Respondent has engaged in the active practice of law in the State of Texas. [Footnote: On September 16, 2006, the State Bar of Texas suspended the Respondent’s license to practice law for failing to pay ‘dues and taxes.’ At the time of the hearing on this matter, the Respondent was eligible to practice law again; however, he had not obtained the reinstatement of his license.] “3. The State Bar of Texas has previously disciplined the Respondent on five occasions. [Footnote: The Respondent never informed the disciplinary authorities in the State of Kansas of the fact that the had been repeatedly disciplined in the State of Texas.] “4. . . . [0]n November 1, 1993, . . . the State Bar of Texas suspended the Respondent’s license to practice law for three months, for having violated Rules 1.01(b)(1), 1.03(a), 1.15(a)(3), and 8.01(b) of the Texas Disciplinary Rules of Professional Conduct. The imposition of the suspension was stayed and the Respondent was placed on probation for three months. “5. In that case, on April 19, 1991, James R. Lammert hired tire Respondent to modify a divorce decree. Mr. Lammert paid the Respondent $375 for the Respondent’s services. Thereafter, the Respondent wholly failed to provide any meaningful legal services to Mr. Lammert, the Respondent failed to keep Mr. Lammert reasonably informed about the status of the matter, the Respondent failed to comply with reasonable requests for information, and the Respondent forced Mr. Lammert to expend $168.08 on long distance telephone calls to the Respondent, which were not returned. After Mr. Lammert dismissed the Respondent, the Respondent further failed to return Mr. Lammert’s file to him after being requested to do so. Finally, the Respondent knowingly failed to respond to the complaint in this matter after bring properly notified by the State Bar of Texas. “6. On December 8, 1995, . . . the State Bar of Texas suspended the Respondent’s license to practice law for a period of five years, for having violated Rules 1.01(b)(1), 1.01(b)(2), 1.03(a), 1.15(d), 8.01(b), and/or 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct. The Respondent was ordered to serve an actual suspension of one month. Thereafter, the remaining four years and 11 months suspension was stayed and the Respondent was ordered onto probation. “7. In that case, on August 10, 1993, Charlene Bond hired the Respondent to represent her uncle, Isreal J. Bazell, in a foreclosure proceeding. On that date, Ms. Bond paid the Respondent $600 for attorneys fees and court costs. “8. The Respondent prepared the notice of foreclosure but was unsuccessful in obtaining service of the notice on the appropriate party. The Respondent thereafter failed to perform any additional legal services on Mr. Bazell’s behalf. In addition, the Respondent failed to respond to Ms. Bond’s and Mr. Bazell’s frequent requests for information. The Respondent failed to communicate with Ms. Bond and Mr. Bazell regarding the status of the foreclosure. “9. The Respondent later closed his law office but failed to notify Ms. Bond and Mr. Bazell of his new address and telephone number. On November 10, 1993, M. Nicol Padway, an attorney who represented Mr. Bazell on related matters, requested information from the Respondent regarding the status of the foreclosure proceeding. The Respondent failed to respond to Ms. Padway’s request for information. Notwithstanding the fact that he failed to complete the legal services he was hired to perform, at no time has the Respondent refunded any unearned attorneys fees to Ms. Bond. “10. Finally, the Respondent failed to cooperate in the investigation of the complaint. “11. The State Bar of Texas disciplined the Respondent for a third time on December 13, 1995. In that case, .... the State Bar of Texas suspended the Respondent’s license to practice law for a period of 50 months, for having violated Rule 1.01(b)(1), 1.03(a), 1.04(a), and 8.01(b) of the Texas Disciplinary Rules of Professional Conduct. The State Bar of Texas ordered the Respondent to serve an actual suspension of 60 days from December 13, 1995. Thereafter, the remaining 48 months’ suspension was stayed and the Respondent was ordered onto probation. “12. In that case, on December 9, 1993, the Respondent was retained by Gloria Mitchell to handle the probate of the estate of her late aunt. Because Ms. Mitchell is from California, her only meeting with the Respondent took place on the morning of her aunt’s funeral. At that time, Ms. Mitchell paid the Respondent $320 in cash. The next day, Ms. Mitchell returned to the Respondent’s office and paid an additional $200 in cash, which was received by the Respondent’s wife. Thereafter, Ms. Mitchell was unable to contact the Respondent regarding the status of the probate matter. Further, Ms. Mitchell’s authorized agent in Bowie County, Texas, Roland Jones, heard from the Respondent on only one occasion, at which time the Respondent apologized for not taking action on the probate matter. Finally, the Respondent failed to return papers belonging to Ms. Mitchell after it was obvious that he was going to take no action on the probate matter. “13. After Ms. Mitchell filed a complaint against the Respondent, the Respondent failed to respond in writing to the complaint. “14. On November 7,2003, the State Bar of Texas disciplined the Respondent for the fourth time. In that case, . . . the State Bar of Texas issued a judgment of public reprimand against the Respondent, for having violated Rules 1.01(b)(1), 5.03(a), 5.03(b)(1), 5.03(b)(2), and 5.05 of the Texas Disciplinary Rules of Professional Conduct. “15. The State Bar of Texas issued a judgment of public reprimand against the Respondent because on December 17,2002, the Respondent sent a paralegal, Anthony Lusk, rather than an attorney, with Jacquelyn Hendrix, a client, to her deposition. The paralegal practiced law without a license by entering into agreements and lodging objections on the record of the deposition. “16. Finally, on April 21, 2005, the State Bar of Texas issued a judgment of public reprimand against the Respondent, . . . for having violated Rule 1.15(d) of the Texas Disciplinary Rules of Professional Conduct. “17. On March 2, 2003, Carla Dickerson hired the Respondent to represent her in [an] attempt to obtain a legal guardianship of her nephew. Ms. Dickerson paid the Respondent a fee of $475. On December 19, 2003, Ms. Dickerson sent the Respondent a letter terminating the Respondent’s representation and requesting that he refund the unearned fee paid by Ms. Dickerson. The Respondent failed to timely respond to this request. “18. On October 18, 2006, the Disciplinary Administrator forwarded the original Notice of Hearing and Formal Complaint to the Respondent at the Respondent’s last registration address. “CONCLUSIONS OF LAW “1. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part, as follows: ‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address. ‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’ [2007 Kan. Ct. R. Annot. 327.] In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require. “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.’ [2007 Kan. Ct. R. Annot. 257, 258.] Thus, based upon the documents filed in the Texas discipli nary proceedings, the Hearing Panel concludes that the Respondent engaged in misconduct. “3. In reviewing the facts contained in the documents filed in the Texas disciplinary proceedings, the Hearing Panel concludes that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15(d), KRPC 1.16(d), KRPC 5.5(b), KRPC 8.1(b), and Kan. Sup. Ct. R. 207(b), as detailed below. “4. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3 [2007 Kan. Ct. R. Annot. 398], The Respondent failed to provide diligent representation to Mr. Lammert, Mr. Bazell, and Ms. Mitchell. Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. Lammert, Mr. Bazell, and Ms. Mitchell, the Hearing Panel concludes that the Respondent violated KRPC 1.3. “5. 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.’ [2007 Kan. Ct. R. Annot. 413.] In this case, the Respondent violated KRPC 1.4(a) when he failed to adequately communicate with Mr. Lammert, Ms. Bond, Mr. Bazell, and Ms. Mitchell. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a). “6. Lawyers must return unearned fees. ‘The lawyer shall . . . [promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.’ KRPC 1.15(d)(2)(iv) [2007 Kan. Ct. R. Annot. 473,475], The Respondent violated KRPC 1.15(d)(2)(iv) when he failed to refund the unearned fees paid by Mr. Lammert, Ms. Bond, Ms. Mitchell, and Ms. Dickerson. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.15(d)(2)(iv). “7. 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. 487, 488.] Because the Respondent failed to return the unearned fees to Mr. Lammert, Ms. Bond, Ms. Mitchell, and Ms. Dickerson, the Hearing Panel concludes that, therefore, the Respondent violated KRPC 1.16(d). “8. KRPC 5.5 prohibits the unauthorized practice of law. Specifically, KRPC 5.5(b) prohibits attorneys from ‘assisting] a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.’ [2007 Kan. Ct. R. Annot. 539.] The Hearing Panel concludes that the Respondent assisted Mr. Lusk in the unauthorized practice of law in violation of KRPC 5.5(b). “9. 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) [2007 Kan. Ct. R. Annot. 553], ‘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) [2007 Kan. Ct. R. Annot. 288], The Respondent knew that he was required to forward written responses to the initial complaints—he had been instructed to do so by the State Bar of Texas. Because the Respondent knowingly failed to provide a written response to the initial complaints filed by Mr. Lammert, Ms. Bond, Mr. Bazell, and Ms. Mitchell as requested by the State Bar of Texas, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b). “10. The Kansas Supreme Court Rules require attorneys to file Answers to the Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirement: ‘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) [2007 Kan. Ct. R. Annot. 304, 305], 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). “AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS “In malting this recommendation for discipline, the Hearing Panel considered the factors outlined by tire American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication. The Respondent further violated his duty to his clients to return unearned fees. Also, the Respondent violated his duty to the legal profession to refrain from assisting unauthorized individuals from engaging in the practice of law. Further, the Respondent violated his duty to cooperate in disciplinary investigations and proceedings. Finally, the Respondent violated his duty to the legal profession to comply with tire annual licensing requirements for 20 years. “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 and 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: “Prior Disciplinary Offenses. The Respondent has been previously disciplined for the misconduct detailed in the Findings of Fact in the State of Texas. “Dishonest or Selfish Motive. It appears that the Respondent’s misconduct was motivated by dishonesty and selfishness. The Respondent failed to return the unearned fees to four separate clients. “A Pattern of Misconduct. Included in this case are five separate complaints. The complaints involve similar misconduct. Accordingly, the Respondent engaged in a pattern of misconduct. “Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15(d)(2)(iv), KRPC 1.16(d), KRPC 5.5(b), KRPC 8.1(b), Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b). As such, the Respondent committed multiple offenses. “Rad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of tire Disciplinary Process. First, the Respondent never reported any of the misconduct to the disciplinaiy authorities in the State of Kansas. Second, the Respondent knew that he was required to provide written responses to the complaints. The Respondent never filed such responses. Finally, the Respondent knew that he was required to provide an Answer to the Formal Complaint. Again, the Respondent failed in this regard. The Hearing Panel, therefore, concludes that the Respondent obstructed the disciplinary proceeding. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1978. At the time the Respondent engaged in misconduct, the Respondent had been practicing law in Texas for many 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 Malang Restitution. There is no evidence in the record that the Respondent refunded the unearned fees. “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 presence of no mitigating circumstances. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.’ Standard 4.11. ‘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. ‘Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.’ Standard 7.1. “RECOMMENDATION “The Deputy Disciplinary Administrator recommended that the Respondent be indefinitely suspended. “Based upon the findings of fact, conclusions of law, and the Standards, and in addition, because the Respondent failed to comply with the rules of the Kansas Supreme Court for 20 years, the Hearing Panel unanimously recommends that the Respondent be disbarred from the practice of law in the State of Kansas.” The respondent did not file any exceptions to the panel’s final report and, thus, the findings of fact in the panel’s report are deemed admitted. Supreme Court Rule 212(d) (2007 Kan. Ct. R. Annot. 317). 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. It Is Therefore Ordered that respondent, Clyde E. Lee, be and he is hereby disbarred 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)(1) (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 Respondent.
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The opinion of the court was delivered by Johnson, J.: Paul C. Hunt appeals his conviction for first-degree, premeditated murder in the death of his mother. Hunt’s principal complaint involves the question of where the crime occurred. He also raises questions about the admissibility of evidence and the jury instructions, as well as claims of prosecutorial misconduct. Although we find some error in the conduct of the trial, we affirm the conviction. On Sunday, June 23, 2002, family members of Maiy Sue Taylor, a resident of Fort Scott, Bourbon County, Kansas, reported to law enforcement that Taylor could not be located. Taylor’s vehicle was parked in the driveway, her house was unlocked, the television was on, and items that she would normally take with her were still in the house. Nothing appeared out of the ordinary inside or outside the house. Neighbors reported last seeing Taylor the morning of June 20. Taylor had not appeared at her job on June 22 and 23. At the time of the disappearance, Hunt and his minor child, Ryan, had been living with Taylor, albeit Hunt and his mother had a volatile, contentious relationship. Hunt told police that he last saw his mother at about 10:40 p.m. on June 20, before he left for work. Upon completing his shift on the morning of June 21, Hunt did not return to his residence before going to the house of his girlfriend, Tammy Rees, in Cartersville, Missouri. His son, Ryan, was also out of town, visiting maternal grandparents. After spending the weekend with Rees, Hunt returned to the Fort Scott home about 10:30 p.m. on Sunday, June 23, where the investigation into Taylor’s whereabouts had commenced. Several days later, on June 29, Taylor’s body was found floating in a strip pit in Crawford County. The body was wrapped in a gray tarp which was tied with rope and taped, and the tarp-wrapped body was inside a sleeping bag which had also been wrapped with rope and tape. A rope was around the victim’s neck. The coroner opined that Taylor died of ligature asphyxiation and ruled the death a homicide, albeit he could not determine the date of death. The coroner described the manner in which the body had been wrapped and secured with rope and tape as a fairly complicated and involved mechanism. Hunt’s behavior both before and after the discovery of Taylor’s body caused some suspicion. The weekend of Taylor’s disappearance, Hunt took some of Taylor’s clothing to his girlfriend, saying that his mother wanted the girlfriend to have it. He also brought camping equipment and stored it in his girlfriend’s shed. Later testing revealed that two ropes found with the equipment were consistent with the color, construction, and chemical composition of the rope around the victim’s neck. On the day before the discovery of the body, Hunt and a friend were leaving a convenience store in Missouri when police stopped Hunt’s pickup. Hunt declared to his friend: “[M]an, I’m in trouble,” and fled afoot after imploring his friend not to disclose that Hunt was driving. The police did not pursue Hunt, and the friend thought Hunt was concerned about being arrested for driving under the influence. The day after the body was discovered, Hunt called his girlfriend to say that he was leaving town. He left his son with a brother but did not tell family members he was leaving. The following day he asked his girlfriend to bring soda and cigarettes to a park in Joplin, Missouri, where he planned to spend the night. He then rode a freight train to Kansas City, but then hitched a ride on a southbound freight train, eventually winding up in Emporia. There, he called his brother, Patrick, on July 4 asking Patrick to get him a motel room and to provide him with a ride back to Fort Scott. Hunt did not attend his mother’s funeral, ostensibly because his brother, Patrick, and an uncle were accusing Hunt of being the murderer. Hunt subsequently left the Fort Scott area, first going to live with Ryan’s maternal grandparents in Missouri. He was in Pennsylvania when he was arrested in March 2005. Police also located a witness who had observed a pickup truck parked in a low-lying area, adjacent to a strip pit situated on the Missouri side of the Missouri-Kansas border, near evening on June 20, 2002, the last day that Taylor was seen alive. The witness, who owned land containing strip pits in the area, proceeded to investigate whether someone was fishing on his land. As the witness approached the pickup, he observed a person initially standing next to the passenger door who then entered the pickup on the driver’s side. Upon making contact with the pickup driver, the witness observed a motionless person in the passenger seat covered with a blanket or sleeping bag. In answer to the witness’ inquiry, the pickup driver said the passenger was his sleeping fiancée. Being suspicious of a person being covered up with a blanket in hot weather, the witness went to the local sheriffs office to report his concerns. At trial, the witness could not identify Hunt, other than to say that he was about the same size as the pickup driver. Like wise, the witness’ recollection of the pickup was limited to describing it as being a dark color which comported with the color of Hunt’s pickup. Because Taylor’s body was discovered in Crawford County, Hunt was tried in that county. The jury convicted him of first-degree, premeditated murder. VENUE Hunt’s first four issues involve the question of where the act of first-degree murder occurred, i.e., whether Crawford County was the proper venue. Venue must be proved to establish the jurisdiction of the court; it is a question of fact to be determined by the jury, albeit the existence of jurisdiction is a question of law, subject to unlimited appellate review. State v. McElroy, 281 Kan. 256, 264, 130 P.3d 100 (2006). Although the State argued at trial that the act which caused Taylor’s death occurred in the Bourbon County residence, the charging instrument alleged: “That on or about June 20, 2002, Paul C. Hunt, did, in Crawford County, Kansas, contrary to the statutes of the State of Kansas, unlawfully, feloniously, intentionally, and with premeditation kill a human being, to wit: MARY ‘SUE’ TAYLOR, in violation of K.S.A. 21-3401(a).” (Emphasis added.) The Kansas Constitution Bill of Rights, § 10 provides, in relevant part: “In all prosecutions, the accused shall be allowed ... a speedy public trial by an impartial juiy of the county or district in which the offense is alleged to have been committed.” (Emphasis added.) Statutorily, the place of a criminal trial is designated as follows: “Except as otherwise provided by law, the prosecution shall be in the county where the crime was committed.” (Emphasis added.) K.S.A. 22-2602. A specific statute deals with the situation in which death and the cause of death occur in different places: “If the cause of death is inflicted in one county and the death ensues in another county, the prosecution may be in either of such counties.” K.S.A. 22-2611. The same statute creates a presumption to assist in determining venue in murder cases. Specifically, “[djeath shall be presumed to have occurred in the county where the body of the victim is found.” K.S.A. 22-2611. Hunt contends that (1) the evidence was insufficient to establish that the crime occurred in Crawford County; (2) he was denied his constitutional right to be tried in the county where the crime allegedly occurred; (3) the jury instructions were clearly erroneous in omitting the essential element of venue; and (4) the jury instructions were clearly erroneous in omitting an instruction on the presumption provided by K.S.A. 22-2611. Sufficiency of the evidence Hunt argues that the evidence was insufficient to establish the venue element of first-degree murder, in that the State did not prove that the murder occurred in Crawford County, as opposed to Bourbon County. Our familiar review standard requires us to “consider all of the evidence, viewed in a light most favorable to the prosecution.” See State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006). Hunt does not appear to challenge the venue rule of K.S.A. 22-2611 that a murder is deemed committed in either the county where the injuiy that was tire cause of death was inflicted or the county in which the death ensued. Obviously, one cannot have committed the crime of murder until the victim dies. Likewise, Hunt acknowledges that the statutory presumption that the death occurred in the county where the victim’s body was found has been approved by this court as a practical necessity. See State v. McKibben, 239 Kan. 574, 578, 722 P.2d 518 (1986). Hunt’s challenge focuses on the State’s closing argument, in which the prosecutor inexphcably suggested that Taylor was dead when Hunt wrapped her in the tarp and sleeping bag at the Fort Scott, Bourbon County, residence. One might find it curious that a prosecutor relying on a presumption that death occurred in Crawford County to establish an essential element of the charged crime would present a scenario in closing argument which contradicts the presumption. On the other hand, Hunt’s attorney argued that the undisturbed condition of the residence and other evidence presented at trial contradicted the State’s proffered scenario and de dared that there was “no physical evidence of any land that the State has presented . . . that Mary Sue Taylor died in that [Fort Scott] house.” In other words, the prosecutor appeared to argue against the presumption, while the defense argued that the evidence was consistent with the presumption. Nevertheless, Hunt’s argument falters because he attempts to equate the prosecutor’s arguments with the State’s evidence. A prosecutor’s supposition as to what might have happened is not a substitute for evidence, and the jury was advised accordingly. Instruction number two specifically advised the jurors that “[statements, arguments and remarks of counsel . . . are not evidence.” The parties stipulated that it was Taylor’s dead body which was found in the Crawford County strip pit on June 29, 2002. That evidence was sufficient to trigger the statutory presumption that Taylor died in Crawford County and present a prima facie showing of the venue element of the murder charge. Contrary to Hunt’s contention, the State’s evidence did not rebut the presumption. Indeed, the coroner could not pinpoint the day on which Taylor died, much less the place of death. When viewed in the light most favorable to the State, the evidence was sufficient to establish that, legally, the murder occurred in Crawford County. Constitutional violation Hunt contends that, alternatively, he was denied his constitutional right to have his case tried in the county where the crime allegedly occurred, as was guaranteed to him by the Kansas Constitution Bill of Rights, § 10. Hunt concedes that he did not object to venue in the district court on any basis, much less raise a constitutional question. See State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006) (constitutional grounds for reversal raised for the first time on appeal are not properly before the appellate court). Nevertheless, the argument is factually flawed. Hunt relies on the prosecutor’s statements in closing argument to support the argument that the State was alleging the offense occurred in Bourbon County. However, the complaint filed against Hunt clearly alleged that the act of murder occurred in Crawford County. The prose cutor’s statements in closing argument, while arguably ill-advised or counterintuitive, cannot trump the official charging instrument so as to alter or modify the county in which the offense was alleged to have been committed. Thus, Hunt was afforded exactly what the Kansas Constitution guarantees, i.e., a speedy public trial by an impartial jury of the county in which the offense was alleged to have been committed in the official charging instrument. Jury instructions In his third and fourth issues, Hunt challenges the manner in which the district court instructed the jury on the venue element of the murder charge. He first asserts that the trial court erroneously accepted the State’s proffered modification to the elements instruction for murder and thereby effectively omitted the essential element of venue from the jury’s consideration. Next, Hunt contends that the district court should have included a separate instruction on the presumption set forth in K.S.A. 22-2611. Hunt did not object to the portion of the jury instructions to which he now takes exception. “The court reviews instructions by a clearly erroneous standard where there was no objection to the instructions at trial. Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the juiy would have rendered a different verdict if the error had not occurred. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).” State v. Griffin, 279 Kan. 634, 661, 112 P.3d 862 (2005). See K.S.A. 2006 Supp. 22-3414(3) The trial court gave the following jury instruction: “The defendant is charged with the crime of Murder in the First Degree. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: “1. That the defendant intentionally killed Maiy Sue Taylor; “2. That such killing was done with premeditation; and “3. That this act occurred on or about the 20th day of June, 2002, and the body of Mary Sue Taylor was found in Crawford County, Kansas.” (Emphasis added.) If the trial court had strictly adhered to the applicable pattern instruction, PIK Crim. 3d 56.01, the venue element instruction would have read: “3. That this act occurred on or about the 20th day of June, 2002, in Crawford County, Kansas.” Utilizing the PIK language would have comported with the charging instrument. The court and counsel discussed the instruction modification during a conference at which the parties presented the court with certain factual stipulations, one of which was, “The human body found in the strip pit in rural Crawford County, Kansas on the 29th day of June, 2002 was the body of Mary ‘Sue’ Taylor, DOB 10/7/ 49 (age 52).” After dealing with the stipulations, the following colloquy occurred: “THE COURT: While we are back here, it is my understanding there is not going to be any issue as to venue from either party; is that correct? “MR. BERNHART [defense counsel]: That’s correct. “THE COURT: Mr. Maxwell had suggested that in the jury instructions we indicate that the jury is to—is to find that one of the elements that the offense occurred either in Crawford or Bourbon County. I think you had indicated you had done this in the past. “MR. MAXWELL [prosecutor]: Right. And here is what I wrote up, Judge, and since there is no problem with venue factually— “THE COURT: Well, the statute indicates that there is a—a presumption that the alleged homicide occurred in the county in which the body was found. “MR. MAXWELL [prosecutor]: Correct. “THE COURT: And so— “MR. MAXWELL [prosecutor]: I put—I wrote the instruction, just modified the PIK instruction just slightly in the last element of the PIK instruction that would apply for—that the body was found in Crawford County, Kansas because that establishes as a matter of law jurisdiction or venue. “THE COURT: So the last element would read that the body was found in Crawford County as opposed to that the act occurred— “MR. MAXWELL [prosecutor]: Right. “MR. BERNHART [defense counsel]: No problem. “THE COURT: All right. That’s fine. I can then place something like that in the proposed jury instructions.” All concerned appear to have been laboring under the belief that finding Taylor’s body in Crawford County established venue in that county, as a matter of law. That approach, in effect, would make the presumption in K.S.A. 22-2611 an irrefutable presumption. However, the State retained the burden to overcome the presumption of Hunt’s innocence, notwithstanding the venue presumption in K.S.A. 22-2611. See K.S.A. 60-416 (burden of proof not relaxed where a presumption must be overcome by proof be yond a reasonable doubt). Thus, the State was still required to prove the claim that the act of murder occurred in Crawford County. In other words, tire provisions of K.S.A. 22-2611 established only a rebuttable presumption that the place where tire body was found was the place where tire victim died and, accordingly, was one of the places where the act of murder occurred. The jury should have been free to decide whether the presumption of the place of death had been refuted by the evidence. Accordingly, the modified elements instruction was erroneous. The jury should have been instructed that it must find that the act of murder occurred in Crawford County, Kansas, and additionally instructed on the provisions of K.S.A. 22-2611. However, reversal is not required. As noted above, defense counsel specifically assured tire court that venue would not be an issue in the case. In closing, defense counsel argued that the evidence did not support a finding that the death occurred at the Bourbon County residence, i.e., that the evidence did not refute the place of death presumption. Under the circumstances, the elements instruction, while erroneous, was not clearly erroneous. EVIDENCE OF HABIT Hunt’s brother, Patrick, testified that he had observed his brother weld or secure items in the past, and that Hunt “would tend to overdo it” by using two or three pieces of tape when one piece was enough or by making several knots instead of one when securing a load. The prosecutor then asked Patrick, “Mr. Hunt, when you observed the photographs of the way that Maty Sue Taylor’s body was packaged, what was your impression?” After the trial court overruled a defense objection, Patrick said that the packaging of Taylor’s body “seemed to have been overdone.” Hunt acknowledges K.S.A. 60-449, which addresses the admissibility of relevant habit evidence: “Evidence of habit or custom is relevant to an issue of behavior on a specified occasion, but is admissible on that issue only as tending to prove that the behavior on such occasion conformed to the habit or custom.” He further concedes that K.S.A. 60-450 permits a habit to be proved by opinion testimony or by evidence of specific instances of behavior. Accordingly, Hunt does not complain about the testimony describing his habit. However, he contends that Patrick’s testimony about the packaging of Taylor’s body appearing to be overdone was improper opinion testimony that invaded the province of the jury by determining that Hunt’s habit conformed with the evidence of the crime. Citing to State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005), Hunt contends that our review should be unlimited because the case presents constitutional considerations. He also asserts that the issue involves statutory interpretation, triggering unlimited review. See State v. Maas, 275 Kan. 328, 330, 64 P.3d 382 (2003). We disagree on both points; the case presents neither constitutional considerations nor statutory interpretation. Granted, “evidentiary 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. Carter, 278 Kan. 74, Syl. ¶ 1, 91 P.3d 1162 (2004). In this case, however, the admissibility of Patrick’s testimony was a matter of discretion for the trial court. See State v. Gonzalez, 282 Kan. 73, 80-81, 145 P.3d 18 (2006). We are unpersuaded by Hunt’s characterization of Patrick’s testimony as being an opinion on the defendant’s guilt. Accordingly, Hunt’s reliance on State v. Steadman, 253 Kan. 297, 304, 855 P.2d 919 (1993), where we said that police witnesses cannot testify that in their opinion the defendant was guilty of the crime, is misplaced. Rather, Patrick was providing his opinion as to whether the packaging of Taylor’s body was “overdone.” Such an opinion is permissible under K.S.A. 60-456(a), which provides: “If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.” The testimony about the photograph of Taylor’s body was based upon the witness’ perception and helped the jury to understand what the witness meant by “overdone.” Hunt fails to establish that the district court abused its discretion by admitting the evidence. PROSECUTORIAL MISCONDUCT Hunt raises a claim of prosecutorial misconduct, based upon the following statement made by the prosecutor in the rebuttal portion of closing arguments: “Made a big deal of brothers. Well, brothers know him best. They were around him during this time. They saw his actions. You heard Pat Hunt say it was—I didn’t think it initially, but the way he was acting, what he did, that’s why they said that he did it.” Appellate review of an allegation of prosecutorial misconduct involves a two-step process. The appellate court first decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence, and, if so, the reviewing court decides whether those improper comments constitute plain error, i.e., 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). Obviously, if the comments do not exceed the bounds of fair argument, there is no need to proceed to the second step of assessing plain error. Here, Hunt argues that the testimony of his brother, Patrick, as to his belief that Hunt had killed their mother was inadmissible. Specifically, Hunt points to Steadman as prohibiting personal opinions as to the guilt of the defendant and to K.S.A. 60-456(a) as limiting the opinion testimony of lay witnesses. Therefore, the argument continues, it was wrong for the prosecutor to highlight Patrick’s testimony in closing argument. Hunt’s argument takes on the air of disingenuousness when one discovers that on direct examination the State did not inquire into Patrick’s conversations with law enforcement. Rather, it was defense counsel that elicited the allegedly inadmissible testimony from Patrick on cross-examination by asking, “[D]id you tell Officer Adams that you suspected Paul Hunt was the person involved in the disappearance and murder of your mother?” See State v. Hebert, 277 Kan. 61, 78, 82 P.3d 470 (2004) (defendant may not invite error and then complain of it on appeal). Furthermore, the state ment of which Hunt complains was made in rebuttal, after defense counsel had argued in closing as follows: “Pat Hunt who thinks the defendant is guilty can’t think of a single time when Paul has been violent to somebody. . . . “. . . What happens to Paul after the body is discovered? The Ransom Street address immediately becomes a crime scene. He can’t stay there any more. The truck is part of the evidence of the crime scene. He loses that. 'Where does he have to go? The only place he has are his brothers. And yet before any of these discoveries that they show you are made, Pat Hunt goes on July 7 and tells the police you’ve got to arrest my brother, he killed my mother. Do you see why Paul went off [left town]?” After the defense elicited the testimony from Patrick and then presented argument on the substance of Patrick’s answers in its closing argument, the prosecutor’s rather innocuous statement on rebuttal was certainly within the bounds of fair comment on the evidence. Cf. State v. McKinney, 272 Kan. 331, 347, 33 P.3d 234 (2001), overruled on other grounds State v. Davis, 283 Kan. 569, 575, 158 P.3d 317 (2007) (no prejudicial error where questionable remarks of prosecutor provoked or made in response to previous arguments or statements of defense counsel). We find no misconduct and need not consider the second step of the analysis. LIMITING INSTRUCTION ON PRIOR CRIME EVIDENCE At trial, the State introduced the testimony of Hunt’s son, Ryan, who described an argument between his father and Taylor over credit card bills, during which Hunt pushed Taylor. The State described the testimony as “discordant relationship evidence.” On appeal, Hunt does not complain about the introduction of the testimony but contends that the failure to give the jury a limiting instruction constitutes reversible error. We disagree. This case was tried prior to our decision in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). Nevertheless, we analyze the issue pursuant to the roadmap set forth in Gunby. See 282 Kan. at 59-63; State v. Gonzalez, 282 Kan. 73, 98, 145 P.3d 18 (2006); State v. Anthony, 282 Kan. 201, 214-15, 145 P.3d 1 (2006). Specifically, the failure to give a limiting instruction, where Hunt neither requested the instruction nor objected to its omission, is reviewed under a clearly erroneous standard. “ 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. [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). Hunt contends that the evidence against him was not “truly overwhelming” and, therefore, a real possibility exists that the jury would have rendered a different verdict if the error had not occurred. Plowever, rather than attempting to assess the quantity and quality of all of the evidence of guilt presented during the trial, a more useful approach is to focus on the potential impact of the specific evidence in question. The testimony that Hunt pushed his mother during an argument at some point in the past was not overly prejudicial in light of the other evidence presented by Hunt’s girlfriend and others, describing a bitterly contentious relationship between the defendant and victim. We are firmly convinced that the jury’s verdict would not have been affected by an instruction that the jury could consider the evidence of the pushing incident for only a limited purpose. PROSECUTORIAL MISCONDUCT FOR A DOYLE VIOLATION In the State’s case-in-chief, Agent Papish testified that he interviewed Hunt in Pennsylvania, following Hunt’s arrest. In the initial interview, Hunt said that he would tell the agent all that he knew about his mother’s murder the next day. However, the next day, Hunt did not give a statement. On appeal, Hunt does not complain about Agent Papish’s testimony but rather he challenges the prosecutor’s cross-examination of his testimony. The exchange between the prosecutor and Hunt went as follows: “Q. Do you recall speaking to Agent Papish out in Pennsylvania after you had been arrested? “A. I remember some of it, yes. “Q. And you told him—he asked you I want to talk about your mom’s murder and you told him not once, not twice, but three to four times I will tell you everything you want to know about the murder of her in the morning. You told him that, didn’t you? “A. Meaning I would tell him everything I know in the morning, yes. "Q. Did you tell Agent Papish everything you knew? “A. After I asked for an attorney, he left me. “THE COURT: Hold on just a second. Come forward, please. “(The following proceedings were had at the bench.) “MR. CLARK [defense counsel]: Judge, I diink what he was looking for is the answer no, not the response— “MR. BAUCH [prosecutor]: That’s certainly— “THE COURT: I understand. I’m not suggesting the State brought this out purposefully. I just wanted to ask you if we should not address that last response to the jury or should we just let it go. “MR. BAUCH [prosecutor]: You didn’t tell him everything you knew, did you, and that was the question. “THE COURT: The question you asked was not inappropriate. And I did not expect the defendant to answer as he did and I don’t think probably either one of you did but, should we, after that response to the juiy, should I tell the jury to disregard the defendant’s last response or should I let it slide. “MR. CLARK [defense counsel]: I don’t think you should mention it at this point. “MR. BAUCH [prosecutor]: It hasn’t happened so I think we will probably be okay, Your Honor. “THE COURT: Just be very wary of this subject. “MR. CLARK [defense counsel]: If you are going to reask it, could you basically say yes or no. “MR. BAUCH [prosecutor]: I will ask for a yes or no response. “THE COURT: Ask for a yes or no response. Thank you. “(The following proceedings were had in the presence of the jury.) “Q. (By Mr. Bauch) I would like a yes or no response to this question, Mr. Hunt. Did you tell Agent Papish everything you knew about the murder of Mary Sue Taylor? “A. Can you repeat that? “Q. Yes. Did you tell Agent Papish everything you knew about the murder of Mary Sue Taylor? “A. Did I tell him that I—did I tell him that I would tell him? “Q. I would like—did you tell Agent Papish everything you knew about the murder of your mother Mary Sue Taylor? “A. What did you mean? “Q. Did you tell him everything you knew about the murder of your mother Mary Sue Taylor, yes or no? “A. There was nothing to tell.” Impeaching a defendant with his or her post-Miranda silence violates the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976); State v. Mims, 220 Kan. 726, 729-30, 556 P.2d 387 (1976). In State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998), this court explained: “A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent.” The prohibition applies even where the defendant invoked his or her rights after having initially spoken with law enforcement pursuant to a waiver. See State v. DuMars, 33 Kan. App. 2d 735, 748, 108 P.3d 448, rev. denied 280 Kan. 986 (2005). However, appellate courts have typically declined to review an alleged Doyle violation where the defense fails to make a contemporaneous objection. See State v. Sanchez, 282 Kan. 307, 311, 144 P.3d 718 (2006); State v. Fisher, 222 Kan. 76, 84, 563 P.2d 1012 (1977). Hunt concedes that he did not object to the question, “Did you tell Agent Papish everything you knew?” Indeed, defense counsel’s only concern was that his client be directed to provide a “yes or no” answer. Accordingly, Hunt raises his Doyle violation complaint in the context of prosecutorial misconduct, i.e., the prosecutor committed reversible misconduct by knowingly asking a question which the prosecutor knew was impermissible under Doyle. The obvious reason for such a characterization is that appellate courts will review a prosecutorial misconduct claim regardless of whether the defense objected at trial. See State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007). Recently, we noted the potential conflict between cases declining to review a Doyle violation in the absence of a contemporaneous objection at trial and those considering the allegation without a trial objection when the appellant couched the issue as prosecutorial misconduct. State v. Hernandez, 284 Kan. 74, 79, 159 P.3d 950, cert, denied 128 S. Ct. 620 (2007). However, Hernandez found that defense counsel in that case had appropriately objected to the challenged questions, obviating any need to resolve the potential conflict. Hernandez then proceeded to analyze the question on the same basis as it was raised on appeal, i.e., as a claim of prosecutorial misconduct. But cf. State v. Hazley, 28 Kan. App. 2d 664, 667-69, 19 P.3d 800 (2001) (court refused to review claim that prosecutor committed misconduct in ehciting testimony in violation of Doyle where no contemporaneous objection but found a claimed Doyle violation in closing argument was reviewable as prosecutorial misconduct). Similarly, we perceive that we need not directly address whether the distinctive review standard for prosecutorial misconduct provides a logical basis for reviewing a Doyle violation in that context, even though the absence of a contemporaneous objection might preclude reviewing the error on an evidentiary basis. “[T]he rationale underlying the contemporaneous objection rule is to permit the trial court to avert error by precluding improper evidence.” State v. Parker, 277 Kan. 838, Syl. ¶ 2, 89 P.3d 622 (2004). Here, the trial judge recognized that the prosecutor s questioning had created a Doyle problem, albeit the court deemed the answer to be problematic, rather than the question. The court called counsel to die bench, where the matter was discussed, and the trial judge declared that the prosecutor s question “was not inappropriate.” In other words, the district court was in a position to avert error and, in fact, ruled on the issue. Cf. Parker, 277 Kan. 838, Syl. ¶ 3 (where trial court granted a continuing objection to evidence excluded by order in limine, the trial court was in a position to avert error on account of introduction of objectionable evidence and rationale of contemporaneous objection rule met). We eschew a hypertechnical application of the contemporaneous objection rule that differentiates between a sua sponte court ruling and one that is prompted by an objection. The same opportunity to avert error exists under either scenario. Thus, we will proceed to review the claim as it has been raised on appeal, as a claim of prosecutorial misconduct. The two-step prosecutorial misconduct analysis where the complaint involves die ehciting of testimony, rather than closing argument, involves an initial determination of whether the prosecutor’s questions were impermissible. If so, the court must then determine whether the questions constituted plain error. See State v. Overton, 279 Kan. 547, 558, 112 P.3d 224 (2005). In the second, plain error step, 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 tire 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 trial court and the attorneys focused on Hunt’s unexpected response and apparently failed to recognize that the question itself fit squarely within the proscription of Doyle. On appeal, the State continues to focus on Hunt’s statement that he asked for an attorney as being the only impropriety. However, the question, “Did you tell Agent Papish everything you knew?” on its face “attempts to impeach [Hunt’s] credibility at trial by arguing or by introducing evidence that [Hunt] did not avail himself ... of thé first opportunity to clear his or her name when confronted by police officers.” See Edwards, 264 Kan. at 195. Even in context, the question suggested that Hunt knew something about the murder that he failed to share with Agent Papish and that the jury should discount Hunt’s trial testimony because of the unfavorablé inference to be drawn from that silence. Regardless of the prosecutor’s motive in propounding the question, it denigrated Hunt’s exercise of his constitutional right to remain silent and was a Doyle violation. Nevertheless, in this case, the improper question of which Hunt complains does not constitute plain error, requiring reversal. We perceive the most harmful evidence was Agent Papish’s description of the initial interview with Hunt, in which Hunt said several times that he would talk with the agent the next morning about what happened to his mother. The inference to be drawn from that testimony was that Hunt possessed personal information about the murder. In comparison, the fact that Hunt did not carry through with his promise to talk about the murder is rather harmless. Es pecially, in light of Hunt’s ultimate answer, “There was nothing to tell.” On appeal, Hunt emphasizes the third factor of the second step of the plain error analysis, arguing that the evidence was not of such a direct and overwhelming nature as to render the misconduct unlikely to have had little weight in the jurors’ minds. The point that the evidence in this case was not direct and overwhelming is well taken. However, we look at all of the factors and assess the impact on the jury’s decision. Here, we do not consider the misconduct to be gross and flagrant, especially given the prior testimony of Agent Papish, which the defense allowed to come in unchallenged. Further, we would be hard-pressed to say that the prosecutor displayed ill will in propounding a question which both defense counsel and the trial judge believed to be an appropriate inquiry at the time. Accordingly, we find that reversal is not required.. CUMULATIVE ERROR Finally, Hunt contends that, even if we find that none of the individual trial errors, standing alone, requires reversal, the cumulative effect of all of the errors mandates that he have a new trial. Our standard for analyzing cumulative error is often stated as: “Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. No prejudicial error, may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. [Citation omitted.]” State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 (2006). Frequently, claims of cumulative error are quickly disposed of by declaring the evidence against the defendant to be overwhelming or by pointing out that the court has found no more than one error. See State v. Anthony, 282 Kan. 201, 217, 145 P.3d 1 (2006) (one error insufficient to support reversal under cumulative effect rule). Neither tack is applicable here. We have noted two errors in instructing the jury and an instance of prosecutorial misconduct. Likewise, by any measure, the State’s evidence in this case was not of a direct and overwhelming nature. Nevertheless, our standard is to view the proceedings from a global perspective and assess whether the defendant received a fair trial. In doing so, we can look at how the individual errors intertwined with each other, how they impacted the theory of defense, and whether they gave the State an unfair advantage. Here, the error in the murder elements instruction was effected with the advice and consent of defense counsel, akin to invited error. Likewise, defense counsel apparently believed that the prosecutor’s cross-examination question was appropriate, urging that it be re-asked as a “yes or no” question. Moreover, the K.S.A. 60-455 evidence for which a limiting instruction was not given was cumulative and not particularly critical to the State’s case or Hunt’s defense. In short, although this is a closer case than most, we are comfortable in assessing that, under the totality of the circumstances, Hunt received a fair trial, albeit perhaps an imperfect one. Affirmed. Davis, J., not participating McAnany, J., assigned.
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The opinion of the court was delivered by Johnson, J.: In his prosecution for possession of marijuana, Paul B. Martin unsuccessfully moved to suppress the evidence retrieved from his pocket. On appeal, the Court of Appeals reversed the district court and found that the evidence should have been suppressed. State v. Martin, No. 96,126, unpublished opinion filed February 16, 2007. The State of Kansas seeks review, claiming that the Court of Appeals erred in failing to consider how the discovery of Martin's outstanding arrest warrant should affect the lawfulness of the search and that the Court of Appeals erroneously based its decision upon a theory that was not presented to the district court or briefed on appeal. Finding that the discovery of the arrest warrant presented an intervening event which removed the taint of the illegality of the preceding unlawful detention, we reverse. The Court of Appeals succinctly described the factual background as follows: “After officers observed a man exhibiting physical activity similar to that of someone attempting to urinate, they confronted the man and asked if that was his intent. He admitted his intent to urinate, and one of the officers told him, ‘You were honest, why don’t you just get out of here.’ The man mounted his bicycle and rode away. The officers then noticed a second bicycle and saw Martin standing about 20 feet away. Although the arresting officer would later admit that he ‘didn’t see [Martin’s] motion’ and ‘[didn’t] know what he intended to do,’ the officers ‘stopped’ Martin and asked for his identification. Martin was cooperative, identified himself, and provided his date of birth. When the officers ran his name and birthdate through dispatch, they discovered an outstanding warrant for his arrest. Upon Martin’s arrest the officers searched his person and found an Altoids tin containing a substance confirmed as marijuana.” Martin, slip op. at 2. In die ensuing prosecution for possessing the marijuana, Martin moved to suppress the evidence. Although defense counsel conceded that the initial encounter was permissible, Martin’s attorney argued that the encounter became an unlawful detention when the officer called dispatch for a wants and warrants check. The district court announced that, because the defense had raised no issue as to the initial stop, the court would not address it. Declaring that it is always permissible for an officer to run a warrant check, the district court denied the motion to suppress. Martin was convicted of possession of marijuana at a bench trial upon stipulated facts at which Martin preserved the suppression issue for appeal. Upon direct appeal, the Court of Appeals noted trial counsel’s concession that the initial stop was a voluntary encounter, but opined that it “[disagreed] that any stop was justified.” Slip op. at 4-5. Nevertheless, the Court of Appeals proceeded to analyze whether the encounter lost its consensual nature and became unlawful when the officers detained Martin to conduct a wants and warrants check. The Court of Appeals concluded: “Whether one focuses upon the initial stop or the detention as an extension of a purported voluntary encounter, we conclude that Martin should not have been detained for a wants and warrants check under these circumstances, and we reverse the district court’s refusal to suppress the evidence revealed during the subsequent search of his person.” Slip op. at 6. In its petition for review, the State argues that the Court of Appeals erred by: (1) failing to consider the controlling authority of State v. Jones, 270 Kan. 526, 17 P.3d 359 (2001); and (2) reversing the district court based upon a theoiy which was not presented to the district court or briefed on appeal. We take tire liberty of considering the issues in reverse order. BASIS FOR COURT OF APPEALS DECISION The State complains that neither the district court nor the Court of Appeals was presented argument on the theory used by the appellate court to reverse the denial of the suppression motion. We disagree. As the State points out in its review petition, the suppression motion alleged that the officer checked with dispatch without having “reasonable, articulable suspicion that the defendant had been committing a crime, was about to commit a crime or had committed a crime.” Trial counsel argued that, although the encounter was permissibly initiated, it became unlawful when the officer de tained Martin to run the warrant check. In his brief to the Court of Appeals, one of Martin’s issues was stated as “[wjhether Mr. Martin’s encounter with Officer Walter initially was a voluntary encounter then became an illegal investigatory detention when the officer ran a warrant check without reasonable articulable suspicion.”' As noted above, the Court of Appeals analyzed the very issue presented, i.e., whether the officer was unlawfully detaining Martin when the officer ran the warrant check. Even if the opinion’s discussion of the legality of the initial encounter is gratuitous, the ultimate holding directly addressed the theory of unlawfulness presented to both the district court and the Court of Appeals. The State also argues that because of the manner in which the issue was presented below, it was denied the opportunity “to present evidence to prove the lawfulness of the encounter or provide details regarding the sequence and timing of events.” Pointedly, however, the State begins by reciting the provisions of K.S.A. 22-3216(2), which specifically provides that “the burden of proving that the search and seizure were lawful shall be on the prosecution.” Once Martin raised the issue of the lawfulness of extending the encounter to run a wants and warrants check, the State had the burden of proving the actions of law enforcement were lawful. That burden would include the detailing of the sequence and timing of events in order to prove that the extended encounter was not an unlawful detention. In short, the State had ample notice and opportunity to address the specific issue and theoiy upon which the case was decided. THE EFFECT OF THE OUTSTANDING WARRANT In its brief to the Court of Appeals, the State argued that the encounter remained voluntary up to the time that the outstanding warrant was discovered and Martin was arrested on that warrant. However, it also relied on its Jones argument that the officers had a right to arrest Martin upon discovering the outstanding warrant, regardless of whether Martin was being unlawfully detained when the warrant was discovered. See Jones, 270 Kan. at 527. In its petition for review, the State does not present any argument as to whether Martin was being unlawfully detained during tire warrant check. Rather, the petition for review asserts that the Court of Appeals’ error was in failing to apply the holding in Jones. Specifically, the petition recites: “While die State does not concede that Martin was detained, legally or otherwise, the holding in Jones dictates that even if he had been unlawfully detained, the arrest was lawful, and consequently, die evidence obtained during a search incident to the arrest was lawfully obtained.” Although the State purports to disavow any concession with respect to the Court of Appeals’ determination that Martin was unlawfully detained for a wants and warrants check, its failure to present any argument on the question effects the same result. See State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) (an issue not briefed is deemed waived or abandoned). Indeed, consideration of the State’s review petition issue on the applicability of the Jones holding would be rendered unnecessary without the existence of an unlawful detention. Therefore, we will restrict our analysis to the question the State has presented us upon review, i.e., whether the discovery of an outstanding arrest warrant during an unlawful detention is an intervening event which removes the taint of the unlawful detention from evidence retrieved in a search incident to the warrant arrest. The Jones Decision Because the State relies exclusively on Jones, we pause to review that decision in some detail. The Jones scenario began with a traffic stop of a speeding vehicle in which Jones was a passenger. The detaining law enforcement officer asked for Jones’ driver’s license, in addition to that of the vehicle driver. Jones denied having any identification, but provided his name and birth date. The officer testified that his “standard operating procedure” was to obtain identification and run a records check on all passengers in a stopped vehicle so that they would be available to testily in any court proceeding that might arise from the traffic citation. After being advised by dispatch that Jones had an outstanding warrant, the officer asked Jones to exit the vehicle. Jones exited, but then fled on foot. After he caught Jones, the officer searched Jones’ coat and discovered narcotics and drug paraphernalia, for which Jones was prosecuted and convicted. On appeal, the Court of Appeals, after considering whether the district court should have granted Jones’ motion to suppress the evidence, affirmed the convictions. State v. Jones, 27 Kan. App. 2d 476, 5 P.3d 1012 (2000). The Supreme Court granted review and commenced its opinion by declaring that “[t]he sole issue in this case is whether Jones’ Fourth Amendment rights were violated when a law enforcement officer asked him his name and date of birth after a routine traffic stop in which Jones was a passenger and not the driver of the vehicle.” Jones, 270 Kan. at 526. However, the Jones court did not specifically address Jones’ argument that an officer’s asking for a passenger’s name and date of birth during a routine traffic stop violates the passenger’s Fourth Amendment right to be free from an unreasonable search and seizure. Rather than answering the question of whether Jones was being unlawfully detained, the Jones court simply said: “The problem with Jones’ argument in this case is that once [tire officer] determined there was a warrant out for Jones’ arrest, [the officer] had a right to arrest Jones, whether he had been lawfully or unlawfully detained at that point in time. Once [the officer] had a right to lawfully arrest Jones on the outstanding warrant, [the officer] had a right to search him incident to the arrest. See United States v. Green, 111 F.3d 515, 521 (7th Cir. 1997).” 270 Kan. at 527-28. The Jones opinion then quotes from Green, a 7th Circuit case which found that the lawful arrest of a passenger upon an outstanding warrant “ ‘constituted an intervening circumstance sufficient to dissipate any taint caused by the illegal automobile stop.’ ” Jones, 270 Kan. at 528 (quoting United States v. Green, 111 F.3d 515, 521 [7th Cir. 1997]). Jones goes on to briefly mention and quote from an Illinois Court of Appeals case, People v. Murray, 312 Ill. App. 3d 685, 691-92, 728 N.E.2d 512 (2000), which declared that “ ‘[i]t would be illogical and nonsensical for us to hold that once the police illegally stop an automobile, they can never arrest an occupant who is found to be wanted on a warrant.’ ” The brief analysis in Jones concludes by stating the holding in a Louisiana Supreme Court case, State v. Hill, 725 So. 2d 1282 (La. 1998), “that the discovery of an outstanding arrest warrant constitutes an ‘intervening circumstance’ which dissipates the taint of an initial impermissible encounter,” and by listing the cases upon which the Louisiana Supreme Court relied. Jones, 270 Kan. at 528-29. The final paragraph in Jones recites: “We hold that there is no evidence of bad faith on die part of [the law enforcement officer]. Once [the officer] learned of the outstanding warrant, he had a right and duty to arrest Jones. Subsequent to the arrest, [the officer] had the right to search Jones. We affirm the trial court and Court of Appeals.” 270 Kan. at 529. The opinion does not flesh out the significance of its holding that the officer did not act in bad faith, in light of the court’s earlier suggestion that the discovery of an outstanding warrant is a bright line event rendering immaterial any inquiry into the lawfulness of the detention at the time of the warrant’s discovery. Perhaps more curious is the court’s reliance on decisions from foreign jurisdictions without mentioning its own prior decisions, especially State v. Damm, 246 Kan. 220, 787 P.2d 1185 (1990). Before proceeding to discuss Damm, we pause to note that Martin argued and the Court of Appeals analyzed the factual distinction between a vehicle stop, as in Jones, and an encounter on the street, as presented here. The distinction may be important to the detention analysis, given that we have declared every vehicle stop to be a detention, State v. Mitchell, 265 Kan. 238, Syl. ¶ 2, 960 P.2d 200 (1998) (“A traffic stop is a seizure within the meaning of the Fourth Amendment.”), while an encounter on the street is not always deemed a detention. See State v. Lee, 283 Kan. 771, Syl. ¶ 2, 156 P.3d 1284 (2007) (“A voluntary or consensual encounter is the only type of encounter between citizens and law enforcement officers that does not implicate the protection of the Fourth Amendment.”). However, the starting point for our discussion is that Martin was unlawfully seized when the outstanding warrant was discovered. Therefore, the distinction between a vehicle stop and a street encounter does not affect our analysis. The Damm Decision In Damm, an officer stopped the vehicle Damm was driving because of defective taiflights. The officer gathered the driver’s licenses from Damm and his two passengers and returned to the patrol car to do a “routine records check.” The officer discovered an outstanding warrant on one of the passengers, who was then arrested and placed in the patrol car. The officer returned to the stopped vehicle and searched it incident to the passenger’s arrest. After discovering drug paraphernalia and cocaine in the vehicle, all three occupants were arrested for drug possession. In upholding the district court’s suppression of the evidence, the Damm court found that the officer “had no reasonable justification for requiring identification of the passengers and running record checks on them.” 246 Kan. at 224-25. Thus, the seizure of all three vehicle occupants, including the driver, was rendered unreasonable because it exceeded the scope and duration justified by the traffic stop. The court then explained: “Without the unreasonable detention, the officer had no reason to arrest [the passenger with an outstanding warrant] or [Damm and the other passenger]. Without the arrest, there could be no search. Without the search, there was no evidence against Damm. The detention and search being unlawful, the evidence is inadmissible as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); State v. Epperson, 237 Kan. at 719.” Damm, 246 Kan. at 225. Reconciliation Damm employed a “but for” analysis to determine that everything following the unreasonable seizure was fruit of the poisonous tree under Wong Sun, and, thus, inadmissible. The opinion focused on tire fact that the officer would not have learned of the outstanding warrant without first unlawfully seizing the passenger. Damm does not consider the dilemma presented by the officer’s acquisition of that knowledge. The discovery of an outstanding arrest warrant informs the law enforcement officer that a judge has found “that there is probable cause to believe both that a crime has been committed and that the [subject of the warrant] has committed it.” K.S.A. 22-2303(1). The officer would understand that it would be his or her duty to execute that warrant by arresting the person named in the warrant. See K.S.A. 22-2305. The Damm court did not clarify whether the preceding unlawful detention rendered the warrant arrest unlawful or just precluded prosecution for the resulting new crime revealed by the search incident to the arrest. However, given that the warrant was issued upon a probable cause showing that had nothing to do with the unlawful detention and the officer is commanded by a judge to execute the warrant by arresting the fugitive, one must conclude that the arrest on the warrant is not invalidated by the unlawful detention. The State does not discuss Damm, but rather it takes the position that both the warrant arrest and the new prosecution are permissible. The State perceives that the unstated, underlying rationale of Jones is that “Martin had no liberty to be protected” because “a judge had signed a warrant ordering Martin s arrest.” While the State may wish that to be so, Jones’ holding of an absence of officer bad faith would make no sense if Jones possessed no liberty interest to protect. Moreover, such an inference cannot be reconciled with Damm, which found that the passenger subject to an outstanding warrant in that case was nevertheless unreasonably seized. Such a finding necessarily presupposes that the passenger had a protected liberty interest which could be violated notwithstanding the existence of an outstanding warrant. We perceive that Damm and Jones are reconciled by recognizing that neither case establishes a bright line rule. The discovery of an outstanding arrest warrant does not always automatically wipe the slate clean for an officer unlawfully detaining the subject of the warrant. On the other hand, an unlawful detention that begets knowledge of an outstanding arrest warrant does not always automatically immunize the fugitive from prosecution for crimes discovered during the warrant arrest. In that regard, we note that the exclusionary rule is not absolute. “ ‘We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Maguire, Evidence of Guilt, 22 (1959).” [Wong Sun v. United States,] 371 U.S. at 487-88.’ ” State v. Hodges, 252 Kan. 989, 1006, 851 P.2d 352 (1993). Under the attenuation doctrine, courts have found that the poisonous taint of an unlawful search or seizure dissipates when the connection between the unlawful police conduct and the challenged evidence becomes attenuated. Nardone v. United States, 308 U.S. 338, 84 L. Ed. 307, 60 S. Ct. 266 (1939). Although the Jones opinion did not explicitly apply the attenuation doctrine, that doctrine appears to be the only way to explain its reference to officer bad faith and to reconcile it with the holding in Damm. The Green, Murray, and Hill cases relied upon by Jones cite to Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975), which applied three factors to determine whether the causal chain has been sufficiently attenuated, so as to dissipate the taint of illegal conduct. Those factors are (1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04. Presumably, Jones’ holding of an absence of officer bad faith referred to the third factor. However, all of the factors appear to be germane to the important determination of whether the State can avoid the exclusionary rule for its agents’ unlawful conduct. Below, neither the district court nor the Court of Appeals engaged in a taint analysis. Nevertheless, we are empowered to do so, if given a sufficient record on appeal. See State v. Gonzales, 36 Kan. App. 2d 446, 459, 141 P.3d 501 (2006); State v. Crowder, 20 Kan. App. 2d 117, 122, 887 P.2d 698 (1994). The first factor weighs heavily against the State. Indeed, at oral argument, the State emphasized the short amount of time which elapsed between the initial encounter and the arrest with accompanying search. The law enforcement officers’ actions were continuous; there was no temporal bréale in the causal chain between illegality and evidence acquisition. However, Brown instructed that “[n]o single fact is dispositive” in determining whether the evidence should be suppressed. Brown, 422 U.S. at 603; see Green, 111 F.3d at 521. The second factor, the presence of intervening circumstances, brings the outstanding arrest warrant into play. Under that circumstance, the law enforcement officer was put on notice that a court had determined there was probable cause to believe that Martin had committed a crime and that the court had issued an order for law enforcement to take Martin into custody. The warrant arrest of Martin was a lawful, perhaps mandatory, act. Thereupon, K.S.A. 22-2501 permitted, and officer safety recommended, that the officer search Martin’s person. Thus, the lawful warrant arrest for a prior crime, and ensuing lawful search incident to arrest, represent a potential break in the causal chain between the unlawful conduct of illegally detaining Martin and the retrieval of the challenged evidence. The third factor, the purpose and flagrancy of the official misconduct, dovetails with the second factor in this case. The determination of whether the intervening circumstance of discovering an outstanding warrant should attenuate the taint of a preceding unlawful detention should be influenced by the officers’ reasons for detaining the subject and the flagrancy of the invasion on the subject’s privacy. In other words, did the officer exploit the unlawful conduct to get to the contraband. Cf. United States v. Melendez-Garcia, 28 F.3d 1046, 1055 (10th Cir. 1994) (“[T]he purpose and flagrancy’ prong of the Brown test can only be aimed at exploring whether the police have exploited their illegal search.”). While the circumstances might suggest that the officers’ purpose in requesting identification to run a warrant check was a fishing expedition, we do not perceive the conduct to be flagrant. The officers were drawn to the particular location because they observed a man who admitted to urinating or attempting to urinate in public. There is nothing to suggest that the officers’ ultimate goal in making contact with Martin, who was in the immediate vicinity of the urinator, was to search his person for drugs. Indeed, that suggestion is belied by the officers’ treatment of the lawbreaker, who was simply sent on his way after admitting to his transgression. Further, the intrusion upon Martin’s privacy involved a brief conversation in which Martin cooperatively engaged. But cf. State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 [1975]) (even a brief detention is a seizure implicating Fourth Amendment). Accordingly, we find that, considering the minimal nature and extent of the official misconduct, the outstanding arrest warrant was an intervening circumstance which sufficiently attenuated the taint of the unlawful detention so as to permit the admission of the fruits of the search incident to arrest. Judgment of the Court of Appeals is reversed. Judgment of the district court is affirmed, and the case is remanded for further proceedings.
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The opinion of the court was delivered by Beier, J.; These consolidated cases test the sufficiency of the DNA descriptions in John Doe warrants arising out of a series of seven sexual assaults committed from 1989 through 1994 in McPherson, Saline, and Reno counties. Each of the resulting six cases was dismissed in the district court for one or both of two reasons. The State appeals all of the dismissals; and defendant Douglas S. Belt cross-appeals on the one issue decided against him in McPherson County. Factual and Procedural History McPherson County Four cases involving four different victims were filed in McPherson County. • Case No. 91 CR 3226 Just after midnight on March 25,1989, A.H. was taking a shower at her home when an unidentified man broke into her home, came into the bathroom, grabbed her, told her he had a knife, and took her to the bedroom. He put duct tape around her head, covering her eyes, and bound her hands with the tape. He performed oral sex on her, vaginally and anally raped her, and then left her bound and blindfolded while he escaped. On March 13, 1991, a John Doe complaint was filed and an arrest warrant was issued in connection with the A.H. incident. The complaint, in Case No. 91 CR 3226, charged one count of rape, two counts of aggravated sodomy, one count of aggravated burglary, and one count of aggravated kidnapping. The complaint and warrant identified “John Doe described by deoxyribonucleic (DNA) analysis as LOCI D2S44 and D17S79.” The supporting affidavit stated that John Doe was a male, described the crimes reported by A.H., and averred that semen was collected from the crime scene. It also stated that the semen had been sent to the Federal Bureau of Investigation (FBI), where it was analyzed by Special Agent Dwight Adams. Adams reported to tire affiant that “the semen donor’s DNA LOCI is D2S44 and D17S79” and that “the DNA description would be unique only to the person committing the rape/sodomy against [A.H.].” The affidavit stated that the DNA banding pattern was catalogued in an autoradiograph maintained at the FBI laboratory in Washington, D.C. Neither the complaint, the warrant, nor the supporting affidavit contained any other description of the perpetrator. • Case No. 91 CR 3355 On the night of September 8, 1989, P.H. was in bed when she heard a noise; she got up and was accosted near her bedroom door by a male, approximately 6'1" tall, who was wearing a mask. He grabbed P.H., threw her on her bed, covered her eyes with duct tape, and taped her arms together behind her back. He performed oral sex on her and then vaginally raped her. He then inserted his finger in her anus. During these events, she felt a sharp object on her back; at one point, the man said, “Maybe I should just slash your throat and get it over it [sic].”-While she was still bound and blindfolded, her attacker asked her if she had any money. She told him she had $100 in her purse, which he took. Then he fled. On September 5, 1991, a John Doe complaint was filed and an arrest warrant was issued in connection with the P.H. incident. The complaint, in Case No. 91 CR 3355, charged one count of rape, two counts of aggravated sodomy, one count of aggravated burglary, one count of aggravated kidnapping, and one count of aggravated robbeiy. The complaint and warrant identified “John Doe described by deoxyribonucleic (DNA) analysis as LOCI D2S44 and D17S79.” The supporting affidavit stated that John Doe was a male, described the crimes reported by P.H., and averred that semen was collected from the crime scene. The affidavit also stated that the semen had been sent to the FBI where it was analyzed by Special Agent Michael Vick, who reported to the affiant that “the semen donor’s DNA LOCI is D2S4-4 and D17S79” and that “the DNA description would be unique only to the person committing the rape/sodomy against [P.H.].” The affidavit stated that the DNA banding pattern was catalogued in an autoradiograph maintained at the FBI laboratory in Washington, D.C. Neither the complaint, the warrant, nor the supporting affidavit contained any other description beyond the DNA information and the approximate height of the perpetrator. • Case No. 92 CR 3500 Just before midnight on June 13, 1990, N.B. was grabbed from behind as she passed a spare bedroom in her home. Her male attacker put a knife to her throat and told her to be quiet. He took her to the master bedroom, put duct tape across her eyes, removed her top and bra, placed her arms behind her, and wrapped duct tape around her wrists and forearms. The man performed oral sex on her and then vaginally and anally raped her. He left her bound and blindfolded while he escaped. On May 22, 1992, a John Doe complaint was filed and an arrest warrant was issued in connection with the N.B. incident. The complaint, in Case No. 92 CR 3500, charged one count of rape, two counts of aggravated criminal sodomy, one count of aggravated burglary, and one count of aggravated kidnapping. An amended complaint was filed May 28, 1992. The complaints and warrant identified “John Doe described by deoxyribonucleic (DNA) analysis as LOCI D2S44 and D17S79.” The supporting affidavit stated that John Doe was a male, described the crimes reported by N.B., and averred that semen was collected from the crime scene. The affidavit also stated that the semen had been sent to the KBI for prehminary analysis by criminalist Kelly Robbins and that it was then forwarded to, the FBI. Robbins reported to the affiant that the FBI had reported that the semen donors DNA LOCI is “D2S44 and D17[S]79” and that “the DNA description would be unique only to the person committing the rape/sodomy against [N.B.].” The affidavit stated that the DNA banding pattern was catalogued in an autoradiograph maintained at the FBI laboratory in Washington, D.C. Neither the complaints, the warrant, nor the supporting affidavit contained any other description of the perpetrator. • Case No. 93 CR 3682 On March 7, 1991, J.Z. fell asleep in her home. She was awakened early the next morning by a male who had placed his hand and a knife blade against her face. He told her to be quiet, then duct taped her eyes, took off her shirt, and duct taped her wrists. The man vaginally raped her and forced her to perform oral sex on him. He left her bound and blindfolded while he escaped. On February 11, 1993, a John Doe complaint was filed and an arrest warrant issued in connection with the J.Z. incident. The complaint in Case No. 93 CR 3682 charged one count of rape, one count of aggravated criminal sodomy, one count of aggravated burglary, one count of aggravated kidnapping, and one count of aggravated robbery. The complaint and warrant identified “John Doe described by deoxyribonucleic (DNA) analysis as LOCI D2S44 and D17S79.” The supporting affidavit stated that John Doe was a male, de scribed the crimes reported by J.Z., and averred that semen was collected from the crime scene. The affidavit also stated that the semen had been sent to the KBI for preliminary analysis by Robbins, and that it was then forwarded to the FBI. Robbins reported to the affiant that the FBI had reported that the suspect had “the same DNA LOCI of D2[S]44 and D17[S]79” and that “the DNA description would be unique only to the person committing rape and sodomy to victims in previous unsolved rapes in the city of McPherson.” The affidavit stated that the DNA banding pattern was catalogued in an autoradiograph maintained at the FBI laboratory in Washington, D.C. Neither the complaints, the warrant, nor the supporting affidavit contained any other description of the perpetrator. Saline County One case involving two different victims was filed in Saline County. On August 26, 1993, P.B. was asleep in her apartment when an unknown male broke in, sat on her, pushed her head into her pillow, told her not to open her eyes, put a knife to her neck, and duct taped her eyes and wrists. The man then raped her vaginally and anally, and forced her to perform oral sex on him. He took $38 from her purse. On October 5, 1993, J.B. was asleep in her apartment, which was in the same complex as P.B.’s apartment. At some time after midnight, an unknown man woke her, put a knife to her throat, duct taped her eyes and wrists, struck her numerous times, and cut her throat. He then anally raped her. Medical examination also revealed vaginal tears consistent with penetration. The man forced her to perform oral sex on him and performed oral sex on her. He then placed her in a bathtub and washed parts of her and cut her between her breasts. On July 1, 1997, a John Doe complaint was filed in connection with the P.B. and J.B. incidents. The complaint, in Case No. 97 CR 863, charged rape, aggravated burglary, aggravated kidnapping, two counts of aggravated criminal sodomy, and theft as to P.B.; and rape, aggravated burglary, three counts of aggravated criminal sodomy, and aggravated kidnapping as to J.B. The complaint identified “John Doe, D2S44, D10S28, D1S7, D4S139” as its subject, and an arrest warrant was issued. The supporting affidavit described the crimes and stated that semen specimens recovered from both victims had been collected and analyzed by William Hamm of the KBI. The affidavit said Hamm reported that “the donor[’]s LOCI is D2S44, D1S7, D10[S]28, D4S139”; that the DNA description would be unique to the person who committed the rapes of P.B. and J.B.; and that the DNA banding pattern was maintained on autoradiographs at the KBI laboratoiy. Neither the complaint, the warrant, nor the supporting affidavit contained any other description of the perpetrator. Reno County One case involving one victim was filed in Reno County. On August 17, 1994, J.T. was staying at her daughter’s mobile home when a male intruder awoke her at 2:45 a.m. The man told her he had a knife, duct taped her eyes and wrists, and led her to a back bedroom where he raped and sodomized her. On May 19,1997, a John Doe complaint was filed and an arrest warrant issued in connection with the J.T. incident. The complaint, in Case No. 97 CR 422, charged one count of rape and one count of aggravated burglary. The supporting affidavit stated that John Doe was male, described the crimes reported by J.T., and averred that semen was obtained from the crime scene. It stated that a DNA banding pattern was catalogued in autoradiograph by Hamm and that the DNA description maintained at the KBI lab would be unique to the person who committed the rape of J.T. Neither the complaints, the warrant, nor the supporting affidavit contained any other description of the perpetrator. Knowledge of Belt’s Involvement Law enforcement’s investigation of the A.H. incident, the first crime in McPherson County, led to defendant Belt, who consented to give a blood sample for DNA testing in March 1991. Mislabeling in the KBI lab resulted in a different individual’s DNA being sent to the FBI, and the FBI thus reported inaccurately that Belt’s DNA did not match that collected from the A.H., P.H., or J.Z. crime scenes. The authorities were able to determine that the DNA from each of the crime scenes matched one another and, eventually, that collected in the N.B. case. In 1995 or 1996, the DNA from the unknown serial rapist was entered into the federal Combined DNA Index System (CODIS). The sample in the CODIS database would eventually be matched to a known sample from Belt. Senior Special Agent Ronald Hagen had responded to the scene of the A.H. incident in March 1989 and was involved in all four McPherson County cases as a supervising officer in charge of processing the crime scenes and securing evidence. Hagen supplied die affidavits in support of the original John Doe warrants issued in McPherson County. He also had a major role in the eventual break in the serial rapist investigation. After Belt was arrested in June 2002 for a capital murder in Sedgwick County, Hagen remembered that he had been an early suspect in McPherson County. Hagen sought a warrant for a blood draw from Belt, which resulted in a match to the perpetrator of the seven sexual assaults from the late 1980s and early 1990s. At this point, Hagen served as the affiant for a master affidavit supporting amended complaints and new warrants, in each of the three counties, which named Belt. The master affidavit included physical descriptions from the victims. In McPherson County’s Cases Nos. 91 CR 3226, 91 CR 3355, and 92 CR 3500, involving victims A.H., P.H., and N.B., the State filed amendments on April 21, 2003. The State’s amendment in Case No. 93 CR 3682, involving victim J.Z., was filed June 17, 2003. The Saline County complaint in Case No. 97 CR 863, involving victims P.B. and J.B., was amended April 22, 2003. The State amended its Reno County complaint in Case No. 97 CR 422, involving victim J.T., on March 17, 2003; in addition to naming Belt, it added two counts of aggravated sodomy. Hagen eventually testified that he personally executed the new McPherson County warrants by serving them on Belt in the Sedgwick County Jail. Belt moved to dismiss all of these amended complaints. The first of his motions to come before a district court arose in the four McPherson County cases, heard together by Chief Judge Richard B. Walker on October 4, 2005. Belt argued that the original John Doe warrants were too vague to meet the identification standards of the Fourth Amendment to the United States Constitution and K.S.A. 22-2304 and, thus could not toll the statutes of limitations applicable to the charged crimes. If the statutes were not tolled, the limitations periods were exceeded; and the cases must be dismissed for lack of jurisdiction. Belt asserted that the DNA loci set out in the warrants, “D2S44 and D17S79,” were shared by every human being; that autoradiographs of specific DNA banding patterns were not attached to the complaints, warrants, or supporting affidavits; and that these documents lacked any other identifying information. Belt also argued that the delay between the filing of the original complaints and his first appearance was presumptively unreasonable and attributable to the State, violating his rights to speedy trial and due process under the Sixth and Fourteenth Amendments to the federal Constitution. The State responded to Belt’s motions to dismiss by arguing generally that a warrant containing a DNA profile identifying a perpetrator was sufficiently specific, that tire John Doe warrants in the McPherson County cases met the relevant standard, and that their supporting affidavits cured any vagueness problem by referring to unique catalogued autoradiographs. The State also asserted that there was no unreasonable delay in execution of the arrest warrants, under the circumstances of this case; and that, in any event, any delay had been caused by defendant’s efforts to conceal his identity. At the hearing, Belt introduced testimony from Dr. Dean Stetler, an associate professor in molecular biosciences at the University of Kansas. Stetler testified that the DNA loci listed in the complaints and warrants were common to all humans. In essence, the loci are merely addresses devoid of identifying content: “D” designates human; the following number designates the chromosome observed; “S” stands for single locus, meaning a sequence is found only one time on the chromosome; and the final number describes the location of the sequence. To have more specifically identified a particular person, Stetler testified, the State should have recited that defendant John Doe’s DNA was analyzed at these two loci and then described the information contained at each place. By way of example, Stetler reviewed a John Doe complaint filed in an unrelated case, which described DNA information contained at 14 different loci. He opined that such a complaint would be sufficient to describe someone who “would be the only person that has ever been on Earth with this profile.” A description of the information at only two loci would be unique, Stetler testified, to 1 in 500 persons. Judge Walker held in favor of the State on the issue of the warrants’ particularity, noting Hagen’s involvement throughout the investigation of the four incidents. The judge, citing State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), concluded that the supporting affidavits combined with the facts that Hagen served the warrants and that he was personally in possession of additional investigation results cured any lack of descriptive information in the warrants themselves. Nevertheless, Judge Walker granted Belt’s motions to dismiss the McPherson County cases, ruling that the KBI lab’s mislabeling constituted an “act of official negligence” resulting in an “impermissibly excessive” delay that violated Belt’s Sixth Amendment right to speedy trial. See Doggett v. United States, 505 U.S. 647, 120 L. Ed. 2d 520, 112 S. Ct. 2686 (1992), and Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). In Saline County, Belt’s motion to dismiss was heard by Judge Dan D. Boyer. The testimony presented was substantially similar to that before Judge Walker. Judge Boyer ruled on December 2, 2005, that the John Doe warrant had failed to describe Belt with reasonable certainty, as required by K.S.A. 22-2304; that the autoradiographs referenced in the supporting affidavit were insufficient to cure the warrant’s defect; and that the case must be dismissed. In the alternative, Judge Boyer ruled that Belt’s speedy trial rights had been violated by delay due to official negligence of the State. Belt obtained the same result from Judge Steven R. Becker in Reno County. There, the State conceded that its aggravated burglary charge and its two aggravated sodomy charges had been filed after expiration of the applicable statutes of limitations. However, it sought to preserve the remaining rape count for prosecution, relying on a reference in the supporting affidavit to DNA autoradiographs to cure any lack of specificity in the John Doe warrant. Judge Becker rejected this argument, ruling that he lacked jurisdiction because of the warrant’s insufficient identification of Belt and the running of the statute of limitations. Analysis Constitutional arguments and statutory interpretation questions such as those before us in this case are subject to unlimited review on appeal. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003); Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996). K.S.A. 21-3106 sets out the time limits within which a prosecution must be commenced for certain crimes. Although the statute has been modified numerous times over the years in which the crimes at issue occurred, the following rules have been constant: A limitations period starts running when a crime is committed; the period within which a prosecution must be commenced “shall not include any period in which . . . the fact of the crime is concealed”; and “[a] prosecution is commenced when a complaint or information is filed, or an indictment returned, and a warrant thereon is delivered to the sheriff or other officer for execution.” K.S.A. 21-3106. No “prosecution shall be deemed to have been commenced if the warrant . . . is not executed without unreasonable delay.” K.S.A. 21-3106. The parties do not debate the content of these rules. The State does, however, briefly invoke concealment, arguing that the statutes of limitations should have been tolled because Belt hid his involvement in the crimes between the times of their commission and the 2003 amendments of the complaints. This argument lacks merit. In order for concealment to toll a statute of limitations for prosecution, the concealment must be “ ‘of the fact of a crime’ ” and “ ‘must be the result of positive acts done by the accused and calculated to prevent discovery; mere silence, inaction, or nondisclosure is not concealment.’ ” State v. Palmer, 248 Kan. 681, 683, 810 P.2d 734 (1991); State v. Watson, 145 Kan. 792, 67 P.2d 515 (1937). We do not have the necessary “positive acts” by Belt in these cases. Indeed, he consented to a law enforcement request for a blood sample to enable DNA testing in March 1991. It was the KBI’s mislabeling, not Belt’s effort to evade apprehension, that caused Belt’s erroneous elimination as a suspect during the early part of the investigation. One additional preliminary point bears discussion. Although Judge Boyer dismissed the charges wholesale in the Saline County case, we note statute of limitations distinctions among them. The underlying offenses occurred on August 26 and October 5, 1993. The original John Doe complaint—charging two counts of rape, K.S.A. 1993 Supp. 21-3502(a)(l)(A); two counts of aggravated burglary, K.S.A. 1993 Supp. 21-3716; two counts of aggravated lad-napping, K.S.A. 1993 Supp. 21-3421; five counts of aggravated criminal sodomy, K.S.A. 1993 Supp. 21-3506(a)(3); and one count of theft, K.S.A. 1993 Supp. 21-3701(a)(l)—-was filed July 1, 1997. This was well outside the 2-year statute of limitations for theft and burglary. See K.S.A. 1993 Supp. 21-3106(5). Thus, even if the John Doe warrant gave an adequate description of Belt, the only charges remaining for prosecution would be the two counts of rape, five counts of aggravated criminal sodomy, and two counts of aggravated kidnapping, each of which is governed by a 5-year limitations period. K.S.A. 1993 Supp. 21-3106(4). The primary issue with which we are concerned on this appeal is framed by the State’s argument that Judges Boyer and Becker erred in ruling that the John Doe warrants failed to identify Belt sufficiently to toll the applicable statutes of hmitations. Belt’s only cross-appeal argument is a mirror image, focusing on Judge Walker’s ruling against him on this point. We now consider these competing arguments together. The Fourth Amendment to the United States Constitution protects citizens from violation of their rights to be free from unreasonable searches and seizures, and guarantees that “no Warrants shall issue, but upon probable cause, supported by Oath or affir mation, and particularly describing the . . . [person] to be seized.” K.S.A. 22-2304(1) codifies these constitutional standards as to Kansas arrest warrants, providing that such a warrant “shall be signed by the magistrate and shall contain the name of the defendant, or, if his name is unknown, any name or description by which he can be identified with reasonable certainty.” (Emphasis added.) As the State notes, there is precedent to support the contention that a warrant need not provide the name of a suspect, so long as it describes the suspect “sufficiently to identify” him or her. West v. Cabell, 153 U.S. 78, 85, 38 L. Ed. 2d 643, 14 S. Ct. 752 (1894). However, the State concedes that the warrants at issue here contained insufficient identifying information. The McPherson County warrants mentioned only DNA loci common to all humans; the Saline County warrants did likewise; the Reno County warrant referred only to a John Doe, listing no loci. The State’s position is that references to the existence and location of unique DNA autoradiographs in supporting affidavits cured the warrants’ laclc-ofparticularity problems. Neither the United States Supreme Court nor this court has yet had occasion to address whether a description of DNA characteristics can fulfill a warrant particularity requirement. The parties thus direct us to cases from two of our sister jurisdictions. See People v. Robinson, 156 Cal. App. 4th 508, 67 Cal. Rptr. 3d 392 (2007), rev. granted February 13, 2008, S158528; State v. Davis, 281 Wis. 2d 118, 698 N.W.2d 823 (2005); State v. Dabney, 264 Wis. 2d 843, 663 N.W.2d 366 (2003), rev. denied 266 Wis. 2d 63 (2003). These cases from California and Wisconsin support fire proposition that a warrant identifying the person to be arrested for a sexual offense by description of the person’s unique DNA profile, or incorporating by reference an affidavit containing such a unique profile, can satisfy constitutional and statutory particularity requirements. See, e.g., K.S.A. 22-2304. We do not disagree with this proposition in the abstract. But this case is concrete. Here, neither the John Doe warrants nor the affidavits supporting them set forth the unique DNA profile of their subject. Previous cases in which affidavits supplied information missing in warrants simply provide little persuasive authority in these circumstances. See United States v. Espinosa, 827 F.2d 604 (9th Cir.), cert, denied 485 U.S. 968 (1987) (warrant containing physical description of defendant supported by affidavit describing defendant’s residence, his two vehicles, including license plate numbers; information in affidavit properly considered “because the record makes clear that ‘[1] the affidavit accompanie[d] the warrant, and [2] the warrant use[d] suitable words of reference which incorporate [d] the affidavit therein’ ”); see also Kleypas, 272 Kan. at 926-30 (search warrant list of items to be seized left blank; lack of particularity cured when [1] affidavit contained description of items to be seized; [2] affiant, affidavit present at scene of warrant’s execution; and [3] executing officers briefed on items listed in affidavit). We do not view the warrants’ infirmity in this consolidated case as a mere technical irregularity a court can overlook. See K.S.A. 22-2511 (“[n]o search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused”); cf. State v. LeFort, 248 Kan. 332, 335, 806 P.2d 986 (1991) (failure of warrant to specify exact address of residence to be searched mere technical irregularity where application, affidavit contained correct description, affiant executing officer familiar with location); State v. Holloman, 240 Kan. 589, 595-96, 731 P.2d 294 (1987) (mere technical irregularity when duplicate of warrant, inventory of items seized given to defendant’s mother rather than defendant); State v. Spaulding, 239 Kan. 439, 441, 442, 720 P.2d 1047 (1986) (judge’s failure to sign warrant mere technical irregularity when probable cause finding made, search warrant intentionally issued); State v. Jackson, 226 Kan. 302, 304, 597 P.2d 255 (1979) (failure of the affidavit to specifically allege similarity between circumstances of prior conviction, present crime, inaccurate description of plea to earlier charge mere technical irregularities); Hearron v. State, 10 Kan. App. 2d 229, 233-34, 696 P.2d 418 (1985) (failure tó forthwith transcribe recorded oral testimony technical irregularity); State v. Forsyth, 2 Kan. App. 2d 44, 47, 574 P.2d 241 (1978) (absence of return receipt on search warrant technical irregularity); State v. Journey, 1 Kan. App. 2d 150, 151-52, 562 P.2d 138 (1977) (search warrant, sufficient on face, not invalid for lack of jurat signature). The infirmity was a near-complete lack of identifying information. Moreover, as Belt notes, there was no reason the State could not have particularly described the perpetrator s unique DNA profile in the warrants or their supporting affidavits. The unique profile was known and could have been set out. See, e.g., United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986) (one factor relevant in appraising specificity whether government could have included particulars at time warrant issued). That genetic information was necessary to provide an evidentiary baseline for probable cause. The fact that it would need to be verified scientifically once defendant was seized did not eliminate the need for this baseline to be drawn in the warrant in the first place. The affidavits’ references to unattached, unsworn, extrinsic evidence was insufficient to fulfill the constitutional and statutory requirements and cure the defective warrants. See United States v. Jarvis, 560 F.2d 494 (2d Cir. 1977), cert, denied with dissent 435 U.S. 934 (1978) (“John Doe” warrant without name, description by which defendant could be identified with reasonable certainty invalid, could not be cured by availability of extrinsic evidence arrest nevertheless because federal agents had probable cause for warrantless arrest). Because the warrants were invalid, prosecution of Belt in the McPherson, Saline, and Reno Counties did not commence within the applicable statutes of limitations. K.S.A. 1993 Supp. 21-3106. Statutes of limitations are favored in the law and are to be construed liberally in favor of the accused. State v. Palmer, 248 Kan. 681, 683, 810 P.2d 734 (1991); State v. Bentley, 239 Kan. 334, 336, 721 P.2d 227 (1986); State v. Mills, 238 Kan. 189, 190, 707 P.2d 1079 (1985). Exceptions to statutes of limitations are to be construed narrowly. Palmer, 248 Kan. at 683; Bentley, 239 Kan. at 336; Mills, 238 Kan. at 190. The McPherson County dismissal can be affirmed as right for the wrong reason; the Saline and Reno decisions to dismiss relied on the rationale with which we agree. Because we are compelled to rule against the State on the particularity of the John Doe identification in the original warrants, the State’s second issue on appeal contesting the conclusion of Judge Walker and Judge Boyer that the KBI’s mislabeling qualified as official negligence implicating Belt's right to speedy trial is moot. Affirmed.
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The opinion of the court was delivered by Nuss, J.: This appeal is the latest in a dispute which has spawned over 20 years of litigation, five prior trips to this court, three to our Court of Appeals, and 5 years of litigation in the United States Bankruptcy Court. The current disagreement arises out of an interpleader action to determine distribution of funds that had been withheld from these parties’ lawsuit settlement proceeds in order to pay litigation expenses. Upon reversal and remand from the Court of Appeals, Cooke v. Gillespie, No. 91,078, unpublished opinion filed December 10, 2004, the district court ultimately ordered an equitable distribution: the Townsend Trust was to be paid approximately $33,000 and the Gillespie Estate just over $223,000. The Townsend Trustee (Cooke) appealed, and the Gillespie Executor (Gillespie) cross-appealed. We transferred the case from the Court of Appeals on our own motion pursuant to K.S.A. 20-3018(c). Cooke argues that Gillespie’s claims to the funds under quantum meruit, unjust enrichment, or a common fund theory are barred by the statute of limitations because the claims were raised for the first time 7 years after the settlement funds were to be disbursed. Gillespie denies that the statute of limitations bars his recovery but, if so, argues that it similarly bars Cooke’s recovery. Our holding is based upon a related consideration: Cooke’s statute of limitations argument was not preserved for appeal. Accordingly, the decision of the district court is affirmed. FACTS These factions have been involved in disputes since 1987. See Seymour v. Thornton, 79 F.3d 980 (10th Cir. 1996); Gillespie v. Seymour, 272 Kan. 1387, 39 P.3d 61 (2002); Gillespie v. Seymour, 263 Kan. 650, 952 P.2d 1313 (1998); Gillespie v. Seymour, 255 Kan. 774, 877 P.2d 409 (1994); Gillespie v. Seymour, 253 Kan. 169, 853 P.2d 692 (1993); Gillespie v. Seymour, 250 Kan. 123, 823 P.2d 782 (1991); Cooke v. Gillespie, No. 91,078, unpublished opinion filed December 10, 2004; Gillespie v. Seymour, 19 Kan. App. 2d 754, 876 P.2d 193, rev. denied 255 Kan. 1001 (1994); Gillespie v. Seymour, 14 Kan. App. 2d 563, 796 P.2d 1060 (1990). A recapitulation of certain facts is necessaiy to understand the present controversy. Many of the facts, which are undisputed, are taken from the Court of Appeals’ unpublished opinion in Cooke v. Gillespie, and from the district court’s decision on remand: the nunc pro tunc journal entry of judgment dated February 28, 2006. In August 1987, Polly Gillespie Townsend sought an accounting of the family trust when certain suspicions arose as to the trustees’ management. Originally, an attorney represented Polly on an hourly basis. Later, the other trust beneficiaries, her brother Warren Gillespie and their mother Pauline Gillespie, joined as additional plaintiffs. Shortly after the filing of the litigation, Pauline died and her estate was substituted. After Pauline’s death, an attorney sent a proposed joint contingency fee agreement to Polly which provided for a sliding scale of rates ranging from 35% to 50% based on the stage of litigation in which the case was won. The proposal stated that if there was no recoveiy, there would be no compensation for services except for the out-of-pocket expenses incurred. Polly signed the agreement after crossing out the provision concerning payment of out-of-pocket expenses in the event of no recovery. The contract did not address recovery of out-of-pocket expenses in the event the litigation was successful. Upon receiving this contract, the attorney contacted Warren and his son James Gillespie concerning fees and expenses. This consultation resulted in a separate fee agreement between Warren and the attorney. According to this agreement, Warren would advance payment for litigation expenses as they were incurred. However, if the litigation was successful, Warren would receive a 5% reduction on his portion of the contingency fee. Ultimately, after numerous trials and appeals, the case was resolved in favor of the plaintiffs: the Townsends and the Gillespies. Then one of the defendants filed for bankruptcy, at which time Warren and James met with the attorneys and agreed to pay for work on the bankruptcy case on an hourly basis. Polly was not involved in these discussions and did not sign any further agreements. Prior to the resolution of the bankruptcy case, both Polly and Warren died. Their children, James (Gillespie) and Polly Townsend Cooke (Cooke), were substituted and later became, in their representative capacities, the present parties to this appeal. In 1995, the case settled and Gillespie and Cooke were awarded approximately $2,250,000, which was split in half between them. Gillespie had to pay 45% out of his half to the attorney and Cooke had to pay 50% of her share to the attorney. Later that year a dispute arose between Gillespie and Cooke over the responsibility for the litigation expenses. A little over $167,000 of Cooke’s settlement was set aside in a trust fund pending resolution of these issues. This dispute concerned not only out-of-pocket expenses incurred but also attorney fees incurred due to the bankruptcy litigation. Gillespie filed a motion asking the court to resolve the dispute under Kansas Rules of Professional Conduct 1.5 (2007 Kan. Ct. R. Annot. 428). District Court Judge Paul Buchanan ruled in favor of Gillespie, i.e., the expenses should be split. After appeal by Cooke, we reversed and remanded on jurisdictional grounds. Gillespie v. Seymour, 263 Kan. 650. On remand, Judge Keith Anderson ruled in favor of Gillespie: The expenses should be split. After another appeal by Cooke, this court decided, on February 1, 2002, that Gillespie “had no standing under a KRPC 1.5(e) application either to test the reasonableness of Polly [Cooke’s] separate fee contract, or to seek a resolution of his oral contract dispute with Polly.” Gillespie v. Seymour, 272 Kan. at 1394-95. The case was reversed, and the decision of the district court was set aside. Within 3 weeks after our decision, the Wichita law firm of Young, Bogle, McCausland, Wells & Clark, P.A., (Young, Bogle) the original attorneys for both Cooke and Gillespie in the underlying litigation, filed a petition for interpleader, asking the court to “issue an order determining which of the parties herein is entitled to said trust monies. . . .” On the motion of Cooke, these funds were paid into court and, subsequently, the parties agreed Young, Bogle could be dismissed. Gillespie lay claim to the funds under a number of theories, including an oral contract, an interpretation of the written contract, quantum meruit, unjust enrichment, and the common fund theory. Gillespie’s trial brief identified one of the issues as follows: Are either or both sides of the family’s claims against the other side barred by the applicable statutes of limitations? Cooke then filed a motion for summary judgment, contending that any claim that Gillespie might have to the funds was barred by the statute of Hmitations. Gillespie filed a cross-motion, arguing that if his claims were barred, Cooke’s claims would be barred by tire statute of limitations as well. Both of these dispositive motions were heard and eventually denied by a third district court judge, David Kennedy, on January 9, 2003. Consistent with procedures of the Sedgwick County District Court, the interpleader was then assigned to another judge, Rebecca Pilshaw, for trial. After a bench trial, on June 18,2003, Judge Pilshaw directly rejected Gillespie’s claims based upon a verbal agreement and quantum meruit. Although Cooke had raised the statute of Hmitations in her motion for summary judgment before Judge Kennedy, and again at trial before Judge Pilshaw, the latter judge did not rule on that issue. She stated: “I do not need under that ruHng to reach the issues regarding the statutes of Hmitations, and I’m not going to rule on those matters.” Gillespie appealed to the Court of Appeals. Among other grounds, he asserted in his brief that Judge Pilshaw erred “in fading to address GiHespie’s common fund theory for recovery.” By contrast, despite Judge Pilshaw’s similar failure to address several of Cooke’s defenses, including statute of Hmitations, Cooke failed to file a cross-appeal. Moreover, Cooke not only failed to raise the statute of Hmitations defense in her response brief but also argued that the issue was not one before the Court of Appeals, stating: “Finally, because the case was resolved on other issues, the trial court did not reach the statute of hmitations argument. [Citation omitted.] Therefore, the issues remaining from the pretrial conference order and Appellant’s trial brief are equitable claims based on the doctrines of common fund and quantum meruit.” On December 10, 2004, the Court of Appeals found that under the common fund theory, as well as under quantum meruit or an unjust enrichment analysis, Cooke should be responsible for pay ment of an equitable share of the litigation expenses. Cooke v. Gillespie, slip op. at 6. It reversed and remanded for “the determination of an equitable division of the expenses of litigation and a distribution of the funds held by the clerk of the court.” Slip op. at 6. As Cooke admits, the opinion makes no mention of a statute of limitations issue. Cooke then filed a petition for review of the Court of Appeals’ decision with this court. In it she argued, among other things, for application of the statute of limitations against Gillespie’s claims based upon the common fund theory, quantum meruit, and unjust enrichment. In Gillespie’s response, he noted that Judge Pilshaw did not reach the statute of limitations issue, that no cross-appeal was taken from her action, and “naturally, the Court of Appeals did not address that nonissue.” Accordingly, Gillespie argued that the statute of limitations issue was inappropriate for review by the Supreme Court. This court denied Cooke’s petition for review on May 3, 2005, and the mandate was issued on May 9. On remand, the case was assigned to Judge Benjamin Burgess. Cooke resurrected her statute of limitations theory and again filed a motion for summary judgment, again claiming that Gillespie’s claims were time-barred. Gillespie again filed a cross-motion for summary judgment, contending that if his claims were barred by the statute of limitations, Cooke’s were likewise barred. Judge Burgess found that Gillespie’s quantum meruit, unjust enrichment, and common fund claims were a continuation of the equitable claims made in the previous actions. He held that since the previous action was dismissed by the Supreme Court on jurisdictional grounds in 2002, these claims were “saved” under the provisions of the saving statute, K.S.A. 60-518. Accordingly, he found that as a matter of equity, because the parties shared equally in the initial claim, they were entitled to an equal share of the proceeds from its settlement, e.g., an equitable division of litigation expenses. Upon Cooke’s appeal of Judge Burgess’ decision, we transferred to this court. ANALYSIS Issue: Cooke’s statute of limitations argument was not preserved for appeal. Cooke argues that Judge Burgess erred in denying her motion for summary judgment because Gillespie’s claims are barred by the statute of limitations. Specifically, Cooke argues that the statute of limitations began running in 1995 when Gillespie knew that there was a dispute over who would pay the litigation expenses. Cooke’s brief alleges that the issue was not addressed by the district court in 2003 or by the Court of Appeals in reviewing that decision in 2004, but that it is now ripe for determination by the Supreme Court: “Appellant [Cooke] had previously raised and properly preserved the issue of the statute of limitations throughout the proceedings. However, the issue of the statute of limitations had not been directly addressed previously because Appellant [Cooke] had prevailed in the trial that led to that appeal. The statute oflimitations was never addressed by the district court in this proceeding, and therefore it was also not addressed by the appellate court in the decision issued December 10, 2004. .. . “. . . Therefore, tire issue of the statute of hmitations is now squarely before the court and is ripe for determination.” (Emphasis added.) Gillespie responds that the district court correctly granted his motion for summary judgment. He argues that the interpleader action is a derivative of the original action and that we should look to the district court’s ongoing jurisdiction over the proceeds of the original settlement. He also argues that his claims are preserved by the saving statute, K.S.A. 60-518. There is no disagreement over the material facts. Accordingly, we may review the district court’s denial of Cooke’s motion for summary judgment de novo. See Botkin v. Security State Bank, 281 Kan. 243, Syl. ¶ 1, 130 P.3d 92 (2006). Our analysis begins, however, with a reaffirmation of the statement that “[i]n Kansas, piecemeal appeals are frowned upon.’ ” State v. Neer, 247 Kan. 137,140, 795 P.2d 362 (1990); see Connell v. State Highway Commission, 192 Kan. 371, 374, 388 P.2d 637 (1964). K.S.A. 60-2103(h), which deals with cross-appeals, adopts this principle, stating: “When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which such appellee complains, the appellee shall, within 20 days after the notice of appeal has been served upon such appellee and filed with the clerk of the trial court, give notice of such appellee’s cross-appeal.” (Emphasis added). The purpose of such a provision is to conserve time and expense and eliminate duplication in abstracts, briefs, and opinions. Fields v. Anderson Cattle Co., Inc., 193 Kan. 569, 570, 396 P.2d 284 (1964). Accordingly, the Fields court affirmed that a second and direct appeal—by the original appellee—cannot be used as a substitute for a cross-appeal as directed by the statute. 193 Kan. at 570. We have clearly held that before an appellee may present adverse rulings to the appellate court it must file a cross-appeal. If the appellee does not, we have held that the issue is not properly before the court and may not be considered. See, e.g., Butler Co. R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003); Inland Industries, Inc. v. Teamsters and Chauffeurs Local Union, 209 Kan. 349, 355, 496 P.2d 1327 (1972); Reinecker v. Board of Trustees, 198 Kan. 715, 722, 426 P.2d 44 (1967); James v. City of Pittsburg, 195 Kan. 462, 463, 407 P.2d 503 (1965). As noted previously, Gillespie’s response to Cooke’s petition for review of the Court of Appeals’ December 2004 decision briefly argued that Cooke’s statute of limitations argument was inappropriate for review because Cooke had not cross-appealed from Judge Pilshaw’s failure to reach it, and the Court of Appeals consequently did not address this “nonissue.” More basically, we observe that Cooke failed to cross-appeal an earlier, and clearly adverse, ruling: Judge Kennedy’s denial of her summary judgment motion that was based upon the statute of limitations. We therefore disagree with Cooke’s assertion that the issue had not been directly addressed previously and that she properly preserved the issue throughout the proceedings. Because of Cooke’s failure to cross-appeal, under this court’s past interpretations of K.S.A. 60-2103(h), the statute of limitations issue could not have been, and indeed was not, considered by the Court of Appeals in its December 2004 opinion. We therefore must also disagree with Cooke’s contention that the issue of the statute of limitations is now squarely before this court and is ripe for determination. The issue is long past the point of our consideration. The case of James v. City of Pittsburg, 195 Kan. 462, is on point. There, the plaintiffs were individual owners of a majority of the tracts of land lying within an area sought to be annexed by the city. They challenged the validity of the annexation ordinance. After trial, the trial court entered judgment in favor of the defendants city and its commissioners. On plaintiffs’ appeal, the city argued as a threshold matter that plaintiffs were not the proper parties. We observed that the city first raised this argument in a motion to dismiss before the trial court; that court denied, the motion. The city’s motion was renewed at the conclusion of plaintiffs’ evidence; the trial court again denied the motion. We observed that the city had filed no cross-appeal from either ruling. After quoting K.S.A. 60-2103(h), this court noted that a similar predecessor statute, G.S. 1949, 60-3314, had been construed by this court as requiring an appellee to file a cross-appeal before that appellee can present adverse rulings for review. We held: “Inasmuch as the city gave no notice of cross-appeal, as provided by statute, its contention, as we have hereinbefore stated, is not properly before us and may not be considered.” 195 Kan. at 463. The adverse rulings in James which the city fatally failed to cross-appeal were improper-party-based motions to dismiss, denied both before and during trial. Here, the adverse ruling which Cooke fatally failed to cross-appeal was a statute-of-limitations-based summary judgment motion denied before trial. Of similar ilk is Scammahom v. Gibraltar Savings & Loan Ass’n., 197 Kan. 410, 416 P.2d 771 (1966). There, the district court overruled the workers compensation claimant’s motion to dismiss. It then heard on the merits the respondent employer’s appeal from the director’s decision for claimant, which involved reviewing the transcript of the proceedings conducted before the director and then making an independent adjudication of the facts and law. After this de novo determination, the district court affirmed the director s award for claimant, and the respondent employer appealed the award to the Supreme Court. The claimant filed no cross-appeal from the denial of his motion to dismiss but nevertheless attempted to raise the argument on appeal. This court, citing James and K.S.A. 60-2103(h), held that tire claimant’s failure to cross-appeal from the district court’s denial of his motion to dismiss precluded determination of the propriety of the district court’s action on this issue. 197 Kan. at 413. The case of Chavez v. Markham, 19 Kan. App. 2d 702, 875 P.2d 997 (1994), affd 256 Kan. 859, 889 P.2d 122 (1995), stands for this same basic proposition, although the facts are somewhat different. There, on competing dispositive motions, the district court granted summary judgment for plaintiff Chavez on one ground but denied it on two others. Markham appealed, and Chavez tried to also raise his two rejected grounds as support. Citing James, the Court of Appeals held that because Chavez failed to file a cross-appeal on these two grounds, the appellate court was barred from considering them. 19 Kan. App. 2d at 709. Even if the James rationale did not bar Cooke’s statute of limitations argument because of her failure to formally cross-appeal from Judge Kennedy’s adverse ruling, we further hold that the issue is barred because of Cooke’s later failure to otherwise bring that issue from Judge Pilshaw to the Court of Appeals for consideration. Specifically, her appellee brief failed to raise statute of limitations as an alternate—and unaddressed, not rejected—rationale for affirming Judge Pilshaw’s holding, although such a practice apparently was approved in Ellis v. State Farm Mut. Auto. Ins. Co., 249 Kan. 599, 822 P.2d 35 (1991). In Ellis, this court acknowledged that appellee State Farm did not raise the issue of res judicata in a cross-appeal to the Court of Appeals but rather raised it in its appellee brief. It also acknowledged that State Farm asserted that “the issue of res judicata was properly before the Court of Appeals because an appellee may urge any matter for affirmance of a judgment, even though tire argument may involve an attack on the reasoning employed by die lower court, or add new reasons that the lower court ignored in reaching the judgment.” 249 Kan. at 604. Although'the Ellis court’s precise path to its conclusion is not clear, it eventually held that res judicata barred appellant’s claim and affirmed the Court of Appeals’ res judicata disposition. 249 Kan. at 604-05. Cooke is certainly a less sympathetic party than the appellees in these cases. The city in James, the workers compensation claimant in Scammahom, and the plaintiff in Chavez, albeit without cross-appeals, at least attempted to raise their adverse rulings to the appellate court so the issues could be addressed. Likewise, State Farm in Ellis at least raised the issue—unaddressed, not necessarily adversely ruled upon, by the district court—so it could potentially be addressed by the appellate court. Here, Cooke made no attempt to raise her statute of limitations argument to the Court of Appeals in 2004 for consideration. We have held that an issue not briefed is deemed waived or abandoned; similarly, a point raised only incidentally in a brief but not argued there is deemed abandoned. City of Roeland Park v. Jasan Trust, 281 Kan. 668, Syl. ¶ 3, 132 P.3d 943 (2006); McGinley v. Bank of America, N.A., 279 Kan. 426, Syl. ¶ 4, 109 P.3d 1146 (2005). Consistent with this case law, we must consider Cooke’s statute of limitations argument to have been waived and abandoned at the Court of Appeals level. In short, Cooke’s failure to raise her statute of limitations argument to the Court of Appeals in 2004 has resulted in these recent piecemeal appeals on this issue, a practice frowned upon in Kansas. Moreover, once the Court of Appeals issued its opinion—to distribute the funds equitably—and once we denied Cooke’s petition for review, the Court of Appeals’ mandate was issued and Judge Burgess ultimately followed it, as he was required to do, pursuant to K.S.A. 60-2106(c) (mandate “shall be controlling in the conduct of any further proceedings necessary in the district court.”). The statute of limitations ceased being an issue in the case well before Judge Burgess’ 2006 decision from which Cooke now appeals. Affirmed.
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The opinion of the court was delivered by Nuss, J.: After a district court judge granted a 30-day extension to obtain service of process on defendants, plaintiff Kelly A. Finley timely effected service. A subsequent district court judge ruled that Finley had not shown the requisite good cause for the extension under K.S.A. 60-203(a) and set aside the order. As a result, her action was not timely commenced and was dismissed. The Court of Appeals applied the unique circumstances doctrine to save Finley s service of process and her lawsuit. Finley v. Estate of DeGrazio, 36 Kan. App. 2d 844, 148 P.3d 1284 (2006). This Court granted review pursuant to K.S.A. 20-3018(b). The issues on appeal, and our accompanying holdings, are as follows: 1. Does the doctrine of unique circumstances apply to the circumstances of this case? No. 2. Could Judge Anderson render void ab initio the order of another judge? Moot. 3. Did Judge Anderson abuse his discretion? Moot. Accordingly, the judgment of the district court is affirmed and the judgment of the Court of Appeals is reversed. FACTS Underlying Procedural History Finley received medical care from the defendants in late October 2000. Alleging the care was negligent, she requested a medical malpractice screening panel in Sedgwick County District Court. The court convened a screening panel, thus tolling the statute of limitations pursuant to K.S.A. 65-4908. Subsequently, the court found the proper venue was Harvey County District Court and the case was transferred there. Because the nominations to the screening panel remained incomplete by January 2004 and Finley had failed to designate her panel member, defendants filed a motion to dismiss. On March 23, 2004, on joint motion of all the parties, the screening panel was dismissed. Pursuant to 65-4908, Finley then had 30 days to file her medical malpractice action. On April 22, 2004, Finley timely filed her suit against tire four defendants. While summons requests were prepared and faxed to the court on May 24, 2004, Finley s counsel advised the clerk that her law office would effect service in lieu of using the county sheriff s office. Approximately 6 weeks before the suit’s filing, DeGrazio’s attorney had sent Finley a suggestion of death and, at some point, Finley’s counsel realized she needed to open an estate for him to have a special administrator appointed to receive service. Apparently believing the estate proceeding could not be commenced in time to effect service within the required 90-day period and wishing to serve all defendants at the same time, counsel faxed a proposed Order Extending Time for Service to the court on July 7, 2004. Judge Walker signed the order the next day, granting Finley a 30-day extension to serve defendants. All defendants were properly served within the 30-day extension. The defendants filed separate answers but also joined in a motion to dismiss challenging the order. They essentially asked the court to reconsider its granting of the extension, arguing that Finley failed to show good cause when requesting the extension and that they consequently were not served before dre statute of limitations ran. They took particular exception to paragraph 3 of the order, which stated, “Plaintiff has through due diligence attempted service upon this Defendant but her efforts have not been successful.” District Court’s Decision Judge Anderson conducted a hearing on the motion to dismiss because Judge Walker had recused. Finley’s counsel acknowledged the order’s language in paragraph 3 regarding due diligence to attempt service, but argued that she did make such efforts. She described her law office’s normal practice of arranging for a local process server instead of using law enforcement to serve summons and generally described efforts to locate such servers. She candidly admitted, however, that she had not physically attempted service on the defendants and failed. Finley’s counsel also argued that “[i]f the language contained in the order is inaccurate, that alone does not void what good cause plaintiff did have in needing the additional time in which to serve process.” Accordingly, counsel then attempted to establish good cause on grounds that had not been provided to Judge Walker. These included the breakup of her law firm on Januaiy 1, 2004, and her resulting busy schedule, and the necessity of opening the DeGrazio estate in order to perfect service. Judge Anderson ruled that, under K.S.A. 60-203(a)(l), Finley had the burden of showing she had good cause for obtaining the order, which she failed to meet. He further held that even if Finley presently showed good cause, 60-203(a)(l) provides that an extension can be granted by the court only “upon a showing of good cause by the plaintiff.” Because Finley did not show good cause at the time she procured the order, Judge Anderson ruled the order was not valid. Next, Judge Anderson determined the unique circumstances doctrine did not apply to provide relief from the running of the statute of limitations. He observed that the doctrine is not applicable unless a party reasonably relies on some action taken by the district court. He ruled that Finley s counsel was chargeable with knowledge of the law, and she knew or should have known that an extension could be obtained only upon a showing of good cause. Further, she prepared the order and included a finding that she had attempted to serve the defendants and failed. He found: “I will not go so far as to accuse plaintiff s counsel of purposely misleading Judge Walker, but I feel it borders on a reckless disregard for the true facts of this case.” Accordingly, the judge concluded that Finley’s claims were time barred pursuant to the 2-year statute of limitations in K.S.A. 60-513(a)(7), and granted the defendants’ motions to dismiss. Finley filed a motion to reconsider. Among other things, she supplied an affidavit from the firm’s legal assistant who had prepared the order from forms in the firm’s files. Attached to the motion were copies of three orders previously prepared and submitted by the firm and signed by a judge in other cases, without separate motion, hearing, or oral argument, which her counsel argued demonstrated that the language used and procedure followed in Finley’s case was appropriate. Included among the orders was one virtually identical to Finley’s—prepared by her counsel, faxed to the district court clerk, and signed by Judge Anderson in January 2004. The legal assistant’s affidavit also described Finley’s actions taken to serve the defendants. The affidavit, together with previously-produced information, revealed that before Finley’s submission of the order, the actual steps taken to obtain service were limited to her request for the clerk’s issuance of the summonses, calls to process servers in Wichita to check on fees, attempts to locate a Newton process server, and eventual instruction tó the assistant to hire a Wichita process server. The motion for reconsideration was denied. Court of Appeals’ Decision The Court of Appeals acknowledged that this case presented a very difficult question but, nonetheless, agreed with Finley that the unique circumstances doctrine should have been applied to save her service of process and her cause of action. Accordingly, it reversed the district court’s dismissal and remanded with directions that her case proceed as if service had been timely effected. Finley v. Estate of DeGrazio, 36 Kan. App. 2d 844, 148 P.3d 1284 (2006). The Court of Appeals based its decision upon the following: “(1) [T]he apparent practice in McPherson District Court, or at least on one prior occasion, to accommodate 60-203(a) requests of counsel upon little orno showing, thus causing counsel to reasonably believe that her extension order was valid; (2) despite what the district court characterized as ‘reckless disregard’ for the true facts in establishing good cause, counsel’s conduct was found to be less culpable than an outright misrepresentation or fraud on the court; (3) the lack of any real prejudice to defendants by reason of being served in mid-August rather than prior to July 22; (4) the need to liberally construe the good cause requirement of K.S.A. 60-203(a)(l); (5) the prejudice to plaintiff of a dismissal of her action, contrary to policy in Kansas to provide litigants their day in court through an adjudication on the merits. [Slayden v. Sixta, 250 Kan. 23, 30, 825 P.2d 119 (1992)]; (6) our belief that the implications of Judge Anderson’s decision to render void ab initio the order of another judge after a party has relied on that order to extend a deadline critical to survival of that party’s cause of action could place in question the validity of virtually every order of a district court, thus jeopardizing the efficiency of the administration of justice in Kansas.” 36 Kan. App. 2d at 852. Additional information will be provided as necessary to the analysis. ANALYSIS Issue 1: The unique circumstances doctrine does not apply. We begin by examining the statute upon which Finley relied to request her 30-day extension. K.S.A. 60-203(a)(l) states in relevant part: “(a) A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.” (Emphasis added.) We proceed to determine whether the unique circumstances doctrine applies. The doctrine is one of specific and limited application, and whether it applies is a question of law subject to de novo review. See In re Tax Appeal of Sumner County, 261 Kan. 307, 316, 930 P.2d 1385 (1997). As the United States Supreme Court recently stated in Bowles v. Russell, 551 U.S. 205, 213, 168 L. Ed. 2d 96, 127 S. Ct. 2360 (2007), “[T]he unique circumstances doctrine . . . has its roots in Harris Truck Lines, Inc., v. Cherry Meat Packers, Inc., 371 U.S. 215, 9 L. Ed. 2d 261, 83 S. Ct. 283 (1962) (per curiam).” The Court of Appeals correctly observed that the Kansas Supreme Court first embraced the doctrine in Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988). 36 Kan. App. 2d at 848. There, it was applied to permit an untimely appeal in which the delayed filing resulted from (1) the appellant’s good faith and reasonable belief that the judicial action seemingly extending the time for filing was valid; (2) the perceived extension was for no more than 30 days and was made and entered prior to the expiration of the official appeal period; and (3) the appellant filed the appeal within the extension. Since Schroeder, this court has applied the doctrine to provide relief in several cases. See, e.g., In re Tax Appeal of Sumner County, 261 Kan. 307 (untimely filed petition for reconsideration excused where Board of Tax Appeals [BOTA] made erroneous statement regarding filing period); Slayden v. Sixta, 250 Kan. 23, 825 P.2d 119 (1992) (where 40-day delay in serving summons was caused by error of clerk of district court); see also Nguyen v. IBP, Inc., 266 Kan. 580, 587, 972 P.2d 747 (1999) (where filing delay is direct result of an error made in administrative law judge’s office, doctrine “could” be found applicable). We have difficulty applying the doctrine to provide relief under the facts of this case, however. Finley apparently believed that DeGrazio’s estate could not be opened and an administrator appointed and served within the 14 days remaining in the 90-day period after filing of the suit. This is incorrect. See, e.g., K.S.A. 59-710 (expedited procedure). Because of her belief, she apparently therefore elected to withhold service on all defendants—even though there was never any concern expressed about an ability to obtain timely service on the three individual defendants. Accordingly, with 14 days remaining during her 90-day service period, Finley’s counsel faxed to the court a proposed order extending time under K.S.A. 60-203(a). No motion, letter, affidavit, request for a hearing, or any other information was provided to the court. As the Court of Appeals correctly noted, “Supreme Court Rule 132 (2005 Kan. Ct. R. Annot. 199) requires ex parte applications of this nature to be presented by counsel in person to the court.” (Emphasis added.) 36 Kan. App. 2d at 847. It also correctly noted that the Court of Appeals “has held that the better practice, if not the required procedure to request such an extension, is by written motion pursuant to Rule 133-(2005 Kan. Ct. R. Annot. 199), with a ruling made by the court documented pursuant to Rule 134 (2005 Kan. Ct. R. Annot. 200).” (Emphasis added.) 36 Kan. App. 2d at 847. The proposed order contained the proposed finding: “3. Plaintiff has through due diligence attempted service upon this Defendant but her efforts have not been successful.” In response to the motion to dismiss, Finley’s counsel admitted for the first time that this statement was untrue and was included only as “boilerplate.” Before submission of the order, no effort had been made to open the estate of DeGrazio and appoint a special administrator, much less to serve one. Similarly, no effort had been made to actually serve any of the other defendants who might be the “Defendant” referenced in the proposed order. Purported service efforts were lim ited to obtaining summonses from the clerk of the court and to making inquiries about hiring private process servers. K.S.A. 60-203(a)(l) provides that an extension of an additional 30 days may be granted “upon a showing of good cause.” (Emphasis added.) We therefore reject Finleys argument that essentially asserts she can first obtain the order and then, when challenged, at a later date actually establish her grounds for good cause. We also conclude that providing good cause at the time of the requested extension requires that the represented facts—which purportedly constitute good cause—be grounded in the truth. Cf. K.S.A. 60-211 (every pleading and motion shall be signed by a party’s attorney who, by such signature, certifies that to the best of that person’s knowledge, information, and belief formed after an inquiiy reasonable under the circumstances, the allegations and other factual contentions have evidentiary support). Moreover, a mistake of counsel or ignorance of the rules usually does not constitute good cause for failure of timely service. In re Kirkland, 86 F.3d 172, 175 (10th Cir. 1996). A fortiori, untruthfulness cannot be said to be good cause. We conclude that Finley’s counsel’s untrue representations to the court, which it clearly relied upon in signing the order as presented because it had no other information from Finley, are what prevent application of the doctrine of unique circumstances. We first observe that running throughout the case law regarding the doctrine is the requirement that the party seeking its application has relied upon either the court’s or some individual’s official conduct. Finley argues she relied upon Judge Walker’s order of extension. But no case has been found where the official action relied upon was itself induced by untrue statements from a party seeking application of the doctrine, much less one where the court then applied the doctrine to provide relief. We next observe that the nature of the unique circumstances doctrine would preclude such relief under our facts because it has been said that the application of the doctrine depends upon such concepts as equity, the interests of justice, good faith, estoppel, or nonparty error. For example, in Bowles, 551 U.S. at 214, the Supreme Court held: “Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the ‘unique circumstances’ doctrine is illegitimate.” (Emphasis added.) Similarly, in In re Tax Appeal of Sumner County, 261 Kan. at 316, 930 P.2d 1385 (1997), after the county perfected its request for a rehearing within the time incorrectly lengthened by BOTA’s order, we asked: “Does this establish unique circumstances sufficient for application of the equitable rule allowing review on the merits in the interests of justice, notwithstanding a legal defect in perfecting the appeal?” (Emphasis added.) See also Schroeder, 242 Kan. 710, Syl. (“In the interest of justice, an appeal which is otherwise untimely may be maintained in unique circumstances . . . .” [Emphasis added.]); Slayden, 250 Kan. at 30 (citing Schroeder). This court addressed the doctrine’s related concept of good faith in Slayden, 250 Kan. 23. There, the doctrine was applied to untimely service of process because of the error of a court clerk. “In the federal courts, ‘unique circumstances,’ although limited to appeals, has proven to be an elastic concept. The doctrine seems to require [1] a demonstration of good faith on the part of the party seeking an enlargement of time to appeal and [2] a reasonable basis for noncompliance within the time specified by the rules. The same concept should guide this court when applying the doctrine.” (Emphasis added.) 250 Kan. at 30. As for the doctrine’s related concept of estoppel, this court stated in Schroeder, 242 Kan. at 713 (citing 4A, Wright and Miller, Federal Practice and Procedure: Civil 2d § 1168 [1987]): “ “When employed in the context of an untimely appeal, the unique circumstances concept is based on a theory similar to estoppel. The Supreme Court [e.g., in Harris Truck Lines, Inc.] seems to have concluded that a party ought not be denied an opportunity to appeal because of his failure to file a timely appeal when that failure resulted from reliance on action taken by the district court that generated a reasonable belief that an appeal could be initiated at a later date.’ ” Accord In re Tax Appeal of Sumner County, 261 Kan. at 313. Akin to the interrelated concepts of equity, justice, good faith, and estoppel is this court’s decision to limit application of the doctrine to situations involving nonparty error. In Nguyen v. IBP, Inc., 266 Kan. 580, 587, 972 P.2d 747 (1999) (citing Sumner County, Slay den, and Schroeder), we stated: “This court also cautioned that the unique circumstances doctrine is one of ‘specific and limited application.’ In re Tax Appeal of Sumner County, 261 Kan. 307, 316, 930 P.2d 1385 (1997). In fact, this court has applied the unique circumstances doctrine only where an untimely filing was the result of a nonparty error.” Indeed, in Nguyen, where an appeal’s filing delay was the direct result of an error made in the administrative law judge’s office, this court held: “This is precisely the kind of situation where the unique circumstances doctrine has been applied in Kansas to toll the time for filing for review of a case, and we could find it applicable in this case.” 266 Kan. at 587. As recently as 2004, the Court of Appeals has acknowledged in an unpublished opinion that “Kansas courts have applied the unique circumstances doctrine only where an untimely filing was the result of a nonparty error.” (Emphasis added.) Douglas v. Watson, case No. 91,197, filed July 2, 2004. Of these concepts contained in the doctrine, the Court of Appeals appeared to directly address only the concept of good faith. Finley’s counsel had argued that “[t]he order was requested and granted in good faith.” The Court of Appeals held that counsel’s experience with such orders—presumably as revealed by the attachments to the legal assistant’s affidavit—supported her claim of good faith. Finley, 36 Kan. App. 2d at 851. We simply cannot agree. The record on appeal does not demonstrate that any of her prior proposed orders of extension similarly contained untrue statements. Likewise, die Court of Appeals observed that “the apparent practice in McPherson District Court, or at least on one prior occasion, [was] to accommodate 60-203(a) requests of counsel upon little or no showing, thus causing counsel to reasonably believe that her extension order was valid.” 36 Kan. App. 2d at 852. Again, the record does not demonstrate that Finley’s counsel’s previous proposed order to this particular court contained similar untrue statements, particularly under circumstances which a judge would find constituted a borderline “reckless disregard for the facts.” Simply put, “little or no showing” of good cause is not, and cannot be, the equivalent of an untrue showing. Sustaining orders which are based upon statements known by counsel to be untrue does not serve the administration of justice in Kansas. We additionally note that the Court of Appeals repeatedly found that Finley’s counsel included “untrue ‘boilerplate’ within the proposed order.” See, e.g., 36 Kan. App. 2d at 852. It emphasized that Judge Anderson “stopped short” of finding Finley’s counsel engaged in a misrepresentation, and that he “refused to find that counsel had misled Judge Walker.” 36 Kan. App. 2d at 850. It also held that “despite what the district court characterized as ‘reckless disregard’ for the true facts in establishing good cause, counsel’s conduct was found to be less culpable than an outright misrepresentation or fraud on the court.” 36 Kan. App. 2d at 852. The Court of Appeals has sliced the onion too thinly. Judge Anderson found “I will not go so far as to accuse plaintiff s counsel of purposely misleading Judge Walker, but I feel it borders on a reckless disregard for the true facts of this case.” Accordingly, while the judge found that counsel had not “purposely” misled Judge Walker, this certainly leaves open the possibility that counsel had indeed misled the court, but had merely fallen someplace short of doing so purposely or intentionally, particularly given the finding of her borderline reckless disregard for the truth. The Court of Appeals also sliced too thinly in concluding there was no “outright misrepresentation.” 36 Kan. App. 2d at 852. Misrepresentation need not be intentional. For example, fraudulent misrepresentation requires proof that the defendant knew the statement was untrue or was reckless as to the truth or falsity, while negligent misrepresentation only requires proof that the defendant failed to exercise reasonable care or competence to obtain or communicate true information. See Gerhardt v. Harris, 261 Kan. 1007, 1018, 934 P.2d 976 (1997). Judge Anderson obviously found that counsel’s conduct exceeded mere negligence. And his finding of borderline “reckless disregard for the true facts” could constitute the “reckless as to the truth or falsity” element needed for fraudulent misrepresentation. In conclusion, Finley’s counsel has admitted that untrue “boilerplate” statements were supplied to the district court in her pro posed order for extending time for service. Because she provided no other information other than the order, it is clear that the court then signed it in reliance upon the truthfulness of the statements contained there. We are unable to condone such a practice by providing relief through application of a doctrine which depends upon such concepts as equity, the interests of justice, good faith, estoppel, or nonparty error. The remaining issues on appeal are moot. The judgment of the district court is affirmed, and the judgment of the Court of Appeals is reversed. Davis and Johnson, JJ., not participating. Larson, S.J., and McAnany, J., assigned.
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The opinion of the court was delivered by Luckert, J.: This case presents issues of first impression: In an extradition proceeding under K.S.A. 22-2701 et seq., is an alleged fugitive’s competency a proper subject of inquiry and, if so, what is the standard for determining competency? We conclude that in order to give meaning to and allow the full exercise of an alleged fugitive’s statutory right to counsel and right to raise defenses in an extradition proceeding under K.S.A. 22-2701 et seq., an alleged fugitive may challenge whether he or she possesses a present ability to consult with an attorney with a reasonable degree of rational understanding on the issues of whether he or she (1) is the person named in the request for extradition and (2) is a fugitive. This case arises out of an attempt by the state of Florida to extradite David R. Patton. Patton is wanted on an arrest warrant out of Florida for two counts of capital murder, burglary to a dwelling, grand theft, and grand theft of a motor vehicle. On September 23,2006, he was arrested in Shawnee County, Kansas, and charged with being a fugitive from justice from the state of Florida, in violation of the Kansas Uniform Criminal Extradition Act, K.S.A. 22-2701 et seq., specifically K.S.A. 2006 Supp. 22-2713. Patton challenged extradition and filed a petition for writ of habeas corpus under K.S.A. 60-1501. In the fugitive case, Patton filed a motion to determine competency. The State opposed the competency motion, arguing there was no authority to support the consideration of competency as part of an extradition proceeding. On January 10,2007, the district court held a hearing on tire two matters. First, the court denied Patton’s motion to determine competency, finding that competency is not an extradition requirement. Next, the court concluded that the State met the requirements of K.S.A. 22-2703 and that Patton was afforded his rights under K.S.A. 22-2710. The court then denied the petition for habeas corpus. At Patton’s request, the court stayed its orders to allow Patton to file an appeal concerning the competency issue. Patton appealed both decisions to the Court of Appeals, and the appeals were consolidated. The State then filed a motion for summary disposition under Kansas Supreme Court Rule 7.041 (2007 Kan. Ct. R. Annot. 53), arguing that the holding in Brewer v. Turner, 165 Kan. 330, 194 P.2d 507 (1948), controls. The Court of Appeals agreed and issued an order granting the State’s motion. We granted Patton’s petition for review. Patton argues that an alleged fugitive’s present competency is a proper subject of inquiry in an extradition proceeding. He urges this court to adopt a broad approach to this issue by holding that a fugitive in an extradition proceeding must be sufficiently competent to understand the nature of the proceeding and to consult with his or her counsel regarding the proceeding. The State counters that the accused’s competency is not among the limited issues to be addressed in such a proceeding and further asserts that Brewer, 165 Kan. 330, answers the question. The questions of whether competency is a proper inquiry in an extradition proceeding and, if so, what standard applies, are questions of law. We review legal questions under a de novo standard of review. See State v. Davis, 284 Kan. 728, 731, 163 P.3d 1224 (2007); State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). General Principles Regarding Extradition Proceedings for the interstate extradition of prisoners are controlled by the federal Constitution and federal law. Sanders v. Conine, 506 F.2d 530, 532 (10th Cir. 1974); Hill v. Roberts, 359 So. 2d 911, 912 (Fla. Dist. App. 1978); People ex rel. Dimas v. Shimp, 83 Ill. App. 3d 150, 152, 403 N.E.2d 750 (1980); Prettyman v. Karnopp, 192 Neb. 451, 455, 222 N.W.2d 362 (1974). More specifically, extraditions are controlled by Article IV, § 2 of the United States Constitution, which provides in part: “A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.” Kansas has implemented the requirements of the federal Extradition Clause by adopting the Uniform Criminal Extradition Act (UCEA), K.S.A. 22-2701 et seq. The federal counterpart is 18 U.S.C. § 3182 (2000). In Michigan v. Doran, 439 U.S. 282, 288-89, 58 L. Ed. 2d 521, 99 S. Ct. 530 (1978), the United States Supreme Court held: “[T]he courts of an asylum state are bound by Art. IV, § 2, . . . by [18 U.S.C.] § 3182, and, where adopted, by the Uniform Criminal Extradition Act.” A state may not impose more stringent standards or refuse a demand for extradition on the basis of requirements not articulated by federal law. Dunn v. Hindman, 18 Kan. App. 2d 537, 544, 855 P.2d 994, rev. denied 253 Kan. 857 (1993); Breckenridge v. Hindman, 10 Kan. App. 2d 50, 53, 691 P.2d 405 (1984), rev. denied 236 Kan. 875 (1985). In view of the constitutional mandate for extradition, the United States Supreme Court has recognized that extradition proceedings were intended to be limited in scope in order to facilitate a swift and efficient transfer of custody to the demanding state: “Interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, § 2, cl. 2, of the Constitution. [Citations omitted.] The Clause never contemplated that the asylum state was to conduct the land of prehminary inquiry traditionally intervening between the initial arrest and trial. “ ‘. . . [Extradition] is but one step in securing the presence of the defendant in the court in which he may be tried, and in no manner determines the question of guilt.’ ” Doran, 439 U.S. at 288 (quoting In re Strauss, 197 U.S. 324, 332-33, 49 L. Ed. 774, 25 S. Ct. 535 [1905]). Generally a district court’s review powers in the asylum state, therefore, are limited. Once a governor has granted extradition, a court considering release on habeas corpus can do no more than decide: “(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.” Doran, 439 U.S. at 289. See Pacileo v. Walker, 446 U.S. 1307, 1309, 64 L. Ed. 2d 221, 100 S. Ct. 1633 (1980). In Kennon v. State, 248 Kan. 515, 521, 809 P.2d 546 (1991), this court discussed Doran and explained that being a “fugitive” means the accused was in the demanding state when the alleged crime was committed. Further, the court distinguished between mandatory extradition under K.S.A. 22-2702, which applies when it is alleged the person was in the demanding state at the time the alleged crime was committed, and discretionary extradition under K.S.A. 22-2706, which applies when it is alleged the person committed an act in Kansas or a third state that intentionally resulted in a crime in the demanding state. 248 Kan. at 522-23. This court also discussed the fugitive requirement in State v. Smith, 232 Kan. 128, 652 P.2d 703 (1982), where the court concluded that extradition had been appropriately ordered even though Smith disputed his presence in the demanding state on the dates of the alleged crime. Smith admitted to having been in the demanding state around the time of the alleged crime and to being the person identified in the demand. The Smith decision is illustrative of a long line of Kansas cases in which it has been determined that an extradition proceeding in the asylum state is not the proper forum for considering defenses or resolving the issue of guilt or innocence. Those matters must be raised at trial in the demanding state. See Perry v. Gwartney, 162 Kan. 607, Syl. ¶ 2, 178 P.2d 185 (1947); Dunn, 18 Kan. App. 2d at 545; see also California v. Superior Court of California, 482 U.S. 400, 407-08, 96 L. Ed. 2d 332, 107 S. Ct. 2433 (1987); Biddinger v. Commissioner of Police, 245 U.S. 128, 135, 62 L. Ed. 193, 38 S. Ct. 41 (1917); Pettibone v. Nichols, 203 U.S. 192, 206, 51 L. Ed. 148, 27 S. Ct. 111 (1906). But Patton does not raise issues regarding his competency at the time of the crime or his competency to stand trial; rather, the focus of this appeal is on his competency during the extradition procedure itself. Brewery. Turner The distinct time frames at which competency may be an issue— the time of the offense, the time of extradition, the time of trial, or the time of execution of a sentence—must be considered when applying Brewer, 165 Kan. 330, the case upon which the Court of Appeals relied in rejecting Patton’s contention that he is entitled to a competency inquiry in an extradition proceeding. Brewer was a fugitive from California when he was adjudged to be insane in Oklahoma and was committed to a state hospital. He left the state hospital, but it was not settled whether Brewer escaped or was discharged. Brewer was eventually arrested in Kansas on a warrant issued by the Kansas Governor on the request of California authorities. Brewer challenged extradition and argued, inter alia, that he had been declared legally insane in Oklahoma and must, therefore, be presumed to be presently insane because he had never been restored to sanity. According to Brewer, California was bound by that insanity determination and presumption. And, because California prohibits trying and punishing a person who is insane, he could not be extradited. This court rejected Brewer’s contention and held: “[W]here habeas corpus is invoked to defeat extradition, whether the prisoner was insane at the time of the commission of the offense with which he is charged in the demanding state, or is presently insane, is not a question to be decided in a habeas corpus proceeding brought in the asylum state [citation omitted] and . . . courts in the asylum state have no authority in habeas corpus proceedings to consider the present sanity or insanity of an alleged fugitive from justice [citation omitted].” 165 Kan. at 335. The holding in Brewer, however, was not a determination of whether a court in an extradition proceeding should allow an inquiry into an alleged fugitive’s present competency to understand the nature of the proceeding. Instead, this court’s statement regarding “present sanity” related to the argument that the state of California was bound by the determination of insanity in Oklahoma with regard to the question of whether the fugitive should be excused from serving the unexpired portion of his California sentence. See 165 Kan. at 333, 335. The Brewer holding fails to unequivocally answer the question presented in this case. In ordering summary disposition in reliance on Brewer, the Court of Appeals failed to distinguish the issue of competency during the extradition proceeding versus competency at other phases of the criminal proceeding. The distinction has been recognized in other states. Those states which have considered the specific issue now before us consistently conclude that competency to stand trial is not relevant in an extradition proceeding under the holding of Charlton v. Kelly, 229 U.S. 447, 461-62, 57 L. Ed. 1274, 33 S. Ct. 945 (1913), and such competency must be raised in the demanding state. Yet, these courts recognize that competency during the extradition proceeding is a separate issue regarding which there is no controlling federal authority. See, e.g., Kostic v. Smedley, 522 P.2d 535, 537 (Alaska 1974); Oliver v. Barrett, 269 Ga. 512, 513-14, 500 S.E.2d 908 (1998). Brewer does not address this later category and does not control the question before us. Moreover, besides not squarely addressing the issue raised by Patton, Brewer predates Kansas’ adoption of the UCEA. Other Jurisdictions Most states that have applied the UCEA to the issue before us have determined the alleged fugitive must be sufficiently competent to be able to consult with counsel in the extradition proceeding regarding the limited defenses available. Two rationales have been adopted. First, the courts uniformly recognize that the UCEA provides the statutory right to counsel in an extradition proceeding and the right to test the legality of the arrest in the asylum state. Accordingly, in order for those rights to have meaning, the alleged fugitive must have the mental competency to consult with and assist counsel in the extradition proceeding. Second, some courts recognize that the proceeding involves a potential deprivation of liberty and, therefore, due process is demanded. E.g., Kostic, 522 P.2d at 537. Kostic The Alaska Supreme Court was the first court to address the relevance of competency in an extradition proceeding. In Kostic, 522 P.2d 535, the fugitive sought habeas corpus relief in Alaska courts to avoid extradition to Florida. He raised the question of his competency to proceed at the habeas corpus hearing and was denied relief. The record showed that Kostic had been examined by a psychiatrist in connection with a separate criminal action then pending in Alaska. That examination was ordered by the court because of Kostic’s previous history of psychiatric illness and his attempt to commit suicide while in jail. Civil commitment proceedings were then initiated; Kostic was found mentally ill and was committed for treatment. He remained hospitalized at the time of the extradition proceedings. The Kostic court stated that a situation might exist in which a petitioner is so incompetent as to be unable to assist counsel in a habeas corpus proceeding in connection with a pending extradition, and it concluded that this was one such case. 522 P.2d at 537. The Kostic court mentioned that a person in this situation has an express statutory right to challenge the legality of the arrest and “ ‘to demand and procure legal counsel.’ ” 522 P.2d at 537. The court further emphasized, however, that if the arrestee “could not understand the nature of the habeas corpus proceedings or assist counsel in testing the legality of the arrest,” then legal represen tation “would be a farce.” 522 P.2d at 537. The result, according to the Kostic court, would cause the statutory right to representation to become a nullity. 522 P.2d at 537. This reasoning led the Kostic court to conclude that conducting an extradition proceeding while the petitioner is mentally incompetent violates due process. Noting that habeas corpus proceedings are traditionally considered to be civil, the court stated: “But where a possible deprivation of one’s liberty is involved, as it is in an extradition matter, habeas corpus proceedings in relation to extradition will be considered criminal in nature.” 522 P.2d at 537 (citing Mora v. Dist. Ct., 177 Colo. 381, 494 P.2d 596 [1972]). Observing that in the criminal trial context it is a violation of due process to convict a person who is mentally incompetent to stand trial, the court then applied this standard to extradition proceedings. Consequently, the court held that Kostic’s extradition had to be stayed until his competency was restored. 522 P.2d at 538-39. Meaningful Rights Since Kostic, a majority of the states considering the issue before us has recognized that in order to give effect to an alleged fugitive’s right to counsel and his or her right to test the legality of the arrest, the alleged fugitive must have some level of competency. For example, the Massachusetts Supreme Court noted that the state legislature could have provided that once the Governor issues a rendition warrant the defendant must be returned summarily to the demanding state. Instead, it specifically gave the defendant the right to counsel and tire right to challenge the legality of the proceeding. “Having determined a judicial hearing is required, the statutory right to counsel is meaningless if the petitioner is so incompetent that he is unable to comprehend what is occurring and to assist counsel.” Hinnant, Petitioner, 424 Mass. 900, 906-07, 678 N.E.2d 1314 (1997). Similarly, a New York court stated that the right to counsel would be rendered “a meaningless formality because of an inability to understand the nature of the extradition proceeding or to assist [counsel] in either waiving or challenging extradition on the narrow grounds available in this summary proceeding.” Welkes v. Brennan, 79 A.D. 2d 644, 644, 433 N.Y.S.2d 817 (1980); see also Ex Parte Potter, 21 S.W.3d 290, 296 (Tex. Crim. 2000) (“Given that an alleged fugitive is entitled to counsel and entitled to challenge the legality of his arrest and assert defenses on the basis of which the extradition warrant may be dismissed, the accused must be sufficiently competent to discuss with his counsel facts relating to the limited defenses that may be raised.”); State ex rel. Jones v. Warmuth, 165 W. Va. 825, 836, 272 S.E.2d 446 (1980) (“[I]n order to give meaning to a fugitive’s right to test the legality of this arrest on the issue of his identity and presence in the demanding state at the time the crime was allegedly committed, and to give meaning to his right to have legal counsel, it is essential to due process that such person has sufficient mental competency to understand the proceeding and to consult with and assist his counsel in such proceeding.”). Deprivation of Liberty At least five states—Alaska, Colorado, West Virginia, Massachusetts, and New York—-have partially based their decisions to permit consideration of mental competency on the notion that extradition involves a deprivation of liberty. See, e.g,, Kostic, 522 P.2d at 537; Mora, 177 Colo, at 384; Hinnant, 424 Mass, at 907-08; People v. Kent, 133 Misc. 2d 505, 508, 507 N.Y.S.2d 353 (1986). In Warmuth, the West Virginia court observed that, consistent with the “criminal nature” of extradition proceedings, an accused has the statutory right to “ ‘demand and procure’ ” counsel. 165 W. Va. at 832. An indigent accused is also entitled to counsel under West Virginia law. In addition, independent of West Virginia statutes, the Warmuth court observed that it traditionally employs a higher standard of protection for an individual in proceedings involving the deprivation of liberty. 165 W. Va. at 833. The Warmuth court concluded: “ ‘We eschew the rubric of “criminal” versus “civil” in determining what process is fair. The characteristics and ramifications of a proceeding, rather than its label, spawn due process requirements.’ ” 165 W. Va. at 833. The common thread in this limited line of cases is the reticence to deprive an alleged fugitive of the right to due process because of the possibility that his or her liberty will be taken away. Given that due process applies, these courts reason that the extradition court must assure that the right to counsel and the right to present defenses are meaningful. Competency as Irrelevant Only one state, Kentucky, holds that the mental competency of a fugitive in extradition proceedings is irrelevant as related to the narrow issues involved in such proceedings. In Kellems v. Buchignani, 518 S.W.2d 788 (Ky. 1974), the Kentucky Court of Appeal, in a two-paragraph split opinion, disposed of the issue in a single sentence: “After careful review of the records and the briefs, this court is of the opinion that the question of the mental competence of a fugitive in extradition proceedings is not relevant.” 518 S.W.2d at 788 (citing Charlton v. Kelly, 229 U.S. 447, and State, ex rel., v. Owen, 133 Ohio St. 96, 12 N.E.2d 144 [1937]). Four justices concurred without opinion. Another justice issued a strenuous dissenting opinion (joined by a second justice), arguing that a fugitive ought to have the degree of mental competency necessary to participate rationally in the limited nature of extradition proceedings. 518 S.W.2d at 789 (Palmore, J., dissenting). Neither of the two cases cited by the Kellems majority supports its holding. In Charlton, the United States Supreme Court discussed the exclusion of evidence of the accused’s insanity, noting that if the evidence pertained to the accused’s present ability to defend against the allegations or his insanity at the time of the commission of the crime, it should be heard by the court in the jurisdiction of the crime. 229 U.S. at 462. In Owen, the Ohio Supreme Court addressed the question of whether lunacy proceedings concerning the alleged fugitive’s present sanity that were ongoing in a probate court would prevent extradition. Stating that the probate court’s proceedings were civil and involved standards that differed substantially from an assessment of sanity in the context of a criminal trial, and noting the holding in Charlton, the Ohio court held the probate court’s proceedings would not deter the extradition. Owen, 133 Ohio St. at 105-06. Although the question of the accused’s present sanity was apparently at issue in an ongoing civil proceeding, his competency to understand the extradition proceedings was never raised or discussed. See also Romeo v. Roache, 820 F.2d 540, 544 (1st Cir. 1987) (short of evidence that accused person is catatonic, totally unable to communicate, or has lost all contact with reality, competency is not proper subject of inquiiy in extradition proceeding). Similarly, other state courts have held or noted that the competency of the alleged fugitive is irrelevant in extradition proceedings but have done so without analyzing the question of competency as it relates to the narrow issues involved in an extradition proceeding and have cited Charlton as supporting authority. See, e.g., State ex rel. Ruster v. Purdy, 219 So. 2d 43 (Fla. Dist. App. 1969); In re Cohen, 23 N.J. Super. 209, 92 A.2d 837 (1952). Those cases, therefore, do not lend assistance here. Application in Kansas In light of these varying approaches we must determine which approach to follow. Consistent with the reasoning of most other state courts addressing the issue we face today, the Kansas statutory provision setting out the extradition procedure, K.S.A. 22-2710, provides that the alleged fugitive shall be taken before a judge “who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel.” The statute also gives the alleged fugitive the right to “test the legality of his arrest.” K.S.A. 22-2710 is specific in providing the right personally to the alleged fugitive, stating “if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest,” the judge shall allow the alleged fugitive to apply for a writ of habeas corpus. Hence, the statute is directly contrary to the State’s assertion at oral argument that this right can be effectively tested by competent counsel without the alleged fugitive’s involvement; the legislature chose to give the right to the alleged fugitive, not simply to make the attorney a type of guardian ad litem. Additionally, K.S.A. 2006 Supp. 22-4503(a) specifies that a “defendant in an extradition proceeding” is entitled to have assistance of counsel at the proceeding. If such defendant is indigent, he or she is entitled to appointment of counsel. See K.S.A. 2006 Supp. 22-4503. Our case law consistently holds that where a right to counsel exists, that right should be meaningful and, when competency is at issue, the court should consider whether the defendant is able to assist counsel in presenting a defense. See generally Brown v. State, 278 Kan. 481, 483-85, 101 P.3d 1201 (2004) (statutory right to counsel creates right to effective assistance); State v. Reed, 248 Kan. 506, 512, 809 P.2d 553 (1991) (holding that standard for determination of competency “is whether the defendant ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.’ Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 [1960].”). We agree with the majority of states considering the specific issue before us and conclude that the right to counsel and the right to test the legality of the extradition procedure would be meaningless if the alleged fugitive does not possess some level of competency. Clearly, the alleged fugitive’s ability to assist counsel may be critical to the outcome of issues where his or her own knowledge is necessary (i.e., his or her identity as the person named in the extradition papers and his or her presence in the demanding state at the time the offense was committed). We acknowledge the accuracy of the State’s argument that inserting competency evaluations into extradition proceedings may cause delay and added expense. We reject, however, the State’s assertion that delay or cost is a reason to adopt a different standard. The legislature created an adversarial procedure, and delay and cost are inherent in an alleged fugitive’s decision to challenge the validity of the arrest. Testing competency will not unduly burden that proceeding in most cases, and whatever delays and expenses are incurred do not justify reducing the alleged fugitive’s right to counsel and right to present a defense in extradition proceedings. Standard for Competency Given the summary nature of the proceeding and the limited issues upon which the alleged fugitive’s input is essential, there remains the question of what level of competency is required. Among the jurisdictions recognizing that some level of competency is required, there are basically two different approaches regarding the degree of competency required—“broad” and “middle of the road.” Broad Approach to Competency The jurisdictions taking the broad approach to competency hold drat the alleged fugitive in an extradition proceeding must be “sufficiently competent” to “have a rational as well as factual understanding of the proceedings” in addition to the “present ability to consult with” his or her counsel. See Pruett v. Barry, 696 P.2d 789, 791-93 (Colo. 1985). This is the same standard mandated by the United States Supreme Court in the context of determining competency to stand trial. See Dusky, 362 U.S. at 402. Alaska’s Kostic is one example of a case embracing the broad approach. See 522 P.2d at 539 (“On remand the court shall make an express determination of whether appellant, as a result of mental disease, lacks the ability to aid his counsel and comprehend the nature of the habeas corpus-extradition proceedings with a reasonable degree of rational understanding.”); see also, e.g., Hinnant, 424 Mass, at 907-08; Kent, 133 Misc. 2d at 508-11. Middle of the Road Approach to Competency Three states—Georgia, Texas, and Louisiana—have adopted the “middle of the road” approach, maintaining that the mental competency of an alleged fugitive is only relevant to the extent it concerns his or her ability to assist counsel in ascertaining and preparing for the limited issues to be decided in an extradition hearing. See State v. Tyler, 398 So. 2d 1108, 1112 (La. 1981) (alleged fugitive must not be “so incompetent as to be totally unable to assist counsel” in extradition proceeding). The Georgia Supreme Court explained its rationale as follows: “We are persuaded by, and adopt, the [middle of the road] approach because it best comports with the summary nature of an extradition proceeding, and the principles and goals articulated in Doran. “. . . Doran limits the inquiry in an extradition proceeding to four issues .... Of these four issues, a petitioner’s mental competence realistically impacts only upon the last two—identity and fugitive status. [Citation omitted.] Thus, where, as here, a petitioner in an extradition proceeding claims he is mentally incompetent, the habeas corpus court need only determine whether the petitioner is sufficiently competent to assist counsel in ascertaining his identity and whereabouts at the time of the crime.” Oliver v. Barrett, 269 Ga. at 514. See also 31A Am. Jur. 2d, Extradition § 127, p. 786 (“Mental competency of a fugitive is only relevant insofar as it concerns his or her ability to assist counsel in ascertaining and preparing for the limited issues to be decided in an extradition hearing.”). In Ex parte Potter, the Texas Criminal Court of Appeals reiterated the summary nature of the extradition proceeding. The court then obseived that the Texas Uniform Extradition Act gives an individual arrested pursuant to an extradition warrant the “ ‘right to demand and procure legal counsel.’ ” 21 S.W.3d at 294. The Texas Act also allows such an individual or his or her attorney to “ ‘test the legality of [the] arrest.’ ” 21 S.W.3d at 294. The Potter court concluded, therefore, that a petitioner could contest his or her extradition on the basis of any of tire four issues identified in Doran, 439 U.S. 282 (1978), and would be entitled to discharge the extradition if successful in his or her defense. 21 S.W.3d at 294. With respect to mental competency, the Potter court agreed with the majority of other jurisdictions to the extent they recognize that an alleged fugitive must be “sufficiently competent” to discuss with counsel facts relating to the limited issues that may be raised. 21 S.W.3d at 296. This is because the alleged fugitive is entitled to counsel, entitled to challenge the legality of his or her arrest, and entitled to assert defenses on the basis of which the extradition warrant may be dismissed. But the Potter court was ultimately persuaded that the middle of the road approach best addressed the alleged fugitive’s rights within the limited context of an extradition proceeding. 21 S.W.3d at 296-97. The Potter court reasoned that the alleged fugitive does not need a broader understanding of tire proceedings and a greater ability to consult with his or her attorney because of the summaiy nature of an extradition and because of the asylum court’s narrow role. Further, maintaining a narrow focus in ascertaining competency keeps the proceedings quicker and more efficient. See 21 S.W.3d at 297. Kansas Standard The rationale of the courts adopting the middle of the road approach is persuasive. This narrower approach more closely comports with the summary nature of extradition proceedings, while assuring that the defendant has a sufficient understanding of the issues in order to assist counsel and present defenses. The issues of whether the extradition documents on their face are in order and whether the alleged fugitive has been charged with a crime in the demanding state can be tested by counsel without assistance from the alleged fugitive and, therefore, both the right to counsel and the right to present defenses are not eroded if an alleged fugitive lacks the ability to comprehend the legal documents at issue. While we lack the expertise to determine whether mental health professionals can carve the fine lines between the standards, from a legal standpoint the only two defenses on which the alleged fugitive’s assistance is necessary to test the validity of the extradition are the questions of whether he or she (1) is the person named in the request for extradition and (2) is a fugitive. We, therefore, conclude the statutory right of counsel and the right to present those limited defenses applicable to an extradition proceeding will have been made available if the alleged fugitive has the present ability to consult with his or her lawyer with a reasonable degree of rational understanding of those two issues. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded with directions.
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Per Curiam: This is an original contested proceeding in discipline filed by the Disciplinary Administrator against Respondent, George W. Swisher, an attorney admitted to the practice of law in Kansas on October 4,1991, albeit Respondent was suspended from the practice of law for 2 years on March 8, 2002, and has not requested reinstatement. See In re Swisher, 273 Kan. 143, 41 P.3d 847 (2002). The Respondent’s last registration address filed with the Clerk of the Appellate Courts of Kansas is in Oskaloosa, Kansas. The proceedings against Respondent were instigated following a report from another attorney and involved the Respondent’s actions in attempting to assist a friend who was experiencing some financial difficulties during the period in which Respondent was suspended from the practice of law. The formal, complaint, filed June 25, 2007, specifically charged Respondent with having violated the following sections of the Kansas Rules of Professional Conduct (KRPC): KRPC 1.1 (2007 Kan. Ct. R. Annot. 384) (competence); KRPC 1.7 (2007 Kan. Ct. R. Annot. 440) (conflict of interest); KRPC 1.16(a) (2007 Kan. Ct. R. Annot. 487) (declining or terminating representation); and KRPC 5.5 (2007 Kan. Ct. R. Annot. 539) (unauthorized practice of law). An assigned panel of the Kansas Roard for Discipline of Attorneys conducted a hearing March 1, 2007, at which Respondent appeared pro se. The Disciplinary Administrator presented the testimony of the reporting attorney, the Respondent, and the friend that Respondent attempted to assist. The panel issued a final hear ing report which contained its factual findings, conclusions of law, and recommendations for discipline. FACTUAL FINDINGS Following is a recitation of the relevant portions of the panel’s factual findings with certain personal information redacted: “FINDINGS OF FACT “The Hearing Panel finds the following facts, by clear and convincing evidence: “2. On March 8, 2002, the Kansas Supreme Court suspended the Respondent’s license to practice law for a period of two years for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 3.2, KRPC 8.4(a), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g). In its opinion, the Court imposed the requirement that the Respondent apply for reinstatement and undergo a hearing pursuant to Kan. Sup. Ct. R. 219. To date, the Respondent has not sought the reinstatement of his law license and his license remains suspended. “3. [J.P.] and the Respondent have been friends for many years. Prior to his suspension, the Respondent provided [J.P.] with representation. Following his suspension, the Respondent informed [J.P.] that his license to practice law had been [suspended], “4. [J.P.] began having financial difficulties. Even though she knew that the Respondent’s license to practice law had been suspended, [J.P.] sought assistance from the Respondent regarding her financial difficulties. [J.P.] owned her home in Oskaloosa, Kansas, and had some amount of equity in the house. She wanted to sell her house and use the equity to pay her creditors. For some reason, [J.P.] was unable to determine the precise amount she owed on the mortgage. “5. The Respondent paid to have her house appraised and the value of the house was determined to be $114,000. Because the home needed certain repairs completed, the Respondent offered to purchase the house for $104,000. The Respondent promised [J.P.] that if he purchased the home, fixed it up, and realized a profit on a subsequent sale, that he would share the profit with her. However, when the Respondent attempted to obtain a loan to purchase the home, he was unable to do so because foreclosure proceedings were pending. “6. Without consulting with a licensed attorney, [J.P.] decided to file for the protections of the bankruptcy laws. And, because the bankruptcy laws were about to change, time was an important factor for [J.P.]. Even though, the Respondent had no experience in practice of bankruptcy law, the Respondent advised [J.P.] regarding bankruptcy law and assisted [J.P.] in completing the bankruptcy filing document. Specifically, the Respondent advised [J.P.] to file bankruptcy pursuant to Chapter 7. “7. On October 14,2005, [J.P.] filed the petition. The Respondent signed the petition as a non-attorney petition preparer, pursuant to 11 U.S.C. § 110. Ac cording to the certification, the Respondent received a fee for preparing the petition. However, the Respondent did not receive a fee. “8. At the time [J.P.] was preparing to file for bankruptcy protections, she resided in her home in Oskaloosa. As a result, she could have exempted the real property under the ‘homestead’ provision, allowing her to retain the equity in the home. “9. The Respondent advised [J.P.], however, not to exempt her home because it was his understanding that the home would become an asset of the estate and any profit from the sale of the home would go toward [J.P.]’s debts in the bankruptcy case. However, based upon the Respondent’s advice, she did not exempt her home. As a result, [J.P.j’s home became the property of the bankruptcy trustee. In the event the bankruptcy trustee was able to sell the home, the trustee could have used the equity to pay debts that would normally have been discharged in the bankruptcy. “10. During the pendency of the bankruptcy petition, the Respondent prepared a contract to purchase [J.P.fs home for $110,000. [J.P.] took the contract to the bankruptcy trustee for approval. However, the contract post-dated the bankruptcy petition, so [J.P.] did not have authority to enter into a contract for the sale of the house. “11. After the bankruptcy was filed, [J.P.] learned that her wages were being garnished. When [J.P.] informed the Respondent about the garnishment, he suggested that [J.P.] consult with an attorney who practices in the area of bankruptcy law. The Respondent suggested that [J.P.] consult with Jerry Harper. “12. On January 20, 2006, [J.P.] met with Mr. Harper. Mr. Harper informed [J.P.] that she need not have filed the bankruptcy. He reasoned that there was sufficient equity in the house to pay all of the creditors. He told her that if she did not desire to remain in the house in Oskaloosa, she could have sold the house and used the equity to pay off all of her creditors. He also informed her that she should have exempted her house to avoid losing the equity in the home. Finally, he told her that because she had now moved from the home, she could not amend the petition to claim the exemption, as residence in the home was a requirement for the exemption. “13. After meeting with [J.P.], Mr. Harper wrote to the Respondent and told him that he had violated the Kansas Rules of Professional Conduct. Mr. Harper suggested that the Respondent report his conduct. Because the Respondent did not self-report the misconduct within a couple of weeks, Mr. Harper forwarded a letter of complaint to the Disciplinary Administrator’s office.” In his brief, Respondent purports to challenge some of the panel’s factual findings, but specifically “does not object with the findings of law as presented in the final report.” The court’s role in a disciplinary proceeding is to consider the evidence, the findings of the disciplinary panel, and the arguments of the parties to determine whether violations of the Kansas Rules of Professional Conduct have occurred, and, if so, 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 Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); see also Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304) (misconduct to be established by clear and convincing evidence). Moreover, this court “viewfs] the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory only, but we give the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence.” Comfort, 284 Kan. at 190. First, Respondent points out that the panel’s reference to the location of his friend’s home was inaccurate. The Disciplinary Administrator agrees that the house is actually located in McLouth, rather than Oskaloosa. However, as Respondent acknowledges, the location of the dwelling is not material to the issues presented, and we will simply note the error. Next, Respondent disputes that portion of the panel’s finding in paragraph 6 which states that he advised his friend to file bankruptcy pursuant to Chapter 7. Respondent contends that he merely gave his friend general information about the effect of a Chapter 13 proceeding versus a Chapter 7 proceeding, which he characterized in his brief as “there is a plan that a person can make payments into the Court and repay their debts and a plan that wipes out a persons [sic] debts.” Respondent asserts that his friend could have garnered the same information from television commercials. J.P.’s testimony before the panel clearly established that, in selecting the type of bankruptcy proceeding and the exemptions to claim, she was relying on the information which Respondent provided her, regardless of how general or technically inaccurate that information might have been. J.P. said that Respondent knew what she was trying to do, she trusted him, and she believed “whatever he said was better.” At the hearing, J.P. could not recall under which chapter her bankruptcy had been filed. She clearly perceived that Respondent was recommending the type of proceeding reflected in the forms which the Respondent prepared. Notwithstanding the Respondent’s apparent subjective belief that he was not explicitly giving legal advice, the evidence before the panel supports its findings. Respondent also quibbles with the panel’s finding that J.P. was living in the McLouth house at the time of the bankruptcy filing. He contends that she was spending most nights in Kansas City at the time. Curiously, in completing the bankruptcy forms, Respondent listed the McLouth house as the debtor’s residence and explained in Form 7, Statement of Financial Affairs, that the debtor was “moving right now [sic] should be moved within 2 weeks.” Respondent also insists that he did not counsel against the claiming of a homestead exemption on the McLouth residence, but rather he simply advised J.P. that she would need to be truthful with the bankruptcy trustee about her living arrangements. Nevertheless, the evidence elicited from J.P. and the reporting attorney supports a finding that J.P. possessed no meaningful understanding of the concept of a homestead exemption and that she relied on Respondent to fill out the bankruptcy schedules in a manner that would be in her best interests. Finally, Respondent asserts that J.P. has suffered no actual damage or injury, but rather that she is in the same position as she was prior to the bankruptcy filing. That contention is clearly controverted by the evidence elicited from the reporting attorney, who is experienced in the area of bankruptcy. In a letter to J.P., the reporting attorney explained that the course of action taken would unnecessarily cost her that portion of the equity in her home that would be paid in trustee’s fees and in satisfying unsecured creditors, which appeared to be as much as $20,000. In summaiy, we find that the panel’s factual findings are, in all relevant respects, supported by clear and convincing evidence. CONCLUSIONS OF LAW From its factual findings, the hearing panel reached the following legal conclusions: “CONCLUSIONS OF LAW “1. The Deputy Disciplinary Administrator alleged that the Respondent violated KRPC 1.1, KRPC 1.7, KRPC 1.16(a), and KRPC 5.5. However, this case is not about whether the Respondent did a competent job representing his client and whether he engaged in a conflict of interest with his client, it is about whether the Respondent engaged in the unauthorized practice of law. It is dangerous territory for the Hearing Panel to suggest that the inquiry into cases like this one extends beyond the issue of whether or not a suspended lawyer practiced law when he was prohibited from doing so. Thus, the Hearing Panel considers only whether the Respondent violated KRPC 5.5. “2. KRPC 5.5(a) prohibits attorneys from engaging in the unauthorized practice of law. Throughout the time the Respondent was providing advice to [J.P.] regarding her financial problems, the proposed sale of her home, and the bankruptcy filing, the Respondent’s license to practice law was suspended. So, during that time period, from 2003 to the present, the Respondent was not authorized to provide [J.P.] or anyone else with legal advice. “3. In this case, just like in In re Arthur, 15 B.R. 541[, 546] (1981), ‘we are not confronted with the mere preparation of a petition.’ Here, as in Arthur, the Respondent provided ‘advice and counseling on the relative advantages of filing a petition for liquidation under Chapter 7 versus filing a petition for an adjustment of debts under Chapter 13.’ In addition, the Respondent, like Arthur, provided advice regarding which exemptions to claim. “4. The Respondent’s advice about which chapter to file in bankruptcy and the Respondent’s advice not to exempt her house amounts to legal advice. Arthur, 15 B.R. at 746; In re Webster, 120 B.R. Ill (1990). Thus, the Respondent violated KRPC 5.5(a) by engaging in the unauthorized practice of law.” Unauthorized Practice of Law The specific rule applicable here, KRPC 5.5(a), provides: “A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.” 2007 Kan. Ct. R. Annot. 539. “As the term is generally understood, the ‘practice’ of law is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.” State ex rel. v. Perkins, 138 Kan. 899, 907-08, 28 P.2d 765 (1934) (quoting Eley v. Miller, 7 Ind. App. 529, 34 N.E. 836).’ ” In re Juhnke, 273 Kan. 162, 166, 41 P.3d 855 (2002). As the hearing panel noted, in the specific area of bankruptcy law, providing advice and counsel on “the relative advantages of filing a petition for liquidation under Chapter 7, versus filing a petition for the rearrangement of debts under Chapter 13” amounts to the practice of law because the advice requires the use of legal judgment requiring legal knowledge, skill, and ability beyond those possessed by a layman. Matter of Arthur, 15 Bankr. 541, 547 (Bankr. E.D. Pa. 1981). The Pennsylvania Bankruptcy ' Court also found that advice and counseling concerning exemptions, dischargeability, and automatic stay provisions of the Bankruptcy Code constitutes the practice of law. 15 Bankr. at 547. See also In re Glad, 98 Bankr. 976, 978 (D. Cal. 1989) (finding layperson who interviewed and solicited information from debtor with regard to financial status, advised debtor to file Chapter 11, and assisted debtor in preparation of the bankruptcy schedules provided legal services and thereby engaged in the practice of law under California law); In re Bush, 275 Bankr. 69, 78-79 (Bankr. D. Idaho 2002) (noting that bankruptcy petition preparers may type forms and can properly perform essentially no other service); In re Robinson, 162 Bankr. 319, 325-26 (Bankr. D. Kan. 1993) (finding that defendants engaged in the unauthorized practice of law under the standards of Kansas law by providing legal assistance to debtors in preparing their bankruptcy petitions, schedules, and applications to pay their filing fees in installments; the defendant’s acknowledgment that he is not an attorney and statements in the bankruptcy questionnaire instructions that debtors are filing pro se because the agency doe's not give legal advice does not negate the facts established by the evidence); In re Skobinsky, 167 Bankr. 45, 50-51 (E.D. Pa. 1994) (finding that bankruptcy petition preparer engaged in the unlawful practice of law where the preparer discussed various chapters with his customers, instructed them on how to fill out the forms, filed forms with tire clerk on his customers’ behalf, and instructed debtors not to fill out the exemptions schedules based upon his erroneous interpretation of the applica ble bankruptcy law); In re Webster, 120 Bankr. 111, 113 (Bankr. E.D. Wis. 1990) (finding that a layperson who advised and counseled pro se debtor with respect to completion of bankruptcy petition, statement of affairs, and schedules, including which exemptions debtor should claim was exercising legal judgment and thereby engaged in the unauthorized practice of law); In re Herren, 138 Bankr. 989, 995 (Bankr. D. Wyo. 1992) (finding that “[ajdvising of available exemptions from which to [choose], defining terms in the schedules, directing what property is appropriately listed in various areas, summarizing and reformulating the information solicited from clients, advising clients regarding responsibility to list all debts and the option of voluntary repayment and similar actions, all require exercise of legal judgment beyond the capacity and knowledge of lay persons”). As noted, Respondent did not object to the panel’s “findings of law as presented in the final report.” We concur and adopt the panel’s conclusion that Respondent engaged in the unauthorized practice of law. Other Alleged Violations The Disciplinary Administrator takes issue with the panel’s conclusion that its inquiry was limited to determining whether Respondent engaged in the unauthorized practice of law and that it should refrain from considering the competence and conflict of interest allegations. As the Disciplinary Administrator points out, such a conclusion is unsupported by any authority. See In re Stover, 278 Kan. 835, 838-39, 104 P.3d 394 (2005) (finding violations of KRPC 1.1 [2004 Kan. Ct. R. Annot. 342], 1.7[b] [2004 Kan. Ct. R. Annot. 391], 1.8[a] [2004 Kan. Ct. R. Annot. 396], and 3.4 [2004 Kan. Ct. R. Annot. 449], in addition to an unauthorized practice of law under KRPC 5.5[a] [2004 Kan. Ct. R. Annot. 469]); In re Hunter, 273 Kan. 1015, 1019, 1024, 46 P.3d 1199 (2002) (finding violation for unauthorized practice of law during suspension as well as additional violations); In re Howlett, 266 Kan. 401, 969 P.2d 890 (1998) (finding a violation of MRPC 8.4 [1998 Kan. Ct. R. Annot. 386] for criminal convictions arising out of the unauthorized practice of law). Additionally, we find some guidance from In re Wilkinson, 251 Kan. 546, 834 P.2d 1356 (1992), which discussed whether a suspended attorney could be employed as a law clerk. There, this court noted that “[t]he suspended attorney remains a member of the Kansas Bar, subject to the provisions of the MRPC,” and that the suspended attorney is subject to discipline if he or she “engages in the unauthorized practice of law or in unethical professional conduct.” (Emphasis added.) 251 Kan. at 553. In other words, a suspended attorney remains subject to each and every rule of professional conduct during the period of suspension, not just the prohibition in KRPC 5.5(a) (2007 Kan. Ct. R. Annot. 539). A suspension is not a free pass to ignore one’s professional responsibilities. The current case highlights that principle. If Respondent had possessed the requisite legal knowledge and skill to expertly guide J.P. through her financial difficulties, he would have nevertheless been in violation of KRPC 5.5(a) for practicing law while he was not authorized to do so. On the other hand, if Respondent had been duly authorized to practice law, he would have nevertheless been subject to the KRPC mandate that he provide competent counsel. The suspension did not absolve Respondent of his competence obligation, and the panel was presented with separate inquiries which were not mutually exclusive. Therefore, we will proceed to consider the other allegations. Competence As the panel’s footnote indicates, the evidence clearly established that Respondent did not give J.P. good advice. The reporting attorney’s letter to J.P. explains that, not only were the filed bankruptcy schedules disadvantageous to J.P., but the choice to pursue bankruptcy was ill-advised. Indeed, when asked whether he disputed the reporting attorney’s claims, Respondent admitted that he did not possess sufficient bankruptcy knowledge to know whether the analysis in the letter was correct. One perceives that Respondent did not feel constrained by his lack of bankruptcy knowledge and experience because he was simply helping a friend without charging a fee. However, the friend knew that Respondent was an attorney, albeit she also knew that he was currently suspended. The friend clearly relied on Respondent to know what he was doing. In the context of attorney-client privilege, we have said that an attorney-client relationship “is sufficiently established when it is shown that the advice and assistance of the attorney is sought and received in matters pertinent to the profession. Associated Wholesale Grocers, Inc. v. Americold Corp., 266 Kan. 1047, 1053, 975 P.2d 231 (1999).” State ex rel. Stovall v. Meneley, 271 Kan. 355, 374, 22 P.3d 124 (2001). Notwithstanding that Respondent may have lacked any pecuniary motive, he had an obligation to provide competent advice when J.P. sought his assistance. In the alternative, Respondent could have referred J.P. to competent counsel, which he was subsequently to do after the harm had been done. In short, the record contains clear and convincing evidence to support our finding that Respondent violated KRPC 1.1 by failing to provide competent representation. Conflict of Interest At the time of the alleged violation, KRPC 1.7(b) (2006 Kan. Ct. R. Annot. 412) read as follows: “(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.” The Disciplinary Administrator points out that Respondent prepared a contract to purchase J.P.’s home for $110,000 when the home was listed in the bankruptcy petition for a value of $130,000. Moreover, the reporting attorney testified that J.P. said someone had expressed an interest in buying her home for $140,000. The Disciplinary Administrator argues that the scenario establishes a conflict because Respondent was fully aware of J.P.’s situation, the hearing panel found that J.P. was vulnerable, and Respondent did not advise J.P. to have the contract reviewed by an independent attorney. The evidence elicited by the Disciplinary Administrator did not clearly and convincingly establish a conflict of interest within the purview of the rule. The Disciplinary Administrator s suggestion that Respondent took advantage of J.P.’s vulnerability for personal gain is negated by the panel’s finding of the mitigating factor that there was no selfish or dishonest motive in this case. Further, the panel’s factual finding about the nature of the arrangement, whereby Respondent would purchase the property, fix it up for resale, and share any profit with J.P., indicates that the contract was in furtherance of Respondent’s attempts to assist J.P. extinguish her debts, i.e., Respondent reasonably believed that his representation would not be adversely affected by the contract. Granted, an attorney who enters into a business arrangement with a client must be vigilant in complying with the specific rules governing such an arrangement. Here, Respondent should have explained the implications of the potential conflict and should have urged J.P. to obtain independent counsel on the sale contract. Nevertheless, on the record before us, we decline to find that Respondent violated KRPC 1.7(b). Declining Representation Under KRPC 1.16(a), “a lawyer shall not represent a client . . . if: (1) the representation will result in violation of the rules of professional conduct or other law.” 2007 Kan. Ct. R. Annot. 487. By that definition, it would appear that, in most if not all instances, the unauthorized practice of law necessarily begets a violation of KRPC 1.16(a). We can appreciate the panel’s reluctance to stack on multiple violations for essentially the same conduct. Nevertheless, the evidence clearly establishes that Respondent should have declined to provide J.P. with advice and assistance that called for the exercise of legal judgment. The record supports a violation of KRPC 1.16(a). APPROPRIATE DISCIPLINE In recommending indefinite suspension, the final hearing report recited: “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 legal profession to comply with his suspension. “Mental State. The Respondent negligently violated his duty. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to [J.P.]. “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 January 9, 2001, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.4(a). Then, on March 8, 2002, the Kansas Supreme Court suspended the Respondent from the practice of law for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 3.2, KRPC 8.4(a), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g). Finally, in 2003, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.1 and KRPC 1.3. “Vulnerability of Victim. [J.P.] was vulnerable to the Respondent’s misconduct because she was a friend. “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. The Respondent fully cooperated in the 'disciplinary process as exhibited by his complete acknowledgment of 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 remaining ABA Standards. In this case, it does not appear that any of the Standards are particularly on point. The following Standards, however, do offer some assistance: ‘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. ‘Disbarment is generally appropriate when a lawyer: (a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or (b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injuiy to a client, the public, the legal system, or the profession.’ Standard 8.1. ‘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 injury or potential injury to a client, the public, the legal system, or the profession.’ Standard 8.2.” The Deputy Disciplinary Administrator agrees with the recommendation of the hearing panel to indefinitely suspend the Respondent. However, we are not constrained by the recommendations of either the panel or the Disciplinary Administrator as to the sanction to be imposed; such recommendations are advisory only. Supreme Court Rule 212(f) (2007 Kan. Ct. R. Annot. 317). In this instance, the recommendations appear to be entirely appropriate. Respondent was suffering under a sanction of suspension at the time of the current violations, and his testimony before the panel displayed a failure to fully appreciate the duly which he owes to his profession and to the public. It Is Therefore Ordered that George W. Swisher be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective on the date of this opinion. It Is Further Ordered that George W. Swisher shall comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337) and, if respondent seeks reinstatement, that he shall comply with Supreme Court Rule 219 (2007 Kan. Ct. R. Annot. 350); that he shall demonstrate that he knows, understands, and is willing to comply with the Kansas Supreme Court rules; and that he is 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. However, by no means does the Hearing Panel wish this note to somehow mean that the Respondent provided good advice to [J.P.]. The evidence is clearly to the contrary.
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The opinion of the court was delivered by Lockett, J.: This is an appeal from an order of the district court of Johnson County, Kansas, reversing the grant by the Board of Zoning Appeals of the City of Merriam, Kansas, of an area variance from the 75-foot height limitation of the Merriam zoning regulations which allowed Metroplex Business Communications Group, Ltd., (Metroplex) to construct a 990-foot communications tower. The Zoning Regulations of the City of Merriam, Kansas, 1985 ed., Art. 10, § 505(A) parallel and are limited by the requirements and standards of K.S.A. 12-715. The district judge found that the Board’s decision to grant the variance was unreasonable because the regulations’ requirements of “uniqueness” and “unnecessary hardship” were not met and, in addition, that by increasing the allowable height from 75 feet to 990 feet the Board’s substantial departure from the zoning restrictions violated the spirit and intent of the regulations. Metroplex appealed, claiming the requirements of K.S.A. 12-715 necessary to obtain an area variance are more flexible than those applicable to a use variance because an area variance does not affect the use of the land, is less drastic in effect, and does not pose the threat of an incompatible use in the neighborhood. This appeal was transferred from the Court of Appeals to this court pursuant to K.S.A. 20-3018(c). We do not agree with Metroplex’s claim. K.S.A. 12-715 provides: “Such variance shall not permit any use not permitted by the zoning ordinance in such district.” (Emphasis supplied.) Therefore, the conditions set forth in the statute and the city ordinance for granting a variance apply only to an area variance and not to a use variance. Metroplex Business Communications Group, Ltd., is a Kansas corporation. Executive Affiliates, Inc., is an Illinois corporation operating the Georgetown Apartments in the City of Merriam, Kansas. The Board of Zoning Appeals of the City of Merriam, Kansas (Board) created pursuant to K.S.A. 12-714 et seq., acts as a quasi-judicial board for the City of Merriam. Metroplex provides sales, service, and installation of two-way radio systems; a 24-hour answering service; local and nationwide paging; cellular telephones; 800-megahertz trunking radios; and telephone business systems for offices. Metroplex’s present 300-foot tower is located in Kansas City, Missouri. Construction of new tall buildings in downtown Kansas City, Missouri, interferes with Metroplex’s ability to transmit. To meet the present Federal Communications Commission (FCC) requirements, a 990-foot tower is required. In October of 1985, Metroplex entered into a contract to purchase the property at issue. Metroplex planned to build a $3,000,000 three-story building and a 990-foot tower on the property zoned 1-1, Light Industrial. The zoning regulation in effect at that time had no height restrictions. On January 6, 1986, Article 3, Section 105A was adopted and is the present applicable Merriam zoning regulation. Article 4, § 301A(99) of the city zoning regulations permits use of property zoned 1-1, Light Industrial, as a relay station (radio, television, etc.) and is the only zoning in the city which allows use of property as a relay station without variance. Section 301(d) of the zoning regulations specifies that the maximum structure height in an 1-1 zoning district is limited to 75 feet. On July 21, 1986, Metroplex filed its application with the Board requesting a variance of the bulk regulations on the property to allow the construction of a 990-foot communications tower. On August 13, 1986, the Board considered Metroplex’s application. After presentation of evidence and discussion, the Board recognized that only property in the City zoned 1-1, Light Industrial, was suitable for Metroplex’s tower construction. The Board believed, based on its experience, that the height restriction was added to the regulation because of the City’s concern for the safety of persons in structures of 75 feet or taller due to the limitations of the City’s available fire equipment. The Board granted the variance to Metroplex for its tower subject to certain requirements. Following the granting of the variance, on August 15, 1986, Metroplex renewed a contract to purchase the property for $326,700, with closing to be on or before November 30,1986. On September 9, 1986, pursuant to K.S.A. 12-712, the City filed with the district court its petition to review the Board’s decision to grant the variance to Metroplex. Executive Affiliates later joined in the appeal. On November 25, 1986, Metroplex obtained title to and became the owner of the property. On February 26,1987, Judge Janice D. Russell, District Court of Johnson County, reversed the decision of the Board concluding that the decision was unreasonable because three of the five dual requirements of K.S.A. 12-715 and Article 10, § 505(A), of the zoning regulations — “uniqueness,” “unnecessary hardship upon the property owner,” and “granting the variance desired will not be opposed to the general spirit and intent of [the] regulations” — were not met. The judge made no specific findings regarding the other two requirements, namely that the grant of the variance would not adversely affect the rights of adjacent property owners nor adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. The Board and Metroplex appealed. In Kansas, cities have no inherent power to enact zoning laws. The power of the city to zone exists only when the power is granted by the State. Any city in this state which enacts zoning ordinances is required to create a board of zoning appeals. K.S.A. 12-714. The board has the power to hear and decide appeals of decisions made by an administrative official in the enforcement of the zoning ordinances and, when necessary, grant variances and exceptions to the zoning ordinances. K.S.A. 12-715 sets out the requirements under which the board may grant a variance and the scope of review when an action is filed in the district court challenging the reasonableness of any order or determination of the board. As noted earlier, the Zoning Regulations of the City of Merriam, Kansas, 1985 ed., Art. 10, § 505(A) parallel and are limited by the requirements and standards of K.S.A. 12-715. The applicable Merriam regulations provide: “A. The Board of Zoning Appeals shall not grant a variance as authorized in Section 10-504 hereof unless it shall, in each case, make specific written findings of fact directly based upon the particular evidence presented that meets all five of the following standards: 1. The variance requested arises from such condition which is unique and unusual to the property in question and which is not ordinarily found in the same zoning district and is not created by an action or actions of the property owner or the applicant: 2. the granting of the variance will not adversely affect the rights of adjacent property owners or residents; 3. the strict application of the provision of these regulations from which a variance is requested will constitute unnecessary hardship upon the property owner represented in the application; 4. the variance desired will not adversely affect the public health, safety, morals, order, convenience, aesthetics, environment, prosperity or general welfare; and 5. granting the variance desired will not be opposed to the general spirit and intent of these Regulations.” Section 505(B) of the zoning regulations provides further: “B. In determining whether the evidence supports the conclusions required by Section I0-505(A), the Board of Zoning Appeals shall consider the extent to which the evidence demonstrates that: 1. The particular physical surroundings, shape or topographical condition of the specific property involved will result in a particular difficulty or unnecessary hardship upon or for the owner, lessee or occupant, as distinguished from a mere inconvenience, if the provisions of these Regulations were literally enforced. 2. The request for a variance is not based exclusively upon a desire of the owner, lessee, occupant or applicant to make more money out of the property. 3. The granting of the variance will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the subject property is located. 4. The proposed variance will not impair the aesthetics nor reduce an adequate supply of light or air to adjacent property, substantially increase the congestion in the public streets, increase the danger of fire, noise, endanger the public safety, storm water danger, substantially diminish or impair property values within the neighborhood.” When determining the reasonableness of board actions in granting a zoning variance, the district court is restricted to considering whether, as a matter of law, (a) the tribunal acted fraudulently, arbitrarily, or capriciously; (b) the administrative order is substantially supported by the evidence; and (c) the tribunal’s action was within the scope of its authority. Stice v. Gribben-Allen Motors, Inc., 216 Kan. 744, 749, 534 P.2d 1267 (1975); City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, 222, 696 P.2d 409 (1985). Here, Judge Russell determined that the Board had acted outside the scope of its authority when granting the variance. State statutes which authorize cities to enact zoning ordinances include the right to provide for restrictions, e.g., height, as an exercise of the police power. A height restriction does not involve a change of use, but places a limitation on the use of the property. Such limitation must be based upon considerations sufficient to justify the exercise of the police power and may be circumvented when authority is given to obtain a variance or an exception. A variance in the law of zoning has been defined as an authorization for the construction or maintenance of a building or structure, or for the establishment or maintenance of a use of the land, prohibited by the original zoning enactment. 82 Am. Jur. 2d, Zoning and Planning § 255, p. 790. Variances are divided into two categories: use variances and area variances. A “use variance” is one which permits a use of land other than that prescribed by the zoning regulations and inconsistent with uses in the surrounding area. An “area variance” has no relation to change of use, but rather typically involves a variance from structural or lot area restrictions. Specifically, an area variance allows modification of area, yard, height, floor space, frontage, density, setback, and similar restrictions. City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, Syl. ¶¶ 3, 4. Here, the variance requested by Metroplex to exceed the height restriction of the ordinance was clearly an area variance. Such variance would not have introduced a new use into the zoned district, but rather would have allowed an exception to the applicable height restriction for an allowable structure in the zone. Appellants do not deny that the City had the right to place a height restriction in the zoning regulation, but claim the requirements of K.S.A. 12-715 necessary to obtain an area variance are more flexible than those applicable to a use variance because an area variance does not affect the use of the land, is less drastic in effect, and does not pose the threat of an incompatible use in the neighborhood. See 82 Am. Jur. 2d, Zoning and Planning § 278, p. 822. We do not agree with the appellants’ claim. A board of zoning appeals may grant or deny a variance only on the basis of the authority which has been specifically delegated to it by the zoning regulation, and the board is also subject to the limitations imposed by statute. K.S.A. 12-715(b) specifically authorizes a city to provide boards of zoning appeals with broader power to grant exceptions to the zoning ordinance where the use or exception is specifically listed as an exception in the zoning ordinance. Here, the City did not give to the Board the authority to spot zone or to grant a special use permit or an exception to the zoning regulation. Therefore, the Board was limited to granting area variances from the zoning regulations of the City, as provided for in K.S.A. 12-715. The statute provides: “Such variance shall not permit any use not permitted by the zoning ordinance in such district.” (Emphasis supplied.) Therefore, the conditions set forth in K.S.A. 12-715(a) and the city ordinance for granting a variance apply to an area variance, and not to a use variance. We next must review the district court’s finding that the Board’s decision to grant the variance did not meet three of the required conditions of K.S.A. 12-715(a) and the zoning regulations of the City of Merriam. Uniqueness The zoning regulations allow the issuance of a variance when the conditions of the property are unique and unusual, not ordinarily found in the same zoning district, and not created by actions of the property owner or the applicant. Metroplex contends that it presented sufficient evidence to the Board that the property was unique and unusual. Metroplex claimed that the size and location of the land made it highly suitable for the use intended by Metroplex. The president of Metroplex testified that, since monitoring and safety were primary concerns of the Board, it was necessary to locate the tower on the same piece of property as the new office building. Metroplex further stated that the depth and rectangular shape of the property, as well as the fact that the property sloped from front to rear, would allow the tower to be built behind the building at the rear of the property. This would improve the aesthetic appearance, allow proper monitoring and maintenance of the tower, and would not endanger the public safety. In determining that the requirement of uniqueness was not met, the district court found that there was nothing about the size, configuration, topography, or location of the land itself which made it uniquely suited for the construction of a 990-foot tower. In addition, the court found that the land was equally suitable for any of the other permitted uses listed in the ordinance, i.e., warehousing, wholesale commercial, light manufacturing, car repair, professional offices, etc. In order to satisfy the statutory requirement of uniqueness, the primary consideration for the court must be the peculiar topography of the land, not the unique or unusual circumstances or needs of the applicant. Although the property owned by Metroplex may be unique because its frontage and depth allow the tower and the building to be built on the property, there is no evidence to indicate that the size or shape of the land mandates a departure from the 75-foot maximum allowable height. We agree with the district judge that the evidence does not show that the property had the unique and unusual characteristics required to support the Board’s grant of the variance. Unnecessary Hardship The district judge found that the evidence did not support the Board’s finding that the height restriction was an unnecessary hardship. The court’s finding was based on the fact that Metroplex had purchased the property knowing that there was a 75-foot height restriction. When Metroplex closed the contract to purchase the property in November 1986, it had knowledge that the City had filed a petition challenging the Board’s decision to grant the variance. In addition, the district court found that denial of the variance would not constitute an unnecessary hardship to Metroplex because, although Metroplex had an ongoing business in the Kansas City area, it did not have an ongoing business at the Merriam site. Metroplex contends that the district court incorrectly interpreted the concept of “unnecessary hardship” in the context of an area variance by relying on this court’s definition in Stice v. Gribben-Allen Motors, Inc., 216 Kan. 744, a case dealing with a use variance. In Stice, the plaintiffs appealed the trial court’s decision affirming the Labette County Board of Zoning Appeals’ decision to grant Gribben-Allen a use variance for the construction of an automobile sales and service facility in an area zoned residential. We determined that, to constitute an unnecessary hardship jus tifying a variance, the use restriction, viewing the property in its environment, must be so unreasonable as to become an arbitrary and capricious interference with the basic right of private property ownership; or there must be convincing proof that it is impossible to use the property for a conforming purpose; or there must be factors sufficient to constitute a hardship that would deprive the owner of his property without compensation. An unnecessary hardship exists when all the relevant factors taken together show that the plight of the location concerned is unique in that it cannot be put to a conforming use because of the limitations imposed upon the property by reason of its classification in a specific zone. Stice, 216 Kan. at 751 (citing Peterson v. Vasak, 162 Neb. 498, 508, 76 N.W.2d 420 [1956]). In Stice, we found that the board’s determination of unnecessary hardship was supported by only two factors: first, that Gribben-Allen had bought the land before the zoning ordinance went into effect; and, second, that it would be nearly twice as expensive to establish the business at a suitably zoned site. 216 Kan. at 750. We concluded that loss of potential profit alone could not establish unnecessary hardship as a basis for granting a use variance and reversed the decision of the board. Metroplex argues that the focus of the definition of “unnecessary hardship” in Stice should apply only to a change in the use of the land. It contends that where an area variance is requested, no one seeks to use the property for other than a conforming purpose because an area variance merely frees the landowner from the harsh application of the zoning ordinances. Further, when an area variance is requested, it is nearly impossible to show that the restriction constitutes an “arbitrary and capricious interference” with the basic right of private property ownership because the restrictions of an area variance deal merely with measurements such as height, setbacks, area, yard, floor space, density, and similar restrictions. Nevertheless, the Stice definition was applied in an area variance case recently decided by the Court of Appeals. In City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, that court upheld the district court’s affirmance of the Board of Zoning Appeals’ decision to grant a variance to a truck stop and filling station operator, C & C, Inc. The variance involved a departure from a new sign ordinance which prohibited pole signs, but permitted preexisting nonconforming signs. Since the truck stop was adjacent to an elevated portion of Interstate 35, C & C had for some time displayed its business name on two free-standing pole signs. The sign ordinance provided that any change in business name would be deemed a new sign and become subject to the ordinance. When a change in corporate ownership mandated a change in C & C’s sign, the company applied for a variance which was granted by the Board and affirmed by the district court. The City appealed and the Court of Appeals affirmed. Applying the Stice definition of “unnecessary hardship,” the Court of Appeals concluded that in Stice there had been no showing of hardship. There, the land was purchased in an undeveloped state and there was only a loss of potential profits. In City of Olathe, C & C’s loss was a real and immediate one to an ongoing business and not of its own making. 10 Kan. App. 2d at 223-24. Here, there was some evidence that the circumstances of Metroplex’s move from its present site were not of its own making. Because construction around Metroplex’s present location created interference with its ability to meet new FCC requirements, Metroplex faces the loss of its FCC license unless a 990-foot tower can be built. Further, any alternative site in Merriam zoned for use as a communication facility would still have required a height variance to allow a 990-foot tower. In addition, Metroplex argues that it was entitled to rely on the decision of the Board of Zoning Appeals granting the variance. Therefore, Metroplex claims it demonstrated that, unless it can move to the site, it is faced with a real and immediate loss of its ongoing business, as was the applicant in City of Olathe. The district judge reasoned that Metroplex’s hardship was of its own making. It is the general rule that a variance may not be granted to relieve a self-created hardship. A hardship may be self-created when the applicant purchased the property with knowledge of the zoning restriction. See Abel v. Zoning Board of Appeals, 172 Conn. 286, 374 A.2d 227 (1977). See also 6 Rohan, Zoning and Land Use Controls § 43.02(2)(1987). Here, after Metroplex entered into a contract to purchase the property, the 75-foot height restriction became applicable. Subsequently, the Board granted the variance and Metroplex renewed its contract to purchase. The City then filed its petition to review the Board’s grant of the variance and, subsequently, Metroplex closed on the property. We are not in full agreement with the district judge’s determination (1) that since Metroplex knew that the City had filed an appeal of the Board’s decision, it should not have closed on the property until the appeal had been finally determined, and (2) that an unnecessary hardship did not exist because Metroplex had not developed the property prior to the City’s passing of the 75-foot height restriction. However, because Metroplex did not have an ongoing business at the site, we cannot say as a matter of law that the district judge improperly followed the reasoning of City of Olathe. Conformity with General Spirit and Intent of the Ordinance The district judge concluded that the requested variance amounted to a substantial departure from the established zoning and, therefore, violated the spirit and intent of the ordinance. In Stice, this court held that the establishment of an auto sales and service business in the middle of a residential district violated the spirit and intent of the zoning ordinance because it intruded upon the legislative authority of the county commission to grant a rezoning. 216 Kan. at 756. Metroplex argues that the use of the property as a communication facility and a relay station is a permitted use; therefore, the variance will simply permit a tower of the height required by FCC regulations. The Board determined that the 75-foot restriction was enacted out of concern for the adequacy of the City’s fire prevention resources for inhabited structures; therefore, the construction of a taller uninhabited facility would not violate the spirit and intent of the ordinance. The City argues that, since no evidence was presented regarding the original purpose of the 75-foot height restriction, the Board’s determination, “based upon experience alone,” must be disregarded. This argument is without merit. Administrative agencies frequently acquire specialized knowledge in a particular field. This factor may broaden judicial notice, so that it may be proper and in accord with due process for a board of zoning appeals to rely upon facts within its own knowledge if these facts are set forth for the purpose of judicial review. See 2 Am. Jur. 2d, Administrative Law § 386, p. 192-94. The district judge placed primary emphasis on the 990-foot height of the structure, stating: “Metroplex argues that the design for the tower will be aesthetically pleasing and incorporate important safety features. While it does appear that Metroplex is proposing to build a tower that is as unobtrusive as possible, and attractive as possible, and as safe as possible, these arguments simply ignore the fact that it will be 990 feet tall. The tower would be taller than a 80 story building. In an area where the skyline primarily consists of treetops, this tower would stick out like a sore thumb. The variance granted by the Board did in fact depart substantially from the established height restrictions, and thus violates the general spirit and intent of the zoning ordinance.” We recognize that Metroplex provides important communication services to the greater Kansas City area including 24-hour answering services, local and nationwide paging, cellular telephones, two-way radios, and 800-megahertz trunking radios. It provides services to the medical community, police departments, towing services, and ambulance services, among others. Metroplex’s request for a variance is not solely for financial gain, but is dictated by FCC requirements which go into effect in 1988. However, the legislature in enacting K.S.A. 12-715 has stated that an area variance may not be granted unless all five statutory conditions are met. Metroplex clearly was unable to meet the requirement that the need for the variance arose from the unique conditions of the property. Further, we must recognize that the height of the proposed tower greatly exceeds the restriction in the ordinance; it exceeds the restriction of 75 feet by more than 900 feet. The district court considered the height of the tower in light of the other facts and circumstances of this case. We cannot ignore that fact. Affirmed.
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The opinion of the court was delivered by Herd, J: This is a criminal action where a jury found Fred Massey guilty of first-degree murder, K.S.A. 21-3401, for the killing of his wife, Karen. Massey was sentenced to a maximum term of life pursuant to K.S.A. 1986 Supp. 21-4501(a). Massey appeals. The relevant facts are as follows. In 1980, Fred Massey retired after 23 years in the military police. In 1971, he had married Karen and after fourteen years of marriage filed for a divorce which would have become final in November of 1985. Karen planned to go back to school after the divorce. Meanwhile, they continued to live together. Massey’s alcoholism was a factor in the divorce. It was severe enough he had been placed in a treatment facility several times. In 1984, he began to have seizures which were alcoholism related. During the seizures, he would lose consciousness and fall to the floor, remaining unconscious for approximately 10 minutes. Dilantin was prescribed for him, and he experienced no seizures for the 15 months he was on the medication. His doctors soon began to reduce his dosage, however, because Dilantin does not mix well with alcohol. Massey was taken completely off Dilantin in the middle of October 1985. He was, by this time, in the habit of drinking about a case of beer a day. On October 18, he picked up his .32 automatic pistol which had been left in a repair shop for over a year. The next day he purchased a box of .32 ammunition. On November 1, Massey got up at 5:30 a.m. and began drinking beer. He watched television and drank beer all day while Karen was at work. Karen came home and watched television with him in the evening; Massey continued to drink until about 11:00 p.m. The next morning was a Saturday. Massey woke up at 4:30 a.m. and drank coffee and watched television until 7:00 a.m., when he awakened Karen to go to a dental appointment. After she left, he continued watching television and started drinking beer. Karen came home around 9:30 a.m. and went upstairs to take a nap. Massey continued to watch television and drink beer. Massey testified he went upstairs to the bathroom around noon. The couple’s dogs followed him and awakened Karen by jumping on the bed. Massey said Karen lay in bed petting the dogs while they discussed their plans for going out with another couple that afternoon to fire the pistol Massey had retrieved from the shop. As they talked, Massey took the box of bullets and the loaded pistol out of the nightstand on Karen’s side of the bed. He remembered pointing the gun away from the bed as he picked it up. He did not remember whether he held the pistol with his palm on the grip and his finger on the trigger. The next thing he remembered was coming to on the floor. He realized he had had a seizure because all the muscles in his body were stiff and sore. He stood and saw Karen lying on the bed with blood on her face. He pulled the bedspread back to see if she was breathing. Seeing she was not, he began shaking, ran downstairs, and drank two beers. When he went upstairs again to take her pulse, he was certain she was dead. He grabbed some underwear, the pistol, shells, and a .22 rifle, and left the house. He drove around drinking for some time before thinking about the dogs left at the house. He returned for them and dumped them behind a fenced area on the highway. He told a friend he did this so the dogs would not maul Karen’s body. The guns were never found. Massey said he might have thrown them into the Missouri River. His next clear memory was of drinking beer in a room at the Cody Hotel. He left the Cody Hotel the next afternoon, still drinking steadily, and checked into the Best Western Motel. From there he called his father in Arkansas and asked him to call the police. His father told him this was something he should do himself, so Massey called the police department and, without explaining the situation, asked them to send a policeman to talk to him. When an officer arrived, Massey invited him in and continued to drink beer and smoke one cigarette after another. The officer asked why Massey had called for him, but Massey only stared at the officer in silence until suddenly he said, “I killed my wife yesterday. ... I want you to get her out of the house.” Officers found Karen lying with the blankets pulled up to her shoulders in the upstairs bedroom of the couple’s house. A spent .32 caliber automatic shell casing was found on the pillow directly under her head. The bullet had entered just above her left ear and had exited just in front of her right ear. It appeared she had been shot while sleeping on her right side. Massey spent Sunday night in jail. The next day, a deputy sheriff witnessed a seizure Massey had in his cell. His body became very rigid, his arms extended, and he convulsively struck his head and upper body against the wall. The convulsions lasted about five minutes. Massey would not respond to his name either during the seizure or immediately after. Massey had no further seizures because he was put back on Dilantin. For his first issue on appeal, Massey contends the trial court erred in failing to instruct the jury on his unconsciousness induced by the seizure. At trial, Massey testified he had not intended to kill Karen. He claimed he must have discharged the gun accidentally while he was in the throes of a seizure. A doctor testified Massey could have had a seizure from alcohol withdrawal. He testified that even though he had consumed as many as six beers that morning, the level of alcohol in his blood might still have been very low because he drank a case of beer on Friday and then drank nothing during the night. The doctor testified there is no warning of alcoholic grand mal seizures. During such a seizure, while falling to the floor, Massey would have clenched his fists as his muscles became rigid. The doctor explained people usually wake up from a seizure in a confused state which can last anywhere from a few minutes to a couple of days. Massey argues this explains his erratic behavior after the shooting. At the conclusion of the trial, the court gave the jury the general instruction on intent stating to find Massey guilty of murder the jury must find he killed Karen intentionally. The court did not give a separate instruction explaining unconsciousness is a complete defense to a crime so that, if the jury found the shooting occurred involuntarily during a seizure, Massey would have had no criminal intent and therefore could not be guilty of murdering Karen. Defense counsel made no objection to the instructions and proposed no additional instructions. Massey objected only to the court giving an instruction on second-degree murder. Massey now argues the court should have given an instruction similar to that given by the trial court in State v. Jackson, 238 Kan. 793, 714 P.2d 1368, cert. denied 107 S. Ct. 88 (1986). After giving an instruction similar to that given in this case, that a person ordinarily intends the usual consequences of his voluntary acts, the trial court recognized epileptic seizures as rendering an act involuntary by adding the following instruction: “ ‘If you find that Mr. Jackson was in the throes of an epileptic seizure at the precise time of the commission of the crimes and that the seizure rendered his actions unintentional and involuntary, you must find him not guilty of all charges and their lesser included offenses.’ ” 238 Kan. at 805. Pattern Instructions for Kansas does not contain a specific instruction for the defense of unconsciousness from a seizure. The State argues Massey is asking this court to create a new instruction, never previously used in this state, and contends a specific instruction on “diminished capacity” would improperly emphasize Massey’s case. 238 Kan. at 807-08 (Miller, J., concurring). Massey is not claiming diminished capacity; he is claiming lack of capacity by reason of a grand mal seizure. The first question to be considered is whether the defense of unconsciousness by reason of a seizure is one a trial court must accept. It is a basic tenet of criminal law that the State punishes only voluntary acts. A person cannot be held responsible for an act he commits while he is unconscious. See e.g., 22 C.J.S., Criminal Law § 55. There must be a criminal intent (mens red) for a person to be guilty of committing a crime. The defense of a seizure causing unconsciousness is nevertheless greeted with skepticism. There is seldom a murderer who acknowledges memory of his act. The defense of unconsciousness has been held not to be available to a defendant when the unconsciousness is a result of emotion caused by the killing. Commonwealth v. Crosby, 444 Pa. 17, 279 A.2d 73 (1971). Crosby held the defendant must show the unconsciousness resulted from a physical condition such as epilepsy. 444 Pa. at 22. Here it is clear Massey had a physical condition which caused him to suffer seizures which caused unconsciousness. His doctors testified Massey’s seizures were caused, at least in part, by alcohol abuse and withdrawal. The question then presented is whether such seizures are to be equated with seizures totally beyond a person’s original control. We hold they are, because such seizures are not the immediate result of voluntary intoxication. In State v. Seely, 212 Kan. 195, 510 P.2d 115 (1973), this court held a defendant is not entitled to an insanity instruction when his voluntary intoxication causes immediate loss of control or even seizure. See United States v. Shuckahosee, 609 F.2d 1351 (10th Cir. 1979), cert. denied 445 U.S. 919 (1980). In Massey’s case, however, the evidence was that if his seizures were alcohol-related, they occurred only from the consequences of long-term abuse or as an immediate effect from withdrawal. The defenses of unconsciousness due to seizure and insanity are closely related because both negate mens rea. Some courts consider them to be the same. See Annot., 27 A.L.R.4th 1077. In State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983), there was evidence the defendant in a first-degree murder case had suffered blackouts, possibly as a result of his exposure to Agent Orange. He claimed to be in one of these blackouts when the killing was committed. The trial court instructed on insanity but refused to instruct on the defense of unconsciousness. The appellate court held that while unconsciousness is a defense related to insanity in that the defendant cannot have the mental capacity to commit the crime, it goes beyond an insanity defense because it negates even the possibility of a voluntary act. The court thus reversed and required an instruction on the defense of unconsciousness. 309 N.C. at 264-66. The court in Smith v. Commonwealth, 268 S.W.2d 937 (Ky. 1954), held a defendant claiming unconsciousness due to epileptic seizure was entitled to an instruction explaining the jury may not find him guilty if it believed he was unconscious at the time of the act. But the court also required the jury to be instructed it might find a defendant acted with reckless disregard for life if he drove a car knowing he was subject to blackouts. The defense of unconsciousness during a potentially criminal act due to epileptic seizure is accepted in this state. See State v. Pettay, 216 Kan. 555, 556-57, 532 P.2d 1289 (1975). The defense is separate from that of insanity, for there is no issue of whether the defendant knew right from wrong; there is unquestionably no mens rea when one is unconscious. It is now recognized that epilepsy is a symptom, rather than a disease. Attacks of epilepsy are generally referred to as seizures. Brain’s Diseases of the Nervous System § 22 (9th ed. 1985). See Adams and Victor, Principles of Neurology, Ch. 15 (3d ed. 1985). The “grand mal” seizures which Massey suffered are generalized, convulsive seizures which have been traditionally distinguished from localized “petit mal” seizures which do not cause sustained unconsciousness. Brain’s Diseases of the Nervous System § 22; Principles of Neurology, Ch. 15; 1 Kaplan and Sadock, Comprehensive Textbook of Psychiatry § 3 (4th ed. 1985); Bleck, Epilepsy, 33 Disease-a-Month 612, 622-23 (1987). Epilepsy is caused by an “abnormal conversion of the potential energy of the neurones into kinetic energy. Fundamentally, it is a physico-chemical disturbance, and the physico-chemical state of the neurones can be influenced by numerous agencies.” Brain’s Diseases of the Nervous System § 22; See Principles of Neurology Ch. 15, 40. Despite lingering popular beliefs, researchers do not believe epilepsy to be caused by any psychological factors. Almost everyone is potentially epileptic, but most people have a high epileptic threshold under which the provocation causing epilepsy — such as an injury to the head, alcohol abuse, inborn metabolism errors, endocrine disorders, or other factors — must be intense. There is a continuum in the population which at its other end includes over a million people in the United States who are subject to epilepsy with little provocation. See Brain’s Diseases of the Nervous System § 22; Principles of Neurology Ch. 15. There are several different theories of chemical imbalances which might cause certain people to be more susceptible to epilepsy than others; none have been proven as yet. Alcohol is one metabolic factor which is believed to upset neural receptor interactions. Only a few drinks may cause seizures in a person highly susceptible to epilepsy, while habitual abuse may cause epilepsy in a person who would otherwise escape it. See Brain’s Diseases of the Nervous System § 22; Principles of Neurology Ch. 15; 33 Disease-a-Month 612, 661; Comprehensive Textbook of Psychiatry § 3. Some researchers differentiate between seizures caused by alcohol, sometimes called “alcoholic epilepsy,” or “rum fits,” and other types of seizures, and do not label seizures caused by alcohol epileptic. Other researchers, however, consider alcoholic epilepsy to be only one of the many forms of epilepsy, most of which are idiopathic, meaning of unknown cause. See Brain’s Diseases of the Nervous System § 22; Principles of Neurology Ch. 15; Comprehensive Textbook of Psychiatry § 3. Seizures caused by alcoholism are indistinguishable from the seizures of the many different idiopathic epilepsies. Brain’s at 428. Whatever the cause, unless the epilepsy is of the rare type which can be treated by surgery, seizures are usually treated by drugs. One of the drugs most commonly used is phenytoin, which has the trade name of Dilantin. Dilantin is very effective in preventing seizures, but patients discontinuing the drug, especially those who have taken the drug only two or three years, face a high probability of seizures reoccurring. See Brain’s Diseases of the Nervous System § 22; Principles of Neurology Ch. 15; 33 Disease-a-Month 612, 661; Comprehensive Textbook of Psychiatry § 3. There was clear evidence in this case, both expert and eyewitness, that Massey suffered from seizures which are indistinguishable in effect and treatment from other types of epileptic attacks believed to be caused by non-localized provocation. See Brain’s Diseases of the Nervous System § 22; Principles of Neurology Ch. 15. Massey was known to have suffered seizures, and had received medical treatment for his condition. Only two days after the shooting, he was observed by the deputy sheriff to have another seizure. Even if Massey’s seizure defense were to be equated with insanity, and then not allowed because held to be caused by voluntary intoxication, it could still be used to negate the specific intent required to prove first-degree murder. State v. Seely, 212 Kan. at 203. If unconsciousness and insanity were to be completely equated, however, unconsciousness would require notice of a plea of insanity. K.S.A. 22-3219. We hold the defense of unconsciousness by reason of a seizure is hereby recognized and that it should be equated with epilepsy rather than insanity. The next question is whether the evidence in this case is sufficient to require an instruction. The only evidence Massey had a seizure at the time of the shooting is his own testimony. The State of Georgia, in Starr v. State, 134 Ga. App. 149, 213 S.E.2d 531 (1975), equated the defendant’s defense of epileptic seizure with an insanity defense, but found an instruction to the jury on insanity was not required because, although there was evidence the defendant suffered from seizures, the only evidence such a seizure took place at the time of the killing was the defendant’s testimony that she did not remember what happened. 134 Ga. App. at 150. See Corder v. Commonwealth, 278 S.W.2d 77 (Ky. 1955). In California, however, a defendant is entitled to an instruction on the defense of unconsciousness when the only evidence he was unconscious is his own statement he cannot remember what happened. In People v. Wilson, 66 Cal. 2d 749, 59 Cal. Rptr. 156, 427 P.2d 820 (1967), the defendant shot and killed his wife who had filed for a divorce. The defendant testified he could not remember much about the incident. The trial court refused an instruction on unconsciousness but the appellate court found this to be reversible error, saying no matter how incredible the defense theory, a criminal defendant is entitled to have the jury instructed on that theory. 66 Cal. 2d at 762. See People v. Anderson, 63 Cal. 2d 351, 46 Cal. Rptr. 763, 406 P.2d 43 (1965), and People v. Martin, 87 Cal. App. 2d 581, 197 P.2d 379 (1948). This court, in State v. Pettay, 216 Kan. at 556-57, held there was sufficient evidence the defendant was not in the throes of a seizure at the time of the offense to support a conviction for theft. This court’s assumption a “proper instruction” was given in the case indicates an instruction should be given in Kansas on the strength of the defendant’s own testimony. A criminal defendant has the right to have the jury instructed on any theory of defense supported by the evidence. In United States v. Lofton, 776 F.2d 918 (10th Cir. 1985), the defendant’s defense in a homicide case was heat of passion. The trial court instructed on heat of passion in its manslaughter instruction, but did not explain to the jury this was the defendant’s only defense to murder. The court held: “When a criminal defendant has raised a theory of defense, the trial court should refer to that theory and to the testimony bearing on it and submit the issue with an instruction on the applicable law. . . . Arguments and evidence cannot substitute for instructions by the court.” 776 F.2d at 920-21. In State v. Seely, 212 Kan. 195,200-02, the defendant asked the trial court to instruct the jury on the defenses of insanity and involuntary intoxication. This court held such instructions should have been given had there been evidence supporting such defenses. Here Massey did not ask the court for an instruction on unconsciousness. In People v. Sedeno, 10 Cal. 3d 703, 112 Cal. Rptr. 1, 518 P.2d 913 (1974), a defendant charged with first-degree murder argued he had been unconscious when shooting an officer because of a blow to his head, but failed to ask the trial court for an instruction on the defense of unconsciousness. The appellate court nevertheless held “[t]he duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, including self-defense and unconsciousness, and on the relationship of these defenses to the elements of the charged offense.” 10 Cal. 3d at 716. The court further noted the duty to give such instructions arose only when it was apparent the defendant was relying on such a defense, or if there was substantial evidence and the defense was not inconsistent with the defendant’s arguments. In State v. Smith, 161 Kan. 230, 167 P.2d 594 (1946), the defendant in a homicide case did not ask the trial court for a self-defense instruction. This court held such an instruction should nevertheless have been given, as there was evidence warranting such an instruction. Smith, however, was decided prior to the enactment of K.S.A. 22-3414(3). Because Massey did not object to the trial court’s omission of an unconsciousness instruction, he now has the burden of proving such an omission was clearly erroneous. The omission is clearly erroneous only if this court is convinced the jury might have found Massey not guilty of first-degree murder if the trial court had instructed on unconsciousness. See State v. Houck, 240 Kan. 130, 139, 727 P.2d 460 (1986). We hold the failure to give an instruction on unconsciousness was clearly erroneous. This is not to say the uncorroborated testimony of a defendant in a criminal case that he was unconscious by reason of a seizure at the time of the commission of an alleged crime is sufficient to require an instruction on unconsciousness. But, corroboration such as present in this case is sufficient to require an instruction thereon to the jury. The next issue is whether the trial court erred in failing to give PIK Crim. 2d 68.09. The trial court instructed the jury according to PIK Crim. 2d 56.03: “If you cannot agree that the defendant is guilty of murder in the first degree, you should then consider the lesser included offense of murder in the second degree.” Massey argues the trial court should have added PIK Crim. 2d 68.09. This instruction is derived from K.S.A. 21-3109, which states: “When there is a reasonable doubt as to which of two or more degrees of an offense [the defendant] is guilty, [the defendant] may be convicted of the lowest degree only.” In State v. Trujillo, 225 Kan. 320, 323, 590 P.2d 1027 (1979), this court held it was error for a trial court to fail to give PIK Crim. 2d 68.09. Because the defendant did not request the instruction, however, this court found no reversible error under K.S.A. 22-3414(3), as the omission was held not clearly erroneous. We find, as in Trujillo, that it was error to fail to give PIK Crim. 2d 68.09, but the failure was not clearly erroneous and thus not reversible error. The final issue is whether the trial court erred in failing to grant a mistrial when a State’s witness, who was warned of an order in limine, violated that order while giving testimony before the jury. The bedspread which had covered Karen had a hole in it which the police believed to be a bullet hole. The bedspread was taken to the K.B.I. laboratory to determine whether the hole was in fact caused by a bullet, but no tests were performed. Massey therefore moved for an order in limine prohibiting the State’s witnesses from testifying they believed the hole to be a bullet hole. The Court granted the order, and the State warned the testifying detectives they were not allowed to give an opinion on what caused the hole. The matter was important because there were no powder burns surrounding the entrance wound on Karen’s head. One explanation for an absence of powder burns is that the gun was at least two feet away from the victim when it was fired. This would support Massey’s theory of accidental discharge during a seizure. The other explanation for the lack of powder burns is that a barrier was inserted between the gun and the victim’s head. Massey admitted he knew a gun fired at close range would leave powder burns. The State theorized he pulled the bedspread over her head before aiming the gun close to her head. Over the objection of Michael Waite, Massey’s counsel, the trial court allowed the bedspread to be admitted on the understanding the jury would be left to draw its own conclusion about the hole. Frank Kohl, attorney for the State, then asked Detective Bradford: “Q: And, Detective Bradford, were there any type of markings on the bedspread of any kind that you observed? “A: Yes, sir. “Q: Was it tom, tattered? “A: Yes, sir. “Q: And in what way? "A: It appeared to be a bullet hole through the bedspread. “Mr. Waite: If we may approach the bench.” After Massey moved for a mistrial, the court declared it would take the matter under advisement and discuss it during the next break. Kohl continued the examination. Kohl: “And so your testimony about the hole in the blanket is just based upon your speculation, is that correct? “A: Speculation of what I observed. “Q: So you haven’t ran any type of tests, made any type of determination to determine how that hole was made in the blanket? “A: No, sir.” During the next break, the trial court denied Massey’s motion for a mistrial. It found no evidence of intentional misconduct by the State and found the error was not such that would require a mistrial. The trial court also stated: “[I]t was a violation of the spirit of the Court’s order, but it was not a violation of the actual language of the Court’s order on the Motion in Limine.” This referred to the fact the motion was originally directed at Detective Albright, who testified at the preliminary hearing that he believed the holes to be bullet holes, rather than at Detective Bradford. The record does not contain the court’s actual order, although it does contain defense counsel’s motion which requested the State be denied the “use of any testimony by any person concerning their knowledge, belief or conclusion that the holes in the bedspread found at the residence of the victim were in fact bullet holes.” The court further noted that Kohl, in his examination after the violation, was careful to point out to the jury that the detective was only stating an opinion. The trial court did not instruct the jury to disregard the testimony. The court later denied another motion for a mistrial based on a report in the Leavenworth Times that Detective Bradford had testified the hole appeared to be a bullet hole. The court held there was no evidence the jury had disregarded its instructions not to read the newspapers. It also stated the article disclosed no information the jurors had not already heard. The State, in closing arguments, reminded the jurors the lack of powder around Karen’s wound might have been caused by a barrier inserted between her head and the gun. The State went on to say: “There is a blanket that was on the bed, there is a hole in the blanket, and we can’t prove what made that hole in the blanket, all we can do is look at the possibilities. That’s what you can do as members of the jury, look at the possibilities. Is it possible, based upon the evidence, and you will have it all to examine when you go back, that if at the time that the victim was shot, that the blanket was pulled over her head? If it was, the blanket wasn’t there when she was found by the police. And if it was, we have no indication to believe that anyone other than the defendant moved it.” Massey contends the trial court should have granted a mistrial under K.S.A. 22-3423(l)(c), which provides a court may grant a mistrial when prejudicial conduct makes it impossible to proceed without injustice to the defendant. Declaration of a mistrial is a matter entrusted to the trial court’s discretion and the decision will not be set aside on appeal unless abuse of discretion is clearly shown. The defendant has the burden of proving he was substantially prejudiced. State v. Bagby, 231 Kan. 176, 179, 642 P.2d 993 (1982). In State v. Hollis, 240 Kan. 521, 534, 731 P.2d 260 (1987), the defendant moved for a mistrial because prejudicial hearsay was admitted. The court denied the motion, but struck the testimony and ordered the jury to disregard it. This court held this action by the court cured the error and emphasized that the trial court’s “discretion is abused only where no reasonable person would take the view adopted by the court.” In State v. Goodwin, 223 Kan. 257, 573 P.2d 999 (1977), a police officer testified he saw the defendant, who was charged only with aggravated robbery and burglary, while he was looking for a car connected with a possible homicide. This court found the improper answer was not grounds for mistrial. The question itself was proper, and this court realized it is impossible for a trial court to anticipate all possible improper testimony. This court held it must look to the extent the defendant was prejudiced by the improper remark to determine if mistrial was warranted. We find no Kansas cases in which improper testimony was given in violation of an order in limine. However, some jurisdictions hold defiance of an order in limine is not reversible error as long as the trial court instructs the jury to disregard the testimony. Michigan has found instructing the jury to disregard can cause even more prejudice to the defendant, and therefore holds a new trial is necessary regardless of limiting instructions. Texas has held there is no reversible error if the defendant did not object at trial. See Annot., 63 A.L.R.3d 311, § 4. In State v. Quick, 226 Kan. 308, 311, 597 P.2d 1108 (1979), we stated a motion in limine “should be granted only when the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) The mere offer of or statements made during trial concerning the material will tend to prejudice the jury.” This court held such motions should be strictly limited to their purpose of preventing prejudice during trial. See State v. Stellwagen, 232 Kan. 744, 748, 659 P.2d 167 (1983). We conclude the violation prejudiced Massey. Thus the question is whether a reasonable person would agree with the trial court’s determination that the facts elicited by the State after the violation made it possible to proceed without substantial injustice to Massey. State v. Hollis, 240 Kan. at 534; State v. Bagby, 231 Kan. at 179. We think not. We hold the State’s failure to obey the order in limine was reversible error and the trial court abused its discretion in failing to grant a mistrial. The judgment of the trial court is reversed and the case is remanded for a new trial. McFarland, J., dissenting.
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The opinion of the court was delivered by Lockett, J.: Plaintiff/appellant Jack Mathis filed a personal injury suit against defendant/appellee TG&Y. Prior to adjudication of the action, plaintiff filed a second suit, arising out of the same set of facts, against other defendants. Plaintiff settled the second suit and it was dismissed with prejudice. TG&Y moved for dismissal of this suit claiming that the dismissal of the second action precluded Mathis from proceeding in this suit. The district court dismissed based on Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981). We disagree with the district court’s application of Albertson and reverse and remand this case for further proceedings. Mathis alleged a loose door closure hit his head as he was leaving a TG&Y store in Wichita, resulting in tinnitus and hearing loss. Mathis sued TG&Y in Case No. 85-C-1451 on May 1, 1985. In response to interrogatories, TG&Y stated that it intended to compare the negligence of Jacobs Construction Co., Inc., (its landlord) and Hopper’s Mirror & Glass, Inc., who had done repair work on the doors. Mathis amended his petition in February, adding these two companies as defendants and also G. & J. Investments, Inc., the original landlord. This suit will be designated the “original suit” for purposes of this opinion. Later, after discovering that the actual landlord was Vernon Jacobs personally, and that Jacobs had hired Cheney Door Company, Inc., to maintain the doors, Mathis filed a separate suit, 86-C-1466, against those two parties on April 28, 1986, alleging the same facts and injuries. TG&Y never became a party in the second suit. On June 6, 1986, defendants G. & J. Investments, Inc., Jacobs Construction Co., Inc., and Hopper’s Mirror & Glass, Inc., were dismissed without prejudice from the original suit. On September 10, 1986, defendant Cheney Door Company, Inc., was dismissed with prejudice from the second suit. Later, on September 18, 1986, the remaining defendant in the action, Vernon Jacobs, was dismissed. The dismissal order stated the claim had been settled between Jacobs and Mathis. Recause of the dismissal of the second suit, there was no judicial adjudication of comparative fault of the defendants. In the original action, the remaining defendant, TG&Y, rather than joining the other parties to compare their fault, moved to dismiss based on the principles of comparative negligence stated in Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, and Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985). The journal entry granting TG&Y’s motion to dismiss stated: “The court finds that as a matter of law and pursuant to Albertson v. Volkswagen, and the other oases cited by defendants, plaintiff has split his cause of action, violated the comparative fault doctrine, and that his case against T. G. & Y. should be dismissed.” The plaintiff appealed. The appeal was transferred to this court on our order pursuant to K.S.A. 20-3018(c). The legislature’s purpose in passing K.S.A. 60-258a was twofold: (1) to abolish contributory negligence as a bar to recovery and (2) to provide for the awarding of damages on the basis of comparative negligence. Prior to the enactment of 60-258a, when a plaintiff obtained a judgment against two or more tortfeasors, contribution between the tortfeasors was authorized by K.S.A. 60-2413(b). A plaintiff could choose his defendant and a defendant had no right to bring other tortfeasors into the plaintiff s action. If a plaintiff sued and recovered a judgment against two tortfeasors, plaintiff could proceed to collect all or part of the judgment from either judgment debtor. Each defendant was jointly and severally liable for all of the plaintiff s damages regardless of whether others contributed to cause such injuries. When one judgment debtor had satisfied the entire judgment, that debtor could then recover one half of the amount paid from the other judgment debtor. After the passage of 60-258a, recovery and duty to pay the injured party became based on the degree of fault of each tortfeasor. The individual liability of each defendant for the payment of damages is computed based on each defendant’s proportionate fault; therefore, contribution among joint tortfeasors is no longer possible. To obtain a judgment against each of the tortfeasors, it is now necessary for a plaintiff to join all tortfeasors in one action. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). K.S.A. 60-258a allows all possible parties to be brought into a single lawsuit, to fully and finally litigate all issues and liability arising out of a single occurrence, and to apportion the amount of total damages among those parties against whom negligence is attributable in proportion to the party’s degree of fault. All who are named as parties and who are properly served with summonses are bound by the adjudication of the percentage of causal negligence. Because each party has a right to cross-claim against any or all other parties to the lawsuit, any party who fails to assert a claim against any other party in a comparative negligence action is forever barred. A corollary rule naturally follows that a person who is not made a party to a comparative negligence case is not bound by the judgment, even if the person’s causal negligence may have been determined. Eurich v. Alkire, 224 Kan. 236, 579 P.2d 1207 (1978). Albertson and Teepak were decided subsequent to Brown and Eurich. In Albertson, the plaintiff was injured in a two-car accident. He sued the driver of the other car in state court. The jury determined the plaintiff to be 40 percent at fault and the defendant 60 percent at fault. Albertson recovered 60 percent of his damages from the other driver. Albertson could have sued the manufacturer in the state action, but chose not to for tactical reasons. Albertson then attempted to sue the manufacturer of his automobile in federal court, claiming his injuries were enhanced and increased by design defects of the automobile. The federal court certified the following question to the Kansas Supreme Court: “Having once obtained a satisfied judgment for a portion of his injuries in a comparative negligence action, may a plaintiff bring an action to recover damages for the remaining portion of his injuries against a defendant not a party to the first action, such second action being based on strict liability in tort?” Albertson, 230 Kan. at 369. The Albertson court reviewed the comparative negligence statute and noted that the comparative negligence act does not require all potentially liable parties to be joined in the same action. The joinder provision of 60-258a(c) states: “On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action.” The court found that this section applied only to joinder of defendants and was permissive. 230 Kan. at 370-71. The court noted that all parties to an injury must have their fault determined in one action, and those not joined in the action may not be sued in a second suit. 230 Kan. at 374. It must be recognized that Albertson involved a second suit brought against a known defendant who could have been joined and subjected to the judgment in the original state action. Because Albertson’s injuries were alleged to have been caused by a combination of the collision and the lack of crashworthiness of his vehicle, the causal negligence of both the driver of the other car and the manufacturer of Albertson’s automobile had to be determined in one action. Albertson does not apply to the facts in this case. Mathis’s second suit was never adjudicated; therefore, there was never a determination of the fault of those defendants. Because Mathis settled with or dismissed with prejudice the defendants in the second suit, they were no longer responsible to the plaintiff. However, their percentage of fault could have been determined in the original suit whether or not they were parties to that action. Teepak, Inc. v. Learned, 237 Kan. 320, relied upon by TG&Y, is also distinguishable. In Teepak, the plaintiff filed a personal injury suit against two corporations for injuries suffered after ingestion of a sausage casing. One of the corporations, Teepak, filed a third-party complaint against Learned, the treating physician, seeking “indemnity or subrogation.” After the defendant corporations settled with the plaintiff, the case was dismissed. Teepak, a defendant who had settled with the plaintiff, then sought post-settlement contribution from the physician in a separate action. The Teepak court held that under K.S.A. 60-258a, Teepak could have determined the physician’s proportionate fault if the original action had been adjudicated rather than settled. Once the fault had been apportioned by adjudication, Teepak would be legally responsible only for its proportionate share of the judgment. Instead, Teepak settled with the plaintiff and then filed a second suit seeking contribution from a joint tortfeasor. Contribution was a right of sharing of a loss or payment among several parties. One who discharged a common liability had the right to recover from the others who shared the common liability that portion the others ought to bear or pay. By the adoption of comparative negligence, the individual liability of each defendant for payment of the plaintiff s injuries is based on proportionate fault, and contribution among joint tortfeasors is no longer allowed. Teepak, a defendant, who chose to settle rather than adjudicate the physician’s negligence, purchased its peace, and, under comparative negligence, was precluded from obtaining contribution from the other defendants. The legislature in adopting K.S.A. 60-258a imposed individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault. Brown v. Keill, 224 Kan. at 207. It was the intent of the legislature to fully and finally litigate in a single action all causes of actions and claims for damages arising out of any act of negligence. Eurich v. Alkire, 224 Kan. 236-37. After an adjudication of comparative fault, no party should be afforded a second opportunity to litigate percentages of causal negligence. K.S.A. 60-258a certainly contemplates one action in which comparative fault is determined. However, it was never the intent of the legislature or this court to place form over substance and preclude a plaintiff from proceeding against a tortfeasor when there has been no judicial determination of comparative fault. Mathis has been denied his action. TG&Y is not prejudiced by allowing the suit to proceed. It may join other defendants for the purpose of comparing negligence at the trial. Reversed and remanded for further proceedings.
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The opinion of the court was delivered by McFarland, J.: Williams Telecommunications Company (WilTel) filed an eminent domain proceeding against appellants Gragg, and others, seeking a right-of-way for the installation of a fiber-optic telephone cable. Appellants Gragg filed an action challenging the right of WilTel to the power of eminent domain and seeking a determination that Williams Pipeline Company (WPL) had abandoned its pipeline on appellants’ property. The actions were consolidated for trial. The district court held adversely to the Graggs and they appeal. ABANDONMENT BY WPL The district court held that WPL had not abandoned its pipeline and pipeline right-of-way. The scope of appellate review is clear. Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Moore v. R. Z. Sims Chevrolet-Subaru, Inc., 241 Kan. 542, Syl. ¶ 3, 738 P.2d 852 (1987); Friedman v. Alliance Ins. Co., 240 Kan. 229, Syl. ¶ 4, 729 P.2d 1160 (1986). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. ¶ 2, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984). Stated in another way, “substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 172, 630 P.2d 1131 (1981). A six-inch pipeline was installed across the property in question in 1936 for the transportation of oil and gas. WPL purchased the pipeline in 1983 for the transportation of oil and gas. WPL has never transported petroleum products in the pipeline. Employees of WPL have kept the brush trimmed across the right-of-way and have conducted regular aerial patrol thereof. WPL, further, continues to maintain the cathodic protection to preserve the pipe within the easement, and continues to have low voltage power in each of the pump stations along the pipeline to keep space heaters connected within the equipment and the prime movers to avoid damage. In 1986, WPL and its subsidiary WilTel entered into an agreement whereby WilTel would lease the pipeline from WPL for the purpose of running a fiber-optic telecommunications cable through it. The lease provides, inter alia, that during the first 15 years of the contract, if WPL desires to use the pipeline for the transportation of products, WilTel must either remove its fiber-optic cable from the pipe or reimburse WPL for the cost of constructing a new segment of its pipeline system to replace that being used by WilTel. After 15 years, if WPL desires to use the pipeline system, WilTel must remove the fiber-optic cable from the pipe. It is well settled in Kansas that an easement is not abandoned by mere nonuse. See Edgerton v. McMullan, 55 Kan. 90, 92, 39 Pac. 1021 (1895). We reviewed the law regarding abandonment in Botkin v. Kickapoo, Inc., 211 Kan. 107, 109-10, 505 P.2d 749 (1973), wherein we said: “Generally, abandonment is the act of intentionally relinquishing a known right absolutely and without reference to any particular person or for any particular purpose. Abandoned property is that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting it in any other person and with the intention of not reclaiming future possession or resuming its ownership, possession or enjoyment. In order to establish an abandonment of property, actual relinquishment accompanied by intention to abandon must be shown. The primary elements are the intention to abandon and the external act by which that intention is carried into effect. Although an abandonment may arise from a single act or from a series of acts the intent to abandon and the act of abandonment must conjoin and operate together, or in the very nature of things there can be no abandonment. The intention to abandon is considered the first and paramount inquiry, and actual intent to abandon must be shown; it is not enough that the owner’s acts give reasonable cause to others to believe that the property has been abandoned. Mere relinquishment of the possession of a thing is not an abandonment in a legal sense, for such an act is not wholly inconsistent with the idea of continuing ownership; the act of abandonment must be an overt act or some failure to act which carries the implication that the owner neither claims nor retains any interest in the subject matter of the abandonment. It is not necessary to prove intention to abandon by express declarations or by other direct evidence; intent to abandon property or rights in property is to be determined from all the surrounding facts and circumstances. It may be inferred from the acts and conduct of the owner and from the nature and situation of the property. Mere nonuse of property, lapse of time without claiming or using property, or the temporary absence of the owner, unaccompanied by any other evidence showing intention, generally are not enough to constitute an abandonment.” Applying the standards set forth in Botkin to the facts relative to WPL’s action in regard to the pipeline since its 1983 acquisition, all as previously set forth herein, it is clear that there is substantial competent evidence supporting the district court’s determination that WPL has not abandoned the pipeline or its right-of-way. WILTEL’S RIGHT TO EMINENT DOMAIN K.S.A. 17-618 grants the power of eminent domain to telephone corporations desiring to “transmit . . . communications ... by electrical current.” Appellants contend that transmission of communications by a fiber-optic cable is not the transmission of communications by electrical current since light rather than electricity passes through the cable. Fiber-optics is a technology which uses glass wire to transmit simultaneously thousands of conversations from point A to point B without mix-up. Fiber-optic technology may not use electric current to transmit its communications but it does use electric energy to convert electric communications signals into light energy which travels through the fiber-optic cable, and electricity is used to reconvert the light energy into a signal for delivery to the telephone at the other end of the system. WilTel showed that without the electric energy necessary to convert the electric communications signal into a transmissible light beam and reconvert the signal at the other end, a fiber-optic communications system would not function. The evidence showed that the use of electricity through copper wires is on the wane in the industry and that long-distance communication is accomplished now primarily through radio frequency waves, satellite or crystal microwave, or by fiber-optics. The controlling statute, K.S.A. 17-618, grants the power of eminent domain to “transmit . . . communications by . . . electrical current . . . .” WilTel offers a persuasive argument in the interpretation of this phrase, as follows: “Appellants urge that the only thing the Legislature could have intended by this language is that electrical current must flow through the cable. However, that is not what the statute says; the Legislature chose language which is not so narrow and restrictive in meaning and which anticipates technological advances. The key word in the phrase ‘transmit communication by electrical current’ is the word ‘by’. Webster’s New Collegiate Dictionary defines the word ‘by’ as ‘through the agency or instrumentality of; Rogefl s Thesaurus lists ‘by means of, ‘with the aid of, and ‘using’ as synonomous with the word ‘by’. Thus, the phrase in question includes by definition any of the following meanings: “1. ‘Transmit communication through the agency of electrical current.’ “2. ‘Transmit communication through the instrumentality of electrical current.’ “3. ‘Transmit communication by means of electrical current.’ “4. ‘Transmit communication with the aid of electrical current.’ “5. ‘Transmit communication using electrical current.’ “Applying any of the above definitions or synonyms, it is apparent that the fiber-optic system transmits communications by electrical current, as intended by the statute. One cannot transmit light through a fiber-optic cable without a light source. One cannot turn on the light source without an energy source. The energy source is an electric current. The fiber-optic telephone system simply will not work without electric current; when it does work, it works by electric current.” That this interpretation of the statute should be accepted by this court is further supported by K.S.A. 66-104, which defines the term “transmission of telephone messages” to include: “the transmission by wire or other means of any voice, data, signals or facsimile communications, including all such communications now in existence or as may be developed in the future.” We conclude the district court did not err in holding that the transmission of communications through the fiber-optic technology herein is the transmission of communications by electrical current within the purview of K.S.A. 17-618. Next, appellants challenge the district court’s determination that WilTel is a telephone corporation within the purview of K.S.A. 17-618. “Telephone corporation” is not defined in K.S.A. 17-618 nor in the other statutes granting the power of eminent domain to telephone and telegraph corporations (K.S.A. 17-1901 et seq.). There was no need to define telephone corporation or telephone company when these statutes were enacted. Each particular area was served by one “full service” telephone company which provided services by stringing wires to connect a particular structure to the system. Through federal regulation, an independent telephone company, providing service to its designated area, had access to the one and only long-distance network. Times have radically changed the telephone system. Whether the bottom line results in progress or retrogression remains to be seen and is beyond the scope of this opinion. In any event, federal deregulation policies, the breakup of AT&T, and the advent of multiple new technologies have forever altered traditional ideas of telephone services and corporations. The appellants recognize these changes in their brief and argue that this court should somehow break providers of telephone communication services into subclassifications and exclude whatever classification WilTel would fit into from a telephone corporation’s statutory right of eminent domain. We recognize that the present rather chaotic state of the industry might result in abuses in the exercise of the right of eminent domain. For instance, there is nothing in the statutes to preclude a competitor of WilTel’s from burdening the same property herein with a second right-of-way for its cable. However, there is nothing in the statutes now precluding multiple rights-of-way on the same property for more than one highway or pipeline. If the authority of telephone corporations to exercise the power of eminent domain is to be restricted to certain classes or categories of telephone corporations, this is a matter for the legislature to determine. At present, the Federal Communications Commission regulates operations such as WilTel to lesser degrees than it does what it classifies as “dominant” carriers, but considerable regulation still exists. In their brief, appellants emphasize the fact that WilTel does not have a Kansas certificate of convenience. Since the filing of appellants’ brief, a subsidiary of WilTel, Wiltel Network, Inc., has been issued a certificate of convenience as a “reseller of telecommunication services” and, hence, a public utility. The fiber-optic cable through the pipeline in question (already in place through agreement of the parties) carries communications for customers of WilTel. Space is leased to those who have need of WilTel’s services. Cost and other factors virtually preclude direct services to residential users of telephone services but such companies as MCI or Sprint could purchase usage of the WilTel fiber-optic cable. If such occurs, the residential customers of Sprint or MCI could be using the services of WilTel in making long-distance telephone calls. It should be emphasized that the telephone operation herein is not just “in house” transmission of business communications from one branch of a corporation to another. WilTel’s business is the transmission of communications — a service available to any who have need thereof and can afford the cost. There is nothing in K.S.A. 17-618 that restricts the power of eminent domain to telephone corpo rations contracting directly with residential customers for telephone services. We conclude the district court did not err in finding that WilTel was a telephone corporation within the purview of K.S.A. 17-618. Finally, appellants argue that the taking of the right-of-way herein is not for a public purpose. WilTel’s operation is defined as that of an interexchange carrier, providing interstate private line service. The federally engendered breakup of AT&T which has spawned independent companies such as WilTel was deemed to be an act in the public interest. Presumably, the public is to be better served by competition which lets the marketplace determine the quality and cost of telephone service. WilTel is competing in its area of service. There has never been a requirement for eminent domain purposes that the taking directly benefit a sizeable and identifiable segment of the public. Pipelines carrying gas and petroleum products are a good example of this. In Mustang Fuel Corp. v. Board of County Com’rs, 527 P.2d 838 (Okla. 1974), and Ohio Oil Co. v. Fowler, 232 Miss. 694, 100 So. 2d 128 (1956), pipelines serving only single customers (public utilities) were held to be for public purposes. Other state courts have likewise found a public use to exist in analogous situations. See United Power Ass’n v. Mund, 267 N.W.2d 825, 828-29 (N.D. 1978) (construction of transmission line from project to serve electric requirements of one customer involved public use where state public utilities commission required project to meet state’s emergency electricity needs and where customer sold its product to others); Square Butte Elec. Coop. v. Hilken, 244 N.W.2d 519 (N.D. 1976) (construction of transmission line to serve out-of-state customers involves a public use where line will meet in-state emergency power needs and increase reliability of state’s electric supply system); Williams v. Hyrum Gibbons & Sons, 602 P.2d 684, 687 (Utah 1979) (construction of receiver/transmission station for mobile telephone and radio paging devices involved public use where company interconnected with existing telephone systems); Dyer v. Texas Elec. Service Co., 680 S.W.2d 883, 885 (Tex. 1984) (electric line built to serve one customer was for public use because it enhanced oil production by customer). The fiber-optic cable in the pipeline under appellants’ property will be a part of an interstate system which already has the capability of transmitting communications among such cities as Kansas City, Minneapolis, and Chicago. This operational system already serves some 500 customers. The cities of Topeka and Wichita, in Kansas, will be part of WilTel’s system, and services will be added for some major cities located to the west of Kansas. The issuance of a certificate of convenience as a public utility by the Kansas Corporation Commission to WilTel’s wholly owned subsidiary, Wiltel Network, Inc., for its business as a reseller of telecommunication services, is indicative of the public nature of the services involved. Taken in the broadest sense, WilTel’s business as an interexchange carrier provides an alternate and additional method of transmission of telecommunications which provides service to the public and might be of greater value to the public in the event of some future emergency situation which restricts or eliminates usage of other methods or systems of telecommunications. Reliable high-speed transmission of telecommunications is more than a convenience to our modern society — it is essential to the transaction of public and private business including national defense. We must conclude that the taking herein is for a public purpose. Before concluding, as a note of explanation, it should be stated that the additional taking of a right-of-way was necessary as: (1) the intended usage was for purposes other than the original usage of transportation of petroleum products, and (2) a greater burden is being placed on the property for the fiber-optics usage than for the oil pipeline usage. The judgment is affirmed.
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The opinion of the court was delivered by Lockett, J.: Plaintiff, Phyllis Head, a Kansas resident, filed a personal injury action against Platte County, Missouri, and Tom Thomas, Sheriff of Platte County, alleging negligence in the the arrest and false imprisonment of the plaintiff in Kansas. Specifically, plaintiff alleged that employees of Platte County negligently prepared the arrest warrant in Missouri. The Kansas district court, applying Missouri sovereign immunity law, granted defendants’ motion for summary judgment. Plaintiff appeals. We reverse and remand for further proceedings, determining that when agents of a sister state or its subdivision enter this state, neither the public policy of Kansas nor principles of judicial comity require us to recognize the sister state’s attributes of sovereign immunity. State v. Holcomb, 85 Kan. 178, 116 Pac. 251 (1911). Plaintiff is a resident of Overland Park, Kansas. Platte County, Missouri, is a political subdivision of the State of Missouri. Tom Thomas, Sheriff of Platte County, is a resident of Platte County, Missouri. On May 2, 1984, Mr. Harry House of Parkville, a Missouri merchant, completed a bad check complaint form and presented it to the prosecuting attorney of Platte County, Missouri. On the form, Mr. House provided the following description of the suspect: Name: Phyllis Marshall, d/b/a/ Empire Marketing Address: Unknown Date of Birth: Unknown Driver’s license number: Unknown Sex: Female Race: White Physical description: Overweight, bleached blond hair, capped teeth Suspect’s vehicle: 1983 Dodge convertible Other information as to whereabouts of suspect: 5705 Metcalf, Shawnee Mission, Kansas. The Office of the Prosecuting Attorney for Platte County, Missouri, received and reviewed the information provided by Mr. House. Determining that there was probable cause, a complaint was prepared for a state warrant, then forwarded to a circuit judge who determined there was probable cause to issue an arrest warrant for a Phyllis Marshall. On May 4, 1984, the Platte County Sheriff s Department received from the Office of the Deputy Circuit Clerk of Platte County, Missouri, a warrant for the arrest of a Phyllis Marshall and another document entitled “Information for Platte County Sheriff s Department” which had been prepared by an unidentified employee of the office of the Deputy Circuit Clerk of Platte County, Missouri. That document contained some of the information provided by Mr. House and also added the suspect’s date of birth as 1-10-58 and her alternate residence as 7806 Aberdeen, Prairie Village, Kansas. The additional facts in the information sheet corresponded to the date of birth and former residence of the plaintiff. Subsequently, the warrant was forwarded to Kansas and law enforcement officials in Prairie Village, Kansas, attempted to execute the warrant at 7806 Aberdeen. They were informed that this was the former address of Phyllis Marshall, that she had married and now was Phyllis Head, and resided at 12647 West 105th Street, Overland Park, Kansas. The Prairie Village dis patcher contacted the Overland Park Police Department and requested them to serve the warrant on “Phyllis Marshall a/k/a Phyllis Head, 12647 West 105th Street, white female, d/o/b 1-10-58, height 5'7", weight 120 pounds, brown hair, and green eyes.” That description matched the plaintiff, but not the suspect described in the original complaint. The source of the second description is not clear. Overland Park police officers arrested Phyllis Head at her home. Mrs. Head denied that she was the person who had written the check. The warrant was confirmed by the Platte County Sheriffs Department. Mrs. Head’s husband was required to come home from work to take care of their baby and Phyllis Head was handcuffed and transported to the Overland Park jail where she was booked, held, and eventually released. The following day, plaintiff and Mr. House met. House immediately informed the Platte County prosecutor’s office that the wrong woman had been arrested. Head filed suit in Johnson County, Kansas, against Platte County, Missouri; the Sheriff of Platte County; the prosecuting attorney of Platte County; and the City of Overland Park. (The latter two parties were dismissed and are not involved in this appeal.) Head alleged that defendants negligently failed to adequately train and supervise their employees and failed to establish and implement policies concerning the filing and execution of arrest warrants. Plaintiff contends that she was falsely arrested and imprisoned as a result of the negligent training of employees of Platte County, Missouri, who provided the false identifiers to Kansas law enforcement officials. The defendants filed a motion for summary judgment. At the hearing on the motion, defendants contended they were immune from suit pursuant to Missouri sovereign immunity law. Mo. Rev. Stat. § 537.600 (1978). The district court first determined that it had personal jurisdiction of the parties. The district court then ruled, “As a matter of sound public policy, governmental agencies ought to be able to rely upon their State’s laws on immunity in order to adequately insure against alleged wrongful acts on the part of those agencies and its employees,” and granted the motion for summary judgment. Plaintiff appeals, contending Missouri sovereign immunity law does not apply to tortious injuries occurring in Kansas. The issue of whether another state’s sovereign immunity law applies in Kansas is an issue of first impression. However, in State v. Holcomb, 85 Kan. 178, this court recognized that when a sister state engages in activities in Kansas, it does not exercise sovereign power over the citizens of this state. In Holcomb, the City of Kansas City, Missouri, claimed a right to exemption from Kansas taxation of a water plant owned by that city and situated in Wyandotte County, Kansas. Kansas had laws making itself, political subdivisions, and the federal government exempt from taxation. Kansas City, Missouri, claimed it was entitled to the same consideration, since it was also a sovereign. In rejecting this argument, the Holcomb court observed that “[a] state is sovereign only within its own boundaries and its laws have no extraterritorial force.” 85 Kan. at 181. It also held that when a state or any of its municipalities comes within the boundaries of another state, it does not carry with it any of the attributes of sovereignty, and it is subject to the laws of such other state the same as any other proprietor. 85 Kan. at 184-85. Holcomb was relied upon by the California Supreme Court in Hall v. University of Nevada, 8 Cal. 3d 522, 105 Cal. Rptr. 355, 503 P.2d 1363 (1972), cert. denied 414 U.S. 820 (1973). In Hall, California plaintiffs brought a negligence action in a California state court against the University of Nevada and the State of Nevada for injuries sustained when an automobile operated by defendants’ agent caused an accident in California. Service was made pursuant to a California statute providing a method for service over nonresidents who had operated motor vehicles in the state. The Superior Court of the City and County of San Francisco entered an order quashing service of summons on the basis of Nevada’s sovereign immunity. The Supreme Court of California, relying on Holcomb, reversed and remanded the case for trial, concluding that “[w]hen the sister state enters into activities in this state, it is not exercising sovereign power over the citizens of this state and is not entitled to the benefits of the sovereign immunity doctrine as to those activities unless this state has conferred immunity by law or as a matter of comity.” 8 Cal. 3d at 524. The United States Supreme Court denied certiorari, 414 U.S. 820 (1973). On remand, Nevada filed a pretrial motion to limit the amount of damages pursuant to a Nevada statute which placed a limit of $25,000 on any award in a tort action against the State pursuant to its statutory waiver of sovereign immunity, arguing that the Full Faith and Credit Clause of the United States Constitution required enforcement of the Nevada statute by the California courts. This motion was denied, the case went to trial, and plaintiffs were awarded damages of $1,150,000. The California Court of Appeal affirmed the trial court. Hall v. University of Nevada, 74 Cal. App. 3d 280, 141 Cal. Rptr. 439 (1977). After the California Supreme Court denied review, the United States Supreme Court granted certiorari, 436 U.S. 925 (1978), to consider whether a state may enforce its sovereign immunity from suit in the courts of another state. In Nevada v. Hall, 440 U.S. 410, 59 L. Ed. 2d 416, 99 S. Ct. 1182, reh. denied 441 U.S. 917 (1979), in an opinion authored by Justice Stevens, the United States Supreme Court affirmed the California decision, holding that there was no constitutional bar to California’s assertion of jurisdiction over Nevada. The Court reasoned that nothing in Art. Ill authorizing the judicial power of the United States or in the Eleventh Amendment limitation on that power provided any basis to limit the judicial powers that California had exercised. More significantly, the Court held that the full faith and credit clause of the United States Constitution (Art. IV, § 1) does not require a state to apply another state’s law in violation of its own legitimate public policy. 440 U.S. at 422. In Hall, California had provided by statute for jurisdiction in its courts over residents and nonresidents alike to allow those negligently injured on its highways to secure full compensation for their injuries in California courts. The United States Supreme Court held that full faith and credit did not require California to abandon this public policy by surrendering jurisdiction to Nevada or limiting respondents’ recovery to the $25,000 Nevada statutory maximum. The Court recognized that certain constitutional provisions may place limitations upon the sovereignty of the states. However, the Court concluded that such provisions do not imply that any one state’s immunity from suit in the courts of another state is anything more than a matter of comity, and, further, that nothing in the Constitution authorized or obligated the Court to frustrate California’s policy of fully compensating those negligently injured on its highways. 440 U.S. at 425-26. By holding in Nevada v. Hall that nothing in the Constitution requires one state to apply a sister state’s sovereign immunity in tort suits against the sister state, the United States Supreme Court left Kansas free to recognize Missouri’s sovereign immunity as a matter of Kansas public policy. In the case at bar, the district court held that Kansas public policy favored the application of Missouri sovereign immunity to defendants. We disagree. Our decision in Holcomb firmly established that a sister state has no right to exercise its sovereign immunity within the borders of this state. Further, it has long been the public policy of Kansas to compensate its citizens and those within its borders for injuries occurring in Kansas which result from negligent acts outside of this state. This policy can be determined by the state’s statutes governing the liability of residents, nonresidents, and Kansas governmental entities for tortious acts that injure an individual in this state. The statutory policy is stated by (1) K.S.A. 60-308(b)(2), which allows a plaintiff to bring suit in Kansas to recover damages for injuries occurring in this state which resulted from negligent conduct outside Kansas, and (2) the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., which holds Kansas governmental entities liable for damages caused by their employees’ acts or omissions within this state subject to specified exceptions. Following Nevada v. Hall, we are also free to recognize Missouri sovereign immunity as a matter of comity. Judicial comity is a principle by which the courts of one state or jurisdiction give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect. In re Miller, 228 Kan. 606, Syl. ¶ 3,620 P.2d 800 (1980). Comity is not binding on the forum state, but is a courtesy extended to another state out of convenience and expediency. Philadelphia v. Austin, 86 N.J. 55, 64, 429 A.2d 568 (1981). We believe that, when considering comity, Kansas courts should give primary regard to the rights of its own citizens and persons who are within the protection of this state. To hold that Missouri could not be sued in Kansas would result in granting greater immunity to our sister state than the immunity which our citizens through the legislature have bestowed upon our state government. If Missouri has sovereign immunity within our borders, a Kansas resident would be denied all recovery for injury caused by Missouri agents in this state, even though if agents of the State of Kansas had committed the same act, recovery could be permitted under our Tort Claims Act. No state should give effect to the law of another on principles of comity when the effect would be deleterious to the public policy of the forum state. We hold that the public policy of this state is that a sister state is sovereign only within its own boundaries, and its immunity laws have no extraterritorial force. Since the other issues raised by the parties were not determined by the trial court, they will not be considered for the first time on appeal. Reversed and remanded for further proceedings.
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The opinion of the court was delivered by Herd, J.: The Federal Deposit Insurance Corporation (FDIC) filed an action to enforce a guaranty contract against G. R. Addleman. The district court of Decatur County granted the FDIC’s motion for summary judgment and found Addleman liable on the guaranty. The district court held a guarantor under a written guaranty of debt to a failed bank may not assert an oral accord and satisfaction as a defense to liability when the FDIC has acquired the guaranty pursuant to 12 U.S.C. § 1823 (1982). Addleman appeals. Addleman was a co-owner of Great Plains Office Supply, Inc., a business located in Oberlin, Kansas. On September 22, 1981, Addleman executed a written guaranty in favor of the Decatur County National Bank (DCNB), to the limit of $15,000, guaranteeing the indebtedness of Great Plains Office Supply, Inc. In January of 1983, Addleman sold his interest in the company to other individuals. DCNB was not party to the stock purchase agreement or to the addendum in which the purchasers agreed Addleman was to be released from all guaranties of the corporation debt. Neither document was part of DCNB’s records. The record shows no consideration running from Addleman to DCNB from the sale of the business. A “Discount Committee Loan Memorandum” dated January 27, 1983, and signed by bank officer Gayle Cook stated: “G. R. Addleman has sold out and the business has been taken over by Wayne Wilcoxson (net worth $141,500.00), Doug McEnterfar (net worth $134,430.00) and Paul Stephens (net worth $940,500.00) — all will be guaranteeing the full loan. Great Plains will need from $50M to $70M — they are enlarging the inventory and putting in a service department. By 2-12-83, they will know exactly what they’ll need and the note will be set up for a 6 month period without payments so that the business will be able to settle down and get established. Also on 2-12-83, a complete list of inventory and accounts receivable will be taken.” The “all” guaranteeing the loan could be read as including Addleman. The memorandum does not state that DCNB releases Addleman from his guaranty. An “Action Memorandum,” a bank record, dated August 5,1985, listed Addleman as being indebted as a guarantor of the business loan in the amount of $15,000. Addleman nonetheless claims he was orally released from his obligation on the note pursuant to an accord and satisfaction with DCNB at the time the business was purchased. On November 21, 1985, DCNB was declared insolvent. Pursuant to the National Bank Act, 12 U.S.C. §§ 191, 192, and 1821(c) (1982), the Comptroller of the Treasury ordered the bank closed, took possession of the bank’s assets and appointed the FDIC as receiver. The FDIC then sold certain assets of DCNB to the assuming bank, the Bank of Oberlin, and purchased the remainder of the assets. 12 U.S.C. § 1823(c)(2). The FDIC claims the guaranty of Addleman as one of the assets purchased. Let us first examine the legal status of the FDIC in bank failure cases. The FDIC, as an insurer of bank deposits, has as one of its primary duties the payment to depositors of a failed bank. Pursuant to 12 U.S.C. § 1823(c), the FDIC is empowered to purchase and collect assets of failed banks in order to minimize loss to the insurance fund. Gunter v. Hutcheson, 674 F.2d 862, 865-66 (11th Cir.), cert. denied 459 U.S. 826 (1982). In D’Oench, Duhme & Co. v. F.D.I.C., 315 U.S. 447, 457-58, 86 L. Ed. 956, 62 S. Ct. 676 (1942), the United States Supreme Court recognized the need to protect the FDIC from agreements between an insolvent bank and debtors which would nullify or reduce the value of an asset purchased by the FDIC. The Court held such “secret agreements” could not be enforced against the FDIC. Congress codified this policy in 12 U.S.C. § 1823(e), which provides: “No agreement which tends to diminish or defeat the right, title or interest of the Corporation in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee and (4) shall have been, continuously, from the time of its execution, an official record of the bank.” This brings us to Addleman’s issue on appeal. He contends the stock purchase agreement and the new purchasers’ subsequent execution of a new note to DCNB constituted an accord and satisfaction which extinguished the guaranty. Addleman relies principally on Federal Deposit Ins. Corp. v. Nemecek, 641 F. Supp. 740 (D. Kan. 1986). Nemecek was a case which also involved DCNB. DCNB originally brought suit against the defendants to recover on a promissory note secured by real estate. Later, the bank and the defendants agreed to a settlement whereby the bank would accept quitclaim deeds for the mortgaged property in lieu of foreclosure. After the FDIC was appointed receiver of the bank, it brought suit on the promissory note. The federal district court held that, before 12 U.S.C. § 1823(e) applies, the FDIC must have acquired the asset from the failed bank, citing F.D.I.C. v. Merchants Nat. Bank of Mobile, 725 F.2d 634 (11th Cir.), cert. denied 469 U.S. 829 (1984). The court found the note was never acquired as an asset by the FDIC because it was extinguished by the accord and satisfaction reached by DCNB and defendants when the quitclaim deeds were delivered to the bank’s attorney prior to the bank’s failure. 641 F. Supp. at 742-43. Let us turn to the law of accord and satisfaction to determine whether Addleman has met its basic requirements. In E F Hutton & Co. v. Heim, 236 Kan. 603, 610-11, 694 P.2d 445 (1985), we stated: “To constitute an accord and satisfaction, there must be an offer in full satisfaction of an obligation, accompanied by such acts and declarations or made under such circumstances that the party to whom the offer is made is bound to understand that if he accepts the offer, it is in full satisfaction of and discharges the original obligation. [Citation omitted.] An accord and satisfaction, as an adjustment of a disagreement as to what is due from one party to another through payment of an agreed amount, must be consummated by a meeting of the minds and accompanied by sufficient consideration.” In the absence of documents or acts directly evidencing a “meeting of the minds” between DCNB and Addleman that the guaranty contract was to be extinguished, there is no accord and satisfaction. Addleman attempts to construct an accord and satisfaction out of the following documents: (1) the stock purchase agreement and addendum relieving Addleman of liability; (2) guarantees of the new purchasers to DCNB; (3) the Discount Committee Loan Memorandum previously quoted; (4) guaranty agreements and a security agreement between the new pur chasers and DCNB; and (5) an affidavit executed for use in this litigation by an ex-employee of DCNB, Gayle Cook, who left the bank in November of 1983. In the affidavit, Cook states: “It was the bank’s understanding and agreement that it was necessary, in order to complete the transaction, to release the Addleman guaranty and obtain the Paul Stephens and Douglas R. McEnterfar guaranties. . . . We therefore proceeded to cancel and not rely on the G. R. Addleman guaranty as an asset of the bank upon receipt of guaranties of the new owners . . . .” Addleman fails to include the bank record of August 1985 which lists Addleman as a guarantor for the loan in the amount of $15,000 to Great Plains. Addleman also fails to address the significant distinction between Nemecek and this case. In Nemecek, DCNB was continually a party to the agreement; here, it was not a party to the stock transfer agreement. We thus hold there is no competent evidence of a meeting of the minds to find the guaranty was extinguished by accord and satisfaction. Addleman placed the guaranty in DCNB’s records and it was his duty to recover possession of the guaranty, if it was no longer valid, to prevent reliance upon it by the FDIC or other third parties. Because we find the guaranty was not extinguished by accord and satisfaction and was thus an asset purchased by the FDIC, we must next consider whether Cook’s affidavit meets the controlling requirements of 12 U.S.C. § 1823(e). According to the statute, the agreement must: (1) be in writing; (2) be executed by the failed bank; (3) be reflected in the board of director minutes or certain committee records; and (4) have been from the time of its execution “an official record of the bank.” As recently stated by the United States Supreme Court in Langley v. FDIC, 484 U.S__, 98 L. Ed. 2d 340, 108 S. Ct. 396 (1987), each of these requirements must be strictly met so that bank examiners may rely on the bank’s records in evaluating its assets. “Such evaluations are necessary when a bank is examined for fiscal soundness by state or federal'authorities, see 12 U.S.C. §§ 1817(a)(2), 1820(b), and when the FDIC is deciding whether to liquidate a failed bank, see § 1821(d), or to provide financing for purchase of its assets (and assumption of its liabilities) by another bank, see § 1823(c)(2), (4)(A). The last kind of evaluation, in particular, must be made ‘with great speed, usually overnight, in order to preserve the going concern value of the failed bank and avoid an interruption in banking services.’ Gunter v. Hutcheson, 674 F.2d at 865. Neither the FDIC nor state banking authorities would be able to make reliable evaluations if bank records contained seemingly unqualified notes that are in fact subject to undisclosed conditions. “A second purpose of § 1823(e) is implicit in its requirement that the ‘agreement’ not merely be on file in the bank’s records at the time of an examination, but also have been executed and become a bank record ‘contemporaneously’ with the making of the note and have been approved by officially recorded action of the bank’s board or loan committee. These latter requirements ensure mature consideration of unusual loan transactions by senior bank officials, and prevent fraudulent insertion of new terms, with the collusion of bank employees, when a bank appears headed for failure.” 484 U.S. at__ None of the statutory purposes would be adequately served if Addleman’s position were accepted by this court. In Federal Deposit Ins. Corp. v. P.L.M. Intern., Inc., 834 F.2d 248 (1st Cir. 1987), the federal district court was faced with a similar situation to the case at bar. Defendants sought to avoid liability under a guaranty note by asserting the validity of a release which did not conform to the requirements of 12 U.S.C. § 1823(e). The federal court held that, while nonconforming documents could be considered to determine whether a guaranty contract was void from the outset, they could not be considered when the FDIC sought to enforce a facially valid note and the makers defended solely on the basis of a separate agreement. Here, Addleman similarly seeks to avoid liability by asking us to accept documents which do not conform to the statutory requirements. This we cannot do for the reasons stated in Langley; it would be an invitation to fraud and collusion. We hold the district court did not err in granting summary judgment. Summary judgment is proper when, despite giving the benefit of all inferences from the facts to the party against whom judgment is sought, the district court finds no genuine issue of fact remains. Summary judgment will be sustained by this court when, after reading the record in the light most favorable to the appellant, we, too, find no remaining issue of fact. See Hunt v. Dresie, 241 Kan. 647, 652-53, 740 P.2d 1046 (1987). The judgment of the district court is affirmed.
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The opinion of the court was delivered by Holmes, J.: This is an appeal by the plaintiffs from an order of the district court granting summary judgment in favor of the defendants in an action seeking a declaratory judgment setting aside the certification of the City of Halstead, Kansas, as a second-class city and to enjoin the city officials from taking any action as a second-class city. The appellants are citizens and taxpayers of the City of Halstead (hereafter City or Halstead) in Harvey County and the appellees are the City, several Halstead city officials, and the Governor of Kansas. The underlying facts are not in dispute. As of 1980, U.S. Bureau of the Census records show that the City of Halstead, Kansas, had a population of 1,994. Consequently, Halstead was classified pursuant to Article 12, § 5(b) of the Kansas Constitution and K.S.A. 15-101 et seq., as a city of the third class. For several years, Halstead had been seeking federal assistance to finance construction of a flood control project. In late 1985 or early 1986, city officials were informed that legislation would be introduced in Congress to authorize federal assistance for the project. Because such projects require the recipient to put up 25% of the project cost, city officials were seeking ways to assure federal officials that those funds would be available should the federal flood control construction grant be forthcoming. Federal officials initially imposed a deadline of March 1, 1987, for the City to provide the necessary financial assurances, although that deadline was subsequently either extended or eliminated. One method which could be used to meet the financial obligation for the project was the issuance of bonds pursuant to K.S.A. 12-635 et seq. K.S.A. 12-646 provides that bonds issued under authority of the act are not included in fixing the limit of bonded indebtedness for a second-class city; nor are they included in fixing that limit for third-class cities if the question of the bond issuance has been approved by a vote of the city electors conducted as provided by K.S.A. 1986 Supp. 10-120. Since Halstead was a third-class city, the issuance of bonds required approval by a vote of the electorate. City officials were concerned that time constraints would not permit a vote on a proposed bond issue within the time believed available. Appellants contend the city officials desired to avoid a public vote for fear the bond proposal would be defeated. Sometime prior to June 25, 1986, the Halstead city administrator had received from the division of the budget annual population figures which had been compiled and distributed by the Bureau of the Census. Those figures indicated the city’s population was 2,049 in 1984; 2,049 in 1985; and 2,021 in 1986. Consequently, the city council adopted a resolution on June 25, 1986, directing the city clerk to certify the population as 2,021 and to request the Governor to issue a proclamation declaring Halstead to be a city of the second class. Governor John Carlin issued such a proclamation on July 22, 1986. It appears that the annual figures furnished by the Bureau of the Census are effective as of July 1 of each year. As the Halstead city council took its action on June 25, 1986, it should have used the 1985 figure of 2,049. However, the failure to do so cannot be said to be prejudicial to the appellants. On August 12, 1986, appellants filed this action seeking a declaratory judgment and injunctive relief. They also sought and obtained a temporary restraining order. A motion for summary judgment was filed by defendants and on February 10, 1987, summary judgment was granted in favor of the City and the other defendants. Plaintiffs appealed, and the case was transferred to this court pursuant to K.S.A. 20-3018(c). In Hunt v. Dresie, 241 Kan. 647, 740 P.2d 1046 (1987), we summarized the general rules relative to summary judgment, stating: “Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist. When a motion for summary judgment is filed, a mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial will not justify refusing that party his day in court. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment.” 241 Kan. at 652-53. Although the appellants specify five points on appeal, the controlling issue is whether the City could use current population figures from the Rureau of the Census, rather than the official 1980 census figures, to obtain the status and designation of a second-class city. The official United States census was last compiled in 1980 and that census reflects that the City of Hal-stead had a population of 1,994. However, the Rureau of the Census does distribute interim population figures for counties and incorporated cities which apparently are professional estimates based upon studies of the demographics of each specific area and not upon an actual census. The latest of these population figures reflected a population of 2,021 for Halstead. It was this figure that was used to obtain second-class city status for Halstead. We now turn to the controlling statutes. K.S.A. 14-101 authorizes a change in classification from a third-class city to a second-class city and provides in part: “All cities now organized and acting as cities of the second class, by virtue of the authority of former acts, and all cities hereafter attaining a population of more than two thousand (2,000) and less than fifteen thousand (15,000), shall be governed by the provisions of this act; and whenever any city shall have hereafter attained a population of more than two thousand (2,000), and such facts shall have been duly ascertained and certified by the proper authorities of such city to the governor, the governor shall declare, by public proclamation, such city subject to the provisions of this act.” The statute does not specify how the determination of a population in excess of two thousand is to be made. K.S.A. 1986 Supp. 11-201 provides: “(a) Except as otherwise provided in subsection (b), the most recent population figures available from the United States bureau of the census as certified to the secretary of state by the division of the budget on July 1 of each year shall be used for all purposes in the application of the statutes of this state. Whenever the use of the population figures or the census of the state board of agriculture is referred to or designated by a statute, such reference or designation shall be deemed to mean the population figures certified to the secretary of state pursuant to this section. The city and county population figures certified to the secretary of state pursuant to this section shall be distributed by the division of the budget to the cities and counties of the state and to such other governmental entities as the division deems appropriate and shall be made available by the division upon request of any other person. “The population figures certified to the secretary of state pursuant to this section shall be disposed of in accordance with K.S.A. 75-3501 et seq. “(b) On July 1 of each year, the division of the budget shall distribute to the treasurer of each county a table showing the total population of the county, the total population of the county residing outside the boundaries of any incorporated city and the population of each incorporated city within the county, using the most recent information which is available from the United States bureau of the census and which provides actual or estimated population figures for both cities and counties as of the same date. The county treasurer shall use the table as the basis for apportioning revenue from any countywide retailers’ sales tax pursuant to K.S.A. 12-192 and amendments thereto.” (Emphasis added.) The statute was amended in 1987; however, the amendments are not pertinent to the issues now before the court. K.S.A. 11-202, upon which appellants rely in part, provides: “Any county, city or township may conduct, or contract with the United States bureau of the census to conduct, for local purposes, a census of its inhabitants.” While all parties agree that K.S.A. 1986 Supp. 11-201 is the controlling statute, they do not agree on its interpretation and application to the facts of this case. K.S.A. 1986 Supp. ll-201(a) provides that as a general rule “the most recent population figures available from the United States bureau of the census as certified to the secretary of state by the division of the budget on July 1 of each year shall be used for all purposes . . . .” City and county population figures are to be distributed by the division of the budget to the cities and counties of the state. Subsection (b), added in 1983, provides for use of “the most recent information which is available from the United States bureau of the census and which provides actual or estimated population figures for both cities and counties as of the same date” for purposes of apportioning revenue from any countywide retailers’ sales tax between the city and the county. Appellants argue that there is a “clear distinction” between the types of data from the Bureau of the Census to be used pursuant to subsections (a) and (b) of the statute. They argue that since subsection (b) permits use of “actual or estimated” population figures, subsection (a) by implication requires use of only actual figures from the most recent decennial census, and does not permit use of estimates. Appellants further argue that because K.S.A. 11-202 authorizes cities to conduct their own census or to contract directly with the U. S. Bureau of the Census to do so, the legislature intended to permit use of figures based only upon an actual census. Appellees contend that the wording of ll-201(a) is plain and unambiguous, and that its language indicates that population is to be ascertained from Bureau of the Census figures as certified to the secretary of state by the division of the budget. They argue that 1980 census figures are irrelevant because the statute provides for use of figures supplied annually by the Bureau of the Census. We agree with the appellees. If cities and counties were limited by ll-201(a) to the use of actual census figures from the Bureau of the Census as opposed to the interim population figures from the same source, there would be no reason to require the certification of annual figures each July 1. The construction urged by appellants cannot be reconciled with the language of the statute which requires use of “the most recent population figures available from the United States bureau of the census as certified . . . by the division of the budget on July 1 of each year . . . .” Had the legislature intended to permit use only of decennial census figures, it could easily have so specified in the statute. The language of the statute which clearly envisions annually updated figures would be meaningless under the interpretation urged by appellants. We think it is clear that the periodic population figures issued by the Bureau of the Census and certified by the division of the budget to the secretary of state on July 1 of each year may be used to meet the population requirements of K.S.A. 14-101. We think it is equally clear that K.S.A. 11-202 authorizes alternative methods of determining local population figures and is permissive rather than mandatory. Under that statute and K.S.A. 1986 Supp. ll-201(a), cities have the option of relying upon the annual population figures from the Bureau of the Census, or they may contract directly with the Bureau of the Census to conduct an actual census or they may conduct their own actual census. Each of the three alternatives appears to meet the requirement of K.S.A. 14-101 that a population of more than 2,000 be “duly ascertained” by local authorities in order to obtain a gubernatorial proclamation of second-class city status. Our determination is dispositive of the controlling issues in this case. As indicated earlier, appellants have asserted several other issues which we have carefully considered and find to be without merit. There are no unresolved issues of material fact and the learned trial judge was correct in granting summary judgment in favor of appellees. The judgment is affirmed.
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The opinion of the court was delivered by Herd, J.: This is an appeal from the order of the district court affirming the Basic Proration Order (BPO) of the Kansas Corporation Commission (KCC) pertaining to the Fincham O’Brien-Barby Morrow Gas Field in Meade County. The facts from which this controversy arose are as follows: In October of 1983, appellant Zinke & Trumbo Ltd., drilled and began production of its O’Brien-Barby 1-32 gas well in the center of the NW/4 NW/4 of Section 32, Township 34S, Range 26W, Meade County. It produced 6.8 mmcf per day open flow from the Morrow sand. Zinke proceeded to develop the field by drilling five more successful wells in the area. Appellee Sho-Bar Energy, Inc., obtained a lease on Section 30, Township 34S, Range 26W. It drilled Fincham 1-30 on the SE/4 SE/4 SE/4 of Section 30. This location is 330 feet from Sho-Bar’s south lease line and the same distance from its east lease line. The strategy displayed was to drill as close to Zinke’s 1-32 well as permissible. The strategy was successful. Sho-Bar hit a producing gas well with an open flow rate of 4.5 mmcf per day from the Morrow sand. The Morrow sand at Fincham 1-30 is approximately eleven feet thick. On August 2, 1985, Sho-Bar sandfractured its 1-30 well. Following the fracture treatment, the well’s open flow was increased to 25 mmcf per day, an enhancement of deliverability of over five times its natural flow. The experts agreed the fracture treatment would extend toward the area of least resistance, the center of the reservoir which is on the Zinke lease. Thus, Sho-Bar obtained production from Zinke’s lease. To prevent drainage from its lease on Section 31 to Sho-Bar’s Fincham 1-30 well on Section 30, Zinke drilled its 4-31 well in the NE/4 NE/4 NE/4 of Section 31, Township 34S, Range 26W, a location 330 feet south of Sho-Bar’s lease line. This well has 30 feet of pay in the Morrow sand. Based on standard geological isopach mapping techniques, the thinning rate of the Morrow sand from 30 feet at Zinke’s Fincham 4-31 well to 11 feet at Sho-Bar’s Fincham 1-30 well indicates the Morrow sand pinches out a short distance north of Sho-Bar’s well. The offset well does not compensate for the drainage from Zinke’s leases to Sho-Bar’s lease as had been intended because the exceptional permeability and porosity of the reservoir permits the gas pressure to equalize rapidly when the wells are shut in. Due to market conditions, the wells are shut in often. When the gas pressure equalizes over the entire reservoir, it enhances the production in all the wells tapping the reservoir. Zinke’s O’Brien-Barby 1-32 well, Fincham 4-31 well, and Fincham 1-31 well (located in the SE/4 NW/4 of Section 31, Township 34S, Range 26W) and Sho-Bar’s Fincham 1-30 well all produce from the Morrow sand in what Zinke calls the O’Brien-Barby Reservoir. Zinke has other wells in the field which it claims produce from separate reservoirs. Sho-Bar disagrees. On September 17, 1985, Sho-Bar filed application for an order setting well spacing and determining allowables for the Morrow Formation in the portion of Meade County where its Fincham 1-30 well was located. The application requested 160-acre spacing with proration based on the standard 50/50 formula, allocating 50% of the total pool allowable to the adjusted open flow of each well and 50% based upon the acreage attributed to each well. Zinke challenged the application on the grounds that (1) using the adjusted open flow of the Sho-Bar Fincham 1-30 well ignored the artificially enhanced open flow caused by the sand fracture into the heart of the reservoir located under Zinke’s leases from a perimeter location; (2) the application applied to acreage which had no production from the Morrow Formation; (3) 160-acre spacing would cause economic waste when one well was sufficient to drain 640 acres; (4) the application applied to three separate reservoirs; (5) Sho-Bar’s proposed formula would result in misallocation of reserves by relying on adjusted open flow of wells and failed to consider the extremely high porosity and permeability of the O’Brien-Barby Reservoir and the thickness of Morrow sand underlying the various leases. The KCC issued its BPO for this field on March 21, 1986. It granted Sho-Bar’s application with 160-acre well spacing on the entire area requested and based proration on the standard 50/50 formula on the assumption there was only one reservoir as a common source of supply. Zinke moved for rehearing. The motion was denied and an appeal was perfected to the district court. The district court affirmed the KCC’s order in total. This appeal followed. We reverse and remand as hereinafter set out in detail. Let us first look at the powers of the KCC granted by the legislature. K.S.A. 55-701 et seq. confers jurisdiction upon the KCC to regulate the production of natural gas in Kansas. The KCC is charged with preventing waste and protecting correlative rights when it finds the “orderly development of and production of natural gas from any common source of supply requires the exercise of its jurisdiction.” K.S.A. 1986 Supp. 55-703. See Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 6, 386 P.2d 266 (1963), cert. denied 379 U.S. 131 (1964). “Waste,” in addition to its ordinary meaning, also includes economic waste, underground waste, and surface waste. K.S.A. 55-702. The other arm of the regulatory duty imposed on the KCC with regard to production of natural gas is that of protecting correlative rights. This means the KCC has the duty to see that “each owner or producer in a common source of supply is privileged to produce from that supply only in a manner or amount that will not: “(A) injure the reservoir to the detriment of others; “(B) take an undue proportion of the obtainable oil or gas; “(C) or cause undue drainage between developed leases.” K.A.R. 82-3-101(a)(15) (1986 Supp.). K.S.A. 1986 Supp. 55-703(a) makes specific requirements of the KCC in its regulation of the production of natural gas: “[T]he commission shall regulate the taking of natural gas from any and all common sources of supply within this state in order to prevent the inequitable or unfair taking of natural gas from a common source of supply by any person, firm or corporation and to prevent unreasonable discrimination in favor of any one common source of supply as against another and in favor of or against any producer in any common source of supply. In promulgating rules, regulations and formulas, to attain such results the commission shall give equitable consideration to acreage, pressure, open flow, porosity, permeability and thickness of pay, and such other factors, conditions and circumstances as may exist in the common source of supply under consideration at the time, as may be pertinent.” Let us now turn to the scope of appellate review of orders of an administrative body. Judicial review of this case is governed by the Act for Judicial Review and Civil Enforcement of Agency Actions. K.S.A. 77-601 et seq. The scope of review is set out in K.S.A. 77-621, which provides: “(a) Except to the extent that this act or another statute provides otherwise: “(1) The burden of proving the invalidity of agency action is on the party asserting invalidity; and “(2) the validity of agency action shall be determined in accordance with the standards of judicial review provided in this section, as applied to the agency action at the time it was taken. “(b) The court shall make a separate and distinct ruling on each material issue on which the court’s decision is based. “(c) The court shall grant relief only if it determines any one or more of the following: “(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied; “(2) the agency has acted beyond the jurisdiction conferred by any provision of law; “(3) the agency has not decided an issue requiring resolution; “(4) the agency has erroneously interpreted or applied the law; “(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure; “(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification; “(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or “(8) the agency action is otherwise unreasonable, arbitrary or capricious. “(d) In making the foregoing determinations, due account shall be taken by the court of the rule of harmless error.” In Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 497, 720 P.2d 1063 (1986), we held the Act codified earlier established principles of review. These principles include the rule that an agency’s findings are presumed valid on review. In addition, we held in Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975), that the district court may not set aside an agency order merely because such court would have reached a different conclusion if it had been the trier of fact, but only when the evidence shows the KCC’s determination “is so wide of the mark as to be outside the realm of fair debate.” This would mean the KCC’s action was not supported by substantial competent evidence. K.S.A. 77-621(c)(7). In addition to the foregoing, K.S.A. 77-621(c)(8) provides that agency action may be set aside by us if it “is otherwise unreasonable, arbitrary or capricious.” This also is a codification of the case law. In Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980), we defined “unreasonable” action as action taken with out regard to the benefit or harm to all interested parties. An agency’s action is “arbitrary and capricious” if it is unreasonable or “without foundation in fact.” Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 381, 673 P.2d 1126 (1983). The legislature also provided administrative bodies with an escape clause by providing that after we consider all named reasons for vacating an agency order, we should give “due account” to the harmless error rule. K.S.A. 77-621(d). In other words, if the agency error did not prejudice the parties, the agency’s action should be affirmed. To summarize briefly the scope of appellate review: If KCC action is constitutionally authorized by statute, it is presumed valid on review unless it is not supported by substantial competent evidence and is so wide of its mark as to be outside the realm of fair debate, or is otherwise unreasonable, arbitrary, or capricious and prejudices the parties. K.A.R. 82-1-232(3) provides “[t]he order shall contain a concise and specific statement of the relevant law and basic facts which persuade the [KCC] in arriving at its decision.” Where “the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure,” we are authorized to grant relief. K.S.A. 77-621(c)(5). We have construed the procedural requirements of the KCC to mean that it is not obligated to render its findings of fact in minute detail. Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 677, 482 P.2d 1 (1971). However, we require its findings to be specific enough to allow judicial review of the reasonableness of the order. General Communications System, Inc. v. State Corporation Commission, 216 Kan. 410, 416, 532 P.2d 1341 (1975); Central Kansas, 206 Kan. at 677-78. As an important guard against arbitrary action, we require conclusions of law to be supported by findings of fact for which there is evidence in the record. Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 230-32, 440 P.2d 660 (1968). The United States Supreme Court found findings of fact essential, stating that without this requirement, “ ‘expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion.’ ” Burlington Truck Lines v. U.S., 371 U.S. 156, 167, 9 L. Ed. 2d 207, 83 S. Ct. 239 (1962) (quoting New York v. United States, 342 U.S. 882, 884, 96 L. Ed. 662, 72 S. Ct. 152 [1951] [Douglas, J., dissenting], reh. denied 342 U.S. 911 [1952]). Zinke’s first contention is that the BPO fails to protect correlative rights. The KCC ordered proration based on its standard 50/50 formula, under which 50% of the total pool allowable is allocated to individual wells on an acreage basis and 50% on the basis of adjusted open flow, determined as described by K.A.R. 82-3-101(a)(42) (1986 Supp.) and K.A.R. 82-3-303. The KCC stated: “The adoption of a formula that will enable each well to currently produce its allowable and ultimately produce approximately that amount of gas underlying the unit upon which is located is the object which the Commission seeks to accomplish by the entry of this order. Many factors are to be considered in the connection of the adoption of a formula, such as acreage, pressure, adjusted open flow, porosity, permeability, thickness of pay, and the areal extent and boundaries of the producing formation. Acreage is one of the most important of these factors and should be one of the factors included in the allowable formula. Pressures, porosity, permeability, thickness of pay and the extent of the producing formation are all taken into consideration and given the proper weight accorded when the adjusted open flow of the well is taken into account. Therefore, a formula that considers acreage and adjusted open flow and gives due value to both, should result in the establishment of a well allowable that will permit each well to currently produce its allowable and to ultimately produce that amount of gas which underlies the lease upon which the well is located.” Zinke maintains the KCC paid only lip service to five of the seven factors required by K.S.A. 1986 Supp. 55-703(a) to be considered by the K.C.C. Zinke declares that listing the factors and saying they “are all taken into consideration” and proper weight accorded is not sufficient when a formula is adopted using only acreage and adjusted open flow. “Lip service to a legislative mandate is not enough.” Angle v. Board of County Commissioners, 214 Kan. 708, 713, 522 P.2d 347 (1974) (citing Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 14, 453 P.2d 59 [1969]). Sho-Bar’s response is that the KCC is not required to make a specific written finding on each factor. The KCC is only required to “give equitable consideration” to each. K.S.A. 1986 Supp. 55-703(a). By requiring only “equitable consideration,” the legislature gave the KCC the flexibility to ultimately give more weight to some factors than others. Sho-Bar points out that Angle involved a tax assessor who admitted he had deliberately ignored an element which this court had held was statutorily required to be considered. Zinke contends the evidence, shows an open flow rate will not reflect all the mandated factors. Zinke proposed the KCC adopt a proration formula based on 640-acre spacing with an allowable determined by dividing the net acre feet attributable to each well by the total reservoir acre feet. The KCC explained its refusal to adopt Zinke’s proposed formula was because it was dependent “upon the precise calculation of the net acre feet of producing Morrow Reservoir underlying each lease.” Sho-Bar replies that Zinke’s proposed formula would give no consideration to the factors of open flow or pressure. Zinke contends Sho-Bar’s fracturing treatment together with the porosity and permeability of the area, which causes great drainage, are pertinent conditions which should have been considered under “such other factors, conditions and circumstances as may exist in the common source of supply.” K.S.A. 1986 Supp. 55-703(a). In August and September of 1985, Sho-Bar and Zinke each fractured wells in order to stimulate deliverability. Zinke fractured its Fincham 1-31 well with 20,000 gallons of fluid because of its position at the edge of the reservoir where more calcite content, which lowers permeability, is found. As previously mentioned, Sho-Bar fractured its Fincham 1-30 well using a total volume of35,590 gallons of water and 86 tons of COa with 31,000 pounds of sand, with a resultant increase in flow from 4.5 million cubic feet per day to 25 million cubic feet. Experts for both parties testified a fracture of this size would extend at least 400 feet in the area of least resistance. The center of the reservoir on Zinke’s lease is the area of least resistance. Since Sho-Bar’s location of Fincham 1-30 is only 330 feet from Zinke’s lease line, the fracture obviously penetrated Zinke’s lease. Zinke contends the actual total volume used by Sho-Bar was 58,000 gallons, citing Sho-Bar’s exhibit 18 as evidence 86 tons of COa were used, and claiming this tonnage must be converted to gallons and added to the total volume. Evidence was presented that fracture treatments with total volumes of 37,500 gallons to 75,000 gallons could result in fractures of 400 to 1,000 feet. Sho-Bar objects that no evidence was presented as to the actual treatment given the well. However, Sho-Bar’s exhibit 18, the “Fracturing Service Treating Report,” refutes this testimony. As noted earlier, after Sho-Bar’s fracturing treatment, and shortly after its application to the KCC, Zinke drilled a seventh well, Fincham 4-31, 660 feet away and directly offsetting the Sho-Bar well to prevent drainage between the leases and protect its correlative rights. However, as discussed earlier, the seventh well has not compensated for the drainage caused by Sho-Bar’s well because the permeability of the reservoir causes the pressure to quickly equalize during the inevitable market imposed shut-in periods. Sho-Bar’s fracture treatment increased the open flow factor more than five times. Zinke claims the increased flow comes from its lease and that the proration formula gives Sho-Bar a tremendous reward for its trespass. The KCC argues the formula used in this case is very similar to the deliverability test used for the Hugoton Oil Field in Cities Service Oil Co. v. State Corporation Commission, 205 Kan. 655, 472 P.2d 257 (1970). The main distinction between the formulas, it states, is that open flow measures capacity against atmospheric pressure while deliverability measures the capacity of a gas well producing into a pipeline. Cities Service contested the formula for reasons similar to Zinke’s, arguing that the fracturing treatment altered the formation so that its leases would not be able to deliver all the gas actually underlying them. It contended the formula did not give adequate consideration to the factors mandated by K.S.A. 1986 Supp. 55-703, but this court upheld the order. 205 Kan. at 668. Sho-Bar’s geologist admitted he had no knowledge of the permeability and porosity of the reservoir because he relied more heavily on drill stem tests than log analysis in his determination of whether a well should be completed. Sho-Bar’s petroleum engineer estimated the permeability to be good (about 50 millidarcies), the porosity to average about 16.62%, and the average pay thickness to be about 16.5 feet. Zinke’s geologist determined permeability in O’Brien-Barby to be 80 to 150 millidarcies and porosity 19% at the reservoir’s center. He concluded Zinke’s Fincham 1-31 well and Sho-Bar’s 1-30 well lie at the edges of the reservoir. He testified the 50/50 formula would not protect correlative rights because of migration during shut-in periods due to high permeability and Sho-Bar’s fracture treatment. He admitted, however, that adoption of Zinke’s proposed formula based on net acre feet available to each well divided by the total reservoir acre feet could also result in violation of correlative rights if his interpretation of net pay was not completely accurate. Sho-Bar points out the KCC found the formula would allow each well to “ultimately produce that amount of gas which underlies the lease upon which the well is located,” even though production would be inequitable at first. We stated in Cities Service that “drainage is inevitable.” 205 Kan. at 668. Sho-Bar argues the KCC’s finding that the reservoir was not unique and that similar formulas had successfully prevented waste and protected correlative rights showed the KCC believed drainage would ultimately be compensated. Sho-Bar contends the BPO conforms to the statute, which provides the KCC’s order must “permit each developed lease to ultimately produce approximately the amount of gas underlying the developed lease and currently produce proportionately with other developed leases in the common source of supply without uncompensated cognizable drainage between separately-owned, developed leases.” (Emphasis supplied.) K.S.A. 1986 Supp. 55-703(a). Zinke argues this theory presumes migration from Sho-Bar’s leasehold will be as great as migration to its leasehold. This theory is correct only when the amount of gas underlying each leasehold is comparable. But according to Zinke’s figures, only 6% of the reservoir underlies Sho-Bar’s lease, so the reservoir recharges Sho-Bar’s lease to a much greater extent than the rest of the reservoir. Under the KCC’s duty to protect correlative rights to natural gas in a common source of supply, we find evidence of fracture treatment to a well or wells in the common field to be one of the “other factors, conditions, and circumstances” which must be considered in making a proration order. It is particularly important where a well’s open flow is 50% of its allowable production. The BPO does not reveal, nor do we find, that the fracture treatment to Sho-Bar’s Fincham 1-30 well was considered by the KCC in making its BPO. We hold the order is thus unreasonable. Zinke next complains the KCC gave no factual findings in support of its order for 160-acre spacing. Zinke proposes a 640-acre pattern, and charges the 160-acre pattern creates economic waste by forcing unnecessary wells to be drilled. Zinke contends every BPO covering Morrow reservoirs except one is spaced on 640 acres: 1. BPO for Harper Ranch N, Clark County; 2. BPO for the Gentsleer Field; 3. Second Revised BPO for the Mohler Northeast Morrow Sand Gas Pool, Meade County; 4. BPO for the Salley Lower Morrow Gas Pool, Seward County; 5. Revised BPO for the Richfield Gas Field, Morton County. The one BPO not using 640-acre spacing is the Beachamp South Middle Morrow Gas Pool, Morton and Stanton Counties, which used a 320-acre spacing by agreement of the parties. Zinke reasons that, as the KCC found the present Morrow Formation not to be “unique” (for purposes of determining formula), it should not be able to give the formation a unique spacing pattern. Sho-Bar objects to Zinke’s inclusion of the first listed reservoir, claiming it was being developed on 160-acre spacing at the time it filed its application. The KCC notes that Zinke’s argument that other Morrow fields are spaced at 640 acres was not made during the agency hearing. The district court was thus unable to consider this evidence. See White Eagle Oil Co. v. State Corporation Comm., 168 Kan. 548, 554, 214 P.2d 337 (1950). Zinke argues the KCC is presumed to know of its own orders. Administrative decisions are not generally subject to stare decisis. Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 420, 581 P.2d 817 rev. denied 225 Kan. 843 (1978). The present field was developed on a 160-acre basis by Zinke itself. Zinke has drilled four wells in Section 31-34S-26W alone. (Fincham 1-31, NE/4; Fincham 2-31, SW/4; Fincham 3-31, NW/4; and Fincham 4-31, NE/4.) The area Zinke calls the “O’Brien Barby Reservoir” and estimates to contain only 792.2 net pro ductive acres contains five wells, three of which are Zinke’s. We find Zinke’s development pattern and its evidence of three reservoirs, only one of which contains 640 acres, inconsistent with its insistence upon 640-acre spacing. The KCC’s finding that the production from Morrow sand in this field is not unique is inconsistent with the Commission’s spacing order, which distinguishes this Morrow production from other Morrow sand production. If, on remand, it is the KCC’s determination that the permeability and porosity in this field is sufficiently different from other Morrow sand gas fields to justify reduction of spacing from 640 acres to 160 acres to prevent waste, a finding to that effect should be made. Zinke’s final objection is to the total acreage covered by the order. The order covered an area containing 3,520 acres. Pursuant to K.S.A. 55-703(a), the KCC has authority to regulate the production of natural gas from a common source of supply. The evidence from the experts of both Sho-Bar and Zinke is that the N/2 of Section 30, Township 34S, Range 26W had no Morrow sand and was separated by a barrier from the rest of the field. Arden Ratzlaff, Sho-Bar’s expert, also admitted he had no evidence of any Morrow sand in Section 36, Township 34S, Range 27W. The one producing well in Section 36 is producing from the Mississippi formation. In addition, Zinke contends three separate reservoirs exist in the Morrow sand lying under the rest of the land covered by the KCC’s order. Zinke refers to these as the O’Brien-Barby Reservoir, the Fincham Reservoir, and the Ediger Reservoir. The O’Brien-Barby Reservoir contains one Sho-Bar well, one Clifford well, and three Zinke wells, designated as A, B, C, F, and I on appellant’s exhibit 3, a copy of which is attached to this opinion. The Fincham Reservoir, situated just west of the O’Brien-Barby reservoir, contains only a Zinke well designated as D. This small reservoir contains less than 160 surface acres and has only one owner and one lessee. The Ediger Reservoir lies to the southwest of the O’Brien-Barby Reservoir and has three Zinke wells, designated as E, G, and H. Sho-Bar argues one continuous reservoir underlies the entire field. These arguments are significant because they pertain to the “common source of supply,” without which the KCC has no authority to regulate. The KCC vaguely recognized the conflicting scientific theories and attempted to resolve the conflict by lumping all Morrow sand into one common reservoir, but made no finding that the Morrow sand was a common source of supply. It stated: “a basic order which prorates all Morrowian gas production from the acreage set forth below will better protect correlative rights, prevent waste and promote orderly development in the field. The Morrow sand underlying the following acreage shall be governed by this basic proration order.” (The total 3,520 acres were then described.) Zinke contends the KCC’s order is unlawful because it set out no factual basis and no finding that the acreage was within a “common source of supply” pursuant to K.S.A. 55-703. While the legislature makes a “common source of supply” the basis and the reason for the regulation of the production of natural gas, it has not defined the term. K.A.R. 82-3-101(a)(13) (1986 Supp.) defines it as “each geographic area or horizon definitely separated from any other area or horizon which contains, or appears to contain, a common accumulation of oil, gas or both.” Thus we can see that Morrow sand within a geographical area could cover many different common sources of supply. In fact, there is much Morrow sand production in southwest Kansas. No one claims that production is all from one common source of supply. It is also apparent that although a source of supply is under one lease, it does not necessarily suggest a commonality with any other person or entity and thus there is no common source of supply. The KCC argues a cross-section of the area introduced by Sho-Bar indicates all the wells produce from one source. However, Sho-Bar’s experts testified they did not know the extent of the reservoir, acknowledged they had not considered any of the additional information provided by wells completed after the Sho-Bar wells, and could provide no isopach representing their theory of the reservoir. On cross-examination, R. Douglas Myers, Sho-Bar’s expert petroleum engineer testified: “Q: Do you have an opinion as to the size and shape of this reservoir? “A: No. No, I do not. I know it’s probably contained within those black lines that I have, but I don’t know whether it’s oval, egg shaped, or fingers in and out or what. “Q: I believe you testified that the information you had when you prepared your exhibits was sparse. “A: It was. “Q: Would you specify what information you were looking at? “A: Well, I had some electric logs that Mr. Ratzlaff was kind enough to let me look at, or at least look and see what kind of porosities and water saturations we had. I also had scout cards on all the wells in the area, and that’s about it. “Q: Have you looked at any information after you prepared your exhibits? “A: Well, I happened to have the information that was submitted by Zinke-Trumbo, yes. “Q: And you’ve looked at those logs, then? “A: I looked at what they gave me, which wasn’t — well, they had the cross-section, the logs on the cross-section, which I looked at. “Q: Did you look at the logs that were delivered to Sho-Bar on all the wells in the area? “A: No, I didn’t look at all of those. “Q: Is there a reason you didn’t look at them? “A: Well, I’d already made my exhibit up on my reservoir characteristics. I wasn’t going to change that. This has been delayed long enough, and it probably wouldn’t change it too much.” Mr. Myers then further disclosed his lack of preparation by not knowing the elevations of the Morrow sand formation in each of the wells in the area under consideration. He did not know which wells produced oil and which produced condensate. He did not know the permeability or R.T.U. content of the production from the various wells. After testifying the porosity averages were about 16.62 percent, Mr. Myers testified as follows: “Q: And where did that percentage come from? “A: Electric log interpretation. “Q: Which electric log or logs? “A: All that I studied, I say all those I had, I made, all these reservoir data came from those logs. “Q: We’ve never specifically mentioned what those logs— “A: I don’t know what I got from — but I only — about four or five. I gave them back to Mr. Ratzlaff. He has them in his file. “Q: Could you refer to your Exhibit No. 1? “A: Yes. “Q: And point out which wells those were on. “A: Oh, I don’t know for sure what we got them on. We surely had them on the Sho-Bar. I know that. I think he had one copy of one on the O’Brien-Barby. I may have had one on the 1-31 well. That may have been about it. “Q: Then you didn’t bother to look at the logs that were supplied after your prepared that? “A: I already prepared this. I wasn’t going to change it after waiting for all this other stuff to finally come in.” Mr. Myers finished his cross-examination testimony with this colloquy: “Q: Did I understand you to say, Mr. Myers, that you have done no calculations as to what the reserves are in the reservoir that these wells are? “A: Only on a per acre foot basis. “Q: Not total? “A: No, no. I don’t know how — don’t know how much volume we’ve got there yet.” Arden Ratzlaff, Sho-Bar’s expert geologist, gave the following testimony on direct examination: “Q: Did you have any information on the Zinke-Trumbo? I think it’s called the Fincham 2-31, which would be in the southeast southeast of 36. “A: No, sir. “Q: Did you have any information on the Zinke-Trumbo well? I’m not sure I can identify it. Well, 2-31, you say you didn’t have. Did you have any on the well in the southeast of the southwest of 31? And I don’t know the name of that. It’s the Zinke-T rumbo. “A: It’s a 2-31. “Q: 2-31? “A: Yeah. I didn’t have any information on that well or the 4-31, which is up in the northeast corner of Section 31, at the time I did this work. “Q: Did you have any information on the Zinke-Trumbo well in the far northwest northwest of 5, which I believe is called the Ediger 1-5? “A: At the time I did the work, no, sir. “Q: As I understand it, Mr. Ratzlaff, the Exhibit No. 3 submitted by Zinke-Trumbo depicts several separate Morrow reservoir bodies; is that your understanding? “A: It’s my understanding that’s what they are trying to depict, yes, sir. “Q: And it’s your view that generally there is one larger reservoir body in the subject area as opposed to two or more distinct, separate pressure systems, isolated reservoir bodies; is that right? “A: With the information I have and I have had, I thought that, sure, when I did my work. “Q: Does your opinion still hold as to that, and notwithstanding the information that you have had made available to you subsequent to your exhibits, are you still in the same opinion you were at the time you prepared them? “A: Some of the information that I seen on Zinke-Trumbo’s testimony might lead to something else, but I have no verification of that and, consequently, I would have to stick to what I started with. “Q: Isn’t it substantially a matter of your opinion versus that of the gentleman — of the geologist that has prepared these exhibits for Zinke & Trumbo? “A: Yes, sir.” On cross-examination Mr. Ratzlaff testified: “Q: All right. Now, I understand that at the time you initially prepared your exhibits, there was less information available to you than there is today at the hearing? “A: Uh-huh. “Q: Have you studied the exhibits and the testimony that has been prefiled by Zinke & Trumbo? “A: I did. “Q: If I understand your testimony, referring to Exhibit No. 1 — or excuse me, your Exhibit No. 2, your testimony is that all the area to the south of the Morrow sand barrier which is colored pink on the copy I have is one productive communicating Morrow reservoir; is that correct? “A: Possibly. “Q: Well, is it your opinion that that is one — one reservoir or is it not? “A: With the information that I’ve had, I have no way to refute it or to say it isn’t. With what logs I’ve been able to work with and the information I’ve received, I think so, yes.” On the other hand, Zinke’s expert produced an isopach defining his theory of the extent of the reservoirs and supported it with detailed comparative pressures and liquids, showing the difference in each reservoir. David Trumbo, Zinke’s expert geologist, testified as follows: “Q: Are you familiar with the geological environment of the area which has been proposed by the applicant to be prorated? “A: Yes, I have personally observed samples, examined electric logs from all the wells in the area and have examined cores of certain wells in the area. “Q: Do you agree with the applicant that the subject area should have a proration order entered based upon a 160-acre spacing pattern and an allowable based upon a formula attributing 50% of the total pool allowable to the individual wells on an acreage basis and 50% of the total allowable to the individual wells upon the basis of adjusted open flow. “A: Absolutely not. “Q: Why? “A: In short, for three reasons. First, the proposed area covers an area greatly in excess of the area covered by the reservoir into which the applicant’s Fincham 1-30 Well is located. Secondly, the proposed area includes the greater part of three readily demonstrable distinct producing reservoirs. Thirdly, due to the nature of the reservoir, basing an allowable on adjusted open flow is not reasonable. Any formula which includes a factor for adjusted open flow will result in wells being able to produce gas far in excess of the gas actually underlying the lease from which it is producing. I firmly believe that a well drilled into the reservoir in which the applicant’s Fincham 1-30 Well is completed (the O’Brien Barby Reservoir as shown on my Exhibit 3) can readily drain 640 acres and the proration order should be based upon the net acre feet of the reservoir underlying each lease, not to exceed 640 acres. “Q: Would you please elaborate upon these three reasons. “A: Yes. I believe the starting point is to explain the geologic environment in which the Morrow Formation in the Crooked Creek Prospect area (as Zinke & Trumbo, Ltd. has defined its prospect) and as referred to as the O’Brien-Fincham Morrow Pool in the testimony of Mr. Ratzlaff. The Morrow Formation in this area is presently part of the McKinney Gas Field. It is characterized by a black shale of widely varying thickness at the base, sometimes followed by a limestone unit which is oolitic in part and fossiliferous in part. This grades into a shallow marine sandstone (a shoreline sandstone) which is marked by a tidal flat or logoonal facies at the top. Next is a 10' to 20' fossiliferous limestone which is widely present throughout the area. This limestone is then followed by a 30'[to] 40' dark grey shale which is the upper unit in the Morrow Formation. “Oil and gas production has been established in the Sandstone Unit throughout the Meade County area. Detailed analysis of this sandstone in the immediate Crooked Creek area is possible through examination of a whole core taken during the drilling of the Zinke & Trumbo, Ltd. Fincham # 4-31 Well (marked as Well ‘C’ on Exhibit No. 3). The data from this core suggests that the sandstone member of the Morrow Formation in this field is a regressive shoreline sandstone. Please refer to Exhibit No. 1 which is a core analysis prepared by Core Laboratories, Inc. in Tulsa, Oklahoma. In addition, please refer to Exhibit No. 2 which is a letter from Mineralogy, Inc. after examinations of thin sections from this core analysis. “Q: What does the core analysis show as to the permeability of this reservoir? “A: The permeability is excellent, being in the range of 80 to 150 millidarcies. Therefore, any well in the reservoir can drain 640 surface acres. Incidentally, the McKinney gas field was originally prorated on 640 acres. “A: The data from this core suggests that the sandstone member of the Morrow Formation in this field is a regressive shoreline sandstone. Shoreline sandstones are typically fine-grained, mature, orthoquartzite, very clean and well sorted with small amounts of calcite cement usually associated with oolitically-coated fossil fragments. Most importantly, they are characterized by horizontally to nearly horizontally laminated bedding with occasional thin silt and clay laminations. The fossils and graduational contact with marine limestones indicate a shallow marine depositional environment. “Q: You have indicated that there are three distinct producing reservoirs within the area sought to be prorated by applicant. Is structure or stratigraphy more important in obtaining production from these reservoirs? “A: Stratigraphy is absolutely critical and structure has very little to do with the productive ability of a reservoir. These are stratigraphic trap reservoirs and consequently, accumulation of hydrocarbons is independent of structural position and more dependent upon the presence or absence of porous Morrow sandstone. These reservoirs are shoreline sandstones and are typically lenticular, approximately one mile long, one-quarter to one-half mile wide and trending parallel to shoreline. The sands are deposited by wave generated shoreline currents. In the case of the Crooked Creek area, the shoreline trends northwest to southeast. The lenticular nature of the shoreline sandstone bodies in the Crooked Creek field is easily demonstrated by the existing subsurface well control, and as determined by me from personal examination of electric logs on all the wells in the area to be spaced and examination of the whole core samples and sidewall core samples of wells drilled by Zinke & Trumbo, Ltd. This interpretation of the geological environment is also supported by reservoir pressure tests and analysis as more particularly described in the testimony of Mr. Crowell. “Q: Please refer to what has been marked as ‘Trumbo Exhibit No. 3’ and explain its significance. “A: Exhibit No. 3 is a net pay isopach map prepared by me which illustrates the areal extend of the O’Brien-Barby reservoir and the thickness as determined through data acquired from the drilling of the wells located therein. “Q: Are you requesting that this Commission enter a proration order covering only the O’Brien-Barby Reservoir? “A: Yes, and the acreage covering the O’Brien-Barby Reservoir is considerably different than the acreage sought to be prorated by Sho-Bar. “Q: What is the significance of the difference between the pay thickness between applicant’s Fincham No. 1-30 shown as Well ‘F’ and Zinke & Trumbo, Ltd.’s 4-31 shown as Well ‘C’ on Exhibit No. 3. “A: The isopach map shows that there is 30' of thickness in Zinke & Trumbo’s Fincham 4-31 Well (‘C’) and only 11' of thickness in the Sho-Bar Fincham 1-30 (‘F’) just 660 feet north of the Zinke & Trumbo 4-31. This very dramatic rapid thinning at the margins of the sandstone body is characteristic of shallow marine shoreline sandstone. The rapid thinning is further evidenced by the fact that no Morrow sandstone occurs in the Monsanto-Lion Oil Lida # 1, NE NW SE Section 30-34S-26W (Well ‘J’ on Exhibit 3), or the Midco Exploration Roger # 1, SE SE NE Section 30-34S-26W (Well ‘K’ on Exhibit 3). This is further supported by my examination of drill cutting samples from both of the above referenced wells and is confirmed by Exhibit No. 2 of Mr. Ratzlaff. “Q: Exhibit No. 3 shows that the applicants Fincham 1-30 Well (‘F’) is very near the edge of the reservoir. Please explain why this is so. “A: Shoreline sandstones, as we have in the O’Brien-Barby reservoir, have secondary cementation occurring at the edges due to the presence of more fossiliferous materials as the sandstones grade into the adjacent facies. This is quite dramatically demonstrated by tire difference in performance of the Sho-Bar Energy Fincham No. 1-30 before and after its fracture treatment. After the fracture treatment, the well’s absolute open flow increased dramatically, which demonstrates that it is situated on the edge of the sandstone body. Mr. Crowell will discuss this in more detail in his testimony. “Q: Would you please explain the significance of Exhibit No. 5? “A: Exhibit No. 5 is a stratigraphic cross-section showing the thickness of the reservoir as found in the Zinke & Trumbo Fincham No. 4-13 and the Zinke & Trumbo O’Brien-Barby 1-32 and how rapidly it thins toward the Sho-Bar Fincham # 1-30. Exhibit No. 5 was prepared by me prior to receiving the actual log on the Sho-Bar Fincham No. 1-30. The overlay, Exhibit No. 6, is the actual log on the Fincham No. 1-30 and it shows that the rate of thinning as predicted by Exhibit No. 5 was very accurate. Exhibit No. 7 is a cross-section of the subject wells prepared using the actual log on the Fincham No. 1-30. “Q: Do you agree with Mr. Ratzlaff s Exhibit 2, which shows that the productive portion of the O’Brien-Barby reservoir terminates north of the Sho-Bar Fincham 1-30 Well. “A: Yes. However, the reservoir terminates much closer to the Sho-Bar Fincham 1-30 Well than Mr. Ratzlaffs exhibit indicates. “Q: What is your basis for this statement? “A: Please refer to my Exhibit 3. The Zinke & Trumbo Fincham 4-31 (‘E’) has 30' of productive reservoir and is located 330' south of the south line of Section 30. The Sho-Bar Fincham 1-30 (‘F’) is located 330' north of the south line of Section 30 and has only IT of productive reservoir. There is only 660' between these two wells, yet the Sho-Bar Well has only one-third as much productive reservoir. Obviously the reservoir is thinning very rapidly in that direction. This rapid thinning is consistent with and is a result of the manner in which this type of shallow marine shoreline sandstone reservoir was originally deposited. Consequently, the reservoir terminates approximately 330' to the north of the Sho-Bar Fincham 1-30 Well. “Q: Would you please explain your earlier statement that there are three reservoirs wholly or partially covered by the area sought to be prorated by applicant. “A: Yes. There are three distinct producing reservoirs as shown on Exhibit 3 and they are labeled, the O’Brien-Barby reservoir, containing Wells A, B, C and F, the Fincham reservoir containing Well D and the Ediger reservoir containing Wells E, G and H. The Fincham reservoir is obviously separate and distinct from the O’Brien-Barby reservoir as the Zinke & Trumbo Fincham, 3-31 produces black oil (a sample of which is Exhibit 8) and associated gas from a structurally higher position to the O’Brien-Barby reservoir, which produces gas only and some clear liquid condensate. The structural position of the two reservoirs is shown by the structure map marked Exhibit 4. This map is drawn onto the top of the Morrow Formation. Exhibit 9 is condensate (natural gas liquids) produced from the O’Brien-Barby reservoir. It is clear, high-gravity gas condensate. As this condensate is produced from a lower datum than the oil produced from the Fincham reservoir, there is no doubt that these are separate and distinct sandstone bodies. “Q: What is the basis for your opinion that the Ediger Reservoir is a separate productive reservoir? “A: The Ediger reservoir to the south is separate and distinct from the O’Brien-Barby reservoir as it can be demonstrated that its reservoir pressure is substantially different than the reservoir pressure of the sandstone body from the O’Brien-Barby reservoir. Prior to producing the Zinke & Trumbo wells shown as E, H and G from the Ediger reservoir in early June, 1985, shut-in tubing pressures were approximately 1,700 pounds (G-1730, H-1685, E-1692). At the same point in time, shut-in tubing pressure in the O’Brien-Barby reservoir was 1,454 pounds. This is a difference of approximately 250 p.s.i. Obviously, these reservoirs are not connected. The fact that there is a difference in fluid content that cannot be explained structurally and the pressure differential between the reservoirs is consistent with my interpretation that the depositional environment and geometry of the sandstone reservoirs is that of a shallow marine shoreline sandstone. “Q: What does an examination of the open-hole log suites for the Sho-Bar Energy Fincham No. 1-30, the Zinke & Trumbo Fincham No. 4-31 and the Zinke & Trumbo O’Brien Barby 1-32 show relative to the porosity and water saturation of the O’Brien-Barby reservoir. “A: These logs show that the porosity in the O’Brien-Barby reservoir is approximately 18% to 20% with water saturations being 25% to 30%. This data correlates very consistently with the data contained from the whole core analysis taken in the Zinke & Trumbo, Ltd. Fincham No. 4-31, as shown by Exhibit No. 1. “Q: In your opinion, from which reservoir does the Sho-Bar Fincham 1-30 well produce? “A: From the O’Brien-Barby reservoir. “Q: In your opinion, should the adjusted open-flow capability of a well be used as a factor for determining an allowable for a well located in the O’Brien-Barby reservoir? “A: No. Because the O’Brien-Barby reservoir is such that it has tremendous porosity and permeability. This allows a well to produce at very high rates whether or not the lease from which it produces actually has many productive acres or much gas underlying it. If it does not, then it will drain gas from the offset leases where the productive acres and gas reserves are located. Due to the somewhat unique nature of this reservoir, the deliverability or open flow has no relation to the gas underlying the acreage upon which it is located. Consequently, it is my opinion that although the Sho-Bar Fincham No. 1-30 has only 62.1 productive acres that can be attributed to it in the SE Quarter of Section 30-34S-26W, it could, in fact, produce and drain gas from an area greatly in excess of its producing acreage. This will result in the taking of gas from Zinke & Trumbo’s Fincham and O’Brien-Barby leases. “Q: Is it your opinion that one well can adequately and sufficiently drain 640 acres in the O’Brien-Barby reservoir? “A: Yes.” The testimony of Ronald F. Crowell, Zinke’s expert reservoir engineer, was similar in thoroughness and added further support to Zinke’s contentions. The KCC ignored the evidence and adopted the theory that production from Morrow sand is production from a common source of supply, making no findings of fact to support its conclusion. The district court found the Commission’s conclusions sufficient to make the KCC’s order lawful. Zinke argues on appeal the KCC’s failure to make a specific finding that the area covered by the BPO was a common source of supply makes the order unlawful. Sho-Bar contends this issue, not having been raised in the district court, is thus not before us on appeal. It is true we have so held. See Centro Management, Inc. v. Kansas Dept. of Human Resources, 237 Kan. 369, 374, 699 P.2d 524 (1985). However, here we are presented an issue of jurisdiction, without which the matter dealt with is void ab initio. We have held jurisdiction is an issue which can be raised at any stage of the proceeding. Minter-Wilson Drilling Co. v. Randle, 234 Kan. 624, 628, 675 P.2d 365 (1984). We hold we may review the jurisdiction of KCC action as we would jurisdiction in other civil cases. See K.S.A. 77-623. Let us therefore consider whether the KCC has jurisdiction of natural gas regulation in a gas field in the absence of a finding based upon substantial competent evidence that the field is a “common source of supply.” K.S.A. 55-701 prohibits waste in the production of natural gas, making no reference to source of supply. K.S.A. 1986 Supp. 55-703(a) authorizes regulation of production of natural gas by the KCC but makes such regulation conditional upon a determination of a “common source of supply” for proration to prevent waste and protect correlative rights. K.S.A. 55-703a authorizes the KCC to regulate well spacing in “any such common source of supply and provide for the orderly development thereof.” The statutes are clear and unambiguous. The KCC’s regulatory authority over natural gas is dependent upon a finding there is a common source of supply. We hold the KCC made no such finding and the order is thus unlawful. Zinke also contends that even had the KCC made a finding that the area covered by the BPO had a common source of supply, the evidence would not have supported such a conclusion. Let us examine the evidence. It showed the thickness of the Morrow sand varied from 30 feet in Zinke’s Fincham 4-31 well and 11 feet in Sho-Bar’s Fincham 1-30 well to as little as seven feet in the Clifford-Fincham 1-30 well, all of which are in what Zinke designates as the O’Brien-Barby reservoir, indicating the Clifford well and Sho-Bar’s well are on the perimeters of the reservoir. The “Fincham reservoir,” which contains only Zinke’s Fincham 3-31, contains 12 feet of Morrow sand. This well produces from a higher elevation and produces black oil while Fincham 1-31, located a short distance east of Fincham 3-31 in the O’Brien-Barby Reservoir, produces clear gas condensate. The “Ediger reservoir” contains the Zinke Fincham 2-31 well with 21 feet of pay, the Zinke Ediger 1-6 well with 25 feet of pay, and the Zinke Ediger 1-5 well with eight feet of pay. There is a pressure difference of 250 p.s.i. between the “O’Brien-Barby reservoir” and the “Ediger reservoir.” Without producing his isopach map, Sho-Bar’s expert explained the different scientific factors could be explained by the gas-oil contact in one reservoir being tilted, or by the well in the Fincham Reservoir (Fincham 3-31) being perforated in a lower section of the Morrow sand than the Fincham 1-31 well in the O’Brien-Barby Reservoir. When we view the record as a whole, we conclude the BPO was unlawful because the KCC failed to find the area covered by its order is one common source of supply and included 960 acres with no productive Morrow sand. The order is unreasonable because it is not supported by substantial competent evidence. We so hold. The judgment of the trial court is reversed and this case is remanded to the KCC with directions to make findings of fact based on substantial competent evidence consistent with this opinion.
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The opinion of the court was delivered by McFarland, J.: This action raises some first impression questions concerning the liability of a third-party tortfeasor’s insurance carrier to the party holding a security interest in the vehicle damaged after the insurance carrier has settled with the owner-operator of the vehicle. The district court held in favor of the secured party and the insurance carrier appeals from this judgment. The facts may be summarized as follows. On July 30, 1986, an automobile owned and driven by Marie Parrish collided with an automobile owned and driven by Florence L. Clafer. The accident was the result of Parrish’s negligence. There was no insurance in effect on the Clafer vehicle. The Clafer vehicle was extensively damaged and State Farm Mutual Automobile Insurance Company, Parrish’s insurer, settled with Clafer on the basis that the vehicle had been “totalled.” On August 18, 1986, State Farm paid Clafer $3,681.00 and received assignment of the vehicle and title of the vehicle. The title showed General Motors Acceptance Corporation (GMAC) had a security interest in the vehicle. State Farm’s brief contains the following statements: “GMAC, as lienor, would not execute the assignment. As a result, State Farm returned the title to GMAC.” Plaintiff does not controvert these statements and there is nothing in the record indicating otherwise. Therefore, we accept such statements as being a correct recitation of the facts. After the settlement, Clafer stopped making her monthly contractual payments to GMAC and said corporation assigned the contract back to the dealer (Scholfield Rrothers, Inc.) under their recourse provisions. Scholfield then became the owner of the security interest in the vehicle. On January 8, 1987, Clafer filed for relief in bankruptcy and her debt to Scholfield was listed therein ($3,642.52). Scholfield brought this action on December 24, 1986, against State Farm seeking payment of the balance owed by Clafer on the theory of conversion and against Clafer requesting that an equitable lien be placed on the proceeds she received from State Farm. Clafer did not appear in the action and, apparently, Scholfield abandoned its claim herein as to her. At least, the claim against Clafer was not a part of the summary judgment entered herein. The district court granted summary judgment against State Farm in the amount of $3,681.00 on the basis that State Farm’s acts herein constituted conversion of Scholfield’s security interest in the Clafer vehicle. State Farm appeals from this determination. For its first issue, State Farm contends the district court erred in holding the acts of State Farm herein constituted a conversion. Specifically, the district court held: “Kansas case law clearly allows the assignment of tort claims. Newell v. Krause, 239 Kan. 550 [, 722 P.2d 528 (1986)]. When GMAC assigned back the full recourse note of defendant Clafer, any tort claim was assigned back with it. Therefore, the plaintiff now holds any causes of action against the defendant State Farm for conversion. “It is clear that State Farm knew GMAC held a security interest in the vehicle, as [its] name appeared upon the title as the secured party. “The defendant State Farm paid the full value of the vehicle to defendant Clafer and had the title signed over to [it]. “The defendant Clafer received a ‘windfall’ for something she was not entitled to, as she could not sell what was not hers to sell. “The reason for the secured party being named on the title, is a notice to the world they have a valid lien thereon. “A conversion occurs when there is an intentional exercise of dominion and control over a property interest that interferes with the right of another to control the property interest and results in damages to the owner of the property interest. Nelson v. Hy-Grade [Construction & Materials, Inc., 215 Kan. 631, 527 P.2d 1059 (1974),] Restatement [(Second) of Torts § 222A (1964)]. “The defendant State Farm, by paying the full value of the vehicle to another with knowledge that GMAC had a secured interest (property interest) therein, clearly met the threshold of all the elements of conversion and totally defeated GMAC’s right to control their property interest and thus the [secured] property interest in the vehicle was effectively destroyed. [First Nat’l Bank & Tr. Co. v. Atchison County Auction Co., 10 Kan. App. 2d 382, 699 P.2d 1032, rev. denied 237 Kan. 886 (1985).]” (Emphasis in original.) The district court’s reliance on First Nat’l Bank & Tr. Co. v. Atchison County Auction Co., 10 Kan. App. 2d 382, 699 P.2d 1032, rev. denied 237 Kan. 886 (1985), was misplaced as that case involved a farmer’s sale of secured cattle through a livestock sale barn. In affirming the district court’s judgment in favor of the secured party, the Court of Appeals stated: “The general rule of commercial law is that a buyer in the ordinary course of business takes free of a security interest created by his seller. K.S.A. 84-9-307(1). However an exception to the general rule occurs when the buyer is ‘a person buying farm products from a person engaged in farming operations.’ K.S.A., 84-9-307(1). Livestock is included within the definition of farm products, and the parties do not dispute that Hilst was a person engaged in farming operations. K.S.A. 84-9-109(3). This exception permits a secured creditor to reach collateral in the hands of a good faith purchaser unless consent to the sale was given pursuant to K.S.A. 84-9-306(2) . . . .” 10 Kan. App. 2d at 386-87. No one is contending that Clafer’s assignment of the title was either a “sale in the ordinary course of business” or a sale of farm products. In finding liability, the Court of Appeals applied the common law relative to conversion by a factor or commission merchant — a situation wholly unlike that before us. We do not believe conversion is an appropriate theory on which to grant relief herein. A conversion is the unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another. Nelson v. Hy-Grade Construction & Materials, Inc., 215 Kan. 631, Syl. ¶ 2, 527 P.2d 1059 (1974). See Restatement (Second) of Torts § 222A (1964). Clafer was the owner of her vehicle. That vehicle was damaged through the negligence of Parrish. Clafer made a claim against Parrish’s automobile insurance carrier, State Farm. The contract between State Farm and Parrish provided, in part: “SECTION I - LIABILITY COVERAGE A “We will: 1. Pay damages which an insured becomes legally liable to pay because of. a. bodily injury to others, and b. damage to or destruction of property including loss of its use, caused by accident resulting from the ownership maintenance or use of your car.” It also provided: “Suit Against Us “There is no right of action against us: b. under the liability coverage, until the amount of damages an insured is legally liable to pay has been finally determined by: (1) judgment after actual trial, and appeal if any; or (2) agreement between the insured, the claimant and us.” After State Farm’s investigation of the facts of the collision, it determined its insured, Parrish, was liable for the damages to Clafer’s automobile and entered into settlement negotiations with Clafer. Settlement was made on the basis the vehicle had been totalled and, upon payment, State Farm asked for and received an assignment from Clafer of her interest in the wrecked vehicle. The title received by State Farm showed the security interest of GMAC. Obviously, Clafer’s assignment of her interest did not and could not operate as an assignment of GMAC’s security interest therein. That is why State Farm contacted GMAC — to clear the title of the security interest in order to permit disposal of the vehicle. GMAC refused the request and the title was sent to GMAC. No case has been cited nor has our research disclosed any case where facts comparable to these have been held to be a conversion or where conversion was even discussed as a possible theory of relief. A minority of jurisdictions have allowed recovery under somewhat comparable facts, but only on a theory other than conversion. Illustrative of such holdings is Nationwide Ins. Co. v. Bank of Forest, Etc., 368 So. 2d 1273 (Miss. 1979). In Nationwide, the debtor’s vehicle was demolished in an accident due to the negligence of the other party. Debtor’s certificate of title listed the secured party as the first lienholder on the property. The negligent driver’s insurer settled the debtor’s claim. The demolished vehicle was turned over to the insurance company and sold for its scrap value. The insurance company did not obtain a certificate of title from the debtor prior to its sale for salvage. 368 So. 2d at 1274. In rejecting the majority rule stated herein, the Mississippi Supreme Court reasoned: “The appellants argue, with some logic, that the rules of other jurisdictions should be persuasive to us. The sum of these rules is set forth in 69 Am. Jur. 2d, Secured Transactions, section 267 (1972), as follows: “ ‘Generally, under pre-Code law a settlement by a wrongdoer with either the chattel mortgagee or the mortgagor, in the absence of fraud or collusion, was a bar to an action by the other, the amount paid being held in trust to be applied according to the respective rights of the mortgagor and the mortgagee. Furthermore, a settlement by a wrongdoer with the mortgagor has been held to be a bar to an action by the mortgagee where actual notice of the mortgagee’s interest had been given to the wrongdoer, even where the notice was ignored and left unanswered or where the mortgagee had some other reason to believe that despite the notification, settlement might be made without regard to his rights . . . .’ We acknowledge the rule but do not think it persuasive. The numerous business and credit transactions directly related to motor vehicles are common knowledge. The protection of business through registration of title under the Motor Vehicle Title enactment, in our opinion, outweighs the barring of either a mortgagor or mortgagee from bringing suit against a tort-feasor who has settled with either the one or the other with total disregard for the lien rights of others. We think the very purpose of the Motor Vehicle Title Law was to afford a central place and a designated official so that essential information concerning title to motor vehicles might be readily available to anyone with legitimate needs therefor. It seems to us that ordinary prudence, at the very minimum, would require a cursory investigation of title before an owner was paid the full value of the vehicle, less salvage value, in settlement of a claim. Had this been done both the Bank of Forest and Nationwide would have been protected.” 368 So. 2d at 1275-76. The majority rule was expressed in International Harvester v. Valdez, 42 Wash. App. 189, 709 P.2d 1233 (1985), where the debtor, Valle, bought a tractor, with the bulk of the purchase price financed by the seller, who assigned the contract to International. International perfected its interest by having it recorded on the certificate of title. Subsequently, the tractor was involved in an accident with a truck owned by Valdez. Valdez’s insurance carrier settled debtor’s property damage claim — a total loss — for $14,000.00. Neither Valdez nor his insurance carrier requested an examination of the certificate of title. When debtor fell behind in subsequent payments, International learned of the accident and brought suit against Valdez for the damages to its security interest. The trial court granted Valdez summary judgment, stating (1) Valdez had no duty to protect International’s security interest, and (2) International’s suit was barred by Valdez’s settlement in full with debtor. 42 Wash. App. at 191. On appeal, the Washington Court of Appeals affirmed. It stated the purpose of perfecting a security interest is to protect the secured party against creditors, transferees, and creditors’ representatives in insolvency and that tortfeasors were not among those given record notice of properly perfected security interests. Further, the court stated, statutory and case law contemplated one settlement in which the settling party holds the proceeds in trust for the secured party to the extent of the outstanding obligation. “The underlying rationale is that the debtor has the right to possession and is entitled to recover the full amount of damage. Thus, a tortfeasor would not necessarily have a duty to join the secured party even if he had actual notice of the security interest.” 42 Wash. App. at 194. The Valdez court concluded: “In applying the above concepts to the facts presented here, we conclude the tortfeasor, Valdez, did not owe any duty to the secured party, International. First, International’s perfection of its security interest in the tractor did not provide Valdez or his insurer with notice of that interest. Neither Valdez nor his insurer was required to ascertain whether there were any liens upon Valle’s tractor prior to the settlement of the claim. Official Comment 1, RCW 62A.9-303; Johnson v. Wright, [280 S.C. 535, 537, 313 S.E.2d 343 (1984)]. Moreover, International’s contract does not obligate Valle to give the secured party notice of any damage to the collateral. International is seeking to impose a higher duty upon Valdez than it imposed upon its own debtor, Valle. “Second, Valle and not International was in possession of the tractor at the time the accident occurred. Valle was not in default and, in fact, made one payment after the accident. Valdez’s wrongful act created only one cause of action for property damage, and Valle as vendee was entitled to recover for the full value of the damage. [Citations omitted.]” 42 Wash. App. at 195. Two Kansas cases, not involving an assignment of title, should be mentioned. In Bankers Investment Co. v. Jensen Construction Co., 183 Kan. 1, 325 P.2d 66 (1958), plaintiff was the secured party to a truck purchased by the debtor, Wilson. The truck, driven by Wilson, was subsequently damaged in an accident with defendant’s vehicle. Plaintiff sued defendant to recover damages. The trial court sustained defendant’s demurrers. Plaintiff appealed on the question whether a mortgagee under a chattel mortgage can maintain an action and recover damages from one who has by his negligence damaged the mortgaged property resulting in loss or impairment of the mortgagee’s security. 183 Kan. at 2-3. Plaintiff argued it had an immediate right to possession of the secured property at the time of the accident, and thus had the right to sue third parties for negligent damage to the secured property. We rejected this argument, in affirming the lower court, stating as follows: “To follow plaintiff s theory that it was actually in possession of the truck, or had the right to possession, would involve pure speculation by first inferring that Wilson owed a payment at the time of the collision, in the face of the allegation that a payment was made after the collision, the source of which payment is nowhere disclosed or explained in the petition, and then arriving at a second inference that Wilson was therefore in default so that plaintiff was entitled to possession. Such pyramiding of inferences cannot be done. (Emigh v. Andrews, 164 Kan. 732, 191 P.2d 901.) Plaintiff cannot deny that the mortgage placed possession and all rights thereto in Wilson, who was alleged to have been driving and in possession of the truck at the time of the collision. . . . “. . . If possession, or right to possession, is in the mortgagee, as required by our decisions, at the time of a wrongful personal tortious injury or destruction of a chattel securing a mortgage, then without question the mortgagee, under the general rule and also under the rule in Kansas, could recover against a third party wrongdoer or tort-feasor.” 183 Kan. at 4-5. In Elmore v. Royal Ins. Co., 154 Kan. 93, 114 P.2d 786 (1941), plaintiff sold an automobile to one Flowers, and held a mortgage lien on the automobile. The automobile was insured by defendant. Subsequently, the automobile was destroyed in a collision with a third party, Dora Robertson, whose own automobile insurance indemnified her against loss or damage caused by her to the property of others. Flowers claimed a cause of action against Robertson. Four days later, Flowers was paid $100 by Robertson and her insurance carrier, and Flowers executed and delivered to Robertson and her insurance carrier a full and complete release from all further liability stemming from the accident. Neither plaintiff nor defendant knew of the payment and settlement until one month later. Plaintiff sued defendant insurance company to recover damages. After defendant prevailed in district court, plaintiff appealed. We affirmed, holding the mortgagee had no rights independent of the mortgagor who forfeited his rights in a settlement thereby foreclosing the mortgagee’s. claim. 154 Kan. at 97-100. Had State Farm paid the $3,681.00 without accepting the assignment of title, clearly the secured party would have had no cause of action against State Farm. State Farm accepted an assignment of Clafer’s interest in the vehicle as a part of the settlement. When GMAC refused to give up its security interest in the wrecked vehicle, State Farm mailed the title to GMAC, an act of abandonment of any ownership claim therein. What happened to the physical remains of the wrecked vehicle thereafter is not before us. We must conclude the parties do not consider this to be significant to any issue on appeal. We conclude the district court erred in entering summary judgment against State Farm on the basis of conversion. For its second issue, State Farm contends that if it were to be found guilty of conversion then the damage award should be limited to the value of the vehicle in its wrecked condition. By virtue of our determination in the preceding issue that no conversion occurred, this issue is moot. Although Scholfield did not cross-appeal herein, it argues that should we hold that no conversion occurred, then we should find liability against State Farm on the basis of K.S.A. 84-9-306(1), which provides: “ ‘Proceeds’ includes whatever is received upon the sale, exchange, collection or other disposition of collateral or proceeds. Insurance payable by reason of loss or damage to the collateral is proceeds, except to the extent that it is payable to a person other than a party to the security agreement. Money, checks, deposit accounts, and the like are ‘cash proceeds.’ All other proceeds are ‘non-cash proceeds.’ ” As will be recalled, this was the basis of Scholfield’s claim against Clafer, not State Farm. By some undisclosed process of metamorphosis, at the time of the summary judgment the district court considered this as an alternate theory of liability against State Farm. The district court held the statute inapplicable as to State Farm. Even if this issue is, arguably, properly before us, it is without merit. The statute would authorize Scholfield to track the insurance proceeds paid to Clafer by State Farm and recover from Clafer on her debt to Scholfield. It is not a vehicle which would require the payer of such proceeds to pay a second time such as is being claimed herein. Before concluding, it should be noted that under her agreement with the secured party, Clafer was required to keep collision insurance in force on the vehicle for the protection of the secured party. She allowed such insurance to lapse. The secured party could have taken steps to assure such coverage remained in effect, but failed to do so. Had such insurance been in force at the time of the collision, the secured party would have been protected. The judgment is reversed.
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Per Curiam: This original proceeding in discipline was filed by the Office of the Disciplinary Administrator against Michael W. Farmer, of Topeka, an attorney admitted to the practice of law in Kansas. The Kansas Board for Discipline of Attorneys found that respondent violated DR 1-102(A)(4) and (6); DR 2-106(A); and DR 7-102(A)(5) of the Code of Professional Responsibility. 235 Kan. cxxxvii-cxlviii. The hearing panel of the Kansas Board for Discipline of Attorneys unanimously recommended that the respondent be suspended from the practice of law. Respondent filed exceptions to the Board’s report and the matter is before this court for review. The facts as determined by the hearing panel upon which the recommended disciplinary action was based are as follows: Naomi Freeman was injured in an automobile accident on September 14, 1984. Freeman, who suffers from a nervous disorder, was given a list of attorneys by the Topeka Resource Center for the Handicapped. From that list she chose the respondent. Freeman and the respondent entered into a written contract which provided that respondent would receive as attorney fees 40% of any amounts recovered by settlement. In March 1985, respondent told Freeman that an offer of settlement of $7,500.00 had been made. Freeman authorized the acceptance of the settlement, and told respondent that she wanted to make sure that her medical bills were paid. Subsequently, Freeman went to respondent’s office where she received a check in the amount of $1,257.65, representing her portion of the proceeds from the settlement. Respondent indicated to her what her medical expenses were and represented that he would pay them. He had withheld $2,904.35 from the settlement proceeds for that purpose. Freeman testified that respondent never indicated he would attempt to compromise the medical bills, nor did they discuss or enter into any oral agreement in that regard. Thereafter, Freeman discovered that the Memorial Hospital bill and Dr. Patel’s bill had not been paid in full. Upon inquiry, she learned that a $94.00 courtesy discount had been given by Dr. Patel at respondent’s request. Freeman then went to see respondent at his office. Accompanying Freeman was Mitch Cooper, the executive director of the Topeka Resource Center for the Handicapped. Freeman went to respondent’s office because she did not know anything about the discounting of her medical bills. In response to her inquiry, respondent told Freeman that, when attorneys paid bills for people, the attorneys were often given a discount. Respondent made no mention of a prior agreement or understanding that he was to attempt to discount the medical bills and keep the difference. His position was that the discounts resulted from his efforts and, therefore, he was entitled to keep the amount discounted. At the end of the meeting, respondent gave Freeman a check for $94.00, saying that he knew the Freemans had a low income and could use the money, and that he liked to keep his clients happy. Freeman later went to see her regular health care provider, Dr. Robert Holmes, in connection with another matter. The bill she received for this visit also showed that $62.00 of the bill in connection with her automobile injuries had been written off as a “bad debt.” Freeman called the bookkeeper for Dr. Holmes, and asked if there was a mistake on her bill. Freeman then contacted other medical care providers, and discovered that the bills for their services had also been discounted. The respondent obtained the discounts by representing that Freeman’s settlement was not adequate to pay her medical expenses. Respondent informed one health care provider that, because of the inadequate settlement, he could pay only one-half of the bill. He told another that if it would not accept 50% of the medical bill like everybody else did, it would get nothing. Respondent maintained that he had an oral agreement with Freeman to take care of her medical bills for her and that he told Freeman his compensation for paying the medical bills would be derived from discounts received in compromising the bills. Respondent’s administrative assistant testified that a sufficient amount had been retained from the $7,500.00 received in settlement to pay all of Freeman’s medical bills in full. She also testified that it would have taken her approximately one hour of time to send out the checks necessary to pay all of Freeman’s medical bills in full. At the time of the automobile accident, Freeman was riding in a van owned by the Topeka Resource Center for the Handicapped. Respondent received a check from Hawkeye-Security Insurance Company representing the personal injury protection (PIP) benefits for the Resource Center. The $2,000.00 check listed both respondent and Freeman as payees. Respondent told Freeman that he would retain the check and return it to the insurance company upon a successful settlement of the case with State Farm Insurance, the insurance company for the tortfeasor causing the accident. After the settlement of the case, respondent contacted Hawkeye-Security about the return of the $2,000.00 in PIP benefits. Respondent testified that he was told by Hawkeye-Security that it automatically paid one-third of the amount of the benefits to the attorney who recovered them. Respondent then retained $667.00 of the $2,000.00 check as his fee. He did not, however, make an accounting to Freeman of the $667.00 of insurance proceeds which he retained. Respondent first argues that there is insufficient evidence to support the panel’s findings that he violated the Code of Professional Responsibility. DR 1-102(A)(4) and (6) prohibit conduct “involving dishonesty, fraud, deceit or misrepresentation,” and “other conduct that adversely reflects on his fitness to practice law.” DR 2-106(A) forbids charging or collecting an “illegal or clearly excessive fee.” DR 7-102(A)(5) forbids a lawyer in representing a client to “[kjnowingly make false statement of law or fact.” Supreme Court Rule 225, 235 Kan. cxxxvii-cxlviii. Supreme Court Rule 211(f) states that a finding of attorney misconduct requires proof “by clear and convincing evidence.” 235 Kan. cxxix. Respondent argues that no clear and convincing evidence of disciplinary rule violations exists in the present case, relying upon his testimony and the testimony of an office worker who allegedly overheard the conversations that he had an oral agreement with Freeman by which they agreed that he would attempt to compromise.the medical bills. Respondent also argues that, in discussing Freeman’s medical bills with her health care providers, he did not make any misrepresentations of fact. In State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975), this court stated that, although the report of the disciplinary board “is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.” In the present case, respondent’s denial of the factual allegations against him does not compel the finding that there is no clear and convincing evidence of misconduct on his part. The evidence was undisputed that the settlement received on Freeman’s behalf was more than sufficient to pay all health care providers in full. Respondent’s administrative assistant testified that it would have taken her no more than an hour to send out checks paying all Freeman’s health care providers in full. However, instead of doing so, respondent contacted Freeman’s health care providers to obtain discounts and, in so doing, misrepresented the true nature and extent of the settlement Freeman received in the case. He also misrepresented the fact that he had retained a sufficient amount of money to pay the medical bills in full and, in addition, told Freeman that he would pay them in full. On the basis of respondent’s statements, the health care providers accepted a discounted payment, writing off the remainder as bad debts. Freeman denied the existence of any oral contract by which she authorized respondent to obtain discounts on her behalf. Her testimony is corroborated by that of Mitch Cooper. Cooper testified that, when Freeman confronted respondent in his presence concerning the discounts, respondent defended the obtaining of the discounts, not on the basis of any alleged oral contract, but by asserting that he was entitled to them because he had worked to obtain them. Respondent represented Freeman in connection with her automobile accident for a little over six months. The case was settled before it became necessary to file a lawsuit. Respondent retained 40% of the $7,500.00 settlement as his fee, and $338.00 as out-of-pocket expenses. He also received a fee of $667.00 from the recovery of the PIP benefits, for which he made no accounting to Freeman, and retained an additional $950.00 from the discounts he obtained in his negotiations with Freeman’s health care providers. Respondent’s total fee was $4,617.00. Freeman received $1,257.65 as her share. Clearly, by any standard, the fee collected by respondent was excessive. We hold there is clear and convincing evidence respondent violated DR 1-102(A)(4) and (6); DR 2-106(A); and DR 7-102(A)(5) of the Code of Professional Responsibility. Second, respondent maintains that he did not receive a fair hearing before the disciplinary panel because the original complaint merely alleged violations of Canon 1, and at the hearing of the matter, the disciplinary administrator’s office “orally amended” the complaint to include allegations of violations of DR 5-101(A) (235 Kan. cxlv) and DR 7-102(A)(5). This court has held that it is incumbent upon every attorney to know the disciplinary rules regulating his profession, and that the failure of disciplinary authorities to set forth the specific disciplinary rules violated by an attorney is not a basis for avoiding discipline. State v. Turner, 217 Kan. 574, 579, 538 P.2d 966 (1975) (quoting State v. Alvey, 215 Kan. 460, 464, 524 P.2d 747 [1974]). Instead, the complaint is sufficient where it sets out the facts which underlie the charges of misconduct and places the attorney on notice as to what ethical violations might arise therefrom. The complaint need not contain an explicit reference to the specific disciplinary rules which might have been violated by the attorney. State v. Turner, 217 Kan. at 579-80 (quoting State v. Nelson, 206 Kan. 154, 157, 476 P.2d 240 [1970]); see State v. Alvey, 215 Kan. at 464. In the present case, the formal complaint filed by the disciplinary administrator sets forth the basic factual allegations against the respondent. The complaint is not so insufficient in its allegations that the respondent was prevented from realizing the nature of the charges against him. That the complaint does not set out the specific disciplinary rules which the respondent may have violated by his actions is not a ground for refusing to accept the findings of the discipli nary panel. The language of the complaint was sufficient to inform the respondent of the incidents which resulted in the charges of misconduct against him. It is Therefore Ordered that Michael W. Farmer be and he is hereby suspended from the practice of law in the State of Kansas for a period of one year from the 11th day of December, 1987, and that this order shall be published in the official Kansas Reports. It is Further Ordered that respondent forthwith comply with the provisions of Supreme Court Rule 218 (235 Kan. cxxxii), that he take and pass the Multistate Professional Responsibility Examination, and that he pay the costs of this proceeding. Holmes, J., not participating.
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The opinion of the court was delivered by Prager, C.J.; This is an action brought by the plaintiff, Pauline Burch, a 67-year-old grandmother, against defendants, the University of Kansas, the Kansas Board of Regents, and the State of Kansas, for personal injuries suffered when she fell in an unlighted stairwell located in Lewis Hall on the University of Kansas campus. The district court sustained defendants’ motion for summary judgment and the plaintiff appealed. The Court of Appeals affirmed in a short unpublished memorandum opinion filed January 7, 1988. The Supreme Court granted plaintiffs petition for review. In awarding summary judgment to defendants, the trial court filed a memorandum decision setting forth certain undisputed facts which essentially are as follows: On April 24, 1985, plaintiff, Pauline Burch, went to Lewis Hall to visit her granddaughter, Brandi Bengert. Plaintiff s only purpose was to visit her granddaughter and, at the time, Brandi did not know that plaintiff was coming to visit her. When she arrived at Lewis Hall, plaintiff inquired at the main desk as to the whereabouts of her granddaughter and was directed down a stairwell to a music room to find her. Plaintiff entered the stairwell, and, as she proceeded down the stairs, she realized that she could not see the steps. She continued, feeling her way down the steps, and, at the last step, fell and suffered injuries to her leg. The granddaughter was a resident of Lewis Hall during the fall of 1984 and the spring of 1985. She rented a room in accordance with a written agreement with the University. Brandi was present the night of her grandmother’s fall and was familiar with the stairwell. The stairwell in question was used extensively by residents, student monitors, resident directors, and employees of the residence hall, since the stairwell was conveniently located near the music room and laundry area. After plaintiff suffered her fall, Kansas University police officers had to use flashlights to locate her due to the darkness in the stairwell. From the evidence developed on discovery, the trial court found that security monitors are required to check the entire hall at night, and part of their job is to check the lighting in Lewis Hall. It is a policy of the University to allow visitors for the resident students and to encourage the students to have their parents and grandparents visit them. The evidence indicated that plaintiff was not advised that an elevator went to the bottom floor; however, she was aware that there was an elevator in the building. Defendants, in their answer, denied that the stairwell was improperly lighted but contended that, assuming plaintiff s contentions to be true, the alleged failure to maintain the lighting would not rise to the level of gross and wanton negligence. The defendants contend that the plaintiff was a licensee and could not recover for her injury absent a showing of gross and wanton negligence on the part of those in charge of Lewis Hall. Based upon the findings of fact set forth above, the district court adopted the following conclusions of law: (1) From the facts presented, plaintiff had the legal status of a licensee upon defendants’ premises and the law concerning landlord/tenant relationships is not applicable. (2) The active negligence exception to the duty ordinarily owed to a licensee, which was recognized in Bowers v. Ottenad, 240 Kan. 208, 729 P.2d 1103 (1986), is not applicable in this case for the reason that the claimed negligence of the defendants would not constitute “active” negligence as defined in Bowers. (3) Assuming all of plaintiffs allegations concerning the claimed negligence of the defendants to be true, such conduct does not rise to the level of wanton or reckless misconduct as a matter of law. On appeal, plaintiff raises four issues: (1) Whether the contract between the granddaughter and the University created a lessor/lessee relationship, thus placing a duty on the University to use ordinary reasonable care in maintaining the common area of the dormitory used by students and visitors. (2) Whether the plaintiff had the status of an invitee, because of the University policy to encourage students to have visitors. (3) Whether any negligence on the part of the University constituted active negligence for the purpose of the active negligence exception stated in Bowers v. Ottenad, when the Unversity failed to replace a burned-out light bulb in the stairwell. (4) Whether the actions of the University constituted wanton or reckless misconduct when its employee directed the plaintiff down the stairwell at a time when it was not adequately lighted. We agree with counsel for the parties that the primary issue in the case is the nature of the legal duty owed by the University, as the operator of Lewis Hall, toward the plaintiff, as a visitor on the premises to see her granddaughter, a resident student of the building. Stated simply, the controlling question is whether the University owed plaintiff the duty of reasonable care to keep the stairwell and other common areas of the building reasonably safe for the protection of student occupiers and visitors or whether its only obligation was not to wantonly and recklessly injure them. As noted heretofore, the trial court held as a matter of law that the contract between the University and Brandi Bengert did not create a landlord/tenant or lessor/lessee relationship and therefore plaintiff s legal status was that of a licensee to whom the University, as the operator of the residence hall, owed only the duty not to be wantonly or recklessly negligent. In determining the legal status of the plaintiff and the duty of the defendants it would be helpful at the outset tó review the applicable Kansas cases. The basic legal principle involved was discussed in depth in Borders v. Roseberry, 216 Kan. 486, 491, 532 P.2d 1366 (1975). Borders involved the liability of a landlord for personal injuries suffered by a social guest of a tenant as the result of a slip and fall on the leased premises. Defendant Roseberry was the owner of a single-family, one-story residence located in Osawatomie, Kansas. Defendant leased the property on a month-to-month basis to a tenant, Rienecker. Just prior to the time the tenant took occupancy of the house, the defendant landlord had work performed on the house including the remodeling of the house and installation of a new roof. In repairing the house, the repairmen removed the roof guttering from the front of the house but failed to reinstall it. The landlord knew the guttering had been removed by the workmen, intended to have it reinstalled, and knew that it had not been reinstalled. The roof line on the house was such that, without the guttering, the rain drained off the entire north side of the house onto the front porch steps and, in freezing weather, water would accumulate and freeze on the steps. Both the landlord and tenant knew that the guttering had not been reinstalled and knew that ice would accumulate. The tenant had complained to the landlord about the lack of guttering and the resulting icy steps. Plaintiff Gary Borders arrived at the premises at the invitation of the tenant for dinner. It was agreed that Borders’ status was that of a social guest of the tenant. As Borders was leaving the house, he slipped and fell on the steps as a result of the ice and received personal injuries. The case was tried to the court without a jury. It entered judgment in favor of the defendant based upon a conclusion of law that a landlord of a single-family house is under no legal obligation or duty to a social guest, a licensee of his tenant, to repair or remedy a known condition whereby water dripped onto the front steps causing plaintiff to slip and fall. The plaintiff appealed. In Borders, this court recognized that traditionally the law in this country has placed upon the lessee, as the person in possession of the land, the burden of maintaining the premises in a reasonably safe condition to protect persons who come upon the land. The general rule is that there is no liability on the part of a landlord, either to a tenant or to others entering the land, for defective conditions existing at the time a lease becomes effective. The court in Borders then recognized that the general rule of nonliability has been modified by a number of exceptions which have been created as a matter of social policy. The six recognized exceptions are as follows: 1. Undisclosed dangerous conditions known to lessor and unknown to the lessee. 2. Conditions dangerous to persons outside the premises. 3. Premises leased for admission of the public. 4. Parts of land retained in lessor’s control which lessee is entitled to use. 5. Where the lessor contracts to repair. 6. Negligence by lessor in making repairs. The opinion in Borders discusses each one of the exceptions and points out that Kansas cases have recognized and applied those sections of the Restatement (Second) of Torts which adopt them. The court in Borders held that none of the exceptions were applicable to the peculiar facts presented in the case. In the present case, the only exception to the general rule which could be applicable is exception No. 4, which places upon a lessor an affirmative obligation and duty to exercise reasonable care to inspect and make reasonably safe those parts of the premises retained in the lessor’s control which the lessee and others lawfully upon the land with the consent of the lessee are entitled to use. This exception is covered in the Restatement (Second) of Torts §§ 360 and 361 (1964) which provide as follows: “§ 360. Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use “A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.” “§ 361. Parts of Land Retained in Lessor’s Control but Necessary to Safe Use of Part Leased “A possessor of land who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care “(a) could have discovered the condition and the risk involved, and “(b) could have made the condition safe.” The Kansas cases have recognized a legal duty on the part of a lessor to keep common areas safe for tenants and their guests. In Hinthorn v. Benfer, 90 Kan. 731, 733, 136 Pac. 247 (1913), this court stated: “Where a portion of the building is let and the tenant has rights of passageway over stairs and entries in common with the landlord and other tenants, the landlord is bound to exercise reasonable care to render the halls and stairways safe for the uses which he invites others to make of them.” In Given v. Tobias, 137 Kan. 58, 19 P.2d 472 (1933), this court recognized the same rule when a tenant sued her landlord for injuries incurred when she fell down an unlighted stairway maintained by the landlord. The rule was also recognized in Brunsilius v. Farmers & Merchants State Bank, 143 Kan. 148, 53 P.2d 476 (1936), and Bogart v. Lyman, 142 Kan. 758, 51 P.2d 918 (1935). The plaintiff in this case relies upon our decision in Trimble v. Spears, 182 Kan. 406, 320 P.2d 1029 (1958). In Trimble, the court expanded the general rule requiring a lessor to exercise reasonable care to maintain common areas to include a duty to third persons invited by a tenant to the premises. The court stated: “Liability is based upon the obligation of the landlord to the tenants of different parts of the same building in reference to the halls, stairways, doors and et cetera of which he has kept in possession for their common use. His liability to persons other than the tenants is based upon the privity of those persons with the tenant who occupies a portion of the premises. In the use of the stairs, hallways, passageways, walks and the like over which the landlord retains control for the benefit of the tenants in common the persons in privity with any tenants are regarded as invitees on the premises either by express or implied invitation and the landlord owes them a duty to exercise ordinary care to keep those portions of the premises in safe condition.” 182 Kan. at 413. The court made it clear that the duty of a lessor to exercise reasonable care “extends.to persons expressly or impliedly invited by the tenant. It also extends to all of those who have lawful occasion to visit a tenant for social purposes.” 182 Kan. at 414. The rule of liability is not unlimited, however. The landlord must be shown to have had actual or constructive knowledge of the defect causing the injury.. Further, the responsibility extends only to common areas. The basic issue in this case is whether the rule recognized in Borders and Trimble is applicable under the particular facts of the case. To determine that issue, we must first closely examine the pertinent facts. The basic agreement between Brandi Bengert and the University of Kansas is set out in a “Residence Hall Contract.” Under the contract, the University guarantees space, meals, and other services in a residence hall, but does not guarantee a specific room in a specific hall. Payments under the contract are denominated installments, not rent. The University reserves the right to “assign, re-assign, and adjust occupancy of rooms,” but room and hall changes cannot be made during the semester without the agreement of the student. The contract directs that the area leased to a student cannot be subleased. The contract provides that students do not have an absolute right to have guests or visitors, and that overnight guests must be registered at the hall desk. Specific visiting hours and visiting locations for guests of the opposite sex are set out. Students who violate University regulations or withdraw from school may find their contracts unilaterally cancelled. In determining the nature of the contract in this case, the trial court noted that the contract had some similiarities to a lease. There is a definite and agreed term, a definite and agreed price, and a specified manner of payment. The contract, however, does not use the word “lease,” “rent,” “landlord,” or “tenant.” In holding that the common area exception under the law was not applicable, the trial court stated in its memorandum opinion: “Plaintiff initially claims that the body of law concerning landlord/tenant and lessor/lessee relationships should apply to this case. This contention is based on the fact that the accident occurred in a building used for housing university students. In reviewing the facts in the record, including the rental contract between the university and plaintiff s granddaughter, Brandi Bengert, it appears that there are several elements of the agreement which are normally found in leases, a definite and agreed term and a definite and agreed price and a specified manner of payment. “However, the agreement fails to pass a possessory interest in specific property because the contract provides: ‘The University has the right to assign, reassign and adjust occupancy of rooms . . . Rooms and hall changes may be made during the semester if agreed upon in advance by the student involved and the hall directors.’ . . . “It appears that the contract lacks the essential requirements of being a definite agreement as to the extent and bounds of the property to be used which is necessary to create a landlord/tenant relationship. See Dutton v. Dutton, 122 Kan. 640, 253 P. 553 (1927); Misco Industries, Inc. v. Board of Sedgwick County Comm’rs, 235 Kan. 958, 685 P.2d 866 (1984); Cook v. University Plaza, 100 Ill. App. 3d 752, 427 N.E.2d 405 (1981).” In adopting its position, the trial court strictly construed the contract entered into between Brandi Bengert and the University and required a traditional, common-law lease in order for the common area exception to be applicable. Obviously, the trial court was very technical in its application of the legal principles involved and in holding that the plaintiff, as an implied invitee and guest of her granddaughter, was not protected under the common area exception discussed heretofore. We concede that the contract between Brandi and the University of Kansas was not technically a lease in the traditional sense. In our judgment, however, it is important for the court to look at the contractual relationship of the parties in the light of modern conditions in deciding whether the common area exception is to be applied in a particular case. In Steele v. Latimer, 214 Kan. 329, 521 P.2d 304 (1974), the question presented was whether the implied warranty of habitability was applicable to a contract for the rental of urban residential property. The plaintiff rented a three-bedroom house owned by defendant Latimer. The agreement was oral and there was no written lease. Steele is important here because of the discussion in the majority opinion as to the nature of a lease and the lessor/lessee relationship. In the opinion, the court stated: “Usages, customs and patterns in housing practices have undergone dramatic change since the common law rules respecting landlord-tenant relationships were developing in feudal England. Dwelling habits fashioned under the agrarian atmosphere of those far-off times are hardly suitable for congested urban settings. Under the tenurial system a lease was primarily considered to be the conveyance or transfer of an interest in realty. The value to the tenant lay mainly in the land itself, the buildings being considered for the most part as incidental to the lease. Dwellings were ordinarily of simple construction, without today’s modern conveniences and mechanical gadgets, and could easily be kept in repair by the tenant himself. (Marini v. Ireland, 56 N.J. 130, 265 A.2d 526; Kline v. Burns, 111 N.H. 87, 276 A.2d 248.) “The feudal concept that a lease is simply the sale or conveyance of an interest of land [citation omitted] has given way to the more realistic view that a lease is essentially a contract. In Dutton v. Dutton, 122 Kan. 640, 253 Pac. 553, this court has said: “ ‘Landlord and tenant is a phrase used to denote the familiar legal relation existing between the lessor and lessee of real estate. The relation is contractual and is constituted by a lease or agreement therefor of lands for terms of years, from year to year, for life or at will. . . .’ (pp. 641, 642.)” p. 333. In their brief, defendants cite Misco Industries, Inc. v. Board of Sedgwick County Comm’rs, 235 Kan. 958, 685 P.2d 866 (1984). That case did not involve the liability of a lessor of land under the common area exception. The only issue was whether, under the factual situation, payment of a mortgage registration tax was required. The court, in substance, recognized that a lessor/lessee relationship may arise even though the traditional elements of a common-law lease are not present. The court pointed out that a lease is both an executory contract and a present conveyance. A tenant is one who has the temporary use and occupancy of leased property belonging to another. To determine whether an instrument is a lease, or creates a relation other than that of lessor and lessee, the intention of the parties, as ascertained from the instrument itself, will govern. The fundamental rule in the construction of an agreement is to ascertain the intent of the parties, and in such construction the courts look to the language employed, the subject matter, and the surrounding circumstances. Dutton v. Dutton, 122 Kan. 640, 253 Pac. 553 (1927). Thus, the court held that a contract may be a lease where the parties so intended, even though the usual provisions of a common-law lease are not contained in the instrument. In the Restatement (Second) of Torts § 355 (1964), the term “lessor of land” is defined in comments a and b, as follows: “a. The words ‘lessor of land’ denote one who has leased land for a definite or indefinite period, no matter how great or small, by a written or parol lease, irrespective of whether a statute of fraud requires the lease to be in writing. The lease may be created by words or other conduct expressing consent to the lessee’s possession. The conduct expressing consent may consist merely in a failure to terminate a lease or eject the tenant, or to object to the presence of one who has entered without the lessor’s consent but not adversely to him.” “b. The rule stated in this Section includes a sublessee and all licensees of the lessee or sublessee, irrespective of whether they are invitees or licensees. It includes persons who are privileged to enter the land, irrespective of the lessee’s consent, for the protection of their own interests or the interests of the public.” Thus, in applying the common area exception under Restatement (Second) of Torts §§ 360 and 361, the term “lessor of land” is to be construed to include any contractual relationship, written or oral, where the owner of property leases land and retains under his possession and control certain areas of the land which various renters or tenants are entitled to use as appurtenant to the part leased to them. This liberal approach was taken by this court in Albanese v. Edwardsville Mobile Home Village, Inc., 215 Kan. 826, 529 P.2d 163 (1974), where Syllabus ¶ 1 states: “Where the owner of premises lets portions thereof to different tenants or residents and expressly or by implication reserves other parts such as areaways, walkways, recreational areas, playgrounds, etc. for their common use it becomes his duty to use reasonable care to keep safe the parts reserved by him, and should he be negligent in such respect and injury results by reason thereof to a tenant or resident, or to a person there in his right, the owner will be liable provided the injury occurs while such parts of the premises are being used in the manner intended.” One of the important issues in the case was whether the common area exception should be applied to the owner or operator of a mobile home facility who rented space to various mobile home owners. The court held that it should be so applied, stating that it was aware of no case which had applied the landlord/tenant rule of liability to the owner or operator of a mobile home facility, but it could see no reason why the rationale of the rule would not govern a trailer or mobile home court situation such as was presented in that case. We have carefully considered the issue and hold that, in the application of the common area exception under §§ 360 and 361 of the Restatement (Second) of Torts, the lessor/lessee relationship should be liberally construed to include factual situations where there is no traditional, common-law lease, but where land has been leased for a definite or indefinite period, no matter how great or small, by either a written or parol lease, and irrespective of whether the statute of frauds requires the lease to be in writing, as noted in comment a of § 355 of the Restatement. The lessor/lessee relationship may be created by words or other conduct expressing consent by the lessor to the lessee’s possession. We are convinced that when the owner of property leases or rents a portion thereof to a number of tenants and retains possession and control of certain common areas to be used by all tenants, that factual situation creates a duty on the part of the owner of the property to maintain those common areas in a reasonably safe condition and to exercise reasonable care to carry out that duty. In view of this holding, it follows that the district court erred in sustaining defendants’ motion for summary judgment on the basis that the common area exception did not apply, because there was no landlord/tenant or lessor/lessee relationship present. In view of the holding on this issue, it is not necessary to consider the other points raised by the plaintiff on the appeal. If there is a trial, the issues to be determined are whether the defendants violated a legal duty to exercise due care in the maintenance of the common areas of Lewis Hall, whether the plaintiff was negligent, and the percentage of causal fault to be assignable to the parties. The judgment of the district court and the judgment of the Court of Appeals are reversed and the case is remanded to the district court with instructions to consider the issues raised as to the comparative fault of the parties.
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The opinion of the court was delivered by Miller, J.: Lamar Gilmore, John Stasse, Robert E. Murphy, Gary Dean Darby, and Joseph Dyche are all in the custody of the Secretary of Corrections of the State of Kansas, following their respective convictions for various felony offenses. Each petitioner met with the Kansas Parole Board, and each was denied parole. Petitioners then commenced separate actions against the Kansas Parole Board, claiming that the reasons given by the Board for denying parole do not comply with constitutional and statutory requirements, and petitioner Gilmore also contends that the “unanimous vote rule,” implemented by the Board, violates his constitutional rights. The district court of Reno County denied Gilmore’s petition for habeas corpus, finding that he has no constitutional or inherent right to parole; that the reasons set forth by the Board for denial of parole were sufficient; and that the Board has the authority to adopt the “unanimous vote rule.” On the other hand, the district court of Leavenworth County granted the petitions of Stasse, Murphy, Darby, and Dyche, finding that the Board had not furnished each of them with specific, articulated reasons for denial of parole, and the court ordered the Board to furnish a new parole hearing for each of those petitioners, and directed that a detailed statement of reasons be furnished if the Board denied parole to any of those men. Gilmore appeals from the decision of the Reno District Court, and the Kansas Parole Board appeals from the decision of the Leavenworth District Court. All five cases were consolidated for hearing before this court. The first issue is whether the reasons given by the Parole Board for denying parole to each of the petitioners complies with constitutional and statutory requirements. We turn first to the statutory law. K.S.A. 1987 Supp. 22-3717(h) provides in applicable part: “Whenever the Kansas parole board formally considers placing an inmate on parole and does not grant the parole, the board shall notify the inmate in writing of the reasons for not granting the parole.” The Kansas Administrative Regulation, K.A.R. 45-4-7 (1987 Supp.), provides not only for the furnishing of written reasons for denial of parole but also for recommendations. The regulation reads: “Inmates who have not been granted parole shall be furnished written reasons for the board’s decision as soon as practical through the unit team as well as any recommendations as to the manner in which the inmate may improve the inmate’s status at the designated pass date.” The Reno District Court found: “The reasons set forth by the Kansas Parole Board for denial of Petitioner’s parole request were sufficiently stated to show that the Board considered appropriate information to deny the Petitioner’s parole.” The Leavenworth District Court found that “ ‘boiler plate’ language ... is routinely and customarily employed by respondent Kansas Parole Board in denying parole en masse to applicants who in fact may be quite dissimilarly situated. Petitioners’ contention that they and other inmates have not been afforded individually-tailored explanations for the denial of their parole applications is well established by the testimony and exhibits presented, and respondent has produced no evidence to the contrary . . . .” Let us now examine the reasons advanced by the Board in denial of petitioners’ parole. Each of the petitioners received a written notification, listing four or five reasons why parole was denied. One paragraph appears in all of the documents. It reads: “The [Parole] Board recommends that you cooperate with institutional staff, participate in programs recommended by the staff, and maintain a good conduct record, all of which will be considered by the [Parole] Board at your next scheduled hearing.” All except the notice to Murphy contained the following two paragraphs: “In view of the serious nature and circumstances of the offense, the Parole Board feels that your release at this time would depreciate the seriousness of the sentence which was imposed by the court, promote disrespect for the law, and is incompatible with the prevailing social opinion. “The Parole Board also notes strong objection from the community regarding your parole at this time.” The notice to Darby and Stasse contained the following paragraph: “The [Parole Board] recommends that you participate in mental health counseling prior to your next scheduled hearing.” The following paragraphs appeared in only one of the notices. The one provided to Dyche said: “The [Parole Board] recommends that you participate in sex offenders program prior to your next scheduled hearing.” Gilmore’s said: “The Kansas Parole Board also recommends that you participate in continued mental health counseling for sexual offenders and anger management, and substance abuse counseling prior to your next scheduled hearing.” Murphy’s notice included the following four paragraphs: “From an assessment of your case, it appears you have certain behavioral problems which should receive further attention prior to positive consideration for release on parole. “You have a hostile attitude. “The [Parole] Board recommends that you cooperate with institutional staff, participate in programs recommended by the staff, and maintain a good conduct record, all of which will be considered by the [Parole] Board at your next scheduled hearing. “The Kansas Parole Board also recommends that you participate in mental health sexual offenders counseling and adjustment counseling prior to your next scheduled hearing.” Finally, Stasse’s notification included this paragraph: “Because of your prior criminal history, the [Parole Board] feels your continued confinement within the institution will enhance your capacity to lead a law abiding life when released at a later date.” In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979), the United States Supreme Court recognized that the rationale behind requiring reasons for a denial of parole is to guide the prisoner in future conduct. 442 U.S. at 15-16. The opinion, however, does not require that a separate and individually written statement, in language entirely different from that-written for any other inmate, be provided. Similarly, neither the Kansas statute nor the administrative regulation requires separately written and distinctive language addressed to each inmate. It is obvious that the Board has formulated certain language which it uses to address most of the common reasons and recommendations. The Board, however, does not issue the same statement to each inmate. The reasons and recommendations appear to be carefully selected in order that each inmate may know the reasons for denial of parole and may receive guidance as to his (or her) further conduct and activity while in custody. The Board is required by K.S.A. 1987 Supp. 22-3717(h) to interview each inmate. Under 22-3717(g), the Board is required to consider all pertinent information regarding each inmate, including, but not limited to, the circumstances of the offense; the presentence report; the previous social history and criminal record; the conduct, employment, and attitude of the inmate in prison; and the reports of any physical and mental examinations. The argument is advanced that the crime itself cannot be the reason for denial of parole unless all inmates convicted of a certain crime are denied parole. In support of this contention, petitioners cite U. S. ex rel. Scott v. Ill. Parole and Pardon Bd., 669 F.2d 1185, 1190 (7th Cir. 1982). That case is distinguishable. The Seventh Circuit found that the Illinois parole statute created a liberty interest in parole release. However, the Kansas statute, which we shall discuss later, does not create a liberty interest. Thus, the question is whether the reasons for denial comply with Kansas statutory law. Certainly the nature of the crime is a consideration to be taken into account and thus can be cited as a reason for denial of parole. K.S.A. 1987 Supp. 22-3717(g) requires the Board to consider the circumstances of the offense of the inmate. The acts of one person in committing an offense may be quite different and much less or much more shocking and heinous than the acts of another person in committing the same statutorily defined offense. That a parole board may properly consider the nature of the crime is answered in Greenholtz, where the United States Supreme Court stated: “A state may, as Nebraska has, establish a parole system, but it has no duty to do so. Moreover, to insure that the state-created parole system serves the public-interest purposes of rehabilitation and deterrence, the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority. It is thus not surprising that there is no prescribed or defined combination of facts which, if shown, would mandate release on parole. Indeed, the very institution of parole is still in an experimental stage. In parole releases, like its siblings probation release and institutional rehabilitation, few certainties exist. In each case, the decision differs from the traditional mold of judicial decisionmaking in that the choice involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community. This latter conclusion requires the Board to assess whether, in light of the nature of the crime, the inmate’s release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice. The entire inquiry is, in a sense, an ‘equity’ type judgment that cannot always be articulated in traditional findings.” (Emphasis added.) 442 U.S. at 7-8. We conclude that the reasons given by the Board in written form to each inmate upon denial of parole comply with the statutory requirements. Though the Board uses the same language to describe the same reasons for denial or recommendations for the guidance of the inmates, the notices are tailored to each individual inmate. We find no valid objection to the notices employed. We turn now to whether the petitioners have a liberty interest in parole release which is protected under the Due Process Clause of the Fourteenth Amendment. In Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), the United States Supreme Court defined a property interest. The Court said: “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Similarly, to have a liberty interest in parole release, an inmate must have more than an abstract desire for it or a unilateral expectation of it. Instead, he must have a legitimate claim of entitlement to it under the statutes which provide for parole. In Greenholtz, the Court said: “That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained. Board of Regents v. Roth, 408 U.S. [564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)]. To that extent the general interest asserted here is no more substantial than the inmate’s hope that he will not be transferred to another prison, a hope which is not protected by due process.” 442 U.S. at 11. However, in both Greenholtz and Board of Pardons v. Allen, 482 U.S. 369, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987), the United States Supreme Court found that the Nebraska and Montana statutes provided a liberty interest in parole release because of the mandatory language of the respective state statutes. The Nebraska statute said that: “ ‘Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because [of one of several reasons].’ ” (Emphasis added.) Neb. Rev. Stat. § 83-1,114(1) (1976), quoted in Greenholtz, 442 U.S. at 11. The Greenholtz court held that the establishment of a parole system by the state does not automatically give rise to a protected liberty interest in parole. The language of the Nebraska statute, however, was mandatory, and thé court held that such language created an exception to the general rule and created a liberty interest in parole. Thus, to satisfy due process, the Nebraska Parole Board was required to provide each inmate an opportunity to be heard, and to notify the inmate of the reasons for denial — a statement of those respects in which the inmate fell short of qualifying for parole. The Kansas Board, under statute and regulation, takes similar action. The Montana statute read: “ ‘(1) Subject to the following restrictions, the board shall release on parole [certain persons] . . . when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community!.] “ ‘(2) A parole shall be ordered only for the best interests of society ....’” (Emphasis added.) Mont. Code Ann. § 46-23-201 (1985), quoted in Board of Pardons v. Allen, 482 U.S. at 376. The Kansas statute, K.S.A. 22-3717(e), does not say that the Kansas Parole Board “shall release on parole” or “shall order his release.” Instead, the Kansas statute merely empowers the Board to place one on parole when the Board, in the exercise of its discretion, believes that the interests of the prisoner and the community will be served by such action. The statute provides: “[T]he Kansas parole board shall have the power to release on parole those persons confined in institutions who are eligible for parole when, in the opinion of the board, there is reasonable probability that such persons can be released without detriment to the community or to themselves.” (Emphasis added.) K.S.A. 1987 Supp. 22-3717(e). In Board of Pardons v. Allen, 482 U.S. 369, the Court stated that when statutes or regulatory provisions are phrased in mandatory terms or explicitly create a presumption of release, courts find a liberty interest. Conversely, statutes or regulations that provide that a parole board “may” release an inmate on parole do not give rise to a protected liberty interest. In Parker v. Corrothers, 750 F.2d 653 (8th Cir. 1984), the Eighth Circuit found that the Arkansas parole statute did not create a liberty interest. That statute, Ark. Stat. Ann. § 43-2804 (1977), like the Kansas statute, provides: “The Parole Board shall have the power . . . .” Upon consideration of the entire statutory scheme in Kansas, we conclude that the various factors which the Board is directed to consider are procedural guidelines and not a limitation upon the Board’s discretion. The Board is empowered to grant parole, but only in the exercise of its discretion, after considering the facts of the offense and the background, record, history, and situation of each prisoner. While the Board’s action in revoking parole involves a liberty interest, Johnson v. Stucker, 203 Kan. 253, 259, 453 P.2d 35, cert. denied 396 U.S. 904 (1969), and Morrissey v. Brewer, 408 U.S. 471, 481, 482, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), the Kansas parole statute does not give rise to a liberty interest when the matter before the Board is the granting or denial of parole to one in custody. Parole, like probation, is a matter of grace in this state. It is granted as a privilege and not as a matter of fundamental right. State v. DeCourcy, 224 Kan. 278, Syl. ¶ 3, 580 P.2d 86 (1978). We hold that K.S.A. 1987 Supp. 22-3717 does not create a liberty interest in parole. The notices furnished to petitioners upon denial of parole are not constitutionally deficient. Gilmore contends that the present policy of the Board to require a unanimous vote before parole is granted to a person convicted of a Class A or B felony violates article I, section 9 of the United States Constitution, and constitutes the application of an ex post facto law. Gilmore was convicted of rape, and began serving a ten-year to life sentence on February 26, 1980. In February of 1986, he became eligible to meet with the Board, but parole was denied. At the time of his conviction, Kansas had a five-member Adult Authority. An affirmative vote of a majority of the Authority, three members, was required before parole could be granted. In 1984, the Kansas Legislature amended K.S.A. 22-3707 and 22-3707a, changing the name of the Kansas Adult Authority to the Kansas Parole Board, and reducing the membership to three. K.S.A. 1987 Supp. 22-3707, -3707a. Although not required by statute, the Board has adopted a policy whereby it will grant parole to those convicted of A and B felonies only upon a unanimous vote of the Board. Gilmore relies upon the decision in United States ex rel. Steigler v. Board of Parole, 501 F. Supp. 1077 (D. Del. 1980). At the time Steigler was convicted and sentenced, the Delaware statutes provided that parole was to be determined by a simple majority of a five-member Board. Before Steigler became eligible for parole, the Delaware statute was amended to require an affirmative vote of four of the five members before parole could be granted to inmates convicted of certain serious crimes. Steigler received a letter after his parole was denied, stating that three members of the Board had voted for parole but the law then required four affirmative votes before parole could be granted. The Steigler court, admitting that the amendment could be characterized as procedural rather than substantive, noted that the clear purpose of the statutory change was to make parole substantially more difficult for particular classes of defendants and to require a greater quantity of proof of fitness for parole than would have been required under the prior law. Holding that the law violated the ex post facto clause of article I, section 10, of the United States Constitution the Steigler court relied upon Thompson v. Utah, 170 U.S. 343, 42 L. Ed. 1061, 18 S. Ct. 620 (1898), finding that case indistinguishable. Thompson had been charged with a felony and tried in the territory of Utah before a jury composed of twelve persons. That conviction was set aside, and after Utah was admitted to the Union, Thompson was retried and convicted by a jury composed of only eight persons. The United States Supreme Court held that Thompson’s right to a twelve-member jury vested at the time of his first trial. We find both Steigler and Thompson distinguishable. If Thompson’s right to a twelve-person jury vested at the time of his first trial, then Gilmore’s right to a parole board of a certain size vested at the time of his first appearance before the Board — which occurred after the Board was reduced to three members. At the time Gilmore was convicted, the Board consisted of five members. The statute then in force, K.S.A. 1980 Supp. 22-3717, like the later amendments, did not fix the number of members of the Adult Authority who had to vote in favor of parole before one could be granted. The Authority, by internal rule, could have required 3, 4, or 5 votes. At that time, 1980, the Authority went by the majority vote rule, and only three affirmative votes were required before parole could be granted. At the present time, the Board consists of only three members and, under the Board’s internal rule, all three must agree before Gilmore can be placed on parole. In Steigler, state statutory law originally required a 60% majority, and the Delaware Legislature raised the required majority to 80%, or four affirmative votes on the five-person Board. Here, the legislature has not fixed the voting requirements for the Board, but has left that matter to the discretion of the Board itself. We conclude that the matter is internal and procedural, and not a substantive change. Gilmore has no liberty interest in parole under Kansas law, and this procedural change is not unconstitutional. We find no ex post facto violation. The judgment of the district court of Reno County in the case of Lamar Gilmore v. Kansas Parole Board is affirmed. The judgment of the Leavenworth District Court in the consolidated cases of John Stasse v. Kansas Parole Board, Robert E. Murphy v. Kansas Parole Board, Gary Dean Darby v. Kansas Parole Board, and Joseph Dyche v. Kansas Parole Board is reversed.
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Per Curiam: Bruce E. Miller, disciplinary administrator, filed an original action to discipline Russell W. Davisson of Wichita, Kansas, an attorney admitted to practice law in Kansas. The facts are not in dispute. The majority of the members of the hearing panel recommended public censure as the appropriate discipline. The other member of the panel filed a minority report and recommended suspension for a limited period. The respondent took exception to the minority report and recommendation. On May 14, 1984, Floyd Crawford, who was employed by Feed Transport, Inc., of Hugoton, Kansas, was pulling a trailer leased by his employer. Crawford was filling the trailer with anhydrous ammonia. At the conclusion of loading, a valve on the trailer malfunctioned and Crawford was struck in the chest and face by a blast of anhydrous ammonia with sufficient force to tear the rotator cuff of his right shoulder, knock a neck disc out of place, and cause second- and third-degree burns to 35 percent of his body, first degree burns to his face, and burns to his nose and sinuses. Crawford underwent extensive medical treatment as a result of the injuries. In late summer 1984, Crawford discussed his injuries and the possibilities of filing a lawsuit with Davisson. Prior to the spring of 1985, Davisson agreed to represent Crawford in the personal injury action. On May 14,1986, a year later, and exactly two years after the action occurred, Davisson filed an action for $1,500,000 against the manufacturer of the trailer and the owner of the trailer who had leased it to Crawford’s employer. No summonses were issued. Rule 4(j) of the Federal Rules of Civil Procedure provides if service of summons and complaint is not made on defendant within 120 days after filing of the complaint and the party on whose behalf service was required cannot show good cause why service was not made within thát period, the action shall be dismissed, without prejudice, upon the court’s own initiative with notice to the party, or upon motion. On September 18, 1986, the federal district judge issued an order to show cause within 10 days why the case should not be dismissed for lack of prosecution. Davisson filed a response to the order to show cause 12 days later, stating that service of process attempted by mail upon the defendants had received no response; that he was prepared to issue service of process by mail to the registered agent of the respective foreign corporations; and if that process was ineffective, he would seek to obtain personal service. He stated that, as plaintiff s attorney, he had acted with due diligence to obtain service of process upon the defendants, and requested that the action not be dismissed until plaintiff had an additional opportunity to obtain service. On February 18, 1987, the judge filed a second order to show cause within 10 days why the action should not be dismissed for lack of prosecution. No further action was taken by Davisson, and on March 6, 1987, the federal district judge dismissed the action without prejudice and assessed costs against the plaintiff. Crawford filed a complaint with the disciplinary administrator. During the investigation, Davisson admitted that he took no further action after his response to the federal district court’s first show cause order, and that he neither attempted mail service upon the registered agent of either defendant corporation nor attempted to obtain personal service upon either defendant, as alleged in his pleading. Davisson admitted that the statute of limitations bars any recovery from the defendants for the personal injuries of Mr. Crawford. Davisson also admitted that he neither examined the valves, nor had them removed from the trailer and tested, nor did he consult an expert witness regarding the defective valve. He had searched for some industry standards, but never was able to develop any theory of liability. The actions of Respondent Russell W. Davisson have severely hampered the resolution of any possible claims Floyd Crawford may have had as a result of the injuries he suffered. Davisson also failed to adequately communicate with his client throughout the personal injury case. Based on the stipulated facts, the hearing panel found that Respondent, by failing to adequately prepare a legal matter and neglecting a legal matter entrusted to him, violated DR 6-101(A)(2) and (3) (1987 Kan. Ct. R. Annot. 143) and DR 1-102(A)(1) (1987 Kan. Ct. R. Annot. 123). The violations were admitted by Respondent’s stipulation. The hearing panel also reviewed and considered evidence presented in a prior complaint against the respondent, In the Matter of Russell W. Davisson, Case No W3918. In that case, respondent had failed to complete a probate matter during the ten years he was attorney for the estate. Davisson received a private censure. Because of Davisson’s public service contributions through the local bar association, the disciplinary administrator, Bruce E. Miller, recommended public censure to the members of the hearing panel. The hearing panel could not agree on the recommendation for discipline of Davisson. Because of the restrictive types of discipline possible under Supreme Court Rule 203 (1987 Kan. Ct. R. Annot. 102), the majority members of the panel followed the suggestion of the disciplinary administrator and recommended public censure as the appropriate discipline. The minority member did not question the fact Mr. Davisson has contributed greatly to the local bar association in the area of public service. But, because the nature of the two complaints, either standing alone or viewed together, demonstrated the gross neglect of legal matters entrusted to Davisson and his failure to communicate with his clients, the minority member recommended a suspension of limited duration. Having carefully reviewed the record, this court concurs with the majority recommendation of public censure. It Is Therefore Ordered that Russell W. Davisson be and he is hereby disciplined by public censure for violation of DR 6-101(A)(2) and (3) and DR 1-102(A)(1). It Is Further Ordered that a copy of this order be published in the official Kansas Reports and that the respondent pay the costs of this proceeding. By Order of the Court the 29th day of April, 1988.
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Per Curiam,-. This is an original action in discipline initiated by Bruce Miller, disciplinary administrator, against Robert E. Diehl, an attorney admitted to the practice of law in Kansas, alleging respondent had violated Canon 1 of the Code of Professional Responsibility by Failing to Maintain the Integrity of the Legal Profession (Rule 225,1987 Kan. Ct. R. Annot. 122). A panel of the Board for Discipline of Attorneys conducted a hearing upon the allegations of the complaint and on March 23, 1988, filed a final hearing report in which two members recommended public censure, finding that the respondent’s acts did not reflect moral turpitude, but were private in nature and did not involve clients. One member determined that the respondent had violated a public trust and undermined the administration of justice and recommended indefinite suspension. As no exceptions to the report were filed by the respondent, the facts as found by the panel are not in dispute. In May of 1985, respondent was the county attorney for Ellis County, Kansas. After respondent learned that he was one of the individuals targeted in a drug investigation, he resigned his public office in July, 1985. On December 2, 1986, respondent pled guilty to one count of an amended information charging him with possession of marijuana on May 23, 1985, in violation of K.S.A. 65-4127b, a Class A misdemeanor. Respondent has admitted the allegations in Count I of the amended formal complaint that he violated DR 1-102(A) (5) (1987 Kan. Ct. R. Annot. 123) by engaging in conduct that was prejudicial to the administration of justice and DR 1-102(A)(6) by engaging in other conduct that adversely reflects on his fitness to practice law as alleged in Count II, when on May 23 and 24, 1985, respondent in two separate telephone conversations asked a third party to sell marijuana to him. In the criminal proceedings in Ellis County, Kansas, respondent was originally charged with attempting to purchase cocaine, a felony. Prior to trial, the State refused the respondent’s offer to plead guilty to a reduced charge of possession of marijuana. During the trial, the prosecution’s main witness testified that the respondent had attempted to buy marijuana for personal use, not cocaine. After the jury retired to deliberate, it informed the court that it was deadlocked at 11 to 1. Respondent’s offer to plead guilty to a reduced charge of possession of marijuana was accepted by the State. After the plea agreement, it was determined that the jury had been deadlocked 11 to 1 for acquittal. Respondent’s conviction for possession of marijuana is based upon his statements to the judge at the plea hearing. Respondent was sentenced to confinement in the Ellis County jail for 30 days, fined $2,500, and ordered to pay the costs of the action. The court granted respondent probation and gave him six months to pay the fine and costs. Admitted into evidence at the disciplinary hearing were numerous testimonials of respondent’s good reputation in the community and of his competent, conscientious, and professional legal ability, both while as county attorney and, after his trial and conviction, in private practice. There was no evidence that respondent’s professional conduct had ever been influenced by his use of drugs. There was ample evidence of respondent’s full cooperation with the Disciplinary Administrator’s office in these proceedings, his remorse for his actions, and his many public and private apologies for his conduct. There is no question but that respondent’s possession of marijuana was purely for personal use and not for profit. While Kansas has not disciplined an attorney for conviction of possession of marijuana, other jurisdictions have addressed the issue. In Matter of Higgins, 105 App. Div. 2d 462, 480 N.Y.S.2d 257 (1984), respondent pled guilty to possession of marijuana in the fourth degree, a misdemeanor. The marijuana seized was for his personal use. The New York Supreme Court, Appellate Division, found respondent’s conduct was not conduct involving moral turpitude or prejudicial to the administration of justice, stating: “The crime to which respondent pleaded does not involve a grave infringement of the moral sentiment of the community, but rather is criminal by virtue of its statutory prohibition. ... At no time did respondent’s crime disadvantage a client, or impede or impair the quality, competence, reliability and trustworthiness of his professional conduct and the fulfillment of his professional obligations.” 105 App. Div. 2d at 462-63. The court ordered public censure. In Matter of Turner, 463 N.E.2d 477 (Ind. 1984), respondent pled guilty to possession of marijuana, a misdemeanor. The Indiana Supreme Court ordered public reprimand, stating respondent’s involvement with an illegal substance not only violated a law of the state, but reflected adversely on the integrity of the legal profession. 463 N.E.2d at 478. In two New York cases involving assistant district attorneys found guilty of the sale of marijuana, the courts found public censure to be the appropriate punishment. See Matter of Director, 82 App. Div. 2d 606, 442 N.Y.S.2d 553 (1981); Matter of Wolfson, 82 App. Div. 2d 587, 442 N.Y.S.2d 548 (1981). We agree with the minority member of the board that we must consider (1) that the respondent was the chief law enforcement officer of the county when he committed the crimes; (2) that it was the license to practice law that qualified the respondent for the office and; (3) that the license and the office require a high standard of conduct in order to preserve the public trust in the profession and respect for our system of justice. In State v. Scott, 230 Kan. 564, Syl. ¶ 4, 639 P.2d 1131 (1982), we set forth mitigating factors to be considered in determining the nature and extent of the discipline for a breach of professional responsibility, as follows: “(1) Whether restitution has been made; (2) previous violations or the absence thereof; (3) previous good character and reputation in the community; (4) the present and past attitude of the attorney as shown by his cooperation during the hearing and acknowledgment of the transgression; (5) letters from clients, friends and lawyers in support of the character and general reputation of the attorney; and (6) any statement by the complainant expressing satisfaction with restitution and requesting no discipline.” Application of these mitigating factors weighs in respondent’s favor. Before this offense, respondent’s record was spotless. Letters from the community and from his peers requested len iency and compassion. He has accepted full responsibility for his conduct, apologized to the public and the courts at his sentencing hearing, and has cooperated fully in these disciplinary proceedings. Prior to the amendment of Supreme Court Rule 203 (1987 Kan. Ct. R. Annot. 102), this court limited the forms of discipline it imposed to disbarment, suspension, and public or private censure. The expansion of the option in Rule 203(a)(5), as amended March 1, 1988, to tailor disciplinary sanctions to the needs and circumstances of individual respondents allows this court to place restrictions and requirements on the person’s practice of law and/or on the person licensed. See Rule 203(a)(5), Rules Relating to Discipline of Attorneys, March 1, 1988. It Is Therefore Ordered that Robert E. Diehl be and he is hereby disciplined by public censure for his violations of the Code of Professional Responsibility. It Is Further Ordered that the respondent perform 100 hours of pro bono legal service which shall be completed by July 1, 1989. In addition, the respondent is to submit to four random drug tests during this period and pay the cost of the tests. It Is Further Ordered that the respondent shall be under the supervision of the disciplinary administrator, who is authorized to appoint an attorney to supervise and insure that the respondent complies with the orders of this Court. The disciplinary administrator shall approve the pro bono legal services to be performed, select the method and dates of the drug tests, and verify the respondent’s compliance with this order. 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 Herd, J.: Production Credit Association (PCA) of St. Cloud, Minnesota, appeals the district court’s orders in a case involving the recovery of proceeds from the sale of cattle pledged as security to Farmers State Bank (Farmers) of Blue Mound, Kansas, for loans made to rancher Virgil Girtz. Virgil Girtz conducted a commercial and purebred South Devon cattle operation in Minnesota. The operation was financed by PCA, which held a security interest in the cattle. Most of Girtz’s contacts with PCA were through loan officer Don Muller. In 1983, without notifying PCA, Girtz bought land in Kansas and moved his cattle there. Girtz testified his operation was going well in Minnesota, but he moved to Kansas because its central location and superior markets would enable him to expand his purebred operation. Girtz subsequently located some purebred heifers in South Dakota which he could purchase for a good price at a forced sale. He obtained financing from Dale Sprague, sole owner of Farmers State Bank. He gave Sprague a financial statement which showed he currently had cattle which were secured by PCA. He obtained a loan of $30,000 toward the purchase of 45 head of two-year-old springer heifers and moved them to Kansas. Farmers did not loan Girtz the full cost of the cattle since it did not loan more than commercial value on livestock. Girtz sold some of the PCA financed cattle to cover the difference in the purchase price. He applied part of the remainder of the proceeds from the sales to the PCA loan and used the balance for operating expenses. Girtz gave Farmers a financing statement, a promissory note, and a security agreement dated March 28, 1983, on the 45 heifers and after-acquired livestock. Girtz initially testified he notified PCA he had moved his operation to Kansas at about this time. He said he told Muller he was running a purebred herd with Farmers’ money. Girtz later testified he did not remember how PCA found out he had moved the cattle to Kansas. Muller testified he tracked Girtz down in Kansas after hearing rumors of his move. Muller testified that at some point during the phone calls he made to Kansas trying to “follow the outline of [Girtz’s] whole operation,” he learned Farmers had loaned Girtz some money to buy cattle. He said Girtz told him of the loan with Farmers when Girtz tried unsuccessfully to obtain a loan from PCA for the operation in Kansas. PCA filed a financing statement on its collateral in Woodson County, Kansas. It was thus put on notice of Farmers’ security interest and had the opportunity to identify those cattle secured by Farmers. See Nolin Prod. Credit v. Canmer Deposit Bank, 726 S.W.2d 693, 697 (Ky. App. 1986). Girtz later obtained another loan from Farmers for the purchase of 51 head of South Devon open heifers in Minnesota. He executed another note and security agreement, dated June 20, 1983, for the additional loan, which specifically covered the open heifers. Farmers filed all financing statements and security agreements in both Allen and Woodson Counties, Kansas, where the cattle were located at different times. Girtz commingled the cattle secured by Farmers and PCA. However, the 96 head of cattle which were security for Farmers’ loans were identified by ear tags and tattoos. Sprague inspected Girtz’s cattle four times; the last time was in February of 1984. All of the secured cattle were present, as well as an increase of 20 heifers and 10 bull calves from the springer heifers. Cull calves had been sold to pay operating expenses and interest on the loans from Farmers, a practice authorized by Mr. Sprague. Other operational costs were funded by continued financing from PCA. Sprague believed Girtz’s operation was going well. Unknown to Sprague, however, Girtz was running into financial difficulties. He was unable to sell his ranch in Minnesota, and his other businesses were suffering because of the agricultural depression. He testified a lot of calves died in the winter of 1984. He was in debt to operating creditors, such as feed suppliers. He did not inform Sprague of his difficulties, but in April, during one of his trips to Minnesota to check on the prospects for the sale of his business there, he talked to Muller at PCA. Muller told him he should set up a marketing program in order to liquidate because he now showed a “negative net worth.” Muller recommended but did not demand that Girtz liquidate. When he returned to Kansas, Girtz, without informing either Farmers or PCA, contacted Larry Nielson, a person he met through the South Devon Association who could put together a marketing plan for him. Because Nielson was operating out of Missouri, he suggested Girtz move his cattle to his land in Missouri in preparation for sales there. Girtz moved about two-thirds of the cattle to Missouri sometime in April of 1984, again without informing Farmers or PCA. At least part of the cattle taken to Missouri were secured by Farmers. The evidence was inconclusive as to how many of the cattle remaining in Kansas were secured by Farmers. After Girtz moved the cattle to Missouri, Muller learned what was going on and filed a financing statement there. He asked Nielson to send PCA a copy of the inventory of the cattle he was going to sell for Girtz. Nielson failed to comply. Concerned, Muller made a trip to Missouri to check the cattle on May 14. Muller testified all the cattle he was shown were PCA cattle. He found some PCA cattle unaccounted for. Muller said he was aware some cattle remained in Kansas, and was aware Farmers had an interest in some of the Girtz cattle, but did not know which cattle or their location. He testified he called the local PCA office in Missouri and told it to contact Farmers over the matter. Muller and Girtz then went to Kansas and Muller inspected the cattle there. It was his understanding all the cattle he inspected in Kansas were PCA cattle. Nielson first arranged for the sale of eleven of Farmers’ cattle at private treaty and then arranged for the sale of nine of Farmers’ cattle at a show in Tulsa. Although Girtz sometimes testified PCA eventually received some or even all of the proceeds from these sales, he at other times testified the money was used for feed and rent to Nielson. No proceeds went to Farmers. Muller was not told the Nielson sales were of Farmers’ cattle, and he was disappointed with the weights of the cattle and the prices they received. It was arranged that Nielson was to send a check on the profits to PCA, but the check was late in arriving. When it was deposited, it was returned for insufficient funds. Muller made another trip to Missouri. He found the cattle very thin and in poor condition. Their condition had deteriorated dramatically since he first saw them. Nielson had his pasture overstocked and was providing no supplemental feed. Neither Muller nor Girtz believed the cattle could remain in Nielson’s hands. Fifty-four head of cattle, including some secured by Farmers, were moved to Lamar, Missouri, and later sold. Muller and Girtz decided to move the rest of the cattle back to Minnesota to Girtz’s ranch. Girtz explained PCA did not force him to move the cattle to Minnesota; rather, it cooperated with his plans to sell the cattle. Girtz did not move the cattle back to Kansas because his remaining Kansas property did not contain enough pasture for all the cattle. Farmers was not notified of the move to Minnesota. PCA advanced the money to Girtz for transportation to Minnesota and for feed to prepare the cattle for sale. Girtz testified he advised PCA that Farmers had an interest in some of the cattle and PCA indicated its main concern at the time was that the “cattle were in distress” and everything else could be argued about later. The cattle, including those that had been left in Kansas, were transported to Minnesota in July of 1984. PCA was unwilling to loan Girtz enough additional money to keep the cattle through another winter, and Girtz did not have the money to do it, so it was decided to sell the cattle at a sale in Minnesota after they had gained some weight. PCA advanced the additional money to feed and prepare the cattle for sale. In August, Sprague, unaware of what had transpired, went to see why Girtz had ignored a past due note notice. He found Girtz and the cattle gone. A neighbor of Girtz’s suggested he might have moved back to Minnesota. This was Sprague’s first knowledge of Girtz’s movement of the cattle from Kansas. While Sprague was trying to ascertain where Girtz and the secured cattle were, he was contacted by an attorney representing the Missouri PCA office. The attorney said he wanted to know about the cattle Farmers had as security and asked to see the security instruments. Sprague directed him to Farmers’ attorney. In September, Sprague learned Girtz was in Minnesota and filed a financing statement there on the cattle Farmers held as security for its loans. Farmers did not file a financing statement in Missouri as it was unaware the cattle had been removed to Missouri until after they had been sold or removed to Minnesota. The cattle were sold at auctions in Minnesota from November 1984 to January of 1985. All of the cattle, including PCA secured and Farmers secured, were sold by January. Neither PCA nor Girtz informed Farmers about the sales. Sale checks in Minnesota were made out to Girtz. He voluntarily endorsed them over to PCA. Girtz said he never suggested any of the proceeds belonged to Farmers because of his assumption PCA “had first secured interest.” Muller said PCA could not have stopped Girtz from signing some of the checks over to Farmers had Girtz chosen to do so. The evidence shows the following disposition of the 96 head of cattle in which Farmers had a security interest. The sale prices in some instances are approximations given by both parties, as the sale records are unclear or nonexistent. 45 head: 28 head were sold at auction in Minnesota for $350 each; 9 head left in Missouri when the rest were moved to Minnesota; sold for $350 each; 4 head sold in Oklahoma for $1,142 each; 2 head sold in Missouri at private treaty for $1,000 each; 1 head died in Kansas; 1 head sold for unknown amount with Girtz turning the proceeds over to a former partner. 51 head: 18 head sold at Minnesota auction for $350 each; 14 head left in Missouri; sold for $350 each; 9 head sold in Missouri for $1,000 each; 5 head sold at Tulsa livestock show for $1,142 each; 5 head died in Kansas. Total 96 head selling price $45,428 Some of the listed cattle were with calf. Other than the cull calves reported sold for interest payments and operating expenses, there is no evidence of disposition of offspring. Sprague estimated the commercial value of the 45 head to be between $400 to $500 per head, and the 51 head at around $500 per head. With proper care and marketing under a purebred program, Sprague testified the 96 head would have been worth $1,000-$1,200 per head. The thirty calves he had seen in Kansas would have been worth about $600-$700 per heifer and around $800-$1,000 per bull. Sprague considered the method of sale commercially unacceptable. Sprague based his opinions on his experience on his own farm on which he kept repossessed cattle. He testified it would have taken about $150 for six months of care to get a brood cow in condition to be sold as purebred stock. He testified had he repossessed the cattle in poor condition, he would have invested such additional time and funds to make the cattle fit for the purebred market. Farmers filed an action in Linn County on June 19, 1985, against PCA for $71,403.97, plus interest, representing the portions of notes given it by Girtz which remained unpaid. According to the pretrial conference order, Farmers claimed PCA wrongfully directed Girtz to sell livestock which was properly secured by Farmers and that PCA received the proceeds from the sale which was properly secured by Farmers. In a memorandum decision filed March 27, 1987, the district court made the following findings of fact in granting judgment to Farmers in the amount of $33,677.60, plus interest at the statutory rate from the date of judgment: “This Court was concerned about the lack of filing of a financing statement in the State of Missouri by plaintiff Bank, and, also, the delay in filing in the State of Minnesota. The Court is aware that the Uniform Commercial Code provides for filing within four months from the date the property leaves the jurisdiction. In this particular case, two things strike the Court as important. First, that the plaintiff Bank was not aware for some time that the property had been removed. By the time the removal was learned of, a second removal had occurred, and the Bank had done about all it could do. And the other important factor, which the Court believes is important in this case, was the testimony of Don Muller, who was loan officer of Production Credit Association of St. Cloud, and handled the Virgil Girtz account. Muller testified that he had knowledge that Farmers State Bank had a security interest in 96 head of purebred South Devon cows and their offspring. He further testified, in answering a question, that although he had knowledge that Fanners State Bank had a security interest in the cattle, he was not concerned about that interest. The Uniform Commercial Code was adopted in order to expedite commercial proceedings, and was primarily designed to protect innocent purchasers of property which may be secured, and places the burden upon the holder of the security interest to see that the public is properly made aware of its security interest. It is the opinion of this Court, however, that in this case, Production Credit of St. Cloud cannot be said to be an innocent purchaser.” Fanners moved for a new trial or an amended judgment; PCA for an amended judgment. PCA’s motion was denied on May 21, 1987; Farmers’ was also denied except for awarding interest from January 1, 1985. PCA appeals. The first issue is whether Kansas had jurisdiction of this cause. PCA argues Kansas does not have subject matter jurisdiction because the issues concerning the perfection of security interests are governed by laws of other states. One of the first duties of a court is to determine whether it has subject matter jurisdiction of the case. This is true regardless of whether the issue is raised by the parties. City of Overland Park v. Barron, 234 Kan. 522, 672 P.2d 1100 (1983); Harshberger v. Board of County Commissioners, 201 Kan. 592, 442 P.2d 5 (1968). The parties agreed at pretrial conference as follows: “(3) Venue and Jurisdiction — The parties acknowledge that the Court has jurisdiction over the parties and the subject matter of this lawsuit, reserving, however, those issues raised under Questions of Law .... “(8) Questions of Law .... “(f) Does the law of Kansas apply to sale[s] made in Missouri and Minnesota[?]” Subject matter jurisdiction, however, is vested by statute and cannot be established by waiver or estoppel. Micheaux v. Amalgamated Meatcutters & Butcher Workmen, 231 Kan. 791, 648 P.2d 722 (1982). The case at bar concerns the proceeds of cattle secured in Kansas. The transaction in controversy bears a reasonable relation to the State of Kansas. We therefore hold the district court of Linn County had jurisdiction of this action. The second issue is whether Kansas law applies to sales made in Missouri and Minnesota. PCA claims there is an issue of nonperfection in this case. K.S.A. 1987 Supp. 84-9-103 guides choice of law as to the effect of perfection or nonperfection of secured goods which have been moved from state to state. Collateral in goods such as cattle, subject to exceptions not relevant herein, are controlled by the law of the jurisdiction where the collateral was when the last event occurred on which is based the claim that the interest is perfected or unperfected. K.S.A. 1987 Supp. 84-9-103(l)(b). The official U.C.C. Comment notes the “event” to which K.S.A. 1987 Supp. 84-9-103(l)(b) refers will often be the filing of, or the failure to file, a financing statement. The Comment explains that, subject to exceptions not relevant to the case at bar, when a security interest is perfected in one state but then moved to another, the filing of a financing statement in the latter state, or the failure to do so, is the “last event” to which the statute refers. K.S.A. 84-9-103, Official U.C.C. Comment 1; 9 Vernon’s Kansas U.C.C. § 84-9-103, Uniform Code Comment, p. 59 (1988 Supp.). It is thus clear that the laws of Missouri and Minnesota, rather than Kansas, apply as to the effect of Farmers’ perfection or nonperfection in those states. However, PCA errs in deeming this to be an issue. There is no question Farmers’ interest was properly perfected in Kansas as to its listed 96 head of cattle. See K.S.A. 1987 Supp. 84-9-203; K.S.A. 1987 Supp. 84-9-302(1). Farmers’ financing statement contained an “after-acquired” clause, but there is no evidence PCA’s did. Rather, the testimony indicates PCA’s interest was perfected in Minnesota as to certain listed cattle. Muller testified PCA was not interested in claiming cattle secured by Farmers. There is no evidence PCA’s financing statements filed in Kansas or Missouri enlarged its security interest. The appellant carries the burden of designating a record sufficient to present its points to this court. State ex rel. Ludwick v. Bryant, 237 Kan. 47, 697 P.2d 858 (1985). Thus, PCA had no security interest in any cattle to which Farmers held a security interest. Farmers’ claim is based on its perfected security interest in Kansas. Thus, Kansas law properly applies. K.S.A. 84-1-105 provides: “[W]hen a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties. Failing such agreement this act applies to transactions bearing an appropriate relation to this state.” See K.S.A. 84-9-102; Mammoth Cave Prod. Credit Ass’n v. Oldham, 569 S.W.2d 833, 838 (Tenn. App. 1977). We hold that the transaction involved in this case, which was the unauthorized removal and sale of secured collateral from this state, bears an appropriate relation to this state, and the law of Kansas applies. We also note the issue is relatively insignificant because both Missouri and Minnesota have adopted Article 9 of the Uniform Commercial Code. See Mo. Rev. Stat. § 400.9-101 et seq. (1986); Minn. Stat. § 336.9-101 et seq. (1986). The third issue raised by PCA is whether Farmers’ security interest lapsed as to PCA due to its failure to file a financing statement in Missouri and its delay in filing in Minnesota. The record clearly shows Farmers’ security interest was perfected in Kansas. Some of Farmers’ cattle were then moved to Missouri and sold there. PCA filed a financing statement in Missouri on those cattle in which it had a security interest within four months of the move. Farmers, not learning of the move to Missouri until much later, did not file a financing statement on its security in Missouri. We must first determine whether Farmers had a valid security interest as against PCA’s receipt of the proceeds in those cattle sold in Missouri upon which PCA held no security interest. Perfection of security interests in multiple state transactions is governed by K.S.A. 1987 Supp. 84-9-103, which reads in relevant part: “(l)(a) This subsection applies to documents and instruments and to goods other than those covered by a certificate of title described in subsection (2), mobile goods described in subsection (3), and minerals described in subsection (5);, “(b) Except as otherwise provided in this subsection, perfection and the effect of perfection or nonperfection of a security interest in collateral are governed by the law of the jurisdiction where the collateral is when the last event occurs on which is based the assertion that the security interest is perfected or unperfected. “(d) When collateral is brought into and kept in this state while subject to a security interest perfected under the law of the jurisdiction from which the collateral was removed, the security interest remains perfected, but if action is required by part 3 of this article to perfect the security interest, (i) if the action is not taken before the expiration of the period of perfection in the other jurisdiction or the end of four months after the collateral is brought into this state, whichever period first expires, the security interest becomes unperfected at the end of that period and is thereafter deemed to have been unperfected as against a person who became a purchaser after removal; (ii) if the action is taken before the expiration of the period specified in subparagraph (i), the security interest continues perfected thereafter.” Cattle are covered by subsection one, as they are not mobile goods as described in subsection three. A financing statement must be filed to perfect an interest in cattle, K.S.A. 1987 Supp. 84-9-302, and therefore subsection (l)(d) applies. “This state” refers to the jurisdiction to which the cattle were moved. See 9 Vernon’s Kansas U.C.C. § 84-9-103, Kansas Code Comment, p. 58 (1988 Supp.). Farmers thus was required to file in Missouri within four months after the cattle were removed to Missouri. It makes no difference whether the cattle were sold in Missouri within four months of leaving Kansas because Farmers did not file in Missouri within the four-month period; therefore, Farmers’ security interest became unperfected “and is thereafter deemed' to have been unperfected as against a person who became a purchaser after removal.” K.S.A. 1987 Supp. 84-9-103(d)(i). See Victory Nat’l Bank of Nowata v. Stewart, 6 Kan. App. 2d 847, 636 P.2d 788 (1981). PCA, however, an unsecured party as to Farmers’ security interest, does not qualify as a “purchaser” under K.S.A. 1987 Supp. 84-9-103(l)(d)(i). See K.S.A. 1987 Supp. 84-1-201 (32) and (33). Nor does PCA qualify as one entitled to priority over an unperfected security interest pursuant to K.S.A. 1987 Supp. 84-9-301. PCA was not a buyer in the ordinary course of business. K.S.A. 84-9-307; K.S.A. 1987 Supp. 84-1-201(9); In re Mid-Atlantic Piping Products of Charlotte, 24 Bankr. 314 (Bankr. W.D.N.C. 1982). Even were PCA to be deemed a buyer in the ordinary course of business, its knowledge of Farmers’ security interest in farm products precluded it from priority. K.S.A. 1987 Supp. 84-9-301(l)(c); K.S.A. 84-9-307. A security agreement is effective between parties and against purchasers of the collateral and creditors. K.S.A. 84-9-201. The security interest continues in the collateral’s proceeds after it is sold unless the disposition was authorized by the secured party. K.S.A. 84-9-306. Thus, in the absence of such authorization, the transferee of proceeds takes subject to the security interest of the secured party. See Official U.C.C. Comment 3 to K.S.A. 84-9-306; Smith v. Guzman, 16 U.C.C. Rep. Serv. (Callaghan) 852, 855 (N.Y. 1975). One of the issues in Nolin Prod. Credit v. Canmer Deposit Bank, 726 S.W.2d 693 (Ky. App. 1986), concerned a transaction quite similar to the case at bar. PCÁ received proceeds from the unauthorized sale of collateral secured by another creditor. The appellate court held the retention of the proceeds by PCA constituted wrongful conversion and found the trial court was correct in awarding the proceeds to the creditor. The appellate court noted that, as neither the debtor nor PCA retained possession of the collateral, the only realistic source of recovery by the creditor would be through recovery of the proceeds gained by PCA. Under the Nolin rationale, Farmers’ unperfected security interest in the cattle in Missouri has priority over an entity not a purchaser with no security interest in the cattle. Thus, Farmers is entitled to the proceeds from the sale, less cost of care, of Girtz’s cattle in Missouri upon which it held an unperfected security interest. We rely on the same reasoning to hold Farmers is entitled to the proceeds of those cattle moved to Missouri and then to Minnesota. Although Farmers’ security interest in those cattle was unperfected, Farmers retained priority over PCA, which was neither a purchaser nor holder of a security interest therein. Farmers’ filing in Minnesota was timely made as to those cattle moved directly from Kansas to Minnesota, and, therefore, there is no question of its priority as to them. Hence, Farmers State Bank is entitled to the proceeds of the sale of cattle upon which it held a security interest, less expenses incurred by PCA for costs of care. The next issue is whether the evidence was sufficient to support the district court’s finding that PCA received proceeds from cattle sold by Girtz at private treaty in Tulsa and Missouri. When a finding of a district court is attacked for insufficiency of the evidence, we as an appellate court must search the record for any substantial competent evidence which, viewed in the light most favorable to the party prevailing below, supports the finding of the district court. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984). Girtz testified the proceeds of the sales in Minnesota went to PCA, and the evidence clearly bears this out. As to the cattle sold in Missouri, he testified the proceeds of the 23 head sold at commercial prices went to PCA. PCA agrees it received those proceeds remaining after expenses. Girtz was not sure where the proceeds ended up from the sale at private treaty in Missouri. Sometimes he testified PCA received the proceeds; at other times he said “a big chunk” went to Nielson. At the hearing on motions after trial, the court stated the testimony on where the proceeds on the Missouri cattle went was “pretty indefinite.” Girtz wasn’t sure whether the proceeds from the sales in Oklahoma went to PCA or for feed and pasture. Sometimes he said some of it went to Nielson. Muller testified he understood the proceeds from the Oklahoma sales went for feed. Farmers contends Girtz testified if any of the proceeds were used to pay feed bills, it was at the direction of PCA. We can find no support for this statement in the record. PCA argues Farmers cannot claim proceeds from PCA which PCA did not receive, but which were instead used to keep the cattle alive. The one certainty is that Farmers received nothing from sales of its security, nor was it notified or consulted about the disposition thereof. We hold there was sufficient substantial competent evidence to support the findings of fact of the trial court that PCA received proceeds from cattle sold by Girtz at private treaty. It follows that the next issue is whether the district court erred in awarding Farmers recovery for proceeds from sales of Farmers’ security which were made with the knowledge and under the supervision of PCA where the evidence that PCA received the proceeds is very sketchy. Recovery by Farmers is limited to identifiable cash proceeds of the sale of cattle. K.S.A. 1987 Supp. 84-9-203(3); K.S.A. 84-9-306(3)(b). The court noted “[t]he testi mony is somewhat vague as to how many cattle were involved,” but found evidence of the sale of at least 434 head, of which 90 were secured to Farmers. The court then prorated the expenses at $130.56 per head and allowed PCA to deduct $11,750.40 from the proceeds from all cattle sold in Missouri, Oklahoma, and Minnesota, a total, based on Girtz’s estimates, of $45,428.00. The court therefore awarded Farmers a total of $33,677.60. Farmers’ rights upon Girtz’s disposition of its collateral are governed by K.S.A. 84-9-306: “(1) ‘Proceeds’ includes whatever is received upon the sale, exchange, collection or other disposition of collateral or proceeds. . . . Money, checks, deposit accounts, and the like are ‘cash proceeds.’ All other proceeds are ‘non-cash proceeds.’ “(2) Except where this article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor. “(3) The security interest in proceeds is a continuously perfected security interest if the original collateral was perfected but it ceases to be a perfected security interest and becomes unperfected ten (10) days after receipt of the proceeds by the debtor unless “(a) a filed financing statement covers the original collateral and the proceeds are collateral in which a security interest may be perfected by filing in the office or offices where the financing statement has been filed and, if the proceeds are acquired with cash proceeds, the description of collateral in the financing statement indicates the types of property constituting the proceeds; or “(b) a filed financing statement covers the original collateral and the proceeds are identifiable cash proceeds.” It is undisputed Farmers did not authorize the disposition of the cattle. PCA argues the only identifiable cash proceeds it received were from the sale of the 46 head in Minnesota in the total amount of $16,100. It thus argues Farmers should be limited to a recovery of $10,094.24 after expenses are deducted. Although PCA did not direct Girtz to move the cattle to Missouri, it had knowledge of the sales there. Muller came to Missouri to protect PCA’s interest in these sales. Muller also had knowledge that Farmers had a security interest in some of the cattle. Muller testified, however, that he was not concerned with this knowledge. The Code does not define “identifiable proceeds” or specify what requirements a secured party must meet in order to identify proceeds. Thus, under K.S.A. 84-1-103, the principles of law and equity may be used to supplement the Code. See Maxl Sales Co. v. Critiques, Inc., 796 F.2d 1293 (10th Cir. 1986); Matter of Turner, 13 Bankr. 15 (Bankr. D. Neb. 1981). In Ex parte Alabama Mobile Homes, Inc., 468 So. 2d 156 (Ala. 1985), the court found it proper to put the burden of proof on the debtor, rather than the creditor, to show why proceeds should not be garnished from the debtor’s attorney when the debtor wrongfully transferred the proceeds from the sale of collateral to its attorney and the attorney knew of the creditor’s rights in the proceeds. Although the secured party usually has the burden of tracing proceeds of collateral, such a requirement may be waived when the collateral was fraudulently converted and the unsecured creditor had knowledge both of the disposition of the collateral and the secured party’s interest in it. See Matter of Great American Veal, Inc., 59 Bankr. 27 (Bankr. D.N.J. 1985). It would otherwise be in PCA’s interest to ensure that records tracing proceeds were obscure or nonexistent. We hold that the obligation of good faith and fair dealing in the course of commercial transactions and the prohibition against unjust enrichment require that a creditor who has knowledge of another’s security interest bears the burden of proving it did not receive proceeds from sales in which it involved itself knowing the secured party was unaware of the sales. Although the secured party generally bears the burden of identifying the proceeds, in this case Farmers had no control over the records of the sale. PCA clearly had knowledge of and exerted some control over the sales and therefore had the responsibility to see that proper records were maintained in order to show it did not receive proceeds rightfully belonging to Farmers. PCA could have avoided this responsibility by means of a single telephone call to Farmers, informing it of the location of the cattle and the planned sales. It chose not to do so. See generally Schechter, The Principal Principal: Controlling Creditors Should be Held Liable for Their Debtor s Obligations, 19 U.C. Davis L. Rev. 875 (1986); Eisenberg, Good Faith Under the Uniform Commercial Code— A New Look at an Old Problem, 54 Marquette L. Rev. 1 (1971); Oesterle, Deficiencies of the Restitutionary Right to Trace Misappropriated Property in Equity and in UCC § 9-306, 68 Cornell L. Rev. 172 (1983). In Tuloka Affiliates, Inc. v. Security State Bank, 229 Kan. 544, 550, 627 P.2d 816 (1981), we held a situation in which a debtor was “robbing Peter to pay Paul” did “not create an absolute liability in Paul to repay Peter.” It was important to our decision in that case, however, that Paul had no way of knowing the money he received was taken from Peter’s pocket. We hold Farmers is entitled to recover from PCA the proceeds from cattle which were sold with PCA’s knowledge. We therefore affirm the trial court’s award of $45,428.00 in proceeds, minus $11,750.40 in expenses, for a total of $33,677.60. The final issue is whether the district court erred in its award of interest to Farmers. Upon Farmers’ motion to amend judgment, the court ordered PCA to pay interest on Farmers’ judgment in the amount of $33,677.60 at the judgment rate beginning January 1, 1985. This resulted in PCA owing $7,577.46 for interest at 15% between January 1,1985, and July 1,1986, K.S.A. 1987 Supp. 16-204(c)(l); and $2,615.78 for interest at 10.5% between July 1, 1986, and March 27, 1987, at the current rate pursuant to K.S.A. 1987 Supp. 16-204(c)(2). Interest accrued from March 27, 1987, at the applicable statutory rate pursuant to K.S.A. 1987 Supp. 16-204(d), (e). An unliquidated claim for damages generally does not draw interest prior to judgment or some other means of liquidation. Kearney v. Kansas Public Service Co., 233 Kan. 492, 505, 665 P.2d 757 (1983). Farmers does not argue on appeal that the damages were liquidated, but contends the general rule should not apply under the circumstances. In Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 467-69, 562 P.2d 1, cert. denied 434 U.S. 876 (1977), we held the district court has the discretion to award prejudgment interest on an unliquidated claim when the defendant has had use of the money, the plaintiff has been deprived of the use of the money, and the order is necessary to award full compensation. PCA argues that, even if prejudgment interest is allowed, it should not have been at the judgment rate under K.S.A. 1987 Supp. 16-204, which clearly applies only to interest accruing after judgment, but rather at the prejudgment rate provided by K.S.A. 16-201, which reads as follows: “Creditors shall be allowed to receive interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the account and ascertaining the balance; for money received for the use of another and retained without the owner’s knowledge of the receipt; for money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts; for all other money due and to become due for the forbearance of payment whereof an express promise to pay interest has been made; and for money due from corporations and individuals to their daily or monthly employees, from and after the end of each month, unless paid within fifteen days thereafter.” The Kansas Judicial Council referred to Lightcap in stating that prejudgment interest is allowed under K.S.A. 16-201 for unliquidated damages under certain circumstances. Kansas Benchbook, p. 268c (1983 Supp.) The district court properly exercised its discretion in ordering the interest, but it used the wrong statutory rate. The correct statutory interest rate was 10% per annum pursuant to K.S.A. 16-201. The date at which it ordered the prejudgment interest to accrue, January 1, 1985, is appropriate as the testimony showed the cattle in Minnesota were sold between November 1984 and January 1985. This case is affirmed on all issues except percentage of interest. Interest is awarded at 10% per annum pursuant to K.S.A. 16-201. Farmers is thus entitled to $33,677.60 plus 10% interest from January 1, 1985.
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The opinion of the court was delivered by Herd, J.: This is an action for violation of the Kansas Consumer Protection Act (KCPA) (K.S.A. 50-601 et seq.), breach of contract, and common-law fraud brought by Marion Abbick against Moore Business Systems (Moore). The controversy arose out of the following stipulated facts. Abbick, a practicing dentist in Junction City, was approached by Moore in 1982 about purchasing a computer system. Moore represented it was experienced in the management of dental practices and it would survey Abbick’s practice and recommend a system to fit his needs. Moore represented the purchase of a computer system would increase productivity and profits, produce accurate and timely financial records, and benefit Abbick in other ways. Abbick was appropriately skeptical. Moore overcame this by representing the computer system could be returned “if it did not work out.” In reliance on Moore’s representations, Abbick made a down payment of $1,185.00 on a computer system. For financing purposes, the transaction ultimately was accomplished through a lease/purchase agreement with Moore as seller, Equitable Life Leasing Corporation (Equitable) as buyer/lessor, and Abbick as lessee. Numerous problems arose with the system, causing substantial disruption to Abbick’s dental practice, loss of hundreds of hours, and confusion of financial records. Eventually, Abbick ceased making payments to Equitable and Equitable sued Abbick on the agreement. Abbick claimed the computer system failed to increase his profits or perform as represented, and that Moore refused to take back the system as promised. Abbick brought a third-party action against Moore for violation of the KCPA, breach of contract, and fraud. Equitable’s claim against Abbick has been resolved, leaving only the third-party dispute for our resolution. The parties are in some disagreement on the jury verdict because the verdict form is ambiguous. However, a careful reading of the form, coupled with the instructions, clearly establishes the intent of the jury and resolves the verdict’s ambiguity. See State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 160, 747 P.2d 1326 (1987). The jury first considered whether Moore violated the Kansas Consumer Protection Act. K.S.A. 50-623 provides the KCPA is to be construed liberally to promote the objective, among others, of protecting consumers from suppliers who commit deceptive and unconscionable acts. K.S.A. 50-626(b) provides a non-exclusive list of examples of prohibited deceptive acts, including (b)(3): “the intentional failure to state a material fact, or the intentional concealment, suppression or omission of a material fact, whether or not any person has in fact been misled.” The jury found that Moore had violated this provision by not intending to accept a return of the computer system as promised. The jury found Moore had not breached any warranties in the sale of the computer system. However, it found Moore had breached the contract by refusing to take back the computer system as promised, awarding Abbick actual damages for this breach in the amount of $1,185. The trial court upheld the verdict, but imposed a civil penalty of $2,000.00 against Moore in lieu of the actual damages award of $1,185.00, pursuant to the KCPA, K.S.A. 50-634(b), and allowed Abbick attorney fees pursuant to K.S.A. 50-634(e). The jury was given the standard instruction, PIK Civ. 2d 14.41, regarding an independent common-law action for fraud, specifically the fraudulent promise of future events. Abbick had to prove not only that Moore intentionally made a promise it was not intending to keep (which alone would be enough for a violation of the KCPA), but also that the promise was not in fact kept, that the promise was made for the purpose of inducing Abbick to act upon the promise, and that Abbick relied on the promise and suffered damages due to this reliance. The jury found Moore had committed fraud, and awarded $15,000 in punitive damages. The first issue is whether the trial court erred in refusing to require Abbick to elect his remedy. Moore contends since all three claims were based on the same course of conduct they were inconsistent and thus required an election. Moore misinterprets the doctrine of election of remedies. An election is required only when claims are inconsistent, such as where one claim alleges what the other denies, or the allegations are mutually repugnant. Griffith v. Stout Remodeling, Inc., 219 Kan. 408, 548 P.2d 1238 (1976). Moore’s argument that Abbick’s claim under the KCPA and his claim for fraud are inconsistent is without merit. Moore states the KCPA claim was made under K.S.A. 50-627(b)(6), which provides it is unconscionable for a supplier to make a misleading statement of opinion on which the consumer was likely to rely to the consumer’s detriment. Moore then contends this claim is inconsistent with a claim for fraud, since fraud is based on misrepresentation of fact. It is true Abbick’s original claim was made under K.S.A. 50-627, but the jury was instructed on deceptive acts under K.S.A. 50-626 at trial to conform to the proof. K.S.A. 50-626 prohibits any deceptive act in consumer transactions. Further, the legislature, in a 1985 amendment, clearly provided that a plaintiff who decides to proceed under the KCPA does not forfeit any other common-law rights. K.S.A. 1987 Supp. 50-646. Moore’s contention that the claims for breach of contract and fraud are inconsistent is also without merit. Moore claims Abbick has elected to affirm the contract by failing to seek rescission. He is thus, Moore contends, bound by the terms of the contract and cannot prove reliance on the misrepresentation, an essential element of fraud. The cases upon which Moore relies are inapposite, in that, in the case at bar, there was a reasonable claim made that Abbick attempted to return the system but Moore refused to accept it. The next issue is whether the trial court erred in awarding punitive damages. Breach of contract, standing alone, does not call for punitive damages, but such damages are allowed if an independent tort of fraud is proven. W-V Enterprises, Inc. v. Federal Savings & Loan Ins. Corp., 234 Kan. 354, 369, 673 P.2d 1112 (1983). Moore argues the trial court erred in awarding punitive damages for fraud when the jury made no finding of actual damages for fraud. It is the general rule that punitive damages may not be awarded in the absence of actual damages on the basis that the law does not punish conduct, however willful or wanton, which does not cause injury. In this case, however, actual damages were awarded. The jury found Moore had breached its promise under the contract that it would take back the system if Abbick could not use it, and awarded actual damages of $1,185.00. The breach of contract was thus grounded upon fraudulent inducement. An award of actual damages on the fraud claim would have been duplicative and was properly not submitted to the jury. The trial court did not err in allowing the award of punitive damages. The next issue is whether the trial court erred in awarding a $2,000 civil penalty award under the KCPA in addition to punitive damages. Moore contends the awards constitute a double penalty and therefore violate due process. This argument has no merit for several reasons. Moore cites several cases, involving statutory treble damages, where courts have held the legislative intent of the mandatory treble damages award was punitive and could not be supplemented by an additional punitive damage award. Moore contends it could be found the KCPA does allow for treble damages because K.S.A. 1987 Supp. 50-801(b) provides for treble damages for certain acts prohibited in Chapter 50 of the Kansas Statutes Annotated. The prohibited acts to which the statute refers, however, are those acts “relating to unlawful acts, agreements, monopolies, trusts, conspiracies or combinations in restraint of trade.” The statute is clearly meant as a protection against restraint of trade, and does not include the practices prohibited by the KCPA. The KCPA does not provide for treble damages. K.S.A. 50-634(b) provides that a consumer aggrieved by a violation of the act may recover actual damages or a prescribed civil penalty, whichever is greater. K.S.A. 50-636(a) provides for a maximum civil penalty of $2000. The Kansas Comment to K.S.A. 50-636 provides: “The purpose of this provision is to encourage enforcement of the act by a consumer acting as his own ‘private attorney general.’ ” This provision is remedial rather than punitive. Its purpose is to encourage aggrieved consumers with small claims to file suit. Although this court has not considered the issue of punitive damages in relation to the KCPA, we affirmed an award of punitive damages in Geiger v. Wallace, 233 Kan. 656, 661-62, 664 P.2d 846 (1983), where a similar question was presented relating to the Kansas Residential Landlord and Tenant Act, K.S.A. 58-2540 et seq. As in the landlord act, the KCPA has no language which precludes an award of punitive damages in an appropriate case. K.S.A. 1987 Supp. 50-646 specifically provides that nothing in the KCPA limits any other remedies provided by law. Here, the jury found Abbick relied on a fraudulent promise of future events. This was an independent tort with different elements from those which constituted a violation of the KCPA. The trial court did not err in affirming the jury award of punitive damages. The final issue is whether the trial court erred in awarding attorney fees pursuant to K.S.A. 50-634(e). Moore argues the jury was allowed to consider the expense of litigation under the punitive damages instruction, thus making the attorney fee award under the KCPA duplicative. We note the probable expense of litigation was only one of six factors which the jury could consider, along with the amount of actual damages, intent of the defendant, financial condition of the defendant, mitigating factors, and nature of the wrong. Moore rightfully does not argue the jury cannot consider the amount of actual damages in its determination of punitive damages. The purpose of damage awards or attorney fees is to compensate, whereas the purpose of punitive damages is to deter and punish. Under the KCPA, the trial court has the discretion to award attorney fees and, in an action for fraud, the jury may award punitive damages. We find no error. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by Allegrucci, J.: The plaintiffs, Gary and Debbie Nida, appeal from an order of the district court entering summary judgment against the Nidas in an action for damages to their residence. The Nidas’ residence was damaged when the surface of their land sank approximately 10 feet due to subsurface mining operations, which had ceased 30 years before the subsidence occurred. Summary judgment was granted on the grounds that the Nidas’ action, which was brought within two months of the collapse, was untimely under K.S.A. 1992 Supp. 60-513(b). The Court of Appeals affirmed in an unpublished opinion filed October 16, 1992, and this court granted the Nidas’ petition for review. The facts are not in dispute, and we adopt the Court of Appeals’ statement of facts. “American Rock [The American Rock Crusher Company] operated a limestone mine, commonly known as the Argentine mine, in the vicinity of 37th and Woodland in Kansas City, Wyandotte County, Kansas, which was underneath property owned by the Nidas and other individuals. The last quarrying operations occurred in June 1960. American Rock was dissolved in February of 1965. “The first land collapse allegedly caused by the mining operations occurred in January 1965, resulting in the filing of several lawsuits that were subsequently consolidated, but did not involve the Nidas. “On April 18, 1990, an area roughly 100 yards in diameter, located immediately north of the Nidas’ home, collapsed a depth of approximately 10 feet into an abandoned rock quarry once mined by American Rock. This subsidence took with it a 60 x 20 foot garage on the north side of the Nidas’ property and caused damage to their home. “The Nidas filed suit on June 7, 1990, against American Rock, Tobin Construction [J.A. Tobin Construction Company, Inc.], Tobin [J.E. Tobin], and other individuals and corporations. Eventually only Tobin Construction and Tobin remained as defendants.” The sole issue is whether the Nidas’ action is barred by the 10-year statute of repose, K.S.A. 1992 Supp. 60-513(b). The district court entered summary judgment against the Nidas on the ground that K.S.A. 1992 Supp. 60-513(b) “serves as an outside bar on the claims of the plaintiffs which have been raised in this case.” The district court reasoned that the statute required the Nidas’ claim to “be brought within ten (10) years of the last act of defendant from which such causes of action could be deemed to have arisen.” (Emphasis added.) Because the suit was filed "at least twenty-five (25) years after the last activity” of defendants, the action was barred. K.S.A. 1992 Supp. 60-513 provides in pertinent part as follows: “(a) The following actions shall be brought within two years: (1) An action for trespass upon real property. “(b) . . . [T]he causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action." The Court of Appeals “reluctantly agree[d] with the trial court.” The Nidas urged that the time at which the cause of action based upon subsidence accrues is at the time of the subsidence. They relied exclusively on Audo v. Mining Co., 99 Kan. 454, 162 Pac. 344 (1917). Syllabus ¶¶ 1 and 2 of Audo state: “A mining company mined the coal from part of the land owned by it, and then conveyed the land, reserving all the underlying coal and other minerals. Nothing was said in the deed about subjacent support. The purchaser knew that the coal had been mined from part of the land, but had no personal knowledge of the manner in which the mine had been worked. A portion of the surface over that part of the land from which the coal had been mined previous to the making of the deed, subsided, after the land had been conveyed. Held, that the purchaser has a cause of action against' the mining company for the damage caused by the, subsidence of the surface.” “Such a cause of action does not accrue until the subsidence of the land occurs, and the statute of limitations does not begin to run until that time.” “Either of these arguments might have been valid prior to July 1, 1989, but neither [has] any validity now. A trilogy- of cases recently decided by the Kansas Supreme Court, Dobson v. Larkin Homes, Inc., 251 Kan. 50, Syl. ¶ 1, 832 P.2d 345 (1992); Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 659, 831 P.2d 958 (1992); and Admire Bank & Trust v. City of Emporia, 250 Kan. 688, Syl. ¶ 7, 829 P.2d 578 (1992), hold otherwise and are fatal to the Nidas’ argument.” In Audo, the court stated the following rule: “Where real property has been separated so that one person owns the surface and another owns a substratum, or the minerals under the surface, the person that owns the surface has an absolute right to subjacent support unless that right has been distinctly waived.” 99 Kan. at 457-58. The Court of Appeals cited three additional examples from the line of Kansas cases which holds “that an actionable wrong for impairment for lateral and subjacent support is not the excavation, but the- act of allowing the owner’s land to fall”: Walsh v. Fuel Co., 102 Kan. 29, 32, 169 Pac. 219 (1917); Fever v. Railway Co., 100 Kan. 266, 268-69, 164 Pac. 159 (1917); and Railroad Co. v. Schwake, 70 Kan. 141, 145-46, 78 Pac. 431 (1904). The Nidas contended that, under Gilger v. Lee Constr., Inc., 249 Kan. 307, 820 P.2d 390 (1991), the 10-year statute of repose is not an absolute cut-off, and the statute did not bar their claim. The Court of Appeals reluctantly rejected the Nidas’ theories: It concluded: “We cannot hold that the act giving rise to a cause of action was the falling of the property when the clear message sent to us by the legislature and the Supreme Court is that the 10-year period of repose begins to run from the time the last act is performed.” The Court of Appeals viewed Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 829 P.2d 578 (1992), as controlling. It quoted the following paragraph: “The 1987 amendment to K.S.A. 60-513 governs the Bank’s cause of action. The amended statute still contains the substantial injury test: If the original wrongful act causes substantial injury, the two-year statute of limitations begins to run at the time of the original act. If substantial injury does not occur at the time of the original act but occurs later, then the two-year statute of limitations begins to run when the injury is reasonably ascertainable. Both prongs of the substantial injury test are subject to the ten-year ‘discovery’ rule. The plain language of the statute and the applicable case law require that after July 1, 1989, a negligence action must be brought within 10 years of the original wrongful act or the action is barred.” 250 Kan. at 698. The Nidas argue that the Court of Appeals reached the wrong result because it failed to distinguish between the act giving rise to a negligence cause of action, as in Admire Bank, and the act giving rise to a trespass cause of action, as in the present case. The Nidas take the position that ‘the act giving rise to the cause of action’ is the collapse of their surface land. They contend that their action was not barred by 60-513(b) because it was commenced within 10 years of the time when their surface land collapsed. American Rock takes the position that the act giving rise to the cause of action was the underground quarrying activity. It contends that the Nidas’ action was correctly barred because it was commenced more than 10 years beyond the time of the cessation of mining activity. • Support for the Nidas’ position is found in Audo and the Kansas cases cited by the Court of Appeals for the proposition that it is the subsidence rather than the excavation which constitutes the actionable wrong. Audo filed his action within two years of the cave-ins, but more than 10 years after the subsurface coal had been mined. 99 Kan. at 460. The key to determining whether the action was timely was deciding. when the cause of action accrued. If the cause of action accrued at the time the coal was taken from under Audo’s land, the action would be barred. If the cause of action accrued at the time the surface subsided, the action would be timely. The court reasoned as follows: “Until the land subsided the plaintiff sustained no damage and had no cause of action. In Railroad Co. v. Schwake, 70 Kan. 141, 78 Pac. 431, this court said: ‘Where a railroad company appropriates an alley in a city for the purpose of laying its tracks, and makes a deep excavation therein close to the lot line, the damages recoverable by an abutting owner are restricted to the special injury sustained by him by reason of being cut off from access to, and egress from, his property. A landowner does not suffer damages recoverable at law for injury to lateral support of his property until the earth is so much disturbed that it slides or falls. The actionable wrong for impairment to lateral support is not the excavation, but. the act of allowing the owner’s land to fall.’ (Syl.) “In Note, 23. L.R.A., n.s., 805, this language is found: ‘So far as the cases are concerned which deal with the applicability of the statute of limitations to actions for injury to the surface caused by mining operations or other excavations, the great weight of authority is to the effect that a cause of action does not arise until some actual mischief has been done, from which time the statute of limitations begins to run, regardless of when the mining or other excavating was done.’ “The plaintiff’s cause of action did not accrue until the land subsided; and it follows that at the time this action was commenced it was not barred by the statute of limitations.” 99 Kan. at 460. In Walsh v. Fuel Co., 102 Kan. 29, the surface of the land had subsided approximately 250 times within two years before the action was commenced. The subsurface coal had been mined until April 1912. The jury had been instructed that the surface landowner could “ ‘only recover for the damages to such portion of the land as to which the coal may have been removed within the two years next preceding April 20, 1912.’ ” 102 Kan. at 32. This court cited Audo and concluded that the instruction was incorrect because “a cause of action for damages caused by the subsidence of land into excavations made by a mining company did not accrue until the land subsided.” 102 Kan. at 32. In Railroad Co. v. Schwake, 70 Kan. 141, Schwake owned land adjoining railroad lines. Schwake’s lot in Leavenworth abutted an alley which the railroad company excavated to a depth of 18 feet to accommodate its track. The theory of the lawsuit was that there was a permanent “appropriation” of the alley, which “involved the weakening of the lateral support of the rear end of the lots abutting on the alley” due to the excavation. 70 Kan. at 145. The jury found for the landowners; this court reversed. The jury improperly allowed damages for injury to lateral support when none of the adjoining property had slipped or fallen into the excavation. In reversing, the court reasoned as follows: “It is a general rule, to which we have found no exception, that a landowner does not suffer damages recoverable at law for injury to lateral support of his property until the earth is so much disturbed that it slides or falls. The principle was well stated in Schultz v. Bower, 57 Minn. 493, 496, 59 N.W. 631, 47 Am. St. Rep. 630, 632, thus: ‘Where one, by digging in his own land, causes the adjoining land of another to fall, the actionable wrong is not the excavation, but the act of allowing the other’s land to fall.’ “A leading case on the subject was decided in the house of lords, in which it was held that the statute of limitations began to run on an action for damages based on impairment of lateral support of land not from the time of excavation but from the actual occurrence of the mischief, which in that case was the subsidence of the earth by the working of a mine under the plaintiff’s land. (Backhouse v. Bonomi, 1 B. & S. 970.) Counsel in the case referred to argued that the plaintiffs were entitled to recover prospective damages for any loss which they could have shown would arise, or might reasonably be expected to arise, from the withdrawal of lateral support. It was decided otherwise.” 70 Kan. at 145-46. In Fever v. Railway Co., 100 Kan. 266, Pever sued the railroad for damage to his adjoining property from a drainage ditch excavated by the railroad on its right-of-way. Discussing the nature of the action, the court stated: “The injury arose from not confining an essential feature of the defendant’s roadbed to its own right of way, and in such cases the fact that the ditch was necessary and was not negligently constructed does not relieve from liability to make reparation. “The injury was in the nature of a trespass on real estate.” 100 Kan. at 268. Each of the four cases discussed in the preceding paragraphs is mentioned in an annotation at 26 A.L.R. 1235, “Limitation of actions: when does statute begin to run against action based on removal of lateral or subjacent support?” The introductory paragraph of the annotation states: “The decided weight of authority is to the effect that the Statute of Limitations does not begin to run against a cause of action for injury to the surface by removal of the lateral or subjacent support, until some actual mischief has been done to it, regardless of when the excavating was done. In other words, where injury to the surface results from the removal of the support, the statutory period dates from the actual injury rather than from the date of the removal.” In Sanders v. State Highway Commission, 211 Kan. 776, 508 P.2d 981 (1973), the nature of an action based on the right to lateral support was stated as follows: “The right to the lateral support of natural soil is absolute, unless changed by contract or statute, and the only proof necessary is that the excavating was a direct or proximate cause of the injury to the adjoining land. Proof of negligence or intentional taking of soil is not necessary to a recovery.” Syl. ¶ 2. The court concluded that landowners whose back yards were falling into the excavation for 1-635 could proceed against the state agency on a theory of inverse condemnation. Their claims based on tort, however, were precluded by the doctrine of sovereign immunity. The appellees rely on the reasoning and logic of this court’s recent decisions in Dobson v. Larkin Homes, Inc., 251 Kan. 50, 832 P.2d 345 (1992); Admire Bank, 250 Kan. 688; and Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992), interpreting and applying K.S.A. 1992 Supp. 60-513(b) to negligence actions. The question in Dobson was whether the homeowners’ suit against the contractpr was barred by 60-513(b). The Dobsons alleged that the contractor’s negligent use of inferior materials in the foundation and failure to adequately compact the soil resulted in damage to their house. The contractor’s work was completed in 1972; suit was not filed until 1990. The court found the Dobsons’ action was barred. The court stated: “We have held the legislature intended the 1987 amendment to K.S.A. 60-513(b) to be a statute of repose, with 10 years from the occurrence of the act giving rise to the cause of action as the absolute limit for filing actions. Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992); Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 829 P.2d 578 (1992).” 251 Kan. at 52-53. In Harding, the court distinguished between statutes of limitations and statutes of repose. It stated that “the 10-year provision in K.S.A. 1991 Supp. 60-513(b), Nut in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action,’ is a statute of repose.” 250 Kan. at 669. The general principles stated by the court with regard to a statute of repose are as follows: “A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes .the cause of action after the passage of time even though the cause of action may not have yet accrued. It is substantive. Thus, Kansas constitutional protection applies only to statutes of repose [and not to statutes of limitations, which are procedural] because they pertain to substantive rights.” 250 Kan. at 668. Harding was diagnosed and died in 1988 of mesothelioma, which results from exposure to asbestos. The last possible date of his exposure to asbestos-containing products manufactured or sold by defendant K.C. Wall Products was in 1976. When Harding’s widow filed suit in 1990, K.C. Wall Products moved for summary judgment on the ground that the action was barred by 60-513(b). The district court denied the motion, and this court affirmed. The cause of action was saved from extinction by K:S.A. 1992 Supp. 60-3303. That statute provides that the 10-year period of repose in 60-513(b) does not apply to claims for latent diseases caused by exposure to harmful materials. In Admire Bank, 250 Kan. 688, the bank sued the City of Emporia in 1990. The bank bought the buildings at 510 and 514 Commercial Street sometime after the City demolished the building at 516, with which the building at 514 had shared a common wall. The bank alleged that the City had a duty to use reasonable care to protect the structural integrity of the party wall and to avoid damage to the remaining building and that the City had failed to leave lateral support and to close the stone caps against moisture. The resulting damage necessitated demolition of the buildings at 514 and 510 Commercial. The date of demolition of 516 was not established, but the City approximated it to be 1970. In this regard, the court stated that “the record does not show the. trial court had any evidence before it that would support an approximate date the building was tom down.” 250 Kan. at 693. With respect to the statute of limitations, the court stated: “The date of substantial injury was never established. A factual issue remains (when the statute of limitations commences to run).” 250 Kan. at 693-94. Thus, the trial court was found to have erred in granting summary judgment on the ground that the 10-year provision of 60-513(b) barred the action. The court concluded that the current version of 60-513(b) governed and remanded for further proceedings. Earlier in this opinion, a paragraph about the 1987 amendment to K.S.A. 60-513 was quoted from this court’s opinion in Admire Bank. That paragraph was this court’s paraphrasing, in terms suited to a negligence action, the substance of 60-513(b). Where the statute is worded “10 years beyond the time of the act giving rise to the cause of action,” the court stated “within 10 years of the original wrongful act.” In Harding, an action sounding in negligence and strict liability due to design defect and failure to warn, the court stated that the statute of repose “usually runs from an act of a defendant.” 250 Kan. 655, Syl. ¶ 6. As established in Fever, an action for surface collapse due to inadequate subjacent support is in the nature of a trespass on real estate, an intentional tort. See Restatement (Second) of Torts, § 158 (1965). The actionable wrong is the intrusion upon the surface of the land which interfered with the right of the surface owner to exclusive possession and enjoyment of the land and which was a direct result of some act committed by the defendant. See Prosser & Keeton on Torts § 13 (5th ed. 1984). In a trespass action, the intrusion and the interference and the occurrence of damage are concurrent. The act committed by the defendant may have taken , place much earlier, but there was no trespass until the surface was affected. The theory of a negligence action differs in that the wrongful act is the act of the defendant. Once it takes place the negligence has occurred, even though the harmful consequence may not be manifest until later. Although a negligence cause of action usually runs from an act of a defendant, a trespass action need not, and often would not, run from an act of defendant. There is no trespass until the entry is accomplished and the damage occurs (or has begun to occur, as in a case of continuing trespass). The trespass counterpart of the negligence “wrongful act” is the entry and the damage. In the present case, the entry was accomplished and the damage occurred when the surface fell. Dobson, Harding, and Admire Bank were negligence and product liability cases. They are distinguishable from the present case in that the “act giving rise to the cause of action” was the wrongful act of negligence or manufacturing and selling a defective or harmful product. Here, the “act giving rise to the cause of action” was the subsidence of the surface and not the mining operations. The mining of the coal was not wrongful and did not give rise to a cause of action during or upon completion of the mining of the coal. We held in Audo that the surface owner has an “absolute right to subjacent support unless that right has been distinctly waived.” 99 Kan. at 458. Further, the subjacent support right entitles a surface owner to damages when injury to the surface actually occurs. Here, as in Audo, the subsiding of the land is the “act giving rise to the cause of action,” and, since the injury to the surface was not immediately ascertainable, the statute of limitations does not begin to run until it was manifest. Thus, the action by the Nidas was not barred by K.S.A. 1992 Supp. 60-513(b). The judgment of the Court of Appeals is reversed. The judgment of the district court is reversed, and the case is remanded for further proceedings. Holmes, C.J., and McFarland, J., dissenting. Davis, J., not participating. Terry L. Bullock, district judge, assigned.
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The opinion of the court was delivered by McFarland, J.: This is an appeal by the State from the order of the district court dismissing one count of an information. On July 5, 1990, agents from the Kansas Bureau of Investigation (KBI), Anderson County Sheriff’s Office, and Bureau of Alcohol, Tobacco, and Firearms executed a consent search on defendant Gary M. Ratley’s farm. They seized growing marijuana plants and packages of marijuana and arrested the defendant. KBI Special Agent Tom Williams questioned the defendant. Craig Cole, Anderson County Attorney, authorized Williams to enter into an agreement with the defendant on behalf of the State. The agreement was prepared by Williams and signed by himself and the defendant before a notary public. The agreement provides: “In return for being charged with one count of possession with intent to sell, marijuana, I agree to tell investigating officers the truth concerning my involvement in illegal activities. I understand that if I do not tell the truth concerning my involvement or do not assist in the recovery and return of stolen items the agreement is void and the County Attorney or his designate is free to charge me with any and all counts they deem necessary. I also understand this waiver of additional charges is for felonies of the C level or below.” The defendant filed a motion to enforce the agreement, contending the filing of an information charging the defendant with possession of marijuana with intent to sell and, alternatively, with the cultivation of marijuana violated the agreement. The district court sustained the motion, making findings of fact and setting forth its rationale as follows: “1. On July 5, 1990, the defendant was charged with possession of marijuana with intent to sell, in violation of K.S.A. 65-4127b(b)(3), pursuant to a complaint signed and filed by Craig Cole, Anderson County Attorney. “2. The defendant and the State entered into a written agreement on July 6, 1990, in which the State promised to waive additional charges’. . . . “3. The agreement was entered into by K.B.I. Agent, Thomas Williams, on behalf of the State of Kansas with the full knowledge and authority of the Anderson County Attorney, Craig Cole. “4. In exchange for the State charging him only with one (1) count of possession of marijuana with the intent to sell the same, the defendant gave a truthful, incriminating statement to the State and otherwise cooperated with the State. It is not disputed that the defendant has fully complied with the terms of the charge agreement. “5. Effective July 1, 1990, K.S.A. 65-4127b(b)(3) had been amended, making it unlawful to cultivate marijuana. 1990 Session Laws of Kansas, chapter 100, Sec. 9, pg. 729. “The agreement was drafted by the State. It provides for waiver of additional charges of the ‘C Level or below’. Cultivation of marijuana is a C felony and is therefore, specifically within the terms of the charge agreement. Cultivation of marijuana was proscribed effective July 1, 1990; therefore, it is presumed to have been within the contemplation of the parties that the defendant could not be charged with cultivation under the terms of the agreement. “6. A preliminary examination was conducted November 13, 1990, before District Magistrate Phillip Fromme. County Attorney Cole requested that Judge Fromme consider whether there had been cultivation and advised Judge Fromme that the County Attorney would be filing an amended charge. At the conclusion of the preliminary hearing, Judge Fromme found probable cause to believe that the defendant committed the offense as amended to include (cultivation) as part of the charge under K.S.A. 65-4127b(b)(3)’. “7. On November 15, 1990, the State filed an Information charging the defendant in Count I with possession of marijuana with intent to sell and in alternate Count II, with feloniously cultivating five (5) or more plants, which contained tetrahydrocannabinol .... “8. Judge Fromme bound over the defendant on the felony charge of cultivating marijuana, although the Complaint did not charge him with cultivation. Judge Fromme’s action was proper pursuant to K.S.A. 22-2902. State v. Pioletti, 246 Kan. 49, 61, 785 P.2d 963 (1990). “9. However, the State in filing its Information . . . breached its agreement with the defendant. “10. The defendant argues that he is entitled to specific performance of the charge agreement; the State counters that the appropriate remedy for breach of the agreement is suppression of incriminating statements made by the defendant. “11. Specific performance of a prosecutor’s plea agreement has been recognized as an appropriate remedy. Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971). In the Santobello case, the prosecutor inadvertently reneged on an agreement to make no recommendation as to the sentence, which should be imposed following a guilty plea; the Supreme Court remanded the case to the State Court for determination whether the circumstances of the case required that there be specific performance of the plea agreement, in which case the defendant should be resentenced by a different judge or whether, in the view of the State Court, the circumstances required giving the defendant the opportunity to withdraw his guilty plea. The Court held that ‘(plea bargaining) must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled’. 30 L. Ed. 2d 427, @ 433. “12. In Mabry v. Johnson, 467 U.S. 504, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984), the Supreme Court held that a criminal defendant’s inability to specifically enforce a prosecutor’s proposed plea bargain was without constitutional significance. However, the basis for the finding was the peculiar facts of the case, which are distinguishable from the case at bar. In Mabry the defendant, who was represented by counsel, negotiated the plea agreement which was withdrawn by the prosecution before it was effected and presented to the Court. The defendant ultimately accepted a prosecutor’s second offer for plea agreement, which included a 21 year sentence to be served consecutively to previous sentences. Under the particular facts of Mabry, since the defendant accepted the second plea offer, the Supreme Court found that the plea was not induced in any way by the first plea offer, which had been withdrawn. “13. Mabry did not overrule Santobello. Indeed, the Supreme Court discussed Santobello and distinguished the facts in Mabry from Santobello. ‘(Johnson’s) plea was in no sense induced by the prosecutor’s withdrawn offer; unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made, at the time (Johnson) pleaded guilty, he knew the prosecutor would recommend a 21 year consecutive sentence.’ 81 L. Ed. 2d 437, @ 444. “14. In the case at bar, Mr. Ratley did not enter into a plea agreement, so the facts are distinguishable from both Santobello and Mabry in that respect. However, he did enter into a charge agreement upon which he relied and pursuant to which he was induced to give incriminating statements and cooperate with the State’s investigation. “15. Here, as in Santobello, the interests of justice and appropriate recognition of the duties of the prosecution, in relation to promises made, will best be served by specifically enforcing the charge agreement. “It Is Therefore Ordered, Adjudged, And Decreed that the defendant’s motion to enforce charge agreement be sustained and alternate Count I of the State’s Information should be stricken.” The State dismissed the remaining count (possession with intent to sell) and filed its notice of appeal herein. The State contends the district court erred in: 1. Finding that there was a valid agreement between the State and the defendant; 2. holding that the State’s filing of an information containing the alternative cultivation count violated the agreement; and 3. ordering specific performance of the agreement (the striking of the alternative cultivation count). The appellate standard of review is clear. When the district court has made findings of fact and conclusions of law, the function of the Supreme Court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the district court’s conclusions of law. Lansing-Delaware Water District v. Oak Lane Park, Inc., 248 Kan. 563, Syl. ¶ 3, 808 P.2d 1369 (1991). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, “substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. Garcia, 250 Kan. 310, Syl. ¶ 3, 827 P.2d 727 (1992). Furthermore, “ ‘[u]pon appellate review [the appellate court] accepts as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial judge.’ ” Taylor v. State, 252 Kan. 98, 104, 843 P.2d 682 (1992) (quoting Short v. Wise, 239 Kan. 171, 178, 718 P.2d 604 [1986]). VALIDITY OF THE AGREEMENT For its first issue, the State contends the district court erred in finding there was a valid agreement between the State and the defendant. Specifically, the State contends Cole intended that the agreement provide for the defendant to be charged with and plead guilty to one class C felony (possession with intent to sell and cultivation of marijuana are each class C felonies). The State frames its first issue as “whether the literal language of the written agreement controls over what the prosecutor actually authorized.” Williams testified that the agreement he prepared and signed was what he understood Cole to have authorized in their telephone conversation. Cole testified to the contrary. The State argues the agreement is invalid because: (1) its terms were the result of mutual mistake; or (2) its terms were not in accordance with what Cole authorized his agent (Williams) to do on Cole’s behalf. Little is to be gained from a discussion of the doctrine of “mutual mistake” as a ground for relief from a contract. There is no claim made or evidence introduced that the agreement was not in accordance with what defendant understood the agreement to be. The State’s attempt to invalidate the agreement as being in excess of Cole’s grant of authority to Williams merits only slightly more attention. The district court, based on substantial competent evidence, found the agreement as entered into was with the “full knowledge and authority of the Anderson County Attorney, Craig Cole.” Even if the terms of the agreement had not been specifically what Cole intended to authorize, the State accepted the full benefit of the agreement before claiming it was not in accordance with authority granted to Williams. Under these circumstances, it would be inappropriate to afford the State “overs” on the agreement. BREACH OF THE AGREEMENT For its second issue, the State argues the district court erred in finding the State breached the agreement by filing the information charging cultivation as an alternative count to possession with intent to sell. Specifically, the State argues that cultivation is but a different means of violation of K.S.A. 65-4127b(b)(3) and not an additional charge within the purview of the agreement. In support thereof, defendant likens the situation to charging felony murder and premeditated murder, alternatively. In State v. McCowan, 226 Kan. 752, 602 P.2d 1363 (1979), cert, denied 449 U.S. 844 (1980), we stated: “At the outset it should be pointed out that premeditated murder and felony murder are not separate or different offenses. The statute merely provides alternative methods of proving the deliberation and premeditation required for a conviction of first-degree murder under K.S.A. 21-3401. The statute provides: ‘Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.’ (Emphasis added.) A prosecution under the felony murder rule merely changes the type of proof necessary to establish a violation of the statute. Proof that a homicide was committed in the perpetration of a felony is tantamount to premeditation and deliberation which otherwise would be necessary to constitute murder in the first degree. State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974); State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972).” 226 Kan. at 759. In the felony-murder/premeditated murder situation there is a single crime charged—first-degree murder. The deliberation and premeditation elements of the single crime may be proved by alternative means. Cultivation of marijuana and possession with intent to sell marijuana are not a single crime. Absent the agreement herein, defendant could have been charged with possession with intent to sell the packaged marijuana and cultivation of the seized growing plants. The State elected, by its agreement, to limit itself to a single count of possession with intent to sell. By accepting the agreement, the defendant gained the benefit of facing that one specific charge. The State further argues that as defendant was bound over on both charges, alternatively, by the magistrate, the State did not breach the agreement. Even without the significant fact, found by the district court, that the magistrate’s consideration of cultivation was at the request of the State, the argument still would fail. The State is not required by law to charge in an information every count on which a defendant may have been bound over. As we stated in State v. Turner, 223 Kan. 707, 576 P.2d 644 (1978): “On appeal the defendant contends that the district court erred in overruling his motion to dismiss the charges in the second case. In support of his position the defendant relies on K.S.A. 22-2905(1) and (2) which provide as follows: ‘22-2905. Proceedings after the preliminary examination. (1) When a defendant is bound over to the district court, the magistrate shall forthwith prepare a transcript of all proceedings before him and shall certify and transmit such transcript, together with the appearance bond and any security taken by him, to the clerk of the district court in which the accused is ordered to appear. “ ‘(2) When a. defendant is bound over to the district court, the prosecuting attorney shall file an information in the office of the clerk of the district court, charging the crime for which the defendant was bound over.’ (Emphasis supplied.) “It is the position of the defendant that under 22-2905(2), when a defendant is bound over to a district court for trial, the prosecuting attorney must file an information in the office of the clerk of the district court charging the crime for which the defendant was bound over. Defendant maintains that the use of the word ‘shall’ makes such action mandatory. We do not agree with the defendant in his construction of the statute. In our view the statutory provision is directory rather than mandatory since it simply directs a mode of procedure to secure order, system, and dispatch in criminal proceedings. (Paul v. City of Manhattan, 212 Kan. 381, 511 P.2d 244; State v. Brown, 205 Kan. 457, 470 P.2d 815.) It has long been the law of this state that a preliminary examination is not a trial of the defendant’s guilt; it is rather an inquiry whether the defendant should be held for trial. (In re Mortimer, 192 Kan. 164, 386 P.2d 261.) Following a preliminary examination, the examining magistrate has no power to acquit but only the power to discharge from custody. Such a discharge is not a bar to another examination. (State v. Henry, 219 Kan. 310, 548 P.2d 808.) The district attorney is the representative of the state in criminal prosecutions. He controls criminal prosecutions. He has the authority to dismiss any charge or to reduce any charge. (State v. Pruett, 213 Kan. 41, 515 P.2d 1051; State v. Kilpatrick, 201 Kan. 6, 439 P.2d 99.)” 223 Kan. at 708-09. Here, at the request of the county attorney, the magistrate considered and bound defendant over on a charge violative of the State’s agreement with the defendant. This maneuver cannot be used to allow the State to avoid its obligation under the agreement. We find no error in the district court’s determination that the State breached its agreement in filing the information herein charging cultivation in the alternative. SPECIFIC PERFORMANCE Next, the State argues that appropriate relief under the facts herein is something less severe than striking the offending cultivation count. We do not agree. Most of the case law involving agreements between the prosecution and defendants concerns plea bargains and, thus, is distinguishable from the situation herein. The district court’s rationale is sound, and we find no error or abuse of discretion'in its granting of specific performance herein. In a typical case where specific performance of a contract is requested, the alternative is the payment of civil damages. Such is not an alternative herein. The suggestion by the State that exclusion of defendant’s incriminating statements is the proper relief is not persuasive. The defendant was not a party to or cause of any confession or mistake. If any such existed, they were purely intramural matters confined to the State’s side of the agreement. The defendant accepted the written agreement as prepared by the State and fully complied with his obligations thereunder. He is entitled to the benefit of his bargain. The only way this can be achieved is to enforce the agreement. The striking of the cultivation count puts each party thereto in the position called for by the agreement. The judgment is affirmed.
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The opinion of the court was delivered by .Six, J.: The primary focus of this criminal case is on the propriety of the trial court’s refusal to instruct on defense of another. Secondary issues relate to evidentiary rulings. The standard of review on the refusal to instruct issue requires us to view the evidence in a light most favorable to the defendant, Russell Hernandez, who requested the instruction. State v. Scott, 250 Kan. 350, Syl. ¶ 4, 827 P.2d 733 (1992). The standard , of review on the evidentiary issues is abuse of discretion. State v. Milo, 249 Kan. 15, 26, 815 P.2d 519 (1991). Hernandez appeals his convictions on one count of second-degree murder (K.S.A. 21-3402) and one count of unlawful use of a weapon (K.S.A. 21-4201[l][b]). The jury found that Hernandez had shot and killed his brother-in-law. Our jurisdiction is under K.S.A. 1992 Supp. 22-3601(b)(l) (direct appeal when defendant receives a maximum sentence of life imprisonment). We find no error and affirm. Facts Hernandez, his sister Myra Meis, and the victim Randy Meis (the husband of Myra) were all employed at the King of the Road trailer manufacturing plant in Russell. Randy and Myra were separated and in the process of obtaining a divorce. Myra testified that following the separation, Randy spoke with her often at work and came to her house every night. During these meetings they would fight. Myra related most of the incidents to Hernandez. On one occasion, Randy told Myra, “If you leave town, I’ll go after you and I’m not scared of anybody; and I don’t .care how I get to you or how many innocent people I take down along the way, I will do it.” Myra began to sleep with a hammer in her bed a few weeks before the shooting. Randy confronted Myra at work three days before he was killed. He yelled at her about the divorce and shoved her into some boxes. Later that day, he followed her, yelling and screaming. As she took the first step up into the women’s restroom, Randy pushed her. She hit the wall. He said, “You’re history bitch. . . . You’re fucking history.” A friend located Hernandez and took him to Myra. She related what had just happened. Hernandez was upset about Myra’s marital problems. He spoke with his friend and co-worker, Lee Summers, the next day. According to Summers, Hernandez stated that he was terrified that Randy was going to kill Myra. Later in the day, Hernandez walked over to the table where co-workers were standing and said, “Whatever happens don’t hate me.” Summers stated that Hernandez “was noticeably very very distraught, he was sweating profusely, a cold sweat, and he was almost on the verge of being hysterical, he was crying.” Hernandez showed Summers a gun. Summers told him to give her the gun, which he did. Summers testified that Hernandez said he “couldn’t do it,” “couldn’t kill him,” and that she understood him to be • referring to Randy. Summers locked the gun in her car. Later that day, Hernandez told Summers he would feel better if he had the gun “just in case” and promised to put it away unloaded. Summers returned the gun. The day before the shooting, Myra and Randy met at their attorney’s office to finish work on the divorce. The attorney had to reschedule the meeting for the next day. Randy followed Myra home. When Myra arrived, she stayed in the car and Randy entered on the passenger side. They discussed the divorce. According to Myra, Randy “was yelling at me banging his fists on the dash, shaking like I had never seen him shake before and his eyes were huge and he was spitting all'over the place in the car.” Myra told him she wished she were dead and Randy responded, “You want fucking dead? I’ll go home and get my gun and come back and I’ll take you in the garage and I will blow your fucking brains out and then my own and then nobody will have to worry about anything.” Fifteen minutes later Randy returned to Myra’s house with their two children and announced that they were moving back in with Myra and that the divorce was off. At one point that evening, Randy left to go to the store and one of Myra’s friends, Sheila Keil, stopped by. Keil left before Randy returned. Later that evening Keil and Hernandez came by to visit Myra. Myra testified that she told her brother about the threats Randy had made. Randy did not return that evening. Myra saw Randy shortly before seven o’clock the next morning outside the building where they worked. According to Myra, Randy handed her a note and told her that she had until 11 o’clock that morning to make up her mind and that he “hope[d] like hell” she would make the right decision. He then walked away. Around eight o’clock the same morning, Hernandez came over to Myra’s work area and asked whether she had spoken with Randy. She told him about the previous conversation. Myra indicated that Hernandez explained that he wanted to know if she had seen her husband because Randy had been back at his work area “going off . . . cussing and kicking shit around and just having, you know, throwing a fit back there.” Myra testified that she told her brother she wished Randy would leave her alone. She said that Hernandez appeared shaky and pale, shook his head, and said that he too wished Randy would leave her alone. Summers also testified that she had discussed with Hernandez the possibility of seeking police assistance for Myra. She explained that Hernandez said that Myra would not seek a restraining order because Randy told her he would kill her if she went to the police. The morning of the shooting, November 9, 1990, Hernandez informed Summers of his nightmares that Randy was going to kill Myra. Summers said Hernandez looked “distraught like he hadn’t gotten any sleep at all.” Hernandez left the plant during the 9:05 morning break to retrieve the gun from his car. He hid the gun in the back of his pants. He testified that Randy had an advantage over him because Randy wore heavy rings and cowboy boots (which he had seen Randy use to beat someone up) and carried a knife at his side. Hernandez believed that the gun was “an equalizer.” Hernandez approached Randy and invited him outside to talk. Hernandez testified that he had wanted to find out what Randy meant when he said Myra had until 11 o’clock. He was scared and anticipated that Randy would get “pissed off.” When they walked outside, Hernandez said, “What’s on your mind, what’s going on.” Randy looked serious and mean, pointed to Hernandez and told him, “It ain’t none of your fucking business what I do to your sister.” Hernandez testified that “when [Randy] was saying that, he kind of . . . leaned forward and he put his hands, he had his hand up on his side and just when he started to kind of lean forward towards me I, I assumed he was coming at me and with his hands going up on his side, I just assumed he was going for his knife.” Hernandez pulled out the gun. Randy came at him again; Hernandez pulled the trigger and told him that it was his business. Hernandez said that his intention was not to kill Randy and that he pulled the trigger “[t]o stop him, slow him down, to, my mind, the whole time my mind was on my sister. ... I thought maybe he was gonna take me down and then go in after my sister.” His testimony continued: “Q. Did you know whether you hit him the first shot? “A. Well, when I pulled it the first time he kind of grabbed himself and he went a little bit, put his hand on the ground and he got back up and he didn’t even look like he was in pain, he was just, looked like he was in a different state of mind. “Q. Did he say anything? “A. He just kind of looked at me with a cold look and he said, ‘Now, I’m gonna kill you too,’ and when he said that, when he said, ‘I’m gonna kill you too,’ I thought he meant as in also as in my sister, I knew it was on his mind. He had just admitted to me that he was gonna kill her. “Q. Why was the second shot fired? “A. Well, when I shot the first time 1 started shaking, I was shaking real bad. He kind of wanted to turn to run in and I shot again. When he started to turn to run in it was on my mind that he was going in after my sister. “Q. Did you intend to kill him when you fired the second shot? “A. No, sir, I just wanted to stop him, I just wanted to, I just wanted to stop him.” Hernandez fired a third shot. Randy ran inside the building. Hernandez testified that he thought Randy was going after his sister. Hernandez followed Randy inside and saw him start to fall. He assumed that Randy had tripped, so he shot him again “to stop him from going after my sister.” Monty Selensky, a co-worker, testified that he observed Hernandez ask Randy to go outside to talk. The two went outside and Selensky heard noise which he characterized as loud arguing. Selensky then heard a loud noise, which was repeated two more times. He believed the noise was a firecracker. He saw Randy run into the building with blood on his neck and his chest and flowing out of his mouth. Selensky testified that Randy fell into a refrigerator cabinet and then down onto his back. Hernandez ran through the door, went over to where Randy was located, and shot him two more times, saying, “There, it’s over now.” Another witness, Michael Howell, testified that Hernandez was shaking and appeared to be nervous when he entered the building and again shot Randy. Following the shooting, Howell heard Hernandez say, “He was going to kill my sister.” The physician who performed the autopsy testified that the cause of death was gunshot wounds. Three bullets had struck Randy from the front and one in the back. Hernandez was transported to the Russell County Sheriff’s Office by Undersheriff Tim Holmes. Holmes testified that while in the patrol car, Hernandez said, “I had to do it. She was my sister.” At that time Holmes advised him of his Miranda rights. During the cross-examination of Undersheriff Holmes at trial, defense' counsel inquired whether Hernandez had spoken about the case during the time he was being transported to the sheriff’s office. Counsel asked if the information was in addition to or inconsistent with a taped interview. Over defense counsel’s objection, Holmes testified that Hernandez had stated, “The most a jury will convict me of is involuntary manslaughter when I tell them that, the jury, it was self-defense.” The State sought an order restricting the introduction of evidence as to the character, traits, personality, actions, or statements of Randy which were not contemporaneous with his death. The trial court limited this character testimony to specific instances which occurred within a period of six to eight months prior to the crime. Defense counsel took exception to the trial court’s ruling. The trial court gave the jury a self-defensé instruction. Hernandez also requested a defense-of-another instruction. However, following extensive argument by counsel, the court decided over Hernandez’s objection not to give a defense-of-another instruction. Defense of Another Hernandez believes that most of the defense evidence indicated that he had killed Randy because he feared for the safety of Myra.- K.S.A. 21-3211 states: “A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessaiy to defend himself or another against such aggressor’s imminent use of unlawful force.” For a defense-of-another instruction to be available, the evidence, as a whole, must support an affirmative finding by a rational factfinder under both prongs of the two-prong test set out in State v. Rutter, 252 Kan. 739, 746, 850 P.2d 899 (1993). The first prong is subjective: Did Hernandez sincerely believe it was necessary to kill Randy in order to defend Myra? The second is objective: Was his belief reasonable? Hernandez states that his motion for a new trial on the instruction issue was denied because the trial court found that Myra was not in imminent danger at the time of the shooting. He explains that the trial court cited State v. Stewart, 243 Kan. 639, Syl. ¶ 4, 763 P.2d 572 (1988), in support of its decision that imminent danger is a key factor to be used in determining whether a defense-of-another instruction is required. Hernandez attempts to distinguish Stewart based on the fact that in Stewart we found that there was no imminent danger. According to Hernandez, in Stewart, the only evidence of the potential danger to the defendant was the victim’s history of violence and abuse. Hernandez argues that, in the case at bar, he presented evidence which proved that Randy’s threat to Myra would not have been stopped if the police had been contacted. Consequently, he contends that there was sufficient evidence from which a reasonable person could conclude that Myra was in imminent danger. Hernandez also believes that Myra’s physical location at the time of the shooting is not critical. He maintains that in State v. Hundley, 236 Kan. 461, 467-68, 693 P.2d 475 (1985), we reasoned that the word “immediate” in a self-defense instruction placed undue emphasis on the immediate actions of the deceased and that “imminent” was the more accurate term. Hernandez asserts that Hundley stands for the proposition that juries should have wide latitude in examining all the circumstances which surround a self-defense or defense-of-another situation. Jurors may then determine for themselves whether the impending danger was imminent. Hernandez believes there were, facts which showed that Randy intended to kill Myra at 11:00 a.m. on the day he killed Randy. The State acknowledges that in State v. Hill, 242 Kan. 68, 78, 744 P.2d 1228 (1987), we held that self-defense instructions may be justified solely on a defendant’s own testimony. The State observes that Stewart requires that there be some evidence which shows the existence of imminent danger to another if the defense- of-another instruction is warranted. In Rutter, 252 Kan. at 745, we observed, with reference to the Hill court’s comment on a defendant’s own testimony, that the elements of defense of another are statutory and there must be evidence of each of the elements of defense of another before a duty to instruct arises. The State explains that in Rutter, we determined that the evidence supported the fact that Rutter was the aggressor who had confronted the victim to settle a score. According to the State, the facts in the case at bar can be analyzed in a similar fashion. Randy was at a break table with co-workers at the time he was called outside by Hernandez and did not pose an imminent danger to anyone. The State explains that when Randy ran back inside the building after he was shot three times, he was bleeding profusely and could not have constituted a threat to anyone. The State reasons that State v. Rose, 30 Kan. 501, 1 Pac. 817 (1883), also addresses the claim that Randy posed a threat to Myra later that morning. In Rose, we recognized that “[n]o one can attack and kill another because he may fear injury at some future time.” 30 Kan. 501, Syl. ¶ 2. The State contends that under the Stewart analysis, the defense of another requires a showing of imminent danger close to the time of the killing. The State believes that Hernandez’s lack of reasonableness is demonstrated by the fact that he ignored the advice of co-workers who encouraged him to seek non-violent options. Hernandez accurately portrays the distinction between imminent and immediate discussed in Hundley. In Hundley, Carl, the victim, pounded a beer bottle on the night stand and threw a dollar bill toward a window, demanding that the defendant, his wife Betty, get him some cigarettes. Hundley testified that Carl had hit her with beer bottles many times in the past and that she pulled a gun from her purse because she felt threatened. When Carl saw the gun he laughed and said, “You are dead, bitch, now” As he reached for the beer bottle, Betty shut her eyes and fired the gun. 236 Kan. at 462. The unique history of Betty and Carl’s relationship, in combination with the conflict at the time Carl was killed, supported the view that a jury could have found the fear of imminent danger to be reasonable. However, the situation in the case at bar is not analogous. Hernandez believed that Randy would kill his sister at 11:00 a.m. She was not present when Hernandez killed Randy. The history of violence could not turn the killing into a situation of imminent danger. The trial court correctly determined that K.S.A. 21-3211 requires at least an imminently dangerous situation at the time of the killing before a defense-of-another instruction should be given. Although the term imminent describes a broader time frame than immediate, the term imminent is not without limit. The danger must be near at hand. Under the facts in the case at bar, the only imminent danger was that created by Hernandez himself. Our reasoning in Stewart, where the defendant killed her husband while he slept, is applicable to the case at bar: “[0]ur legislature has not provided for capital punishment for even the most heinous crimes. We must, therefore, hold that when a battered woman kills her sleeping spouse when there is no imminent danger, the killing is not reasonably necessary and a self-defense instruction may not be given. To hold otherwise in this case would in effect allow the execution of the abuser for past or future acts and conduct.” 243 Kan. at 648. The statutory and case law concerning use of force by an aggressor also supports affirmance of the trial court’s refusal to give the instruction. See K.S.A. 21-3214; State v. Meyers, 245 Kan. 471, 478, 781 P.2d 700 (1989). The exceptions under K.S.A. 21-3214(3) were not supported by the evidence. The facts demonstrate that Hernandez, who was armed, approached Randy, asked him to come outside, and then provoked the conflict. We have viewed the evidence in the light most favorable to Hernandez. We affirm the trial court’s refusal to give the defense-of-another instruction. We conclude that a rational factfinder could not find that Hernandez acted in defense of his sister, Myra, at the time he shot Randy. Limitation of Evidence of the Abusive Relationship Hernandez observes that the trial court limited the defense’s evidence regarding the marriage relationship to the period six to eight months before Randy’s .death. According to Hernandez, all evidence concerning Randy and Myra’s past relationship is admissible. He cites State v. Martin, 234 Kan. 115, 120, 670 P.2d 1331 (1983), as supporting the rule that in self-defense cases, evidence of a victim’s violent nature is admissible. Consequently, Hernandez concludes that the same evidence should be admissible under a defense-of-another theory. Hernandez asserts that the potential error in not admitting the evidence cannot be considered harmless. He maintains that the evidence admitted did not provide a complete view of Randy’s violent nature. He asserts that his fear that Randy would commit an imminent violent act against Myra is more reasonable in light of evidence that Randy had hit Myra, thrown her across the room, and had been in numerous fights with other people. Hernandez believes the exclusion of this evidence denied him the right to present a defense. Chambers v. Mississippi, 410 U.S. 284, 294, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973) (“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.”). The State replies that although past evidence of an abusive relationship is admissible, its admission is not without limit. The State suggests that at some point evidence becomes too remote to be relevant. The decision of where that point lies is left to the discretion of the trial court. The State believes that: (1) evidence concerning the relationship during six to eight months before the killing adequately explained the events leading up to the shooting, and (2) the older evidence proposed by Hernandez did not differ much from that which was admitted. We have repeatedly observed that “[d]etermining whether evidence is too remote to be admissible rests within the sound discretion of the trial court. Mere lapse of time alone is not sufficient to deprive evidence of its probative value, but goes to the weight of the evidence to be considered by the jury.” State v. Tyler, 251 Kan. 616, Syl. ¶ 5, 840 P.2d 413 (1992). See State v. Ruebke, 240 Kan. 493, 515, 731 P.2d 842, cert, denied 483 U.S. 1024 (1987). We have indicated that evidence which demonstrates a history of violence between the victim and the defendant is relevant to the determination of whether the defendant was in imminent danger. State v. Hodges, 239 Kan. 63, Syl. ¶ 5, 716 P.2d 563 (1986). Additionally, “[w]here self-defense is an issue in a homicide case, evidence of the violent nature or reputation of the victim is admissible.” State v. Martin, 234 Kan. 115, Syl. ¶ 3. In State v. Friberg, 252 Kan. 141, 843 P.2d 218 (1992), Friberg argued that the trial court erred in limiting his presentation of evidence concerning childhood beatings and other background information which he believed was necessary to his defense. 252 Kan. at 147. We concluded that “[s]ufficient evidence concerning the alleged childhood beatings was presented to allow the jury to consider the impact of such upon his claim of diminished capacity. There is no merit to the defendant’s argument that he was not allowed to present a complete defense.” 252 Kan. at 148. The marital discord during the six- to eight-month period before the killing was sufficient to present a complete defense and to provide a foundation for Hernandez’s theory. We find no abuse of discretion in limiting the time frame. Hernandez’s Statement Hernandez contends that his statement, that the most the jury would convict him of was involuntary manslaughter, was not relevant. He asserts that the statement did not tend to prove any probative fact and also prejudiced the jury because it created the impression that he was trying to manipulate the legal system. He emphasizes that there is no rule which requires irrelevant evidence to be admitted simply because there was other relevant evidence within the same conversation. He asserts that, the statement was highly prejudicial, especially in light of the fact that the evidence concerning his state of mind at the time of the killing was inconclusive. The State believes that Hernandez wanted the remainder of his statement admitted because prior to that conversation he had not indicated that the killing was done in self-defense. The State claims that Hernandez wanted the remarks admitted so that his self-defense statement on the witness stand would not seem contrived. The trial court correctly determined that when Hernandez invited a portion of the statement into evidence, he waived any objection he might have had to the State’s asking for the admission of the whole statement. See State v. Hubbard, 126 Kan. 129, Syl. ¶ 4, 266 Pac. 939 (1928) (“A defendant who by inquiry brings out a part of a statement of a witness is not in a position to complain of the action of the opposing party in calling for and bringing out the complete statement.”). “Under familiar rules, the opposing party is generally permitted to explore an entire transaction or conversation only partially explained. The common term for what appellant did is ‘opening the door.’ The scope of permissible examination under these circumstances is largely within-the discretion of the trial court.” State v. Morris, 208 Kan. 464, 467, 493 P.2d 274 (1972). When a statement is elicited by defense counsel, the defendant may not complain of that error on appeal. See State v. Holley, 238 Kan. 501, 507, 712 P.2d 1214 (1986). In the case at bar, defense counsel opened the door for the statement through his examination of Undersheriff Holmes. Hernandez cannot now successfully argue that the admission of the statement was error. During argument on the objection, the trial court informed defense counsel that he could elect to have the entire conversation excluded. Counsel replied: “I think I would rather go into it.” Counsel made a calculated decision which indicated his preference that the whole conversation be admitted over none at all. We find no abuse of discretion. Affirmed.
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The opinion was delivered by Abbott, J.: The trial court, pursuant to K.S.A. 1992 Supp. 60-211 and K.S.A. 60-2Ó07, assessed áttomey fees and expenses against Jim and Judy Giblin and their attorney, Marvin E. Thompson (appellants). They appealed. The Court of Appeals affirmed in an unpublished opinion filed November 13, 1992. We accepted review. To resolve this issue, it is necessary to set forth many of the facts and, in so doing, to focus the issue directly on the appellants’ knowledge and intent in filing a response to a motion William F. Helm, Jr., in various capacities, filed. He sought to enforce a purported settlement agreement set forth in a letter dated August 16, 1991. Also of some importance is the testamentary capacity of Frances Helm Giblin (Mrs. Giblin) on February 1 and 8, 1991. Helm is the brother of Mrs. Giblin, who is 89 years of age, twice-widowed, and has an estate in excess of $6,000,000. Her first husband, George Eresch, was President and majority shareholder of the First National Bank of Beloit, Kansas. When George died in 1952, Mrs. Giblin inherited his interest in the bank, owning a majority of the bank’s (later the holding company’s) shares. After her marriage in 1955 to Cornelius Giblin, II, Mrs. Giblin resided in Kansas City, Missouri. Cornelius died in 1968, and Mrs. Giblin continued to live in Kansas City, Missouri. Mrs. Giblin continued to vote in Beloit and to renew her Kansas drivers license. She appears to list her residence as Beloit in the trust instruments involved in this case. Mrs. Giblin has no children. Her blood relatives include her brother and 10 nieces and nephews. Cornelius J. Giblin, III (Jim), who is married to Judith Giblin (Judy), is Mrs. Giblin’s stepson. Mrs. Giblin served as chairperson of the Board of Directors of the First National Bank of Beloit and took- an active part in the management of the bank, her real estate holdings, and her investments. With regard to the bank’s affairs, she received hands-on help from the bank’s presidents, including Jerome J. Eilert, who has been president of the bank since 1983. Eilert also serves as president of First National Bankshares of Beloit, Inc., the bank’s holding company. In 1982, Mrs. Giblin executed to First National Bankshares of Beloit, Inc. a stock option that granted the holding company the right to purchase her stock in the holding company within one year after her death. In 1989, after creating a trust, she signed a second stock option that has no significance to this appeal. In 1985, Mrs. Giblin created a revocable inter vivos trust and a pour-over will leaving her real and personal property to the trust. She designated Eilert and herself as co-trustees and Joe Geisel as successor trustee. Upon Mrs. Giblin’s death, the trust pi'ovides for payment of specific sums and bequests of property to certain institutions and persons, with her blood relatives designated as the residuary beneficiaries. In 1987, Jim and Judy, after living in other states for 22 years, returned to Kansas City, Missouri. Thereafter, they frequently took Mrs. Giblin to Mass, to the beauty parlor, to Beloit, etc. On four separate occasions from November 1990 through March 1991, Jim drove Mrs. Giblin from her home in Kansas City, Missouri, to Beloit to attend to bank and personal matters. Each trip lasted more than one day, and Jim remained in Beloit with Mrs. Giblin until the business was completed. On February 1, 1991, while in Beloit, Mrs. Giblin executed changes to the trust in the presence bf Adley E. Johnson, her CPA and tax advisor, Eilert, and Jim. The same Salina law firm that prepared the earlier trust instrument prepared these changes. The revisions included revoking the 1989 stock option; changing the trust residuary beneficiaries to include Jim and Judy, to delete three of the nieces’ and nephews’ residuary shares, and to revise other nieces’ and nephews’ residuary shares; and replacing the current successor trustee with Jim. Mrs. Giblin also authorized Jim to have her durable power of attorney for health care decisions. At that meeting, she wrote a check in the amount of $10,000 to Jim and Judy. Her CPA, Johnson, had advised her to begin making $10,000 gifts to all of her trust beneficiaries for tax reasons; however, gifts to other beneficiaries were not made. On February 6, 1991, Jim contacted a Kansas City, Missouri, attorney, Alex H. Flemington. On February 8, 1991, Jim accompanied Mrs. Giblin to Flemington’s office to discuss further revisions to her estate plan. On that date, pursuant to a document Flemington prepared, Mrs. Giblin amended her trust once again. She named Jim as her new co-trustee, which removed Eilert from that position, and she also named Judy as successor trustee. Eilert’s share of the trust estate was changed from stock in the holding company to cash. Another provision stated that any beneficiary who challenged the trust’s validity would forfeit his or her share of trust property. Additionally, Mrs. Giblin gave Jim a durable power of attorney that authorized him to transfer property to the trust at his discretion. On February 8 and 18, 1991, Mrs. Giblin sent Eilert letters in which she notified him of these changes. On March 8, 1991, Mrs. Giblin sent Eilert another letter in which she requested a special meeting of the bank’s shareholders and directors for the purpose of electing Jim to the bank’s Board of Directors. Flemington prepared these letters. On March 14, 1991, Mrs. Giblin fractured her foot in a fall. When Dr. Thomas A. Coppinger, Mrs. Giblin’s personal physician, treated her, he observed a “marked mental deterioration” since December 18, 1990, when he last had seen her. The record before us does not contain, a report of the December 18, 1990, examination but, in our opinion, Dr. Coppinger’s reference to that examination takes on some significance. The March 1991 CAT scan revealed cerebral atrophy, a shrinkage of the brain. Dr. Coppinger recommended 24-hour care and the appointment of a guardian to handle Mrs. Giblin s affairs. We note the February 1, 1991, trust amendment was executed almost exactly halfway between the December 18, 1990, examination and the March 14, 1991, examination and Dr. Coppinger refers to a “marked mental deterioration” between the two examinations; thus, a reasonable conclusion would be that the deterioration took place between the two dates. On March 15, 1991, Mrs. Giblin’s blood relatives filed a petition in Jackson County, Missouri, for the appointment of a guardian and conservator for her. The Missouri court subsequently appointed Dr. John H. Wisner, a psychiatrist, to evaluate Mrs. Giblin’s mental status, including “[her] testamentary capacity and her capacity to understand the significance of financial transactions involving the administration of a trust consisting of real and personal property having a value of in excess of six million dollars together with her ability to understand the significance of the transactions reflected in the documents executed February 1st and 8th, 1991.” On April 30, 1991, Jim and Judy filed a petition to be named co-guardians and co-conservators. On May 22, 1991, Helm filed suit in Kansas on behalf of Mrs. Giblin, himself, and her other blood relatives who were original trust beneficiaries (appellees) against Jim and Judy to set aside the February 1991 transactions. The suit alleged that these transactions were “void because of [Mrs. Giblin’s] lack of mental capacity”; that Mrs. Giblin signed these documents because of Jim and Judy’s “influence, fraud, lack of good faith, and overreaching”; and that Jim and Judy “breached their confidential relationship by exercising undue influence over [Mrs. Giblin].” The appellees asked for a temporary restraining order to prevent transfers of property from Mrs. Giblin’s trust, which the trial court granted on September 23, 1991. Dr. Wisner submitted his report on June 3, 1991. He concluded that Mrs. Giblin suffered from “Dementia (Chronic Organic Brain Syndrome), of a profound severity, long-standing and slowly progressive in nature, of at least six months’ duration, and most probably of one year’s duration” and from “Progressive Dementia of the ‘Alzheimer’s type.’ ” In the doctor’s opinion, from February 1 through 8, 1991, Mrs. Giblin “lacked testamentary capacity and the ability to understand the significance of financial transactions involved in the administration of a trust consisting of real and personal property of any value.” On August 1, 1991, Jim and Judy, as well as Mrs. Giblin’s brother and seven of her nieces and nephews, signed a stipulation to be filed with the Missouri court. Included in the stipulation was the parties’ agreement that, based upon Dr. Coppinger’s report of March 15, 1991, Mrs. Giblin was incapacitated, disabled, and in need of a guardian and conservator. On August 1, the Missouri court incorporated the stipulation into its judgment, adjudged Mrs. Giblin to be incapacitated and disabled, and appointed one of Mrs. Giblin’s nephews as her guardian and conservator. On August 8, 1991, attorneys for the appellees and the appellants began negotiations to settle the case. The appellees were represented by Aubrey G. Linville of Clark, Mize & Linville, Chartered, of Salina, Kansas, in the Kansas litigation. Jim and Judy were represented by B. John Readey, III, of Smith, Gill, Fisher & Butts, of Kansas City, Missouri. Linville subsequently filed an affidavit stating he was “certain” Readey consulted with Jim and Judy during all stages of the negotiation. Linville also asserted in his affidavit that he and Readey reached an agreement on August 16, 1991, and that Readey agreed to confirm the terms in writing. According to Linville, he and Readey concurred that, because of Mrs. Giblin’s incapacity, all interested parties would need to sign a formal settlement agreement, which Linville agreed to prepare, and the trial court would need to approve the settlement. Readey did send Linville a letter on August 16, which began: “The. purpose of this letter is to confirm in writing the settlement agreement . . . which has been reached between our clients, Jim and Judy Giblin, and your clients, which we understand are Bill Helm and the beneficiaries of the Frances H. Giblin Trust No. 1 dated October 1, 1985, as amended by the First Supplemental Trust Agreement dated April 1, 1987.” The letter next discussed that although his clients did not admit truth in the appellees’ allegations, Jim and Judy were willing to settle to avoid the duress and expense of continued litigation. The terms of the settlement were that Jim and Judy would retain the $10,000 gift received from Mrs. Giblin in February 1991 and that upon Mrs. Giblin’s death, Jim and Judy would receive the engagement and wedding rings Jim’s father had given to Mrs. Giblin, which had a value of $50,000 or more. The letter concluded: “Finally, Jim and Judy Giblin have agreed to sign whatever instruments may be necessary to effect the foregoing settlement and we understand that your clients have agreed to similar effect. . . . “We ask that the foregoing settlement agreement be formalized in a written agreement signed by all of the necessary parties .... We would expect your office to prepare the agreement(s).” On August 20, 1991, according to Linville’s affidavit, he contacted the trial judge and informed him the case had been settled. Linville also asserted in his affidavit that when he telephoned Readey on August 22, 1991, to discuss procedural matters relating to the settlement, Readey did not mention his clients had problems with the settlement. In a letter sent to Readey on September 6, 1991, Linville stated: “I have a draft of a Settlement Agreement ready .... We want to have the agreement reviewed by the family members before sending it to . . . you.” On September 11, 1991, Linville sent Readey a copy of the preliminary draft of the settlement agreement. The letter begins: “Enclosed ... is a copy of a preliminary draft of a Settlement Agreement . . . based upon the terms that [you] and I negotiated.” (Emphasis added.) On September 16, 1991, Readey sent a letter to Jim and Judy, in which Readey enclosed a copy of “the draft of the proposed Settlement Agreement.” In the letter, Readey discussed several matters with which he was concerned: “[T]here are at least a few items which either are inaccurate, were not discussed, or represent attempts to accomplish more in the Settlement Agreement than our earlier settlement discussions concluded. In any event, please review the Agreement and give us your thoughts. We will send you our proposed revisions shortly. ' “One of the concerns we have with the draft is their apparent attempt to obtain your waiver of any interest in Frances’ estate, either as it exists now or as it may exist in the future. Considering the possibility that upon the advent of some miracle drug, she could regain her faculty and amend her trust to include you, it is hardly appropriate for you to waive your interest- in her estate once and for all. Thus, we will want a change in that provision of die Agreement. “The Agreement also would have you agree to absorb your attorney’s fees in both the Missouri and Kansas proceedings. This issue was never discussed by me with Aubrey Linville. . . . [W]e cannot agree to the referenced provision.” According to Linville’s affidavit, when he had not heard from Readey by September 26, 1991, he sent a letter reminding him of the scheduled telephone conference between the trial court and counsel on October 1, 1991. On October 1, 1991, after the conference call commenced, Charles W. Gordon, Jr., another attorney with Smith, Gill, Fisher & Butts, advised that Jim and Judy did “not desire to settle .. . at this time.” Gordon also stated that Jim and Judy were in the process of hiring new counsel and that Smith, Gill, Fisher & Butts was withdrawing from the case. Linville filed a second affidavit in which he stated he called Readey on the . morning of October 2, 1991, to ask why Jim and Judy no longer wanted to settle. Readey was not available, so Linville left a message. Later that morning,. Gordon, of Smith, Gill, Fisher & Butts, called Linville on Jim and Judy’s behalf to discuss a continuance for discovery.. Linville said that when he asked Gordon “what had gone wrong with the settlement,” Gordon would not discuss the matter. Linville also mentioned he had left a telephone message for Readey, to. which Gordon responded that he doubted Readey would want to discuss it with Linville and that Readey most likely would give his version only by deposition. On October 8, 1991, the appellees filed a motion to enforce the settlement agreement based upon Readey’s August 16 letter to Linville. The appellees also claimed they and Mrs. Giblin’s co-guardians ad litem were entitled to recover all attorney “fees and expenses incurred in enforcing the agreed settlement.” Also in the second affidavit, Linville set forth a telephone conversation he had on October 24, 1991, with Jim and Judy’s new attorney, Marvin E. Thompson, of Thompson, Arthur & Davidson, of Russell, Kansas. Linville said he asked Thompson why Jim and Judy wanted to back out of the agreement. According to Linville, Thompson’s response was that there had been no agreed-upon settlement. Linville. stated he then described the negotiating process in detail and informed Thompson he (Linville) had no doubt Jim and Judy authorized Readey to settle the case. Linville said he initiated a conversation about the merits of the case, arguing there was no reason to continue the litigation because Mrs. Giblin had been determined incapacitated in February 1991. According to Linville, he asked Thompson if Thompson had seen a copy of Dr. Wisner’s report, and when Thompson replied in the negative, Linville offered to send a copy. Linville warned Thompson that if Jim and Judy persisted in repudiating the settlement agreement and pursuing pointless litigation, Lin-ville would seek recovery of attorney fees and expenses for his clients and for Mrs. Giblin’s co-guardians ad litem. On October 24, 1991, in follow-up of their telephone conversation, Linville sent a letter to Thompson. With the letter, Lin-ville enclosed a copy of the appellees’ motion to enforce the settlement, memorandum in support of the motion, Dr. Wisner’s report, and the letters from the judge in the Missouri proceedings to Dr. Wisner and Claudia York, one of Mrs. Giblin’s guardians ad litem. Linville again informed Thompson that if Jim and Judy persisted in moving forward with the litigation, Clark, Mize & Linville, Chartered, would attempt to recover attorney fees and expenses for the appellees and the guardians ad litem. In the second affidavit, Linville related a telephone conversation he had with Thompson on October 31, 1991. Linville said Thompson acknowledged receipt of Dr. Wisner’s report, but mentioned the doctor had not had the benefit of Alex Flemington’s and Adley Johnson’s testimony when he made his report. According to Linville, Thompson acknowledged he had yet to visit with Johnson and did not know if Johnson’s testimony would make any difference. On November 5, 1991, Thompson filed Jim and Judy’s response to the appellees’ motion, arguing: (1) There was no meeting of the minds with regard to the terms of the settlement agreement; (2) the appellees did not accept Readey’s letter of August 16, 1991, as a final settlement agreement because each appellee first had to approve the preliminary draft; (3) Readey did not consider the preliminary draft a final settlement agreement, based upon his letter of September 16, 1991, to Jim and Judy; and (4) Readey did not have authority to enter into an oral or informal settlement agreement on Jim and Judy’s behalf. To support the latter ar gument, Thompson submitted an affidavit from Jim in which Jim stated he “felt” there was no settlement “unless it was in writing and signed by all parties.” Jim also said he did not authorize Readey to settle the case without the settlement being reduced to writing and signed by Jim and Judy. At the hearing conducted on November 6, 1991, the attorneys agreed there was sufficient written material in the record for the court to rule whether there was a settlement as a matter of law. Thompson argued there was no settlement agreement because the agreement was not reduced to writing and signed by all parties as contemplated by both the appellees and Jim and Judy. Thompson also maintained that although Helm had filed the suit on behalf of the beneficiaries, not all of the beneficiaries were parties to the suit; that K.S.A. 1992 Supp. 60-217 does not allow a beneficiary to bring suit in a representative capacity for other beneficiaries; and that nonparty beneficiaries were “contingently necessary parties.” Thompson pointed out the settlement agreement raised or lowered several of the nieces’ and nephews’ residuary interests in the trust and, in fact, entirely eliminated the interests of three of the nieces and nephews. Mrs. Giblin’s guardians ad litem were present and participated in the hearing. At the court’s request, York, one of the two guardians ad litem, testified. York stated that during a telephone conversation on August 20, 1991, Readey informed her a settlement agreement had been reached and that during a telephone conversation on September 20, 1991, Readey told her the preliminary draft of the settlement agreement sent to her was the agreement into which his clients had entered and the collateral issue of attorney fees had not yet been resolved. York testified she also spoke with Linville on September 20 and Linville acknowledged the issue of attorney fees had not been discussed, but he considered it a collateral issue. York said her understanding on September 20 was “that everyone was waiting for final approval of the documents as to form.” Dana P. Ryan, an attorney with Clark, Mize & Linville, Chartered, argued the appellees’ cause at the hearing and informed the trial court that the firm represented Mrs. Giblin’s nieces and nephews as well as Mrs. Giblin’s brother. It was argued Jim, Judy, and their counsel were aware Clark, Mize & Linville also represented Mrs. Giblin’s nieces and nephews, based upon Readey’s letter of August 16, 1991, to Linville that refers to Linville’s clients as “Bill Helm and the beneficiaries of the trust.” A number of beneficiaries other than Mrs. Giblin’s blood relations do not appear to be represented by Clark, Mize & Linville. In fact, several do not appear to be represented. Thompson argued there was nothing of record to show the firm represented the nieces and nephews in addition to representing Helm. The trial court determined there was sufficient evidence to support the finding that Clark, Mize & Linville, represented Mrs. Giblin’s brother, nieces, and nephews, but permitted the appellees’ attorney to submit affidavits from the nieces and nephews to that effect. On December 10, 1991, the trial court granted the appellees’ motion to enforce the settlement agreement as evidenced by Readey’s letter of August 16, 1991, to Linville. The trial court found the letter “clearly” showed the parties had reached a settlement agreement because it explicitly stated that an agreement had been reached and that Jim and Judy agreed to sign whatever documents were necessary. The trial court also determined Mrs. Giblin’s nieces and nephews who were not named parties to the suit gave authority to Clark, Mize & Linville to settle the case. The court noted: “There is no evidence to suggest that the blood relatives’ attorneys failed to timely and properly consult them concerning potential conflicts of interest in the settlement of the case.” The trial court also concluded there was no evidence in the record, including Jim’s affidavit, to suggest Readey did not have authority to settle the matter. The court determined Jim and Judy did not disavow the settlement agreement in a timely manner. Jim and Judy did not appeal the trial court’s ruling. On January 7, 1992, the trial court conducted a hearing on the motion for attorney fees and expenses. Thompson argued that the record showed a written settlement agreement was a condition to settlement because Readey’s letter of August 16, 1991, provided for a “formal settlement agreement” and because the preliminary draft of the settlement agreement provided for the signatures of all trust beneficiaries. Thompson asserted that “all trust beneficiaries were not parties to the litigation”; that K.S.A. 1992 Supp. 60-217 does not authorize one beneficiary, such as Helm, who filed the suit, to sue on behalf of all trust beneficiaries; and that trust beneficiaries who were not parties to the litigation would not be bound by the settlement agreement unless they signed the agreement. Thompson pointed out that in Jim’s affidavit he stated Readey was not authorized to settle the case if the agreement did not provide for a written settlement agreement signed by all the parties. Additionally, Thompson maintained the record does not show the appellees’ attorney complied with MRPC 1.8(g) (1991 Kan. Ct. R. Annot. 265), which requires an attorney representing multiple clients with conflicting interests in an aggregate settlement to inform the clients of the existence and nature of the claims and the participation of the parties involved and to obtain the consent of each in advance. On January 21, 1992, the trial court granted the appellees’ motion, finding a violation of K.S.A. 1992 Supp. 60-211 and K.S.A. 60-2007. The court reasoned the appellants “presented and pursued claims and defenses that were without a reasonable basis in fact and not in good faith” and “without making reasonable inquiry or investigation.” As a result, the trial court assessed attorney fees and expenses against Jim, Judy, and Thompson, jointly and severally, in the amount of $19,755.07. The court determined the appellees had incurred $14,685.50 in attorney fees and $610.87 in expenses and Mrs. Giblin’s co-guardians ad litem had incurred $4,328.58 in attorney fees and $130.12 in expenses. Jim and Judy and their attorney, Thompson, appealed from the assessment of attorney fees and costs against them. The Court of Appeals affirmed, and this court accepted review. The appellants argue the trial court abused its discretion in assessing fees and expenses against them, pursuant to K.S.A. 1992 Supp. 60-211 and K.S.A. 60-2007. The statutes provide, in pertinent part: “Every pleading, motion and other paper provided for by this article of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name .... The signature of a person constitutes a certificate by the person that the person has read the pleading; that to the best of the person’s knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that it is not imposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion or other paper provided for by this article is signed in violation of this section, the court, upon motion . . . shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including reasonable attorney fees.” K.S.A. 1992 Supp. 60-211. “(b) At the time of assessment of the costs of any action to which this section applies, if the court finds that a party, in a pleading, motion or response thereto, has asserted a claim or defense, including setoffs and counterclaims, or has denied the truth of a factual statement in a pleading or during discovery, without a reasonable basis in fact and not in good faith, the court shall assess against the party as additional costs of the action, and allow to the other parties, reasonable attorney fees and expenses incurred by the other parties as a result of such claim, defense or denial. An attorney may be held individually or jointly and severally liable with a party for such additional costs where the court finds that the attorney knowingly and not in good faith asserted such a claim, defense or denial or, having gained knowledge of its falsity, failed to inform the court promptly that such claim, defense or denial was without reasonable basis in fact. “(d) The purpose of this section is not to prevent a party from litigating bona fide claims or defenses, but to protect litigants from harassment and expense in clear cases of abuse." (Emphasis added.) K.S.A. 60-2007. “Two separate requirements must be met before attorney fees and expenses can be assessed pursuant to K.S.A. 60-2007(b): (1) The claim asserted was without reasonable basis in fact; and (2) the claim was not asserted in good faith.” Rood v. Kansas City Power & Light Co., 243 Kan. 14, Syl. ¶ 4, 755 P.2d 502 (1988). “[An appellate court] must look at whether there was a reasonable basis in fact’ for the claim when it was asserted, and whether the claim was asserted in good faith.” Smith v. Dunn, 11 Kan. App. 2d 343, 346, 720 P.2d 1137 (1986). “The fact that a party’s claim is ultimately denied does not, in and of itself, indicate that the claim was frivolous.” Reyna v. General Group of Companies, 15 Kan. App. 2d 591, Syl. ¶ 3, 814 P.2d 961, rev. denied 248 Kan. 996 (1991). In determining whether to assess attorney fees and costs pursuant to K.S.A. 60-2007(b), the appellate court’s first function is to determine whether substantial competent evidence supports the trial court’s findings of fact that the pleading does not have a reasonable basis in fact and is not asserted in good faith. See Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 1, 823 P.2d 782 (1991). The appellants contend the presentation of facts in the instant case allows this court to ascertain de novo what the facts prove. In Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, Syl. ¶ 2, 799 P.2d 485 (1990), this court held: “Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions, and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below and to determine de novo what the facts establish.” See Stith v. Williams, 227 Kan. 32, Syl. ¶ 2, 605 P.2d 86 (1980); Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. 335, Syl. ¶ 2, 592 P.2d 74 (1979); Fourth Nat’l Bank & Trust Co. v. Mobil Oil Corp., 224 Kan. 347, Syl. ¶ 2, 582 P.2d 236 (1978); American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, Syl. ¶ 4, 545 P.2d 399 (1976); Reznik v. McKee, Trustee, 216 Kan. 659, Syl. ¶ 7, 534 P.2d 243 (1975); Todd v. Lakeland Chrysler-Plymouth-Dodge, Inc., 17 Kan. App. 2d 1, 4, 834 P.2d 387 (1992). That exception, however, has been held not to apply in cases in which oral testimony has been heard. Bell v. Tilton, 234 Kan. 461, 468, 674 P.2d 468 (1983); In re Estate of Broadie, 208 Kan. 621, Syl. ¶ 1, 493 P.2d 289 (1972). The appellees contend this court cannot determine de novo what the facts establish because the evidence includes testimony taken at the hearing. The record on appeal does include four and one-half pages of sworn testimony by Claudia York, one of Mrs. Giblin’s co-guardians ad litem. The rationale behind not allowing appellate de novo determination of facts in a case involving witness testimony is that we do not weigh conflicting testimony. There was no conflicting evidence presented, written or oral, to contradict York’s testimony about her conversations with Readey and Linville. Thompson did not even cross-examine York. York’s testimony is arguably no different than the affidavits submitted. Additionally, at the November 6, 1991, hearing, the parties agreed there was sufficient written evidence for the trial court to decide the case. The trial court even noted this in its memorandum decision. It was at the court’s request that York testified. In this situation, we can determine de novo what the facts establish. The appellees also contend this court cannot determine de novo what the facts establish because the standard of review is abuse of discretion. The appellants’ argument concerns the manner in which this court reviews the evidence, not the standard of review. Abuse of discretion—whether the trial court’s actions were arbitrary, fanciful, or unreasonable or whether any reasonable person would agree with the trial court’s actions—necessitates a review of the evidence. In so doing, this court either can determine de novo what the facts establish or this court can determine if the statutory requirement of having a reasonable basis in fact has been met. Abuse of discretion and a de novo determination of what the facts establish are not necessarily mutually exclusive. The appellants argue they had a reasonable basis in fact to oppose the appellees’ motion to enforce the settlement agreement. What constitutes a reasonable basis in fact is decided on a case-by-case basis. See Rood, 243 Kan. at 23. The appellants contend a reasonable basis in fact means any evidence to support their position. See City of Shawnee v. Webb, 236 Kan. 504, 512, 694 P.2d 896 (1985) (“The fact that the landowners did not prevail in their motion to tax costs does not make the motion frivolous; a factual basis existed upon which the motion was based.” [Emphasis added.]). In Smith v. Dunn, 11 Kan. App. 2d 343, the plaintiffs hired Dunn to construct a chimney and fireplace for a woodburning stove. Fire subsequently damaged the plaintiffs’ home. The fire originated in the wall near the woodbuming stove—combustible materials in the wall were left too close to the uninsulated stovepipe that went through the wall to the chimney flute. The plaintiffs sued Dunn and, after learning the Rickels were somehow involved in the construction, included the Rickels as defendants. The trial court granted the Rickels’ motion for summary judgment and for recovery of attorney fees and costs. The Court of Appeals disagreed with the trial court’s factual analysis of the case and reversed the judgment against the plaintiffs’ attorney, stating: “In determining whether plaintiffs’ attorney had a reasonable basis in fact to assert a claim against the Rickels, the trial court broke its analysis down to whether there was any evidence to support a claim that the Rickels were negligent in their performance of either the exterior or the interior work. The court then concluded the fire was caused by the interior work and that the evidence tying the Rickels to the job all related to earlier exterior work. This interior/exterior analysis is too simplistic and it ignores the fact the fire started in the wall—between the interior and exterior work. It would appear logical that either Dunn woiking from the inside or the Rickels working from the outside could have some part in constructing the hole through the wall and preparing the hole for the placement of the stovepipe. Plaintiffs’ attorney had a reasonable basis in fact to file a claim against the Rickels.” 11 Kan. App. 2d at 348. The question before this court is whether the appellants had a reasonable basis in fact for rejecting the settlement agreement as of November 5, 1991. The appellants are not subject to sanctions because of their oral rejection of the settlement agreement on October 1, 1991. The claims of the party subject to sanctions must be in “a pleading, motion or other paper,” K.S.A. 1992 Supp. 60-211, or “in a pleading, motion or response thereto,” K.S.A. 60-2007. Thus, November 5, 1991, is the operative date because it is the date the appellants responded to the motion to enforce, the settlement agreement. The appellants assert that their November 5, 1991, response objected to the appellees’ motion to enforce the settlement agreement on two grounds: (1) Readey’s letter of August 16, 1991, to Linville and (2) all trust beneficiaries “would not necessarily be bound by any order upholding the letter as settlement of the case” because they were not parties to the litigation With regard to the August 16 letter, the basis of the appellees’ motion to enforce the settlement, the appellants point. to the following language: “We ask that the foregoing settlement agreement be formalized in a written agreement signed by all the necessary parties . . . .” The appellants contend that Linville’s letters of September 6 and 11, 1991, indicate he understood this was a condition of the settlement. On September 6, Linville sent Readey a letter informing him a draft of the settlement agreement had been prepared and would be reviewed by Mrs. Giblin’s blood relatives before Linville sent a draft to Readey. In Linville’s letter of September 11 to Readey, Linville referred to the enclosed document as “a preliminary draft” of the settlement agreement that he and Readey had negotiated. In that same letter, Linville stated: “It is our opinion that the Settlement Agreement should be submitted to Judge Tuggle for approval in both Kansas cases, once all of us have approved it.” Additionally, Jim Giblin submitted an affidavit with the appellants’ November 5 response, stating that he felt there was no settlement unless it was in writing and all parties signed it and that he had not authorized Readey to. Settle the case unless the agreement was in writing and all parties signed it. . The appellees contend there is no evidence in the record that Jim and Judy or their attorney negotiated a written settlement agreement signed by all parties as a condition precedent to settlement. The appellees argue that the language of the August 16 letter does not create a condition precedent because the reference to the “foregoing settlement agreement” refers to an accomplished event, and the reference to “formalized in a written agreement signed by all” is only a request. See Connor v. Hammer, 201 Kan. 22, 439. P.2d 116 (1968). The trial court was not persuaded by the appellants’ arguments. The trial court found the August 16 letter “explicitly stated that a settlement had been reached, that [Jim and Judy] agreed to sign whatever instruments might be necessary to effect the foregoing settlement and requested that the settlement agreement be formalized in a written agreement.” The court also concluded that, because Jim and Judy received a copy of the August 16 letter, they were aware of the settlement negotiations and that there was no evidence in the record, including Jim’s affidavit, suggesting Readey did not have authority to settle the case. According to the trial court, Readey’s letter of September 16, 1991, to Jim and Judy “made it clear that agreement had been reached as to substantially all matters.” (Emphasis added.) According to the court, Jim and Judy “knew or should have known that the case was settled.” Based upon the above, the court concluded thp appellants had no reasonable basis in fact to argue that there was no settlement until the parties executed a formal written agreement. The operative date concerning whether Jim, Judy, and Thompson acted in good faith and with a reasonable basis in fact was November 5, 1991. On that date, Thompson, as an attorney, was looking, at a trust valued at over $6,000,000 from which his clients would receive a substantial sum of money if successful. The . trust amendment executed on February 1, 1991, was executed in front of a bank president and a certified public accountant who had known Mrs. Giblin for some period of time and both of whom could be expected not to have allowed a person to execute a trust amendment under circumstances that would cause the amendment to be set aside. In addition, Thompson’s clients told him that they had not authorized their attorney to enter into a settlement and that they did not believe the settlement was complete until a written agreement was signed. Additionally, Mrs. Giblin’s then treating physician seemed to indicate she was mentally competent on December 18, 1991, some 45 days before she signed the amended trust. The letter upon which the trial judge relied can be read to reach a result contrary to the trial judge’s interpretation. To dismiss the issues not agreed upon as “collateral” is leaving large sums unresolved. The question concerning attorney fees would appear to be substantial. The trial court awarded over $19,000 for the relatively simple motion for attorney fees and costs. The total cost of attorney fees for the actions in Kansas and Missouri would be much higher than the amount awarded for this motion for attorney fees and costs. In addition, a $10,000 cash gift and some $50,000 in jewelry was at stake, and, from the appellants’ position, the nieces and nephews who would need to be bound by the agreement were not parties to the action. • ■ The party who asserts a pleading has no basis in fact ánd is not asserted in good faith has the burden of proving that assertion. While Jim and Judy’s case is a closer call than Thompson’s, we are satisfied the facts of this case show the response was filed with a reasonable basis in fact and in good faith. To hold otherwise: would leave most litigants in a contested case in the position that, if the trier of facts found against thém, attorney fees and expenses could be awarded against them. It also could occur in most breach of contract cases in which one of the parties asserts-a claim or defense that is disputed and not believed by the trier of facts. We hold the trial court erred in awarding attorney fees and costs in this case and the Court of Appeals erred in affirming the trial court. • The appellants requested attorney fees and costs in the trial court, contending the appellees did not have a reasonable basis in fact to file their motion to recover attorney fees and costs. The appellants also maintain the appellees’ motion to assess attorney fees and costs against the appellants was frivolous and filed for harassment purposes and, therefore, was not in good faith. The appellants argue the trial court should have assessed attorney fees and expenses against the appellees. The trial court did not err in refusing to grant the appellants attorney fees. Both sides request attorney fees and costs on appeal. We find both requests to be without merit. The judgments of the Court of Appeals and of the district court are reversed. Davis, J., not participating. Terry L. Bullock, District Judge, assigned.
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The opinion of the court was delivered by Abbott, J.: This is a direct appeal by the defendant, Robert Synoracki, from his conviction of attempted first-degree murder. The defendant raises many issues that center around two areas. The first area concerns a written statement of a State witness that was introduced into evidence after the defense rested and that was allowed into the jury room during deliberations. The second concerns the introduction of evidence of conviction for a prior crime during cross-examination of the defendant and then, during closing argument, the prosecution arguing the conviction showed the defendant was a violent man. On October 5, 1991, at approximately 11:00 p.m., McPherson police officers responded to a 911 call that there was a fight involving a knife in the street near Tootsie’s Bar and Grill. When the officers arrived, the street was empty. Entering Tootsie’s, they found Rory Peters lying face down on the floor with a stab wound in his chest. Patrons told the officers “Bob” had stabbed the victim. When asked by the officers, Peters said “Bob” had stabbed him. Cindy Hartley informed the police the “Bob” to whom Peters referred was Robert Synoracki. Hartley, Peters, and Synoracki lived in the same trailer court and were acquainted. Mildred Fulton and her fiance owned Tootsie’s bar. Fulton had fired Synoracki a week earlier for drinking on the job, but had rehired him on the condition he not drink on the job. When Peters arrived at the bar, Synoracki asked Peters to bring him a glass of whiskey from his trailer. Peters did so, but left the glass of whiskey in his truck. He refused to bring it inside because Tootsie’s was licensed only to serve beer. Peters spent the evening at the bar, drinking beer and shooting pool. During the course of the evening, the glass of whiskey was found in the restroom. Peters indicated to Fulton’s fiance that the whiskey belonged to the defendant. When Fulton confronted Synoracki, he denied that it was his whiskey and that he had been drinking it. Fulton, however, smelled whiskey on Synoracld’s breath and fired him. The defendant would not leave peacefully so Fulton’s fiance physically evicted him from the premises. Synoracki returned three times for various reasons. Fulton testified that, during the times the defendant returned to the bar, she heard the defendant and Peters exchange words, the defendant tell Peters he would get even with him, Peters refuse to go outside with the defendant, and Peters tell the defendant to leave him alone. Synoracki testified that, although he had to be removed physically from the bar after he was fired, he was not angry about being fired. The defendant acknowledged returning to Tootsie’s, but denied threatening Peters. Synoracki left the bar shortly before 9:00 p.m. According to Hartley, Synoracki stopped by her trailer around 9:00 p.m. and was “real troubled.” When she asked him what was wrong, the defendant said he had been fired because Peters had “ratted” on him about drinking on the job. Synoracki pounded on the table with considerable force and then pulled out a knife, a silver dagger with a six-inch blade. He jabbed the knife in the air and repeated several times: “I’m gonna kill him.” Hartley told the defendant to put the knife away, which he did, but he kept threatening to kill Peters. When Hartley suggested it was not worth doing 40 years over $150-a-week job, Synoracki’s response was that he had been to prison before and he could do it again. She said the defendant remained angry and very agitated. Synoracki stayed about an hour before leaving to buy cigarettes. When he returned about 45 minutes later, Hartley described him as “very calm, very set.” Hartley testified that Synoracki told her he had made up his mind—Peters was a dead man. According to Hartley, the defendant also threatened to terrorize or kill Peters’ fiancee, who was six months pregnant. Synoracki testified he went over to Hartley’s trailer because he was upset emotionally and needed a shoulder on which to cry. The defendant acknowledged telling Hartley “that everything was fucked up” and that Peters had ratted on him. Synoracki testified he was not sure what he had said and whether he had threatened to kill Peters and to kill or terrorize Peters’ fiancee. The defendant denied having a knife when he was at Hartley’s trailer. Synoracki testified he returned home after leaving Hartley’s the second time and while there decided to slash the tires on Peters’ truck because Peters had ratted on him. The defendant said he grabbed a knife and returned to the vicinity of Tootsie’s. He knew Peters’ truck was parked behind the bar. Synoracki described the knife as a brown-handled steak knife with a serrated edge. The defendant said he was unable to slash Peters’ tires because the blade on his knife bent and would not cut the rubber. The defendant then decided to let the air out of Peters’ tires. According to Synoracki, Peters saw him and hollered, “[I]f you got a problem with me, you better deal with me.” The defendant claimed Peters charged him, began hitting and kicking him, and knocked him almost unconscious. Synoracki testified that he never swung at Peters, that he pleaded with Peters to stop, and that Peters threatened to kill him. In trying to get away from Peters, the defendant said he kept backing up until they ended up in the middle of the street. Synoracki said he heard vehicles and that when a vehicle stopped, Peters said, “Officer, he’s got a knife.” The defendant acknowledged that he had the knife out, but said it was for protection. Synoracki maintained Peters saw the knife before he lunged toward the defendant and ended up being stabbed. The knife was never located, but the defendant claimed the knife that stabbed Peters was the same knife with which he attempted to slash Peters’ tires. Synoracki testified that although the blade bent when he attempted to slash the tires, the blade sprang back. Peters testified that after going outside with Synoracki, he remembered arguing, with the defendant. During the argument, Peters recalled seeing someone who looked like an officer. Peters said that after the defendant charged him, he kicked the defendant once or twice and hit him two or three times. Peters then recalled telling Synoracki, “Enough” and heading toward the bar. According to Peters, the defendant yelled at him and when Peters turned around, he felt something like a finger poke in his chest. Peters did not realize he had been stabbed until he walked inside Tootsie’s, felt lightheaded, and noticed some blood. Peters then collapsed on the floor. After Synoracki left Hartley’s trailer, Hartley went to check on Peters’ fiancee. There was no light on or any noise coming from the trailer. Hartley decided to go buy beer and while she was at the liquor store, which was in the same vicinity as Tootsie’s, she decided to tell Peters about Synoracki’s threats. As she left the store, she saw Peters and Synoracki in the street and heard them arguing. Hartley heard Peters tell Synoracki that if Synoracki had a problem with him, Synoracki better deal with him. She decided to return to Peters’ trailer in case his fiancee was asleep in the trailer. Hartley said calling the police was not a priority, but getting Peters’ fiancee out of the trailer was. When no one responded at Peters’ trailer, she returned to the area in which she last had seen Peters and Synoracki. Hartley saw police officers and, after seeing an ambulance arrive on the scene, she approached one of the officers and asked if Peters had been stabbed and if Synoracki had stabbed him. She gave a written statement to the police later that night. Steven Nordstrum was driving in the area of the fight. Nordstrum was on his way to work at the Kansas Industrial Reformatory as a correctional officer and was in uniform. He was not carrying a weapon. He noticed two men in the middle of the street yelling at each other. Nordstrum said the men’s fists were clenched, but he did not see any hitting or any kicking. He drove up to the men, rolled down his window, and told the men to “knock it off.” When he opened his car door, the interior light revealed his uniform. One of the men, who was later identified as Peters, told Nordstrum, “Officer, he’s got a knife.” Nordstrum saw a knife in Synoracki’s left hand. Nordstrum decided not to expose the passenger in his car to the weapon. He told Peters he would call it in and drove approximately 200 yards to a nearby motel to telephone. When Nordstrum telephoned 911, he was informed the fight already had been reported. Synoracki was arrested that evening near his trailer. When the police found the defendant, he was bleeding from the mouth and nose. His nose had been broken. The doctor treating Peters testified that Peters had suffered a knife wound to the heart and pericardial sac over the heart. According to the doctor, if Peters had not been treated immediately, the wound would have been fatal. A jury found Synoracki guilty of attempted first-degree murder. He received a sentence of 10 years to life. This appeal followed. Synoracki first argues the trial court abused its discretion in admitting as rebuttal evidence the written statement Cindy Hartley had given to police the night Peters was stabbed. Hartley was a key witness for the State. The defense did not contest that Synoracki stabbed Peters. At issue was the intent—premeditation or self-defense—with which the defendant committed the act. Hartley’s testimony, if believed by the jury, provided evidence of premeditation, an element of attempted first-degree murder. After its direct examination of Hartley, the State moved to admit her written statement, which was very similar to and corroborated her testimony. The trial court sustained the defense objection that the written statement was cumulative. The defendant testified on his own behalf and partially refuted Hartley’s testimony on material issues. At the close of the defendant’s case, the State again offered Hartley’s written statement. The trial court admitted the statement as rebuttal evidence, and the jury was allowed to take the statement into the jury room during deliberations. “Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may relute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice.” State v. Prouse, 244 Kan. 292, Syl. ¶ 2, 767 P.2d 1308 (1989). See State v. Grissom, 251 Kan. 851, 931, 840 P.2d 1142 (1992) (abuse of discretion); State v. Hall, 246 Kan. 728, Syl. ¶ 3, 793 P.2d 737 (1990) (rebuttal evidence); State v. Holcomb, 240 Kan. 715, Syl. ¶ 1, 732 P.2d 1272 (1987) (same). Synoracki contends the trial court abused its discretion in admitting Hartley’s written statement because rebuttal evidence must be from “a new, independent source,” not from a witness restating previous testimony. In support of this contention, the defendant cites State v. Holcomb, 240 Kan. 715; State v. Willis, 240 Kan. 580, 731 P.2d 287 (1987); State v. Childers, 222 Kan. 32, 563 P.2d 999 (1977); State v. Bean, 181 Kan. 1044, 317 P.2d 480 (1957). These cases are not on point in that the source of the rebuttal evidence was not at issue. In these cases, the rebuttal evidence happened to be in the form of testimony from new witnesses. These cases do not preclude corroborating a witness’ previous testimony either by recalling the witness to testify or in the form of a written statement by the witness after the defense has attempted to refute the witness’ testimony. Rebuttal evidence need not be from a different source. Rebuttal evidence also may be in documentary form. State v. Trotter, 245 Kan. 657, Syl. ¶ 2, 783 P.2d 1271 (1989). In the case at hand the source and form of the rebuttal evidence were permissible, and the evidence was relevant. The defendant also maintains the trial court abused its discretion in admitting the written statement after the defense presented its case because the late admission denied him the opportunity to confront and cross-examine Hartley about her written statement. Synoracki claims he relied upon the trial court’s refusal to admit the written statement after direct examination and did not question Hartley about it during cross- examination because he did not want to chance opening’ the door to its admission. Although the defendant concedes the similarity and consistency between Hartley’s testimony at trial and her written statement to the police, he maintains the tone of each was very different. In his brief, he contends “some of her testimony matched her statement word for word.” Synoracki argues that had he known the statement eventually would be admitted, he would have cross-examined Hartley about it. He does not suggest what he would have asked or what he could have asked that had any possibility of receiving a favorable response. If a defendant has an opportunity to cross-examine a witness, and does so, the subsequent admission of the witness’ written statement, which does not contain new evidence and is consistent with the witness’ testimony, does not violate the defendant’s right of confrontation. See State v. Handley, 234 Kan. 454, Syl. ¶ 4, 673 P.2d 1155 (1983) (“The right of confrontation is satisfied when the defendant has had an opportunity to cross-examine the witnesses against him or her.”); cf. State v. Wesson, 247 Kan. 639, Syl. ¶ 5, 802 P.2d 574 (1990) (“In cases of necessity, . . . the right of confrontation . . . [generally] is satisfied if the accused has been once confronted by the witness against him in any stage of the proceedings on the same accusation and has had an opportunity of cross-examination.”), cert, denied _ U.S._, 115 L. Ed. 2d 1032 (1991); State v. Bird, 238 Kan. 160, Syl. ¶ 6, 708 P.2d 946 (1985). Additionally, after the trial court admitted Hartley’s written statement, Synoracki could have requested that Hartley be recalled as a witness. This would have enabled the defendant to question Hartley specifically about her statement and any perceived differences between her trial testimony and the statement. Synoracki also could have offered surrebuttal evidence. He did neither and cannot now claim prejudicial error. The defendant also argues the trial court abused its discretion by allowing the jury to take Hartley’s written statement into the jury room during deliberations because the statement placed undue emphasis on Hardey’s testimony that was favorable to the State. As previously discussed, the statement was a properly admitted exhibit. “Exhibits are usually and customarily given to the jury, to be examined during deliberations. Such a matter is within the trial court’s discretion, and its action will not be disturbed in the absence of abuse of discretion.” State v. Poulos & Perez, 230 Kan. 512, 514, 639 P.2d 477 (1982). Synoracki previously had cross-examined Hartley about her version of the events. He chose not to dilute the impact, if any, of Hartley’s written statement upon the jury by recalling Hartley as a witness or presenting surrebuttal. Synoracki’s arguments are not persuasive. “The trial court has broad discretion in determining the use and extent of relevant evidence in rebuttal. [Citation omitted.]” State v. Blue, 221 Kan. 185, 188, 558 P.2d 136 (1976). A reasonable person would agree with the trial court’s decision to admit Hartley’s written statement as rebuttal evidence. Therefore, the trial court did not abuse its discretion. In addition, the record on appeal does not indicate the defendant lodged a contemporaneous objection to the jury having access to the written statement during deliberations. Synoracki next argues he is entitled to a new trial because evidence of a prior conviction was admitted at trial. Procedurally, the State filed a pretrial motion to admit, pursuant to K.S.A. 60-455, testimony concerning Synoracki’s prior convictions of battery, aggravated battery, aggravated battery on a law enforcement officer, and aggravated assault. The State argued the prior convictions were relevant to the charged offense to show intent, motive, knowledge, and absence of mistake or accident. 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 K.S.A. 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.” Synoracki filed a motion in limine to exclude any reference to his prior convictions. The trial court conducted a hearing on both motions, and prior to opening arguments ruled that only one of Synoracki’s prior convictions was admissible under K.S.A. 60-455 and it was ad missible to show intent. The admissible prior conviction was an aggravated battery conviction from Florida based upon the defendant beating and cutting another with a beer bottle. Under Florida law, a beer bottle can be deadly weapon. The trial court then discussed how the prior conviction evidence should be presented and recommended the parties consider presenting it in the form of a stipulation as opposed to redacted documentation that a jury might misconstrue. Both parties opted for the stipulation. Although he agreed to the form, Synoracki objected to the admissibility of the prior conviction on the basis it was not relevant with regard to intent. The defendant also requested that a clarifying instruction accompany the stipulation. The trial court agreed to instruct the jury that the prior conviction could be considered only for purposes of intent. During cross-examination, the State questioned Synoracki as follows: “Q: Mr. Synoracki, you admit, sir, that you have a prior felony conviction for Aggravated Battery, is that so? A: Yes, I do. Q: You admit that you struck and cut a man with a deadly weapon in that crime, yes or no? A: It was a beer bottle involved, yes. Q: Deadly weapon, yes or no? A: Yes, I believe so.” Defense counsel did not object to the State’s questions. These questions and answers reflected the basic information set forth in the stipulation. At the instruction conference, the trial court combined the stipulation with the limiting instruction. The trial judge noted: “Instruction No. 7 is the stipulation instruction. The admissibility of the prior conviction was objected to by the defense, and I don’t see that as being waived, the parties agree this is the way that the facts will be put in front of the jury.” Neither party objected. Instruction No. 7 stated: “The following fact has been agreed to by the parties and should be considered by you as being true: 1. That on the 15th day of June, 1989, in Pasco County, Florida, District Court, the defendant, Robert L. Synoracki, was convicted by a plea of nolo contendere of the offense of Aggravated Battery by striking and cutting another with a deadly weapon, to-wit: a beer bottle. This evidence of the defendant’s conviction of another crime other than the present crime charged may be considered by you solely for the purpose of proving the defendant’s intent.” Synoraeki argues the State’s questions about his prior conviction during cross-examination was an impermissible attack upon his credibility because he had not introduced evidence of his good character. See K.S.A. 60-421 (“If the witness be the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.”). Citing State v. Harris, 215 Kan. 961, 529 P.2d 101 (1974), and State v. Roth, 200 Kan. 677, 438 P.2d 58 (1968), he maintains that for a prior conviction to be admissible under K.S.A. 60-455, the State must introduce evidence of the prior conviction in its case in chief. The Harris court held: “If the prosecution desires to utilize K.S.A. 60-455 to prove one or more of the material facts specified in that statute it should be done in the state’s case in chief or on proper rebuttal and it should not be attempted on cross-examination when the witness is the accused in the criminal proceeding.” 215 Kan. 961, Syl. ¶ 2. See Roth, 200 Kan. at 682. Here, the State did not introduce evidence of the defendant’s prior conviction in its case in chief. The State asserts there was no error because Synoraeki did not object to the cross-examination. The State also suggests the stipulation cured the fact that the prior offense evidence occurred in its cross-examination of the defendant and not in its case in chief. In response, Synoraeki alleges the jury should not have been allowed to consider the stipulation because an instruction is not evidence and the State never introduced the stipulation into evidence. He also points out the record on appeal does not reflect that the parties signed the stipulation. Whether the stipulation was admitted into evidence or needed to be admitted into evidence is not determinative. The information contained in the stipulation was admitted into evidence during the State’s cross-examination of the defendant. The defendant concedes that there was no contemporaneous objection to the State’s cross-examination and that prior and post objections were based upon different grounds. He also did not request a continuing objection when his motion in limine was denied. “When a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal.” State v. Clements, 252 Kan. 86, Syl. ¶ 1, 843 P.2d 679 (1992). “The admission of evidence, even if erroneous, 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.” State v. Arrington, 251 Kan. 747, Syl. ¶ 4, 840 P.2d 477 (1992); see K.S.A. 60-404 (contemporaneous objection rule). “[T]he defendant cannot object to the introduction of evidence on one ground at trial and then assert a different objection on appeal.” State v. Skelton, 247 Kan. 34, 44, 795 P.2d 349 (1990). This court need not address the merits of this argument. In any event, counsel for the defendant and the State agreed to proceed in the manner they did, and it is no more detrimental to the defendant to have the stipulation introduced one way than it is the other. Synoracki next contends the State’s comment during closing argument constitutes reversible error. In its closing remarks to the jury, the State argued: “Instruction No. 7 tells you that defendant Synoracki is a violent person, that he has been convicted previously of use of a deadly weapon, that he has used this deadly weapon to harm another human being. The instruction tells you that you are to use this information to determine what the intent of defendant Synoracki was on this evening. And I submit to you that his prior felony conviction tells you that his intent was to harm and to hurt and not to simply protect or defend himself.” Again, the defendant failed to make a contemporaneous objection. After the jury retired to deliberate, the trial judge stated: Synoracki again raised the argument in his motion for a new trial. In response, the trial court stated that even if defense would have objected timely, the court still would have found the error harmless “in view of the instructions of the Court given both before final argument as well as to a special question placed out by the jury during the course of . . . deliberations.” It was the trial court’s opinion that the evidence against the defendant was overwhelming and that none of the issues raised in the motion for a new trial would have changed the verdict because the jury did not “buy” Synoracki’s self-defense argument. “Let the record reflect that at the close of the opening portion of State’s closing argument defense approached the Bench and requested a mistrial based on statements of the County Attorney to the effect that the conviction could be used as a showing of a violent person. I agree with defense counsel that that is error. I further would have sustained an objection had one been made. I would have cautioned the jury not to have regarded that statement if that request had been made, however, it was not. The argument has been completed and my determination on that point was that it was too late for me to do anything about it. I’m satisfied that that was not sufficient to cause a mistrial. I am calling it harmless error.” In State v. Baker, 249 Kan. 431, Syl. ¶¶ 8, 9, 819 P.2d 1173 (1991), we held: “Since Kansas does not follow the ‘plain error’ rule utilized in federal courts, reversible error cannot be predicated upon a complaint of misconduct of counsel during closing argument where no contemporaneous objection is lodged. “Remarks made by the prosecutor in closing argument are harmless error if the court finds that the error had little likelihood of changing the result of the trial.” Here, the trial court found the error was harmless and would not have changed the verdict. In any event, there was no contemporaneous objection. We find no reversible error. Synoracki’s final argument is that this court should address the merits of whether his prior conviction was admissible under K.S.A. 60-455. He claims the circumstances in this case are exceptional in that the trial court told defense counsel the issue was preserved. Here, defense counsel’s initial objection concerned intent. He stated: “I want to raise an objection to allowing it in anyway on the grounds that there is a different intent, there is a specific intent involved with the Attempted First Degree Murder versus for an Aggravated Battery.” The trial court responded: “You can argue that all on appeal if there is a conviction.” The defendant’s specific intent argument fails. The Kansas and Florida aggravated battery statutes are similar. See K.S.A. 21-3414; Fla. Stat. § 784.045 (1991). Under Kansas law, aggravated battery is a specific intent crime. State v. Diaz & Altemay, 232 Kan. 307, 311, 654 P.2d 425 (1982); State v. Seely, 212 Kan. 195, 203, 510 P.2d 115 (1973). Moreover, “[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 acts were innocent.” State v. Nunn, 244 Kan. 207, Syl. ¶ 3, 768 P.2d 268 (1989). On appeal, Synoracki raises all three prongs of the test to determine admissibility of prior convictions under K.S.A. 60-455. “In ruling upon the admissibility of evidence of a prior crime or civil wrong 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 crime or civil wrong evidence against its tendency to prejudice the jury.” State v. Grissom, 251 Kan. 851, Syl. ¶ 28, 840 P.2d 1142 (1992). “Appellate review of the admission of prior crimes evidence under K.S.A. 60-455 is limited to whether the trial court abused its discretion or whether the trial court admitted clearly irrelevant evidence.” Clements, 252 Kan. 86, Syl. ¶ 2. The trial court concluded the prior conviction was “certainly relevant and material to the issue of intent,” one of the facts specified in K.S.A. 60-455. “The relevancy of a prior conviction to the offense charged is linked to the similarity of the two offenses.” State v. Cross, 216 Kan. 511, Syl. ¶ 5, 532 P.2d 1357 (1975). See State v. Hanks, 236 Kan. 524, Syl. ¶ 6, 694 P.2d 407 (1985) (“K.S.A. 60-455 does not require the prior offense to be identical in nature to the offense for which defendant is on trial; it is sufficient if the offenses are similar.”); see also State v. Faulkner, 220 Kan. 153, Syl. ¶ 2, 551 P.2d 1247 (1976) (materiality defined). The trial court noted the factual similarities between the prior conviction of aggravated battery and the charged offense, specifically mentioning the prior conviction was based upon the defendant “striking out and cutting the victim” with a deadly weapon. Synoracki contends “prior offenses must have similarities of ‘conduct and circumstances’ other than being the same type of crime.” The defendant cites State v. Rupe, 226 Kan. 474, 601 P.2d 675 (1979), and State v. Henson, 221 Kan. 635, 562 P.2d 51 (1977), for the proposition that K.S.A. 60-455 requires “more detailed similarities” than the fact the prior conviction and the charged offense both involved violence against a person and the use of a deadly weapon. In Rupe, the similarities were “unprovoked attacks involving the same people in the same house after a sudden entrance by defendant on both occasions when he appeared to have been drinking.” 226 Kan. at 478. In Henson, the similarities were that the attacks occurred in apartments, involved young women about the same age whom the defendant either knew or had dated, involved the use of a knife, and were sexually motivated. 221 Kan. at 645. Although both Rupe and Henson discuss detailed similarities, neither case requires that all admissible prior convictions to prove intent have as much similarity with the charged offense as was present in those cases. The Henson opinion does not discuss how much similarity is required, and the similarities set forth went to the issue of identity, not intent. Proving intent does not require as much detailed similarity as proving identity. See State v. Bly, 215 Kan. 168, 177, 523 P.2d 397 (1974) (“ ‘ “The quality of sameness is important when pondering the admission of other crimes to prove identity.” ’ ”), overruled on other grounds State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976). The Rupe decision, which involves proving intent, refers to “similarity of conduct and circumstances.” 226 Kan. at 478. See Cross, 216 Kan. at 520 (there must be “ a pattern, similarity or connection between the facts surrounding the prior offense and the one with which the accused is presently charged.’ ”). Here, the similarity of conduct or pattern of behavior is that in both instances the defendant used a deadly weapon with the intent to inflict, at the very least, great bodily harm upon another. This is sufficient to meet the similarity requirement to prove intent. The trial court found intent was a disputed material fact. The trial judge reasoned: “I don’t think there can be any question in this case that intent is an issue. I guess I get hung up a little bit on the fact he’s admitting the knifing and I presume he’s admitting that he intended to knife, but it was being done in self-defense. But I don’t think that changes the fact that the intent is still an issue. We have an intent to kill which is certainly an issue in the case and the State is required to prove premeditation. I think there is a pretty good case on this, which is . . . State v. Henson, [221 Kan. at 645], which finds that intent is certainly a portion or a part of premeditation, and I think that’s clearly the case here. I think . . . this case is going to come down to one of intent, one of self-defense, but they have to prove still an intent to kill and they still have to prove that it was premeditated. So I find intent to be a highly contested issue.” Synoracki disagrees. He argues that his intent was not contested because he relied upon self-defense and admitted acting intentionally in using the knife. According to the defendant, the issue before the jury was whether his use of force was justifiable under the circumstances. He claims that whether he previously used unjustified force had “no logical bearing” on whether the use of force in this case was justified. Synoracki’s argument is not persuasive. The defendant’s intent with regard to the stabbing was at issue. The jury did not have to accept the defense theory that the defendant acted in self-defense. Because Synoracki’s stabbing of Peters was susceptible of two interpretations, that he acted in self- defense or that he acted with the intent to kill, “the intent with which the act is done becomes the critical element in determining its character.” State v. Nading, 214 Kan. 249, 254, 519 P.2d 714 (1974). See Faulkner, 220 Kan. at 158 (if specific intent is part of the crime charged, such as in first- degree murder, “prior convictions evidencing the requisite intent may be very probative”). The trial court found the probative value of the prior crime outweighed its prejudicial effect because intent was a “hotly contested” issué. Synoracki maintains that prejudice outweighed any probative value because the State impermissibly used the prior conviction to negate his claim of self-defense and justifiable force. The defendant bases his argument upon the fact that at the hearing to determine the admissibility of his prior convictions, the State argued the similarity between the offenses was “violence against persons” and that in closing, argument, the State contended the defendant was a violent person. What the State argued, particularly after the trial court had ruled on the admissibility of the prior conviction, is not determinative. Synoracki’s arguments are not persuasive. The trial court satisfied the three-prong test for admitting prior convictions under K.S.A. 60-455. We hold that the prior conviction was not clearly irrelevant and that the trial court did not abuse its discretion in admitting the prior conviction. Affirmed.
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The opinion of the court was delivered by Allegrucci, J.: This is a direct appeal by Ace Crawford of his jury convictions of seven counts of aggravated robbery, two counts of aggravated battery, two counts of kidnapping, and four counts of aggravated bui'glary. He was sentenced to a controlling term of 60 years to life in prison. Crawford testified that, on February 17, 1991, he traveled from Kansas City to Topeka with Larry Bateman and Bateman’s girlfriend. Crawford owed money to Bateman for cocaine which Bate-man had súpplied to him. Bateman wanted Crawford to commit some robberies in Topeka in order to get money. During the drive, Bateman’s girlfriend gave a gun to Crawford. In Topeka they first stopped at the Ramada Inn. Leaving the Ramada Inn, Bateman drove Crawford to Parkview Hospital. Crawford testified that when Nancy Jo Overholt came out of the hospital, Bateman told him to rob her. As Overholt was putting her seat belt on, Crawford approached her and pointed the gun at her. She grabbed the barrel of the gun, and the two struggled. Crawford pulled the gun from her grasp and hit her with the butt of it. She gave him her wedding rings, and, when she could not get her other ring off, Crawford hit her again with the butt of the gun. When Crawford walked away from her, Overholt stood and yelled to an approaching man, telling him to run because Crawford had a gun. Overholt’s head wounds required sutures, she suffered a concussion, and she spent three days in the hospital. Crawford approached Mark Monhollon, the man Overholt tried to warn, put the gun in Monhollon’s ribs, and told him it was a big gun which would “put a big hole in a big man.” At gunpoint, Monhollon got into the driver’s seat of his car, and Crawford got in behind him. As Monhollon drove, Crawford kept the gun pressed in Monhollon’s side and took Monhollon’s wallet and checkbook out of his pockets. Seeing Monhollon’s address on his checks, Crawford told him to drive to his residence. . Once inside Monhollon’s duplex, Crawford made Monhollon lie face down on the floor, then crawl into the next room where Crawford took Monhoflon’s ring and the cash from his pockets. While Monhollon was forced to crawl along on the floor, Crawford went from room to room opening storage areas and drawers and pulling or dumping out the contents. Crawford pulled pictures off the walls, tore up photographs, and ripped up the beds. Crawford changed into Monhollon’s clothes and shoes. He ate and drank Monhollon’s food and soft drinks. When Crawford made a telephone call, Monhollon heard him say “Steven” or “Stevenson” and “I have transportation.” Then' Crawford began asking Monhollon about his friends' and neighbors as possible sources for another car and valuables. At gunpoint, Crawford took Monhollon to the back door of the other half of his duplex and instructed him to say his phone was not working. Monhoflon’s neighbor, Bernice Looka, let him in and Crawford followed him. In the' bedroom, Crawford went through Looka’s jewelry and dresser drawers. Then Crawford told Looka to take off her clothes and he handcuffed her to the faucet in the bathroom. He made Monhollon wait while he ate Looka’s ice cream and cookies. At gunpoint, Crawford took Monhollon back to his half of the duplex. Crawford went through.Monhoflon’s house a.second time, gathering up items he had passed over the first time. Crawford made Monhollon load things into the car and get into the passenger seat. With Crawford driving, they set out to find an automatic bank teller machine where Crawford could use the bank card he had taken from Monhoflon’s wallet. Crawford made Monhollon ride on the floor. Crawford then pulled into a residential driveway and said to Monhollon, “We’ll walk in here like we’ owri the place.” After they got inside, the homeowner, Nancy Kinney, who had been outside, came into her garage. Crawford pointed the gun at her. When Kinney screamed and-tried to-run away, Crawford struck her with the gun, and she lost consciousness. When she regained consciousness, Crawford put the gun in her back and forced her into the house where she saw Monhollon lying face down on the floor. Crawford went through the house, looking for money, jewelry, and guns. Kinney got into her purse to get money for Crawford. Crawford then took Kinney to the basement and told her to count to a thousand before coming up. Crawford told Monhollon to carry the television out to the car. Monhollon got back on the floor of the car, and they drove to an automatic teller machine. With the gun pointed at Monhollon, Crawford gave him the bank card and told him to withdraw his money. Monhollon gave Crawford the money, they drove to what Monhollon believed was the Ramada Inn, and Crawford put Monhollon in the trunk of the car. Crawford got out of the car to make a phone call, and he warned Monhollon not to do anything. After Crawford returned to the car, Monhollon heard another car drive up, some discussion, and a car drive off. Crawford drove to Lawrence with Monhollon in the trunk. Upon arriving in Lawrence, Crawford stopped at the Holidome. According to Crawford, Bateman was not sat-, isfied with the evening’s take and threatened to hurt him and his son if he did not get more. Crawford testified that Bateman instructed him to wait until after midnight and then rob the Holidome. Quite a long time passed while Monhollon remained in the trunk, the car was moved, and the car doors were opened and closed. After it got quiet around the car, Monhollon kicked the back seat forward so that he could crawl into the interior of the car. He was alone, the keys were in the seat, and he drove from the Holidome parking lot in Lawrence to the turnpike entrance where he told a police officer what had happened. Lawrence police officers found Crawford underneath a table in the restaurant of the Holidome. Items taken from Crawford by the police included a loaded semiautomatic pistol, a piece of rock cocaine, a glass pipe, some cigarette lighters, and a Holidome room key. Crawford was interviewed at the Lawrence Law Enforcement Center by Officer Fox of the Topeka Police Department. Officer Fox read the Miranda warning to Crawford, who indicated that he understood his rights and waived them. Crawford asked if there was some kind of deal he could work out with the police. When he was told that there would be no deal, Crawford told the police about his activities in Topeka earlier that day. He told the police that he had gone to Topeka with Bateman so that he could get money to buy cocaine from Bateman. He told police that Bateman had given him the gun. Crawford told police that after he had robbed Overholt, Monhollon, Looka, and Kinney, he met Bateman at the Ramada Inn in Topeka and exchanged the money and jewelry for cocaine. Crawford did not mention owing a large amount of money to Bateman, he did not indicate that he feared Bateman, nor did he indicate that he was forced by Bateman to commit the robberies. At trial, Crawford testified that when he first began using crack cocaine, he bought it from Bateman. During the months immediately before the occurrences at issue, Bateman informed Crawford that he owed $6,000 and then $10,000 for crack cocaine he had gotten on credit. When Bateman began pressuring him, Crawford went to another supplier. Crawford testified that Bate-man and some cronies learned that he had gone to another supplier and threatened him; Crawford believed that Bateman was going to kill him. After his arrest, Crawford told police that he lived at the Riverview Project in Kansas City. At trial, Crawford testified that he lived in a crack house which Bateman operated and that he was not free to come and go as he pleased. Crawford denied being one of Bateman’s “workers,” but he stated that “until I could pay him his money off I had to do what he asked me to do,” including committing crimes. Crawford testified that Bate-man “had me doing a lot of crimes in Kansas City.” When asked on direct examination about how and why he moved into the crack house, Crawford gave the following answer: “So he got to telling me about I know that he’s a member of the Moorish Americans and I know that the type of individuals that he was speaking of were some dangerous people and that it wouldn’t be nothing for him to call down there to his friends where my son and mother, the store that she works for and have somebody to set her up while the Ace is with her and possibly burn them up in the house or shoot and kill them.” Crawford testified that Bateman knew about Crawford’s son because “he’s originally from St. Louis and he knows Anthony Bradley, whom my son’s mother works for.” Crawford testified that the Moorish Americans were a religious group who had a branch that “was basically just involved in drug warfare and selling dope and hurting people and stuff like that.” Crawford described an instance of revenge killing which he had heard about. Then he was asked the following question and gave the following answer: “Q. Now vour knowledge of the St. Louis Moorish American sects have any influence to you as to whether Larry Bateman could in fact hurt your son? “A. Yes, he could, because he was friends with some members down there, the Moor Sciences Temple of America that are still down there, could go do the same thing, driving Cadillacs, got a lot of money.” He gave the following explanation for not going to the police in these circumstances: “A. I just didn’t feel that they would believe me with the shape that I was in, and plus 1 was a junkv. And if they didn’t believe me or something and Bateman or somebody found out and get word back to him or something then I didn’t have no type of security whatsoever over my son. “Q. What type of security did you have over your son when you were with Bateman? “A. Because as long as i was doing what he asked and trying to pay him his money that 1 owed him he wasn’t going to do nothing to me or my son.” Officer Fox testified that when he was questioning Bateman’s girlfriend in her Kansas City apartment a few days after the occurrences, Crawford telephoned her. Officer Fox heard Crawford tell her that he had not told the police anything and that, if they were in Kansas City, they were just fishing. At trial, when Ci-awford was asked why he made the telephone call, he said that he did not think that Bateman had been arrested, that he was unable to call St. Louis to check on his son’s well-being, and that the call to the girlfriend was intended to pacify Bateman “so he wouldn’t do nothing to him.” At trial, Dr. Gilbert Roland Parks, a psychiatrist, testified on behalf of Crawford. Dr. Parks testified that Crawford suffered from chronic drag dependence and use, chronic depression, battered person syndrome and depression arising from it, and an extremely dependent personality disorder. He was of the opinion that Crawford committed the crimes at issue “under the fear” of Bateman. The first issue asserted on appeal by Crawford is that the district court’s instruction on compulsion was erroneous. K.S.A. 21-3209 provides: “(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. 2d 54.13 tracks the statute: “Compulsion is a defense if the defendant acted under the compulsion or threat of imminent infliction of death or great bodily harm, and he reasonably believed that death or great bodily harm would have been inflicted upon him or upon his [parent] [spouse] [child] [brother] [sister] had he not acted as he did. “(Such a defense is not available to one who willfully or wantonly placed himself in a situation in which it was probable that he would have been subjected to compulsion or threat.)” In the present case, the district court instructed the jurors as follows: “It is a defense to the charges made against the defendant if he acted under the compulsion or threat of imminent infliction of death or great bodily harm, and he reasonably believed that death or great bodily harm would have been inflicted upon him or upon his child had he not acted as he did. “Such a defense is not available to one who willfiilly or wantonly placed himself in a situation in which it was probable that he would have been subjected to compulsion or threat. “The compulsion or coercion which will excuse the commission of a criminal act must be present, imminent and impending and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed.” Crawford complains of the district court’s addition of the third paragraph, in particular the last sentence. Trial counsel, however, did not object to it. The limitation on appellate review of an instruction to which objection was not made was clearly stated in State v. Wilson, 247 Kan. 87, 94, 795 P.2d 336 (1990): “No party may assign as error the giving or failure to give an instruction unless, before the jury retires to consider its verdict, an objection stating the specific grounds is entered. Absent such objection, this court’s review is limited to a determination of whether the instruction was clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous when a reviewing court reaches a firm conviction that, if the trial error had not occurred, there was a real possibility that the jury would have returned a different verdict. State v. Patterson, 243 Kan. 262, 268, 755 P.2d 551 (1988).” Crawford argues that there is a real possibility that the jurors would have concluded that he was not guilty due to compulsion had they been correctly instructed. His argument is that, when the legislature used the word ^imminent,” it was not disallowing the threat of future infliction of death or harm as a defense. He contends that cases such as State v. Myers, 233 Kan. 611, 664 P.2d 834 (1983), and State v. Harrison, 228 Kan. 558, 618 P.2d 827 (1980), which disallow the threat of future harm as a defense are not controlling in the present case where compulsion is not due to the physical presence at the crime scene of a threatening person. He urges that the view of compulsion which prevailed in United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984), be applied in the circumstances of the present case. He likens that view to the one which this court has taken in adopting the battered person syndrome as a defense in State v. Hodges, 239 Kan. 63, 716 P.2d 563 (1986). The State contends that the language which the district court added to the PIK model was approved in Harrison, 228 Kan. at 560, where State v. Milum, 213 Kan. 581, 516 P.2d 984 (1973), was cited. The State argues that, in any event, the evidence which is relevant to compulsion is extremely thin. Finally, the State relies on State v. Crabtree, 248 Kan. 33, 805 P.2d 1 (1991), in contending that the battered person syndrome defense is not available to Crawford.- We conclude that, under established Kansas case law, the instruction given by the district court was a correct statement of the law on the defense of compulsion. Further, the circumstances of previous Kansas cases are not limited, as Crawford suggests, to crimes being committed while a gun was being held to the defendant’s head or a knife to his ribs. In Harrison, the court referred to Milum as “[t]he leading Kansas case on the defense of compulsion.” 228 Kan. at 560. Milum escaped from the Kansas State Penitentiary. The district court refused, on the ground of relevance, to admit his proffered evidence that the deputy warden, on several occasions and in the presence of witnesses, told Milum that he “ ‘ “had better run off or I will have you shot.” ’ ” 213 Kan. at 583. The court noted that the alleged threats were made in June or July and that Milum escaped on August 7, 1970. It concluded: “It is apparent that the threats, if such there were, were made on several different occasions and thus could not have met the statutory requirement of imminence. At best the threats were aimed at some indefinite time in the future. “. . . Milum’s evidence in its most favorable light would have.shown no immediate threat; since it would not establish the supposed defense it was not error to exclude it.” 213 Kan. at 583-84. In reaching its conclusion, the court stated the following: “Insofar as this case is concerned the key statutory phrase is that the threat must be of the ‘imminent’ infliction of death or great bodily harm. The codification thus embodies the common law characteristics of the defense exemplified by the encyclopedists: ‘. . . In order to constitute a defense, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. . . . The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. And threat or féar of future injury is not sufficient.’ 21 Am. Jur. 2d, Criminal Law, •§. 100. ‘The compulsion or coercion which will excuse the commission of a criminal act must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed.’ 22 C.J.S., Criminal Law, § 44.” 213 Kan. at 582. The excerpt quoted from Corpus Juris Secundum is the third paragraph which the district court in the present case added to the pattern instruction. In State v. Harrison, Harrison was convicted of aggravated robbery of a convenience store. The district court refused to admit her proffered evidence of compulsion on the ground that it was insufficient as a matter of law to sustain the defense because there was no imminent danger. The substance of Harrison’s proffered evidence was that, while she was at the residence of Phil Heath, he “took her into his bedroom, produced a gun, and told her that he would use the weapon on her unless she committed the robbery in question,” that attempts to subpoena Heath had been unsuccessful, and that Harrison “was fearful, not only for her own life, but also for the lives of her children if she did not complete the crime as demanded by Heath.” 228 Kan. at 559. In Harrison, this court stated the holding from Milum as follows: “[Compulsion, under K.S.A. 21-3209, requires as an element a threat of the imminent infliction of death or great bodily harm in order to constitute a defense to a criminal charge and that a threat directed at some indefinite time in the future is not sufficient.” 228 Kan. at 560. This court then quoted again the excerpt from Corpus Juris Secundum which it .had quoted in Milum. This court concluded that the district court had acted properly: “In our judgment, Milum is controlling and dispositive of this case. The general rule followed throughout the country is that in order for the defense of compulsion to be established it must be shown that the accused was without a reasonable opportunity to escape or withdraw from the criminal activity. [Citations omitted.] “Under the proffered facts here, assuming that they are true, the defendant, having been threatened by Heath, left his house in her own car, drove away, and committed the robbery. There was nothing to prevent her from driving to the police authorities to report the threats made to her. The vague reference to her children is not sufficient to show that there was a present, imminent, and impending threat of direct or serious bodily injury to either herself or her children. She did not propose to testify that the children were in the custody of Heath at his house when she committed the robbery. Such testimony would have changed the factual situation and possibly made the defense of compulsion a factual issue for the jury.” 228 Kan. at 560. In State v. Myers, Myers was convicted of aggravated burglary, kidnapping, and felony murder. On appeal he argued that the district court had erred in refusing to admit proffered evidence of compulsion and to instruct the jury on the defense. This court discussed Milum and Harrison, again quoting the excerpt from Corpus Juris Secundum. 233 Kan. at 615. This court affirmed the convictions. The evidence showed that in connection with a drug transaction Myers and a man named Axvig entered an apartment occupied by two sisters and Kevin Kitchens, the boyfriend of one of the sisters. Myers proffered evidence that, before entering the apartment, Axvig put a gun to Myers’ head, took the clip out of Myers’ gun, and said, “ ‘ “I have your family, do as I tell you or they’ll be hurt.” ’ ” 233 Kan. at 614. Myers also proffered the testimony that Axvig “ ‘stated that there was somebody at the house with Nanette and the kids.’ ” 233 Kan. at 614. The court concluded that the proffered evidence, as a matter of law, would not have established the defense of compulsion. The court reasoned as follows: “Compulsion, to constitute a defense under K.S.A. 21-3209, must bé present, imminent, and impending; it must be continuous; there must be no reasonable opportunity to escape the compulsion without committing the crime. Here, under the proffered evidence, the compulsion was imminent when Myers entered the apartment; thereafter, when Myers was out of the sight and presence of Axvig, it was not imminent. The compulsion was not continuous; Myers and Axvig went their separate ways and operated independently; the compulsion was interrupted time after time. Finally, Myers had abundant opportunities to make his escape, and failed to do so. Myers could have freed the women before or at the time they left the apartment, and he could have made his escape before the murder was committed.” 233 Kan. at 616. The evidence in the present case of Crawford’s cocaine addiction and dependence on and indebtedness to Bateman is all that distinguishes it from Milum, Harrison, and Myers. In other respects, Crawford’s evidence of compulsion suffers from the shortcomings discussed in the earlier cases—the required element of an imminent threat is missing, the compulsion is not continuous, and there were opportunities for escape. The question, therefore, is whether circumstances which generally would not constitute compulsion may establish the defense due to the interpersonal dynamics of the defendant and the compelling person. The courts of this state permit a defendant who has asserted the defense of self-defense to introduce evidence of the victim’s long-term cruelty and violence toward the defendant. State v. Hundley, 236 Kan. 461, Syl. ¶ 1, 693 P.2d 475 (1985). The admission of expert testimony on the battered woman syndrome also is allowed to “help dispel the ordinary lay person s perception that a woman in a battering relationship is free to leave at any time.” State v. Hodges, 239 Kan. at 68. In the present case, Crawford advocates that the defense of compulsion be overlaid with the battered person syndrome, as the defense of self-defense has been modified to accommodate current developments in psychological understanding. With regard to the specific alleged trial error, he advocates not that the pattern instruction be changed to reflect his new concept of compulsion, but that the added paragraph be found to be erroneous as not accommodating it. Crawford contends that he was justified in fearing danger to himself and his son because threats had been made against them by a ruthless drug dealer with ties to a network of violent people. The reasonableness of his apprehension, he argues, should be measured in light of all the evidence of his subservience to Bate-man and his perception of his options for escaping from Bateman’s control being limited. His chemical dependence and psychological state, he argues, are central to a determination of reasonableness. The next step in the argument appears to be that, as in Hundley, an improper instruction prevented the jury from considering critical factors when determining reasonableness. In Hundley, use of the word “immediate” “impermissibly excluded from the jury’s consideration the effect on the appellant of the history of violence toward her by the decedent.” 236 Kan. at 469. In the present case, Crawford argues use of the additional paragraph, and in particular the last sentence, impermissibly excluded from the jury’s consideration the effect on Crawford of his subservience to and dependence on Bateman. In other words, how would the reasonably prudent drug-dependent battered person perceive Bateman’s words and demeanor? See 236 Kan. at 467. The State correctly points out that there is no precedent in this state for a battered person syndrome defense, and, in fact, precedent militates against recognition of it. First, it should be noted that this court has very clearly stated that the battered woman syndrome, which it has recognized and about which it permits expert testimony, is not a defense. State v. Hodges, 239 Kan. at 73. Self-defense is the defense.. Evidence about the battered woman syndrome is admitted for the purpose of aiding the jury in détermining whether the defendant’s fear and defense claim are reasonable. 239 Kan. at 73. With or without the overlay of the battered person syndrome, the weakness in Crawford’s theory of defense lies in the indefiniteness of any threat to him or his son. Crawford suggests that this court embrace the position taken by the Ninth Circuit Court of Appeals in Contento-Pachon. We do not find Contento-Pachon to be persuasive. The federal defense which was asserted by Contento-Pachon was duress. Its elements are: “(1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity to escape the threatened harm.” 723 F.2d at 693. . Not only are the facts distinguishable from the present case, but the element which the circuit court did not discuss separately is the element of reasonableness of the fear. It is precisely this element which seems most critical in the present case. It also is the element to which the evidence of Crawford’s psychological state was directed. Nor is the federal defense, at least insofar as it is discussed in Contento-Pachon, subject to the proviso present in the Kansas statute on compulsion. K.S.A. 21-3209(2) precludes use of the defense by “one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.” A strong argument could be made that the defense of compulsion is not available to Crawford due to his placing himself in a position of dependence on and indebtedness to Bateman. The district court’s instruction to the jury on the defense of compulsion is a correct statement of the law as set out in Milum, Harrison, and Myers. Crawford has not presented facts or arguments which convince this court to depart from our prior decisions. We do not find the instruction to be clearly erroneous. We next consider if the district court committed error in failing to instruct the jury on the defense of voluntary intoxication. Crawford’s trial counsel did not request an instruction on voluntary intoxication. Nor did his trial counsel object when the district court judge stated that he had considered including the instruc tion but had concluded that it was inappropriate. Thus, the cléarly erroneous standard, as previously stated in our discussion of the first issue, is applicable. Crawford argues that there is a real possibility that, if the jurors had been instructed on voluntary intoxication, they would have found him incapable of forming the specific intent required for kidnapping, aggravated battery, and aggravated burglary. He relies on State v. Shehan, 242 Kan. 127, 131-32, 744 P.2d 824 (1987), for the proposition that a voluntary intoxication instruction should be given where there is “some evidence of intoxication upon which a jury might find that a defendant’s mental faculties were impaired to the extent that he was incapable of forming the necessary specific intent to commit the crime.” In Shehdn, the court rejected the notion that the instruction must be given when there is a showing of consumption of large quantities of liquor and drugs. 242 Kan. at 132. The court stated that the measure, instead, is whether there is evidence that the defendant’s mental faculties were impaired as a result of the' consumption. 242 Kan. at 132. There is evidence in the present case that Crawford consumed crack cocaine before and during commission of the crimes. February 17, 1991, fell on a Sunday. Crawford testified that he believed he had last slept on Thursday night and that he had stayed awake by smoking crack cocaine when he felt tired. He testified that on the day of the crimes he smoked crack cocaine on the way to Topeka, at Looka’s apartment, at Monhollon’s apartment, at the Ramada , Inn, and at the Holidome in Lawrence. The record does not support the defendant’s contention that his mental faculties were impaired as a result of the consumption of cocaine. First, he states that “Monhollon testified that Mr. Crawford was smoking crack and had offered him some,” but Monhollon did not testify that Crawford was smoking. Monhollon was asked, “It was at the time that you were at the Ramada Inn is when you heard—is when Ace asked you if you wanted to smoke some crack cocaine?” He answered, “That’s where he asked me, yes.” Second, he states that “[Kinney] testified that Mr. Crawford’s behavior was erratic and that he acted like he was high on drugs.” Kinney was asked whether “it appear[ed] that he was on something, some sort of drugs.” She answered, “I assumed he was, only because my mother was murdered by a man on cocaine, for drug money. I assumed immediately I was going to die the same way my mother [died].” With regard to what she told the law enforcement officer who went to her house after the robbery, Kinney was asked, “I think you told him that in your opinion it appeared to be like he was on something?” She answered, “I assumed. He was very erratic.” Finally, Crawford cites the testimony of Dr. Parks as evidence supporting his claim of intoxication. Dr. Parks testified generally about cocaine addiction and mental disorders. He did not offer testimony specific to any impairment of Crawford’s mental faculties due to cocaine intoxication at the time of the crimes.- When Dr. Parks was asked to tie chronic depression disorder in with the events of February 17, 1991, his response was a continuation of his generalized discourse on symptoms and syndromes. In the portions of the record referenced by Crawford, there is no testimony by Dr. Parks specifying any correlation between Crawford’s consumption of crack cocaine- and impairment of his mental faculties at the time of the crimes. The State argues that the evidence of Crawford’s actions demonstrates little if any impairment of his ability to form specific intent to commit the crimes. It showed that he committed a number of criminal acts over a period of many hours on February 17 for the purpose of obtaining cash and Valuables for drugs. It showed that he was fairly calculated in his use of force and made it commensurate with the resistance he encountered in the various victims. It showed that he took steps to avoid public detection of Monhollon’s hostage status. It showed no impairment of his speech or his driving. We agree. Crawford had the bui'den of showing that he was so intoxicated that he was robbed of his mental faculties. See State v. Keeler, 238 Kan. 356, 360, 710 P.2d 1279 (1985). He did not satisfy the burden. Crawford next argues that his statements to the police should have been suppressed because he did not voluntarily and intelligently waive his right to remain silent. He contends that he. was under the influence of cocaine, was deprived of sleep, and was coerced into making incriminating statements. The district court held a hearing on his motion to suppress and concluded that the statements were admissible. This court stated the standard of review as follows: “When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily, and knowingly given, and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence.” State v. William, 248 Kan. 389, Syl. ¶ 13, 807 P.2d 1292, cert, denied 116 L. Ed. 2d 89 (1991). In the trial court the burden of proof is on the State. K.S.A. 22-3215(4). On appeal this court will consider whether the burden was properly placed by the district court in making its ruling on the defendant’s motion to suppress his statements. See 248 Kan. at 409. Crawford contends that there is substantial evidence that his “will was overborne.” He points to evidence of his lack of sleep, his dependence on cocaine, and his smoking cocaine shortly before being taken into custody. At the suppression hearing, he testified that the police would not allow him to go to sleep and kept threatening to “whop” him if he did not answer questions. An officer who was present during the questioning was asked whether Crawford appeared to be falling asleep; he answered: “I never saw him sleeping. I saw him put his head, look down at the desk, but we could—the interview continued and he continued to respond to questions.” Crawford also argues that he was coerced into making statements by “implied promises” of drugs and deals. He testified that one of the police officers “informed [him] that he was going to get the head guy for [him] to speak with in the process while I was being questioned.” When asked about the purpose of talking to a “head guy,” he testified: “Because I felt that the exchange that I was giving them like to recover some of the jewelry and stuff like that and the information on between Larry Bateman and Sharon Shoate was that that could be put down in my behalf.” When asked if anyone ever offered him anything to talk, he said: “It was like a sign that I was going to get a deal from the DA from Detective Fox.” When asked why he assumed he would get a deal from the district attorney, he said: “[Detective Fox] said that he’d been known for, I don’t know which DA he was referring to, blit he said he’d know the man and they’re pretty all right and if I cooperate that he’s pretty sure that he’ll be able to put in a good word for me.” When asked about any other offers made to him, Crawford testified: “At one point when I was giving them some information on where I believe[d] the jewelry that was taken during the crime spree could be located, I was led to believe that I was going to be able to go with them to the house and get it and that I might be able to get some more cocaine.” He also points out that the cocaine and pipe which had been taken from him remained in the interrogation room; he likens its presence to an “implied promise” that he would get it back. Kansas courts follow this standard: “A confession must be voluntary to be admissible. A person’s mental capacity is relevant in determining whether a confession was voluntary. Culombe v. Connecticut, 367 U.S. 568, 602-03, 6 L. Ed. 2d 1037, 81 S. Ct. 1860 (1961). In determining whether a confession is voluntary, a court is to look at the totality of circumstances. Fikes v. Alabama, 352 U.S. 191, 197, 1 L. Ed. 2d 246, 77 S. Ct. 282, reh. denied 352 U.S. 1019 (1957).” State v. William, 248 Kan. at 406. Crawford contends that a look at the totality of circumstances shows that his confession was not voluntary; the State contends otherwise. We conclude that there is substantial competent evidence to support the district court’s determination that, in the totality of the circumstances, Crawford’s statements were voluntary. Crawford next contends that three of the four counts of aggravated robbery of the same victim were multiplicitous to the fourth one. The district court refused to dismiss Counts 7, 12, and 16, which charged Crawford with aggravated robbery of Monhollon. Crawford argues that those counts are multiplicitous to Count 5, which also charged him with aggravated robbery of Monhollon. Count 5 charged Crawford with taking Monhollon’s car, checkbook, and wallet at Parkview Hospital. Count 7 charged him with taking $6, clothing, and food from Monhollon the first time the two of them entered the apartment. Count 12 charged Crawford with taking Monhollon’s VCR, coins, radio, jewelry, and cologne when they returned to the apartment after robbing Looka. Count 16 charged him with taking $60 when Monhollon was forced to withdraw cash from an automatic teller machine. Crawford argues that the multiple counts charging him with repeated aggravated robbery of the same person violate the “single larceny doctrine.” He quotes the following definition from State v. Roberts, 210 Kan. 786, 791, 504 P.2d 242 (1972), cert, denied 414 U.S. 832 (1973): “When property is stolen by a succession of takings from the same owner and from the same place, each taking is a separate crime if it results from a separate impulse or intent. However, if it appears that a single incriminating impulse or intent is involved in the successive [takings], they constitute a single larceny.” He also cites State v. McQueen & Hardyway, 224 Kan. 420, 430-31, 582 P.2d 251 (1978); State v. Gordon, 146 Kan. 41, 68 P.2d 635 (1937); and State v. Hall, 111 Kan. 458, 207 Pac. 773 (1922). In State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992), we stated the following rules with regard to the single impulse rule and multiplicity: “A test for determining if a continuous transaction results in the commission of but a single offense is whether separate and distinct prohibited acts, made punishable by law, have been committed. A single motive for a series of acts does not result necessarily in a single crime.” Syl. ¶ 10. “Multiplicity exists if the State uses a single wrongful act as the basis for multiple charges. Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other. Charges are also not multiplicitous if the offenses occur at different times and in different places.” Syl. ¶ 12. Grissom drove a woman to various branches of a bank to withdraw money from her account and was charged separately for each transaction. He complained that the single larceny doctrine should have been applied to the resulting four counts of robbery against him. Grissom, like Crawford, relied on Roberts. This court rejected his logic: “Grissom . . . overlooks the very language he quotes: ‘When property is stolen by a succession of takings from the same owner and from the same place, each taking is a separate crime if it results from a separate impulse or intent.’ (Emphasis added.) Here, the robberies did not occur in the same place. Roberts is not controlling on the instant facts.” 251 Kan. at 896. The holding in Grissom, is controlling in the present case. The same reasoning eliminates any merit to Crawford’s claims that Counts 5 and 16 are multiplicitous to Counts 7 and 12. The robberies which are charged in Counts 7 and 12 both occurred in Monhollon’s apartment, but they occurred at different times. The first occurred when Crawford first arrived at the apartment from the hospital. Following the first robbery, Crawford took Monhollon next door to Looka’s apartment where he used Monhollon to gain entry. The evidence shows that a substantial period of time was spent by Crawford inside Looka’s apartment where he ransacked her cabinets, drawers, and containers and ate food from her kitchen. The second robbery occurred in Monhollon’s apartment after they returned from Looka’s. In Grissom, the court rejected the argument that the four robbery convictions were multiplicitous because they resulted from a single impulse: “[E]ven if the robberies resulted from a single motive or a single criminal impulse, the jury was not required to find a single crime. ‘Whether or not the separate acts were the result of one larcenous impulse or plan is a question of fact to be determined by the jury.’ State v. Fox, 242 Kan. 457, 463, 749 P.2d 16 (1988); see State v. McClanahan, 251 Kan. 533, Syl. ¶ 2 [, 836 P.2d 1164 (1992)]. Here, the jury found the evidence supported four robberies—four separate and distinct prohibited acts.” 251 Kan. at 896. Finally, Crawford questions the controlling sentence of 60 years to life. The question arose because the district court judge, who intended to impose a term of 15 years to life for Crawford’s acts toward each of the four victims and to run each of those terms consecutively, imposed one term and then stated that each of the other three would run consecutively to the first. Here is the imposition of sentence: “THE COURT: It’s the judgment and sentence of the Court as to Count 1, aggravated robbery, that the defendant serve a term of from 15 years to life in the custody of the Secretary of Corrections. As to Count 2, where the defendant was convicted of aggravated battery, the Court will impose a sentence of not less than 5 nor more than 20 years. That sentence is to be served concurrently with the sentence imposed in Count 1. As to Count 3, the attempted kidnapping charge, the jury found the defendant not guilty. As to Count 4, kidnapping, [the] Court will impose a sentence of from 15 years to life, consecutive to the sentence imposed in Count 1. As to Count 5, aggravated robbery, the Court will impose a sentence of from 15 years to life, concurrently with the sentence imposed in Count 1. As to Count 6, aggravated burglary, the Court will impose a sentence of not less than 5 nor more than 20 years. The sentence to be served concurrently with the sentence imposed in Count 1. As to Count 7, aggravated robbery, the Court will impose a sentence of from 15 years to life. The sentence to run concurrently with the sentence imposed in Count 1. As to Count 8, aggravated burglary, the Court will impose a sentence of not less than 5, nor more than 20 years. The sentence to be served concurrently with the sentence imposed in Count 1. As to Count 9, aggravated robbery, the Court will impose a sentence of not less than 15 years to life. The sentence to be served consecutive to the sentence imposed in Count 1. As to Count 10, kidnapping, [the] Court will impose a sentence of from 15 years to life, concurrently with the sentence imposed in Count 1. As to Count 11, aggravated burglary, the Court will impose a sentence of not less than 5 nor more than 20 years. The sentence to be served concurrently with the sentence imposed in Count 1. As to Count 12, aggravated robbery, the sentence will be from 15 years to life. The sentence to be served concurrently with the sentence imposed in Count 1. As to Count 13, aggravated burglary, the Court . . . will impose a sentence from 5 to 20 years to be served concurrently with the sentence imposed in Count 1. As to Count 14, aggravated battery, the Court will impose a sentence from 5 to 20 years to be served concurrently with the sentence imposed in Count 1. As to Count 15, aggravated robbery, the Court will impose a sentence of from 15 years to life. The sentence to be served consecutive to the sentence imposed in Count 1. As to Count 16, the Court will impose a sentence of which was also— which is aggravated robbery. The Court will impose a sentence from 15 years to life to be served concurrently with the sentence imposed in Count 1. “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, which I think is a fair sentence under the circumstances in this case. If there’s nothing further, the defendant is remanded to custody.” The prosecutor immediately sought clarification whether all the 15-years-to-life sentences ran consecutively with each other. The district court judge answered, “No, the four of them are.” The district court judge then stated, “Well, my intention was to impose a sentence from 60 years to life.” The district court’s journal entry contains the following paragraph: “The Court orders that all counts shall run concurrently with one another with the exceptions that Counts one, four, nine and fifteen, shall run consecutively to each other. The Court expressly notes its intent that the defendant shall receive a controlling sentence of sixty years, to life.” On appeal, Crawford argues that principles of law set forth in State v. Moses, 227 Kan. 400, 607 P.2d 477 (1980), and State v. Zirkle, 15 Kan. App. 2d 674, 814 P.2d 452 (1991), prevent the district court judge from stiffening the 30-years-to-life sentence he spelled out. In Moses, where there was a question of the timeliness of the appeal, this court stated: “The journalized entry is thus a record of the sentence imposed; but the actual sentencing occurs when the defendant appears in open court and the judge orally states the terms of the sentence.” 227 Kan. at 402. In Zirkle, the court sentenced Zirkle to a term of one to five years, then discovered that earned jail time credit placed Zirkle close to release, and in the next breath vacated the sentence and resentenced him to two to five years. 15 Kan. App. 2d at 675. The Court of Appeals reasoned that, based on Moses, the sentence was effective when announced and, under K.S.A. 1990 Supp. 21-4603(4)(a), could not be modified upward. Thus, the Court of Appeals held: “Once a sentence is imposed, the district court is powerless to vacate that sentence and impose a harsher sentence.” 15 Kan. App. 2d at 678. Crawford’s point, that it is what the district court judge said at the time of sentencing in open court which controls rather than what was written in the journal entry, is well taken. Application of that rule, however, does not resolve the question in the present case. Here, at the time of sentencing in open court, the district court judge concluded his recitation of the numerous terms by 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 stated when he articulated the terms and how they were to run in relation to each other. This case is distinguishable from Zirkle in that the judge in this case did not change his mind, vacate the sentence, and try to change the length of the sentence. Here 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. 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. All 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. The judgment of the district court is affirmed.
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The opinion of the court was delivered by Davis, J.: Jose M. Gonzales, Jr., was charged with first-degree murder, tried by jury, and convicted of second-degree murder for the intentional killing of Ernest Lopez. He appeals, contending that the trial court’s failure to instruct the jury on voluntary intoxication requires reversal. He also contends that the trial court erred by allowing the State to recall a witness three times to establish chain of custody of the murder weapon. Finding no reversible error, we affirm. Voluntary Intoxication Instruction Voluntary intoxication is neither an excuse for nor a justification of crime. In specific intent crimes, however, voluntary intoxication may be raised as a defense. See State v. Sterling, 235 Kan. 526, Syl. ¶ 2, 680 P.2d 301 (1984). 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.” Quoting from an early Kansas case, Sterling notes that “drunkenness may reduce a homicide from murder to manslaughter, if it is so extreme to prevent the existence of an intention to kill.” 235 Kan. at 528. A defendant is entitled to an instruction on his or her theory of defense if the theory is supported by evidence. 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). In State v. Shehan, 242 Kan. 127, 131, 744 P.2d 824 (1987), we said: “The degree of proof necessary in Kansas to establish a submissible issue of voluntary intoxication was considered in the recent case of State v. Keeler, 238 Kan. 356, 710 P.2d 1279 (1985). The court stated: ‘Where the crime charged requires a specific intent, voluntary intoxication may be a defense and an instruction thereon is required where there is evidence to support that defense. [Citation omitted.] The defendant has the burden of showing that he was so intoxicated that he was robbed of his mental faculties, and whether he was drunk to such extent is a question for the trier of the facts to decide, under proper instructions. [Citations omitted.]’ ” The defendant was charged with a specific intent crime, first-degree murder. The defendant contends he requested an instruction on involuntary intoxication, but the court did not instruct on this defense. This contention is misleading. When the defendant filed his proposed jury instructions before trial, he included an instruction on voluntary intoxication patterned after PIK Crim. 2d 54.12-A. After the parties rested and during a conference with the court on proposed instructions, the court did not include a voluntary intoxication instruction. Defense counsel voiced no objection to the court’s proposed instructions and did not request an instruction on involuntary intoxication. Under the above circumstances, “[w]hen no request for an instruction on voluntary intoxication is made in a criminal trial, the standard of review on appeal requires reversal only if the trial court’s failure to give the instruction was clearly erroneous.” State v. Minski, 252 Kan. 806, Syl. ¶ 1, 850 P.2d 809 (1993). We held in Minski that a duty to instruct on voluntary intoxication arises only when there is evidence of intoxication upon which a jury might find the defendant’s mental faculties were impaired to the extent defendant was incapable of forming the necessary specific intent required to commit the crime. Minski, 252 Kan. 806, Syl. ¶ 2. There are several sound reasons for concluding that the defendant was not entitled to an instruction on voluntary intoxication. First, defendant’s theory at trial was one of self-defense, not voluntary intoxication. This perhaps more than anything else accounts for counsel’s lack of a request for an instruction on voluntary intoxication. While it is true that a defendant in a criminal case may present and rely upon inconsistent defenses, State v. Shehan, 242 Kan. 127, Syl. ¶ 2, the defendant’s testimony in support of his theory of self-defense undermines his claim that there was sufficient evidence to warrant the giving of a voluntary intoxication instruction. He recalled in detail his actions well before the stabbing, his contact with the victim, what the victim said to him, and his concern for his own safety. He was able to recount all details of his presence in the bar and the exact actions he took in dealing with and stabbing the victim, and he was able to recount all of those details to the arresting officer shortly after the stabbing. The very credibility of his theory of self-defense depended upon his convincing the jury that he was alert and aware of the danger to himself from the victim. The evidence on which defendant relies for his intoxication theory was the State’s evidence that his blood alcohol concentration within a half-hour after the stabbing was .196. Additionally, there was evidence that defendant had consumed most of two 12-packs of beer between 6:00 p.m. and 10:00 p.m., just before the stabbing. There was evidence that when he was apprehended, he swayed as he walked and stood and that his speech was slurred. At the same time, there was evidence that defendant sharpened the knife before concealing it on his person, went to the bar with the intent to cut or scar the victim, and killed the victim. The only testimony regarding the effects of alcohol on a person was presented by the State when Dr. Scamman testified that “the way people respond to alcohol varies from person to person.” The defendant did not testify that he was intoxicated, and he did not claim that he was confused about the events that occurred. According to his own testimony, there was no loss of memory, and he clearly formed the intent to cut or scar the victim just before and during the stabbing. Under these circumstances, there simply was insufficient evidence to support a finding that his mental faculties were impaired to the extent that he was incapable of forming the necessary specific intent to commit the crime. See State v. Shehan, 242 Kan. at 131-32. In a recent case decided by this court, State v. Gadelkarim, 247 Kan. 505, 802 P.2d 507 (1990), we held that it was error for the trial court to have refused to give a voluntary intoxication instruction. The facts in Gadelkarim present a more compelling case for the instruction. The defendant, Gadelkarim, testified that he drank one-half bottle of vodka and one-half bottle of rum between 1:00 p.m. and 9:00 p.m. on Saturday. That same evening, the defendant and his girlfriend drove from Clearwater to Wichita, and on the way he drank another large rum beverage. Upon returning to Clearwater, he went to a local bar and drank five to six Scotch beverages. He called the dispatcher the next morning at 7:36 a.m. and said he had killed his girlfriend. A breathalyzer test administered to the defendant at 11:12 a.m. that morning revealed the defendant’s blood alcohol concentration was .169. Gadelkarim testified at trial that he did not recall anything after he walked home from the bar and went to bed. He testified that when he was awakened, he found his girlfriend’s body on the living room floor. At trial, he said he told the police he killed her because he did not want to live without her; he also denied, however, remembering that he told anyone he killed her because he was drunk. The defendant told the police at the time of his arrest that he shot his girlfriend and meant to do it. Under these circumstances, we held that the trial court erred in refusing to instruct on voluntary intoxication. We based our conclusion on the uncontroverted evidence that the defendant was intoxicated when he left the bar and his blood alcohol concentration was .169 at 11:12 a.m. the next morning. We also noted that the defendant claimed he could not remember anything after walking home and going to sleep and could not recall the incriminating statements that he made to the police. In contrast, the defendant in this case was able to recall in detail all events leading up to the stabbing and the time immediately before and the time he was committing the actual stabbing. He stated that his intent was to cut or scar the victim. He further remembered the exact words of the victim earlier in the evening, and he was alert and aware of the alleged danger the victim posed to him that evening. While we characterized Gadelkarim as a close case, 247 Kan. at 509, the evidence in this case clearly establishes that the defendant’s- mental faculties were not impaired to the extent he was incapable of forming the necessary requisite intent for murder. Chain of Custody Evidence The knife, or murder weapon, was clearly identified at trial and was admissible as evidence without the necessity of establishing a chain of custody. The purpose of establishing a chain of custody was to allow into evidence the testimony of a serologist that the genetic markers of the blood which she identified on the knife were consistent with those of the victim. The defendant does not claim the evidence was inadmissible because of a failure to establish a proper chain of custody, but he claims that allowing a State’s witness to testify three different times in order to fill gaps in the chain of custody encourages perjury. He further claims that the trial court abused its discretion in allowing the State to recall three times the same witness to establish a proper chain of custody. The trial court permitted the State to call Detective Delmott to the stand on three occasions to correct gaps in the chain of custody of the knife. The second time Detective Delmott was called as a witness was due to the county attorney’s discovery, outside the presence of the jury, that the witness’ initial testimony was incorrect. The county attorney requested that he be allowed to recall the witness to clear up the witness’ inaccurate testimony. It may be said that the county attorney was duty-bound to recall the witness under these circumstances. Later, the same witness was called again because overnight the witness, having forgotten how he marked the exhibit, remembered and was allowed the next day to testify as to his recollection. On each occasion, the defendant was given an opportunity for cross-examination. It is not error to permit a witness to be recalled to correct or add to testimony. State v. Jackson, 222 Kan. 424, Syl. ¶ 3, 565 P.2d 278 (1977). The object of any trial is a search for the truth, and if a witness has time to reflect and then decides in good conscience that his or her testimony should be changed, the court has discretion to allow the witness to change testimony. State v. Greenwood, 197 Kan. 676, 684, 421 P.2d 24 (1966). Finally, our test for abuse of discretion is that if no reasonable person would agree with the trial court, then the court has abused its discretion. If any reasonable person would agree with the trial court, appellate courts will not disturb the trial court’s decision. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988). The trial court did not abuse its discretion in allowing the State to recall Detective Delmott. Affirmed.
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The opinion of the court was delivered by Six, J.: This is a search and seizure case. Troy Dale Johnson was convicted of first-degree murder, conspiracy to commit first- degree murder, and aggravated battery. We consider: (1) law enforcement deception to obtain Johnson’s consent to search his home (a ruse entry); (2) the warrantless arrest of Johnson in his home; and (3) the search of Johnson’s home after his arrest. We also consider a separate issue of whether Johnson’s convictions for aggravated battery and first-degree murder are multiplicitous. We find no error and affirm. Facts Johnson’s case was tried to the bench on stipulated facts. The stipulated facts include consideration of the testimony from the preliminary hearing and from the hearing on Johnson’s motion to suppress. Johnson testified at the suppression hearing. The same trial judge presided at all three proceedings. Steven Boyce, the victim, was a paid confidential drug informant. He was arranging to purchase crack cocaine from Johnson at Johnson’s residence in Pittsburg, Kansas. Boyce informed for Detective Harrison, who was in charge of Crawford County’s drug task force. Harrison did not intend either to conclude the investigation or arrest the participants that night. Police Chief Pommier of Girard, who assisted Harrison, was a member of the drug task force. Pommier was assigned to follow Johnson when Johnson went to pick up the cocaine. Harrison provided Boyce with a body wire transmitter and $350 in marked cash. At 8:26 p.m., Harrison dropped Boyce off near Johnson’s residence. Harrison saw Boyce enter Johnson’s house. Because of the body wire, Harrison heard Boyce converse with Johnson and others. At approximately 8:46 p.m., Harrison saw three males, including Boyce, enter a Chevy pickup. “The plan” did not call for Boyce to accompany Johnson. Harrison and Pommier, in separate vehicles, followed the pickup (Johnson later was identified as the owner of the pickup) out of Pittsburg to a rural location known as Homback’s corner. Although Harrison maintained audio contact, he occasionally lost visual contact with the pickup. As he neared Homback’s comer, Harrison detected conversation and then thought he heard the pickup stop. Harrison did not wish to endanger Boyce so he abruptly turned around. Harrison heard Boyce mention something about a vehicle stopping and turning around and another voice expressing hope it was not the police. The transmission became garbled and then ceased. Harrison assumed the terrain interfered with Boyce’s body wire transmission. Pommier joined Harrison south of Hornback’s corner and confirmed that the pickup had stopped at that corner. Harrison concluded that the drug transaction was completed and headed back toward Pittsburg. When he observed the pickup, he noticed it was occupied by only two persons. He was not overly concerned about Boyce’s safety, although he could not tell if Boyce was in the pickup. The pickup pulled into a car wash and Harrison watched as Johnson cleaned the vehicle. Harrison still could not tell if the other person in the pickup was Boyce. Harrison had no audio contact with Boyce. Consequently, he decided to stay out of sight and wait for Boyce to contact him. Later, Harrison drove by Johnson’s residence. The pickup was parked next to the house. ' When Harrison had not heard from Boyce by 10:30 p.m., he called the sheriff. They decided to wait at least 30 minutes before taking any action that might endanger Boyce. Harrison continued to search for Boyce, looking for signs of foul play. Shortly after 2:00 a.m., Harrison and Pommier, concerned for Boyce’s safety, decided to go to Johnson’s residence to check out the situation. Harrison suggested they tell Johnson they had a parole violation arrest warrant for Boyce. , Harrison and Pommier knocked on Johnson’s front door. When Johnson opened the door, Harrison and Pommier identified themselves as law enforcement officers. Neither officer was in uniform; however, both officers had their badges clipped to their belts and carried their guns in side holsters. Harrison was wearing a sheriff’s department ball cap. The officers asked to speak to Johnson, and he' allowed them to enter. As soon as they entered, Harrison noticed four .44 caliber revolver shells on the coffee table in the living room. Thé detectives informed Johnson they had received a telephone call telling them Boyce was at Johnson’s house. They were looking for Boyce because they had a parole violation warrant for his arrest. (There was no telephone call or warrant for Boyce’s arrest.) They asked Johnson if they could “talk to him about Steven Boyce and his whereabouts.” When asked if anyone else was in the house, Johnson said his half-brother, Shawn Winkfield, was asleep in one of the bedrooms. Johnson explained that Boyce had been at the house earlier that evening and that Johnson had given Boyce a ride at about 8:30 p.m. Harrison knew that statement was false because he was following Johnson’s pickup at 8:30 p.m. Harrison asked if he and Pommier could walk through the house to look for Boyce. Johnson agreed. While walking through the house, Harrison saw an open duffel bag containing guns and a gun rack with shotguns. Johnson’s house was not searched at that time. Harrison looked in the kitchen and bathroom and in a locked room which Johnson opened for him with a key. Harrison estimated they were in the home approximately 10 minutes. Later that night, the officers feared something had gone wrong because they had not heard from Boyce. They decided to return to the house and arrest Johnson and Winkfield on the charge of conspiracy to sell cocaine. Johnson and Winkfield were arrested and read their Miranda rights. Harrison noticed that the four shells on the coffee table were in the same location and position as before. Winkfield’s wallet was on the dresser in the bedroom. Harrison found two $20 bills in the wallet that matched the serial numbers on the money given to Boyce. Harrison saw a gun rack with two shotguns and the open duffel bag containing what appeared to be a .44 caliber revolver and a 9 millimeter automatic pistol. The pickup was parked in the driveway next to the home. The officers noticed the window glass from the passenger’s side of the pickup was missing. Bloodstains appeared to be on the door handle and in the bed of the pickup. At the car wash the officers found what appeared to be bloodstains, shattered window glass, and paint chips similar in color to Johnson’s pickup. A search warrant for the residence and the pickup was obtained. The officers recovered Johnson’s .44 caliber revolver, concrete blocks, the $350 buy money, and glass and blood samples from the pickup. Boyce’s body later was located in the Arcadia Cliffs strip pit. Chains, a lock, and a concrete block similar in weight and distinguishing marks to the blocks found at Johnson’s residence were attached to the body. The key to the chain padlock was found on Johnson’s key chain. Broken glass from a vehicle window was discovered. Glass removed from Johnson’s pickup and glass located at the side of the road at Homback’s comer and at the Arcadia Cliffs came from a common source. Blood samples recovered from Johnson’s pickup, Homback’s comer, and the Arcadia Cliffs were consistent with Boyce’s blood. The State’s pathologist performed an autopsy and determined that Boyce had been shot in the back of the left hand and in the right lower back or upper buttocks (neither wound was fatal). The cause of death was drowning. The body wire was discovered during the autopsy. Police later determined that Johnson’s .44 caliber revolver was the gun used to shoot Boyce. Johnson and Winkfield were again given Miranda warnings and were interrogated separately the morning after their arrests. Johnson was interviewed first (the interview lasted about two hours). Johnson stated: (1) He, Winkfield, and Boyce had completed a drug transaction the night before; (2) at Boyce’s request, Johnson drove Boyce to a Dillon’s parking lot in Pittsburg and let him out; (3) immediately after dropping Boyce off, an unknown person threw a rock through the passenger’s side window of his vehicle; and (4) because of the rock incident, Johnson washed and vacuumed the pickup. Johnson then changed his story and said the rock incident had happened a couple of days earlier. Johnson again talked about the drug transaction but related a different story. Johnson said Boyce had not been injured. Johnson was asked if he had shot Boyce. Johnson responded: “It was my gun, but it didn’t come out with me.” Johnson explained he had pawned the gun to the person who had met them north of town and that person (Drac) had shot Boyce. Johnson was asked to give a court-recorded statement under oath. He refused. The interview ended; According to Winkfield, Boyce had come over to Johnson’s house. After Johnson, who was driving, pulled off on a gravel road, all three left the pickup. Winkfield heard a loud noise that sounded like a gunshot. He saw Boyce stumble, run another yard before being shot in the lower back, and then fall down. Johnson and Winkfield loaded Boyce onto the bed of the pickup and drove to the Arcadia Cliffs. Johnson wrapped and padlocked chains around Boyce. Johnson and Winkfield attached a concrete block to the chains. Winkfield helped Johnson drag Boyce to the side of the cliff. Winkfield believed that Boyce still was alive. Wink-field stood back as Johnson pushed Boyce over the cliff and into the water. Johnson and Winkfield stopped at a car wash so Johnson could wash and vacuum the pickup. Johnson and Winkfield never found the body wire on Boyce; however, Johnson had talked to Winkfield about killing Boyce for months. There were no drugs available for sale that night, and Drac was not present. Winkfield said he received $50 from the transaction and Johnson kept the rest. When they returned to Johnson’s house, they removed their clothing and put it in the washing machine. Wink-field identified the location where the shooting occurred and where the body was dumped (the same areas officers had located based upon physical evidence). The Motion to Suppress and Stipulations Johnson moved to suppress the evidence obtained from searches of his person, the residence, and the pickup. The trial court, after a hearing at which Harrison and Johnson testified, denied the motion. Johnson then entered into an agreement with the State that, in exchange for the factual stipulation, the State would: (1) dismiss without prejudice the aggravated kidnapping charge and (2) not pursue imposition of a mandatory 40-year sentence under K.S.A. 1992 Supp. 21-4624(2). The stipulated facts included the following: Johnson received $350 from Boyce for drugs; Boyce accompanied Winkfield and Johnson to Homback’s comer; another party was never present; Johnson and Winkfield previously had discussed killing Boyce on the belief Boyce was a “narc”; the gun used to shoot Boyce belonged to Johnson; after Boyce was shot, Johnson and Winkfield loaded Boyce into the pickup, drove to the Arcadia Cliffs, chained and padlocked a concrete block to Boyce, and threw him into the strip pit. Boyce died from drowning. Johnson preserved his objections to the admission of the evidence he had moved to suppress. Use of Deception We apply a “clearly erroneous” standard in our review of the deception issue. The trial court’s findings with regard to the existence and voluntariness of a consent to search will not be overturned on appeal unless clearly erroneous. State v. Pearson, 234 Kan. 906, 920, 678 P.2d 605 (1984). Johnson. argues that the use óf “official lies” in obtaining his consent to search his home invalidated the consent. He claims that because there was no valid consent, the warrantless search was illegal and violated his rights under the Fourth Amendment and § 15 of the Kansas Bill of Rights. Both the Fourth Amendment and § 15 prohibit unreasonable searches and seizures. We have held that the wording and scope of the two sections are identical for all practical purposes. If conduct is prohibited by one it is prohibited by the other. .See State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993). Johnson reasons the trial court erred in denying his motion to suppress all evidence seized as a result of a continuous, unbroken chain of events that followed the officers’ illegal initial entry. Harrison testified at the suppression hearing that he had lied to gain entry to Johnson’s home. “[A] search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).” State v. Damm, 246 Kan. 220, 221-22, 787 P.2d 1185 (1990). One of the exceptions to the search warrant requirement is consent,, which must be given voluntarily, intelligently, and knowingly and proven by a preponderance of the evidence. State v. Pearson, 234 Kan. at 920. Johnson asserts that he merely acquiesced to a claim of lawful authority and that because the claim of lawful authority was fraudulent, he did not freely and voluntarily consent to the search. Johnson relies on Bumper v. North Carolina, 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968), and Evans v. State, 530 S.W.2d 932 (Tex. Crim. 1975). A review oí Bumper indicates that law enforcement officers, went to the house where Bumper lived with ■ his grandmother and informed the grandmother they had a search warrant to search her house. The grandmother said, “Go ahead.” The officers seized evidence that assisted in convicting Bumper. The searching officers had a warrant but it was never returned. The Court noted that there was no way of knowing the conditions under which the warrant was issued. 391 U.S. at 547, 550 n.15. In reversing the trial court’s finding that the grandmother consented to the search, the Supreme Court stated: “When a law enforcement officer claims authority to search a house under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct [sic] with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.” 391 U.S. at 550. Although Harrison and Pommier misrepresented that they had a parole violation arrest warrant for Boyce, they never claimed authority to search the home under a warrant. Johnson could not have been coerced by the guise of authority because the officers never represented that they had such authority. Therefore, Bumper is distinguishable from the case at bar. We reason that Bumper is not controlling under Johnson’s facts. In Evans, police officers had information that Marion Ray Lester, accused of the attempted murder of a law enforcement officer, could be located at a motorcycle shop. The officers, who had arrest warrants, found that the doors of the shop were padlocked. “The officers knocked, identified themselves and informed those inside the building that they had arrest warrants for Lester; the person who answered passed keys to the padlock through a gap between the doors.” 530 S.W.2d at 934. The officers searched the building. Although they did not locate Lester, they found Evans with heroin in his possession. On appeal, the Texas Court of Criminal Appeals determined the arrest warrants for Lester were invalid. The court extended the Bumper analysis dealing with a search warrant for a residence to the arrest warrant context and reversed Evans’ conviction. The court reasoned that “the officers gained entry to the building by announcing they had arrest warrants for Lester, effectively informing the occupants that they had no right to resist the search.’ ” 530 S.W.2d at 939. Evans reasons that “[s]ubmission to authority cannot be disguised as a free and voluntary consent to search.” 530 S.W.2d at 939. We do not agree with the broad interpretation of Bumper found in Evans. Evans relied upon Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), in finding the arrest warrant invalid. 530 S.W.2d at 937-38. The Aguilar “two-pronged” test to guide magistrates when evaluating affidavits to determine probable cause.was abandoned in Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317, reh. denied 463 U.S. 1237 (1983). See also, United States v. Leon, 468 U.S. 897, 905, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984). We question the persuasiveness of Evans in view of Gates and Leon. The Evans rationale does not convince us to reverse Johnson’s conviction. The voluntariness of a consent to search is a question of fact to be decided in light of attendant circumstances. See Pearson, 234 Kan. 906, Syl. ¶ 7; 3 LaFave, Search & Seizure § 8.2(n), p. 232 (2d ed. 1987). We agree with the reasoning of other courts that have interpreted Bumper narrowly, upholding the voluntariness of consent despite deceptive practices by government agents. See, e.g., Hoover v. Beto, 467 F.2d 516, 520-22 (5th Cir.), cert, denied 409 U.S. 1086 (1972) (police informed defendant that they had a warrant to search his house; the warrant was- later found to be invalid); Earls v. State, 496 S.W.2d 464, 466 (Tenn. 1973) (“We do not believe that the Bumper opinion is a blanket prohibition that no consent can ever be given where an invalid warrant is involved. Such a holding ignores the realities of life and denies the long standing principle that the existence and voluntariness of a consent to search and seizure is a question • of fact to be decided in the light of attendant circumstances.”). Ruse entries have been upheld in United States v. Turpin, 707 F.2d 332 (8th Cir. 1983) (police told defendant he was not a suspect in a homicide investigation when in fact police considered defendant a suspect); United States v. Wright, 641 F.2d 602 (8th Cir.), cert, denied 451 U.S. 1021 (1981) (pretending to have car problems, .government agents knocked on suspect’s motel room door and asked to borrow tools; when suspect opened the door, agents could see white powdery substance and drug paraphernalia inside); Guidry v. State, 671 P.2d 1277 (Alaska. 1983) (officers who sought to verify license number, of defendant’s truck and to obtain a description of the property for later use in obtaining a search warrant posed as prospective house buyers; defendant invited the officers into the home, where they gained information used to obtain a search warrant); People v. Ewen, 194 Ill. App. 3d 404, 551 N.E.2d 426, cert, denied 498 U.S. 854 (1990) (police told defendant they were investigating a complaint about a letter he received that included an order form for child pornography; police had initiated the letter); Com. v. Morrison, 275 Pa. Super. 454, 418 A.2d 1378 (1980), cert, denied 449 U.S. 1080 (1981) (officer misrepresented his identity and purpose in wishing to view the interior of the defendant’s bam). Deception is but one factor in examining the totality of the circumstances. See 1 Ringel, Searches & Seizures, Arrests and Confessions § 9.3(b)(5) (2d ed. 1993). We hold that a prerequisite to a valid ruse entry is that officers must have a reasonable suspicion of criminal activity at the residence. If “an officer has a justifiable and reasonable basis to suspect criminal activity in a residence, a ruse entry is permissible. This permission is to be construed narrowly.” State v. Hashman, 46 Wash. App. 211, 216, 729 P.2d 651 (1986). The cardinal question is whether Johnson’s consent to enter and then search his house was given voluntarily, intelligently, and knowingly. See Pearson, 234 Kan. at 920. “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations omitted.]” Florida v. Jimeno, 500 U.S. _, 114 L. Ed. 2d 297, 302, 111 S. Ct. 1801 (1991). At the suppression hearing, Detective Harrison testified he and Police Chief Pommier went to Johnson’s house to look for Boyce because they were concerned for Boyce’s safety. Harrison said Johnson’s response to his knock was “fairly quick.” According to Harrison: (1) The lights in the living room were on and it sounded as if a television was on; (2) Johnson did not appear alarmed or concerned about anything; (3) they asked Johnson if they could step inside to talk concerning the whereabouts of Boyce; and (4) they did not coerce Johnson. Harrison testified that Johnson either led the officers through the house or walked along with them. According to Harrison, one room was locked. He stated Johnson retrieved the key and unlocked the door to let the officers look in the room. Johnson stated that he let the officers in because Harrison said they had an arrest warrant and that a telephone call had been received concerning Boyce’s whereabouts. Johnson also explained he thought the officers would enter the house even if he told them they could not come in. Johnson acknowledged the officers did not tell him that he had to let them enter his house, that they had a search warrant, or that they would enter regardless of whether he gave permission. Johnson said his understanding of the law was that he did not have a choice because of the arrest warrant. Johnson knew Boyce was not there when he let the officers into his house. The trial court denied Johnson’s motion to suppress, finding the entry to be consensual. The court reasoned that even though there had been no telephone call: (1) The officers had actual knowledge that Boyce had been present in Johnson’s home earlier in the evening; (2) the officers were dressed in plain clothes; (3) there was no coercion, intimidation, or threat; (4) Johnson never asked the officers to show him the arrest warrant and if “he was that adamant about not letting them in,” he could have asked; (5) Johnson had no reservations about letting the officers in because he knew Boyce was not in the house; and (6) Johnson acknowledged he let them in the house to look for Boyce, which was the “entire purpose of the original entry.” Two factors weighing against consent are the officers’ use of deception and Johnson’s lack of knowledge that he could refuse to consent to the search. See Schneckloth v. Bustamonte, 412 U.S. 218, 249, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (“[Wjhile the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”). Factors weighing in favor of finding that Johnson consented include: (1) The officers’ behavior was not threatening or coercive. (2) Johnson agreed to let the officers enter his home. See Pena v. State, 792 P.2d 1352, 1358 (Wyo. 1990) (“ ‘Okay. Sure. Come on in,’ evinced [the suspect’s] consent to the search of his house.”). (3) Johnson was not evasive or uncooperative prior to giving consent. (4) Johnson was not under arrest at the time. (5) Johnson had had prior contact with law enforcement. (6) Johnson was in his mid-20s with a high school education. (7) There was no evidence Johnson was intoxicated. (8) Johnson knew Boyce would not be found at the home. See Amin v. State, 695 P.2d 1021, 1024 (Wyo. 1985) (“If a defendant permits a warrantless search in the mistaken belief there is nothing to incriminate him where the search will take place, the search is voluntary.”). (9) The officers did not exceed the scope of the search. See United States v. Scherer, 673 F.2d 176, 182 (7th Cir.), cert, denied 457 U.S. 1120 (1982) (“A government agent may obtain an invitation onto property by misrepresenting his identity, and if invited, does not need probable cause nor warrant to enter so long as he does not exceed the scope of his invitation.”). The bullets and the guns, which later turned out to be evidence against Johnson, were in plain view. The trial court’s finding that the officers’ initial entry was consensual is not clearly erroneous. Because the initial ruse entry was valid, the evidence seized later was not tainted by virtue of the ruse. The statements made by Johnson during the later custodial interrogation are admissible. The Warrantless Arrest of Johnson in His Home The Fourth Amendment and § 15 of the Kansas Bill of Rights prohibit the warrantless entry into a person’s home in order to arrest an individual in that home absent probable cause and exigent circumstances. See Payton v. New York, 445 U.S. 573, 583-90, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1979); State v. Flatten, 225 Kan. 764, Syl. ¶ 5, 594 P.2d 201 (1979). Johnson argues that both probable cause and exigent circumstances were lacking at the time of his warrantless arrest. Probable Cause Johnson advances two reasons in support of his argument that there was no probable cause to arrest him on the charge of conspiracy to sell cocaine. He claims there was no conspiracy between Boyce and himself because a conspiracy cannot occur between an individual and a government agent. See Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965) (“as it takes two to conspire, there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy”). Johnson also maintains there was no conspiracy with Winkfield based on Winkfield’s “mere presence.” See State v. Baker, 249 Kan. 431, 452, 819 P.2d 1173 (1991) (“ ‘[A] conspiracy to commit a crime is not established by mere association or knowledge of acts of the other parties.’ ”). “Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt.” State v. Grissom, 251 Kan. 851, Syl. ¶ 22, 840 P.2d 1142 (1992). The trial court denied Johnson’s motion to suppress evidence on the ground that the warrantless arrest was lawful. The court found there was probable cause to arrest Johnson for conspiracy to sell cocaine under the totality of the circumstances. The trial judge based his findings not only on the testimony at the suppression hearing, but also on all evidence that had passed before him, including the preliminary hearing and the search warrant affidavit. The standard of review of a probable cause determination is whether there is a substantial basis for concluding probable cause existed. State v. Doile, 244 Kan. 493, Syl. ¶ 5, 769 P.2d 666 (1989). There is substantial competent evidence supporting the finding that the officer had probable cause to believe Johnson and Winkfield agreed to sell cocaine to Boyce and that overt acts had been committed in furtherance of the agreement to sell cocaine. In addition to the facts of the instant case, Harrison had information that both Johnson and Winkfield were dealing drugs out of Johnson’s house. Harrison knew Boyce had purchased drugs from Winkfield the previous week. A KBI agent also had told Harrison about a drug transaction involving the agent and Johnson. Johnson and Winkfield, who are half brothers, resided in the same house. Even if Winkfield was not involved in the initial sale agreement between Johnson and Boyce, there was probable cause to believe he later became involved. See State v. Becknell, 5 Kan. App. 2d 269, Syl. ¶ 3, 615 P.2d 795 (1980) (“Where a defendant later joins an already formed conspiracy, knowing of the unlawful purpose, he may be held responsible for acts done in furtherance of the conspiracy.”). Exigent Circumstances Johnson disavows the existence of exigent circumstances at the time of his warrantless arrest. The trial court found that Harrison’s concern with Boyce’s welfare was “part of his consideration” and “part of the urgency and exigency.” The court noted the unusual nature of this case in that the exigent circumstances were not limited to the crime for which Johnson initially was arrested, but included an overall scheme (the existence of guns in the house; Johnson’s potential to threaten or injure Boyce and the officers). Johnson contends the officers’ concern with Boyce’s safety did not qualify as exigent circumstances because the exigency must relate to the charged crime, conspiracy to sell cocaine. Johnson relies upon State v. Platten, 225 Kan. at 770. Johnson’s reliance is misplaced. The State persuasively responds that “[t]he exigency created by the disappearance of or damage to a confidential informant is unquestionably related to the underlying drug charges as the two are interwoven.” The need to protect life or avoid serious injury has been recognized as an emergency situation constituting an exigent circumstance. See State v. Boyle, 207 Kan. 833, 839, 486 P.2d 849 (1971). In United, States v. Hultgren, 713 F.2d 79 (5th Cir. 1983), a confidential informant working for the DEA arranged a drug sale with the defendants. While transacting the sale at the home of one of the defendants, the informant’s body wire ceased transmitting. DEA agents, who were monitoring the conversation, broke down the front door, seized the defendants, and searched the house and found incriminating evidence. No warrants were ever issued. The Fifth Circuit held exigent circumstances justified the warrantless search and seizure, reasoning, in part, that “the unexplained failure of the transmitter raised the possibility of danger to the informant who was inside and danger of the destruction of the evidence if entry into the house was not promptly effected.” 713 F.2d at 85. See also United States v. Paul, 808 F.2d 645 (7th Cir 1986) (danger to a confidential informant may create an emergency justifying entry into a house without a warrant, unless the danger could readily have been averted). Harrison was reasonable in concluding that Boyce was in imminent danger and that Johnson either had knowledge of or was responsible for Boyce’s whereabouts. We affirm the trial court’s decision not to suppress the evidence. There is substantial competent evidence supporting the trial court’s findings of exigent circumstances. See State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990). The Search of Johnson’s Home After His Arrest Johnson argues that even if the warrantless arrest was lawful, the search that followed was a “full-blown search” that exceeded the permissible scope of a “protective sweep” in a search incident to arrest. Johnson directs our attention to Maryland v. Buie, 494 U.S. 325, 108 L. Ed. 2d 276, 110 S. Ct. 1093 (1990). Buie defined a protective sweep as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” 494 U.S. at 327. The officers, in the case at bar, had a reasonable belief, based upon specific and articulable facts and the inferences to be drawn therefrom, that an unknown dangerous party could be hiding in Johnson’s house. See Buie, 494 U.S. at 327. Harrison expi'essed his concern that someone could have entered the house through the rear door or windows without the officers’ knowledge, endangering the officers. When Boyce first arrived at Johnson’s house, Harrison could hear female voices in the background of the transmission. He did not know what happened to the women. Additionally, Harrison knew of numerous guns in the house. The officers apparently conducted at least two and perhaps three sweeps through the house. The “sweeps” included looking in a washing machine. The scope and length of the protective sweeps exceeded the limitations established in Buie. Because the search of the house violated Johnson’s Fourth Amendment rights, we must look to the evidence seized from the search and whether that evidence should be suppressed. See Segura v. United States, 468 U.S. 796, 804, 82 L. Ed. 2d 599, 104 S. Ct. 3380 (1984). Although Johnson contends the officers’ search of the house exceeded a protective sweep, he relies on his claim of an initial unlawful ruse entry in contending the evidence should have been suppressed. Johnson also contests the search and seizure of evidence from the pickup which was parked “real close to the west side of the house” in the yard. We have held that the ruse entry of Johnson’s residence was permissible. Consequently, the plain view exception applies to the pickup. See State v. Blood, 190 Kan. 812, 820, 378 P.2d 548 (1963); 3 LaFave, Search and Seizure § 7.5(a), p. 128 (2d ed. 1987). Johnson objects co the search of Winkfield’s wallet in which the officers recovered drug money given to Boyce. Johnson does not have standing to challenge the search of the wallet and the seizure of the buy money. See Alderman v. United States, 394 U.S. 165, 174, 22 L. Ed. 2d 176, 89 S. Ct. 961, reh. denied 394 U.S. 939 (1969) (Fourth Amendment rights are personal rights and may not be asserted vicariously.). We affirm the trial court’s ruling in refusing to suppress the evidence. We observe that Harrison testified that nothing was taken from the pickup or the residence prior to the search warrant except a brown gooey substance on the front steps, which is not in issue. The inevitable discovery exception supplies an additional rationale for affirming the trial court’s ruling. See State v. McKessor, 246 Kan. 1, 7-8, 785 P.2d 1332, cert, denied 495 U.S. 937 (1990). Multiplicity Johnson argues his convictions for aggravated battery and first-degree murder are multiplicitous because they arose from a single wrongful act. Johnson contends the shooting occurred contemporaneously with chaining Boyce and pushing him into the pit, where he died by drowning. The offenses are not multiplicitous because they were committed at different times and at different places. They did not arise out of a single wrongful act. See State v. Garnes, 229 Kan. 368, 624 P.2d 448 (1981). Johnson emphasizes the fact that the information/complaint listed the shooting incident as part of the first-degree murder charge. We stated in Games: “Although the shooting was listed as an overt act in Count IV charging attempted murder, the shooting was insignificant. The events that took place immediately before abandonment—the stabbing and the running over—established the offense of attempted murder.” 229 Kan. at 374. Similar reasoning applies to the case at bar. Chaining and padlocking a concrete block to Boyce and pushing him into a pit filled with water where he drowned established the offense of first-degree murder. Affirmed. Holmes, C.J., and Allegrucci, J., dissenting.
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The opinion of the court was delivered by Davis, J.: The defendant, Zubin Darius Contractor, appeals from an order authorizing the involuntary administration to him of psychotropic medication while he was an inmate at the Johnson County Adult Detention Center (JCADC). Because of a change in circumstances, the issue of whether the order violates his due process rights has become moot. His appeal is therefore dismissed. The defendant was incarcerated at the JCADC upon a misdemeanor conviction of providing alcohol to a minor. While incarcerated, the defendant caused serious disruption. In testimony before the district court, the plaintiff’s witnesses described four weeks of continuous destructive behavior by the defendant. The findings of fact by the court reflect a potential for real harm to the defendant from the defendant’s unsanitary conduct and from other inmates who were angered and frustrated by the defendant’s relentless antisocial behavior. In its memorandum decision, the court relates in detail the specific facts on which it based its order permitting involuntary medication. Based on these circumstances, the court ordered that the sheriff be “authorized to administer . . . appropriate medication ... on an involuntary1 basis . . . during the time defendant is in the custody of the Johnson County Adult Detention Center . . . .” The defendant appealed that order to the Kansas Court of Appeals. Before any medication was administered to the defendant, he was released on probation on April 6, 1992. In response to a show cause order issued by the Kansas Court of Appeals asking the parties to show cause why the appeal should not be dismissed as moot, the sheriff claimed that probation, if revoked, would again place the defendant in the custody of the JCADC, subject to the involuntary medication order. The appeal was retained, but the mootness issue was not resolved. The parties’ responses to the show cause order indicated that on April 6, 1992, the defendant was granted probation for a period of 12 months. In the absence of any further information, it may be assumed that on April 6, 1993, the defendant’s probation ended. Upon oral argument, neither party advised the court that this was not the case. If the defendant no longer is on probation, he no longer is subject to the control of the court. Thus, the allegation that his probation status is a basis for retaining the appeal no longer is persuasive. Even if the defendant still is on probation, his return to custody does not create the same controversy. The involuntary medication order is fact-specific, based on findings made by the court involving the defendant’s actions in the past. The order entered by the court would not authorize involuntary medication upon future incarceration of the defendant in the JCADC. Because the defendant no longer is in custody and his potential reincarceration will not present the same controversy, the issue of whether he was denied due process in a proceeding that determined he could be medicated without his consent while in custody is moot. In State ex rel. Stephan v. Johnson, 248 Kan. 286, Syl. ¶ 3, 807 P.2d 664 (1991), we held: “The court is statutorily and constitutionally without authority to render advisory opinions in cases found to be moot. A case is moot when no further controversy exists between the parties and where any judgment of the court would be without effect.” “We have consistently followed the well-established rule that this court will not consider or decide a question on appeal when it appears that any judgment we might render would be unavailing. [Citation omitted.] There must be an existing controversy requiring adjudication and not an abstract proposition requiring an advisory opinion. The rule as to moot questions is one of court policy, founded upon the 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.” 248 Kan. at 288-89. While we indicated in State ex rel. Stephan v. Johnson that an exception to this general rule exists if the case “involves a question of public interest even though it has become moot as to the parties involved,” 248 Kan. at 290, the instant case does not involve such a question. We have defined “public interest” as follows: “ ‘The phrase “public interest” as used in this connection means something more than that the individual members of the public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct as individuals. “ ‘Courts are more inclined to retain an appeal on the ground of public interest if the questions involved are likely to arise frequently in the future unless they are settled by a court of last resort.’ ” 248 Kan. at 290. We applied this exception in Stauffer Communications, Inc. v. Mitchell, 246 Kan. 492, 789 P.2d 1153 (1990), wherein the court did not dismiss the appeal as moot because the situation was likely to recur and evade appellate review. In Stauffer, the plaintiff sought a writ of mandamus to compel the judge to open to the public all detention hearings and other preliminary matters involving juveniles over the age of 15. Although the particular hearings that the legal affairs reporter sought to attend were over, the parties and the court agreed that the situation would recur and continue to evade appellate review. It therefore was not dismissed as moot. 246 Kan. at 494. The instant case is distinguishable from Stauffer. We do not deal with the validity of a written detention center policy regarding involuntary medication of inmates as was the case before the United States Supreme Court in Washington v. Harper, 494 U.S. 210, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990). If we were dealing with a written policy, we could anticipate that the due process challenge would arise again. Rather, we deal with a fact-sensitive issue, dependent upon the process that was afforded in this particular case to the defendant, who no longer is in the custody of the detention facility. We understand that the parties seek direction as to how to proceed in this delicate area. In response to the show cause order issued by the Court of Appeals, the sheriff states that this is an issue of first impression to the court and involves constitutional issues of great importance to Kansas public policy and to the orderly administration of detention centers and prisons throughout the state. The defendant’s response raises the same concerns. While we appreciate the need for guidance, any judgment we would enter in this case would be without effect because the facts and circumstances on which the trial court based its decision in this case no longer exist. Accordingly, “any judgment we might render would be unavailing.” State ex rel. Stephan v. Johnson, 248 Kan. at 288. The guidance sought both by the defendant and the sheriff would amount to an advisory opinion. The sheriff’s allegation that the defendant has been incarcerated five times and, in all likelihood, will be incarcerated in the future in the JCADC is of no avail. The existing order would not authorize involuntary medication on any future incarceration of the defendant, but would be dependent wholly upon a new proceeding. Unlike Harper, 494 U.S. 210, we deal with an unique case that has been resolved by reason of the passage of time and has become moot. Accordingly, we dismiss the appeal.
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The opinion of the court was delivered by Prager, C.J.: This is an appeal by the State in two consolidated criminal cases where the defendants, Stephen M. Fox and Mark D. Lowe, were charged with felony unemployment fraud (K.S.A. 44-719[a]). The district court dismissed each case on the basis that each defendant should have been charged with multiple misdemeanor counts rather than a single felony count. The facts in the case are undisputed and essentially are as follows: Stephen M. Fox was charged with felony unemployment fraud on April 15, 1986, in Pottawatomie County. The complaint stated: “That on 12-20-84, 1-11-85, 1-20-85, 2-5-85, 2-13-85, 2-22-85, 3-2-85, 3-2-85, 3-31-85, and 4-7-85, the said Stephen M. Fox, within the above and within named County and State, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully, willfully, and feloniously: “COUNT 1: make false statements or representations, to-wit: Continued Claim cards, Form K-BEN 22 (2-83), for unemployment compensation benefits certified to be true and correct, knowing them to be false or knowingly fail to disclose a material fact, to obtain or increase any benefit or other payment under the employment security law, whereby the said Stephen M. Fox received benefits resulting in overpayments of $1,029.00, for which he is not entitled, either for himself or for any other person, in violation of K.S.A. 44-719(a), and if found guilty shall be guilty of theft and shall be punished in accordance with the provisions of K.S.A. 21-3701, or any amendments thereto; such offense being a class E felony, penalty sections: K.S.A. 1985 Supp. 21-4501(e) and K.S.A. 1985 Supp. 21-4503(l)(b).” (Emphasis supplied.) Fox repeatedly failed to report his wages and thus received a number of overpayments. The felony charge resulted from the total overpayments received which were as follows: DATE WAGES BENEFITS OVERPAYMENT 12/15/84 $226.10 $126.00 $ 126.00 1/5/85 47.60 126.00 40.00 1/26/85 282.63 126.00 126.00 2/2/85 238.00 126.00 126.00 2/9/85 95.20 126.00 88.00 2/16/85 255.85 126.00 126.00 2/23/85 242.47 126.00 126.00 3/2/85 273.70 126.00 126.00 3/30/85 26.78 126.00 19.00 4/6/85 202.30 126.00 126.00 TOTAL $1,029.00 Mark D. Lowe was also charged with felony unemployment fraud in Pottawatomie County on August 6, 1986. The complaint stated: “That on 05-08-85, 05-11-85, 5-19-85, 06-05-85, 06-08-85, and 06-15-85, the said Mark D. Lowe, within the above named County and State, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully, willfully, and feloniously: “COUNT 1: make false statements or representations, to-wit: Continued Claim cards, Form K-BEN 22 (2-83), for unemployment compensation benefits certified to be true and correct, knowing them to be false or knowingly fail to disclose a material fact, to obtain or increase any benefits or other payment under the employment security law, amounting to overpayment in the sum of $484, for which the said Mark D. Lowe is not entitled, either for himself or for any other person, all done with a singular larcenous intent, in violation of K.S.A. 44-719(a), and if found guilty shall be guilty of theft and shall be punished in accordance with the provisions of K.S.A. 21-3701, or any amendments thereto; such offense being a class E felony, penalty sections: K.S.A. 1985 Supp. 21-4501(e) and K.S.A. 1985 Supp. 21-4503(l)(b).” The State based its claim against Lowe on overpayments made after Lowe failed to report employment income as follows: DATE WAGES BENEFITS OVERPAYMENT 5/4/85 $ 51.30 $130.00 $ 44.00 5/11/85 376.20 130.00 130.00 5/18/85 256.50 130.00 130.00 6/1/85 17.10 130.00 10.00 6/8/85 47.03 130.00 40.00 6/15/85 458.82 130.00 130.00 TOTAL $484.00 Both defendants were arraigned and pled not guilty to the charges. On October 9, 1986, the two cases were consolidated for consideration of pretrial motions to dismiss. Judge Tracy D. Klinginsmith granted the motion in each case and allowed the State six days to amend each complaint to charge multiple misdemeanor counts rather than one felony count. The State declined to amend, and Judge Klinginsmith dismissed the complaints on November 6, 1986. The State appealed. The State raises a single issue on the appeal: Whether the district court erred in ruling that the complaints are fatally defective in that the single larceny doctrine is not applicable to the underlying facts in the charges of unemployment fraud? Both defendants are charged with violating K.S.A. 44-719(a), which provides: “Any person who makes a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or other payment under this act, either for such person or for any other person, shall be guilty of theft and shall be punished in accordance with the provisions of K.S.A. 21-3701 and amendments thereto.” K.S.A. 1986 Supp. 21-3701 establishes punishment based on the value of property stolen. “Theft of property of the value of $150 or more is a class E felony. Theft of property of the value of less than $150 is a class A misdemeanor . . . .” Each of the defendants became unemployed and entered into an arrangement with the Kansas Department of Human Resources for the receipt of unemployment benefits on a weekly basis. The defendants submitted K-BEN 22 (2-83) continued claim cards to the Department, each stating that he was not employed. Fox did so for 10 weeks out of 17, and Lowe did so for 6 weeks out of 7. Each card resulted in a benefit payment. However, no single payment to either defendant was $150 or more. The State based its felony charges on the total amounts received, concluding that the separate acts of submitting false K-BEN cards stemmed from a single larcenous intent by each defendant. The single larceny doctrine is well established in Kansas. It was first discussed in State v. Hall, 111 Kan. 458, 207 Pac. 773 (1922). The defendant there was charged with grand larceny based on the theft of three items from two separate floors of a department store. The court stated: “ ‘Where several articles are taken from the same owner at or about the same time by the same thief, the better practice, in spite of the fact that there are technically several takings, is to regard the takings as a single offense, and to indict and punish but once. This is clearly the case when the goods are taken at the same time by one act of taking. But it is equally true where the goods, although taken at substantially the same time, are taken independently.’ (25 Cyc. 61.) “ ‘But a series of larcenous acts, regardless of the amount and value of the separate parcels or articles taken, and regardless of the time occupied in the performance, may and will constitute, in contemplation of law, a single larceny, provided the several acts are done pursuant to a single impulse and in execution of a general fraudulent scheme.’ (West v. Commonwealth, 125 Va. 747, 754.) “. . . ‘Each case must be determined upon its own special facts and circumstances. If, as it is said by some of the courts, the different asportations are prompted by one design, one purpose, one impulse, they are a single act, without regard to time.’ (Ex parte Jones, 46 Mont. 122, 124-126.)” State v. Hall, 111 Kan. at 459. The court concluded that “the stealing of several articles upon different floors of a department store during one visit of the defendant thereto may properly be charged as a single offense in one count of an information.” 111 Kan. 458, Syl. ¶ 1. That rule was expanded to the facts in State v. Gordon, 146 Kan. 41, 68 P.2d 635 (1937). There, a Topeka court clerk was convicted of felony embezzlement after he admitted taking $10 or $15 a day for 20 months, or a total of about $2,200. At the time, the necessary amount for a felony conviction was $20. The facts in Gordon are thus very similar to those in the case at bar. The court, over a strong dissent, stated: “Defendant may have conceived that separate takings of less than $20 each subjected him only to punishment for misdemeanors. But the evidence also warrants the conclusion that the series of takings was the result of plan or scheme and that each separate taking was but a step in the consummation of the whole scheme.” State v. Gordon, 146 Kan. at 49. The court also said, “ ‘The aggregate amount of a continuous series of conversions at different times and in different amounts may be proved to make up the amount charged.’ ” State v. Gordon, 146 Kan. at 46 (quoting 20 C.J., Embezzlement, p. 479.) Further, “If the practice was to take a series of amounts so that no one taking exceeded twenty dollars, it would be a fair inference from the evidence that the takings were the result of a scheme or plan.” State v. Gordon, 146 Kan. at 48. Gordon used the “single impulse” language of Hall to decide when a series of takings could be punished as one crime. Later cases continued the distinction. In State v. Roberts, 210 Kan. 786, 504 P.2d 242 (1972), cert, denied 414 U.S. 832 (1973), the court stated: “When property is stolen by a succession of takings from the same owner and from the same place, each taking is a separate crime if it results from a separate impulse or intent. However, if it appears that a single incriminating impulse or intent is involved in the successive takings, they constitute a single larceny.” Syl. ¶ 4. In Roberts, the defendant had taken two power drills from a hardware store and 83 records from another store. Either drill alone was less than the felony limit ($50), and the records could have been taken at several different times, according to the defendant. The court concluded that it was up to the jury to decide whether there was a single impulse. “The ‘single larceny doctrine’ permits a trier of fact to consider a series of larcenies, embezzlements, or other thefts to be the result of a single larcenous scheme. If the total amount stolen is valued above the statutory amount, the defendant can be found guilty of grand larceny.” (The court then reviews Hall and Gordon.) pp. 790-91. “Both of these cases speak of the ‘single larceny doctrine’ as a rule of evidence which will support a jury finding of grand larceny from evidence of a series of petty thefts which the jury infers to be part of a single plan, scheme, or single larcenous impulse.” p. 791. These conclusions were restated and upheld in two later cases. In State v. Green, 213 Kan. 547, 549, 516 P.2d 926 (1973), the court stated: “The single larceny doctrine is a rule of evidence, not a rule of law, which permits but does not require the trier of fact to consider a series of larcenies, embezzlements or other thefts to be the result of a single larcenous scheme. ... To try defendant on a series of petty thefts would constitute harassment, double jeopardy, bring criminal justice administration to a standstill, and would be unjust to the victim of the thefts. The necessity of applying the doctrine for purposes of charging defendant with grand theft does not prove guilt of grand theft. It merely provides the basis for a jury’s finding defendant’s acts constituted grand theft rather than a series of petty thefts.” The Green court also pointed out that the defendant was entitled to have the jury instructed on any “separate impulse” defense. In State v. Stoops, 4 Kan. App. 2d 130, 603 P.2d 221 (1979), the Kansas Court of Appeals discussed the doctrine and distinguished it. In Stoops, the defendant was charged with two counts of theft stemming from one act. He argued that the charges were multiplicitous but the court disagreed. “If we were to adopt the single larceny doctrine, it seems to us the test to be. applied to determine if there are separate offenses or only a single offense should be based on whether the evidence discloses one general intent to steal or distinct and separate intents. Each case necessarily would have to be decided on its own facts, and a defendant could be convicted of separate thefts only if the evidence showed the offenses to be separate and distinct and not committed pursuant to one intention, one impulse, or one plan. “As set forth earlier in this opinion, the Supreme Court has allowed a series of misdemeanor thefts to support a grand larceny conviction under the ‘single larceny doctrine’ where the thefts were part of a single plan or scheme, or a single larcenous impulse. State v. Roberts, 210 Kan. at 790-91. It seems highly inconsistent to allow multiple misdemeanor thefts to be combined to reach a level of felony theft on one hand and on the other to convict a person of multiple thefts when that person intended only a single theft and had no reason to know the property belonged to more than one person. “It is not necessary for us now to reject or adopt the single larceny doctrine, for the defendant here was properly convicted under either a single or multiple theory.” pp. 139-40. The basic principles of law established by these cases are essentially as follows: (1) Separate acts of theft or embezzlement may constitute felony theft if the acts were the result of one larcenous impulse or plan. (2) Whether or not the separate acts were the result of one larcenous impulse or plan is a question of fact to be determined by the jury. The question which we must determine is whether the single larceny doctrine may be applied in the two cases now before us involving unemployment fraud. This specific issue has not been determined by any Kansas appellate court. Each charge in this case is based upon K.S.A. 44-719. We believe that support for an application of the single larceny doctrine may be found in the legislative history of the unemployment fraud statute, K.S.A. 44-719. Prior to its amendment in 1973, the statute specifically provided that each “false statement or representation or failure to disclose a material fact shall constitute a separate offense.” K.S.A. 44-719 (Corrick). The 1973 amendment (L. 1973, ch. 206, § 1) struck that wording, indicating a legislative intent that the single larceny plan may apply in cases involving violations of K.S.A. 44-719. We have concluded that each case before us is a proper case for a jury determination as to whether the single larceny doctrine should be applicable so as to make a series of false representations a felony. We think it important to note that, in each case, the defendant had his own agreement or arrangement with the Kansas Department of Human Resources. The Department assigned to each defendant his own individual account number. The system is designed by statute so that unemployment compensation may be paid by continuing payments of benefits over a period of several weeks — provided the unemployed person remains unemployed and submits a signature benefit card reporting his wages earned to show his continuing eligibility for benefits. Although payments were made weekly to each defendant, they were paid pursuant to a single agreement or arrangement between the Department and each defendant. In each case there was involved a single victim, the State of Kansas. We see no logical reason why the single larceny doctrine, if proved to the satisfaction of a jury, should not be applicable to these cases. The single larceny doctrine has been applied in other states in cases involving both welfare benefits and un employment compensation. In People v. Soto, 76 Misc. 2d 491, 352 N.Y.S.2d 144 (1974), it was held that, if it could be established that welfare recipients concealed facts with the expectancy of receiving undeserved benefits on a continuing basis, the individual checks received by the recipients may be aggregated to sustain a felony charge. The court stated that, in order to establish a felony, the prosecution had the burden of proving a common plan or scheme to the satisfaction of the jury. Soto was followed in People v. Peck, 93 Misc. 2d 838, 403 N.Y.S.2d 624 (1978). In People v. Bailey, 55 Cal. 2d 514, 518, 11 Cal. Rptr. 543, 360 P.2d 39 (1961), it was held in a prosecution for grand theft by obtaining welfare payments that, “where as part of a single plan a defendant makes false representations and receives various sums from the victim the receipts may be cumulated to constitute but one offense of grand theft.” The court noted that the test to be applied in determining if there were separate offenses or one offense is whether the evidence discloses one general intent or separate and distinct intents. 55 Cal. 2d at 519. For similiar cases, see State v. Hatch, 346 N.W.2d 268 (N.D. 1984) (unemployment compensation); and State v. Wardlow, 366 So. 2d 508 (Fla. Dist. App. 1979) (fraudulent receipt of food-stamps). The only jurisdiction found in our research which applies a different rule for unemployment benefits is the State of Michigan. In People v. Robinson, 97 Mich. App. 542, 296 N.W.2d 99 (1980), it was held that the charge of larceny over $100 was defective because defendant had been issued nine separate benefit checks, eight in the amount of $84 and one in the amount of $63, and there was no basis for aggregating the checks. The court stated that, since there was a two-week interval between each of defendant’s nine larcenies and since each act necessitated an additional false statement, the nine larcenies did not satisfy the criterion for a single transaction so as to permit aggregation of the checks to permit the defendant to be charged with a felony. In the later case of People v. Vargo, 139 Mich. App. 573, 362 N.W.2d 840 (1984), the Michigan Court of Appeals held in a case involving welfare fraud that a series of payments could be aggregated where a series of payments was made on the basis of initial information furnished by the defendant. On the basis of the rationale and the various authorities cited above, we have concluded that the single larceny doctrine may be presented by the prosecution in each case now before us. It is for the jury to determine, under proper instructions, whether the single larceny doctrine is applicable. In these cases, it is not possible to determine whether the single larceny doctrine is applicable because the trial judge dismissed the complaint prior to trial. The trial judge erred in ruling as a matter of law that the complaints were defective, because Kansas law holds that the question of whether there was a single larcenous impulse is a question of fact to be determined by the jury. The proper way to charge a defendant under these circumstances is to have an information containing several counts. One count should charge a felony under the single larceny doctrine, and there should be alternative misdemeanor counts for each payment received in the event the jury rejects the single larceny theory. We hold that the trial court erred in dismissing the complaint against each of the defendants, Stephen M. Fox and Mark D. Lowe. The defendants in their combined brief raise an issue that the complaints were fatally defective because each complaint failed to allege that the accused obtained control over the State’s property with the intent to deprive the owner permanently of the possession, use, or benefit of said property. Although the defendants did not file a cross-appeal from any ruling in the trial court to raise the issue, we believe that question is covered by our decision in State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987). The judgments of the district court are reversed and the cases are remanded to the district court for further proceedings in accordance with the views expressed in this opinion.
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The opinion of the court was delivered by Lockett, J.: Plaintiff, Gregory E. Meyers, was injured when his car was struck by a car driven and owned by Jon A. Grubaugh, an intoxicated employee of the Kansas State Grain Inspection Department. Plaintiff filed an action against both the employee and the employer. The employee settled with the plaintiff and was dismissed from the action. Plaintiff claims because the State’s supervisors: (1) failed to properly supervise the conduct of its employee; (2) allowed the employee to become intoxicated while at work; and (3) allowed the employee to leave work early knowing he was intoxicated, the State has breached its duty to the plaintiff. The State filed a motion for summary judgment which was granted by the Wyandotte County District Court. Plaintiff appealed. We affirm the grant of summary judgment determining that because, absent special circumstances, a private employer would owe no duty to a third person for tortious acts of an employee who, after consuming alcohol on the em ployer’s premises, leaves the premises and, while off-duty, injures the third person, the State likewise owes no duty to plaintiff. During working hours on the afternoon of June 18, 1985, Grubaugh, in violation of state and federal law, consumed several cans of beer while seated in his car which was parked in a lot leased by the State. After obtaining permission to leave work early from his supervisor, Earl Sprung, Grubaugh left work at 3:00 p.m. At approximately 3:15 p.m., Meyers was injured when his vehicle, traveling eastbound on a state highway, was struck head-on by a westbound vehicle owned and driven by Grubaugh. At the time of the accident, Grubaugh was intoxicated and acting outside the scope of his employment. In his second amended petition against Grubaugh and the State, Meyers alleged the State was liable because its supervisors at the State Grain Inspection Department: (1) failed to properly supervise the conduct of its employee. (2) allowed Grubaugh to become intoxicated while under its control in violation of K.S.A. 41-719, K.S.A. 75-2949f(m) and (p), and 7 C.F.R. §§ 800.186 and § 800.195 (1987). (3) allowed Grubaugh to leave work early at which time it was known Grubaugh was intoxicated. The State filed a motion for summary judgment alleging immunity under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. The district court judge granted the State’s motion for summary judgment as a matter of law because: (1) a private party would not be liable under these facts; (2) the State is not liable to plaintiff for the failure of its agents to enforce laws which prohibit drinking on duty; (3) Grubaugh was acting outside the scope of his employment at the time of the accident; and (4) the State was immune under the discretionary function exception to the Kansas Tort Claims Act. Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, is required to search the record and determine whether issues of material fact exist. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Hunt v. Dresie, 241 Kan. 647, 652-53, 740 P.2d 1046 (1987). Reading the record in the light most favorable to Meyers, we must assume that the State knew that Grubaugh had consumed beer during working hours and knew that he was intoxicated when he was allowed to leave work early. Initially, we must determine whether the State of Kansas owed plaintiff a duty to supervise and control its intoxicated employee, so as to avoid foreseeable harm to others. The liability of the State for tortious conduct is governed by the Kansas Tort Claims Act. Under the Act, liability is the rule, subject to the statutory exceptions. Before reaching any of the exceptions, we must consider K.S.A. 75-6103(a), which provides: “Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” Pursuant to K.S.A. 75-6103(a), the State and its entities as employers bear no greater liability than would a private employer under the laws of this state. The Act creates no new. causes of action, and recovery under the Act requires the plaintiff to raise a recognized tort action and prove the essential elements of duty, breach of that duty, and injury proximately resulting from the breach. Cansler v. State, 234 Kan. 554, 558, 675 P.2d 57 (1984). Meyers claims that K.S.A. 41-805, which provides that any owner of any premises who knowingly allows alcohol to be consumed in violation of the Kansas Liquor Control Act shall be liable for the maintenance of a common nuisance, imposes civil liability upon the private owner of the premises to a third party who is injured by an individual who illegally consumed the alcohol. A similar claim under a different statute was rejected by this court in Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985). In Ling, a Missouri store vendor illegally sold alcohol to a minor who became intoxicated and caused injury to Ling in an automobile accident which occurred in Kansas. The majority of this court declined to impose third-party civil liability on the alcohol vendor. The majority reasoned that at common law, a plaintiff injured by the acts of an intoxicated person has no redress against the seller or furnisher of intoxicating liquor either on the theory that the dispensing of liquor constituted a direct wrong or on a negligence theory. The majority opined that the question of civil liability was best reserved for legislative action, even though the vendor’s act violated K.S.A. 41-715, which prescribes criminal penalties for providing alcohol to persons unlikely to be able to handle the consumption of alcohol. After Ling was decided, the Kansas Legislature declined to impose civil liability on a private vendor of alcohol when a violation of K.S.A. 41-715 resulted in injuries to a third party. The district court here, following our reasoning in Ling, correctly determined that K.S.A. 41-805 also does not impose civil liability on the State because it maintained a public nuisance. Meyers also claims that statutes, state departmental regulations, the State’s contract with the federal government, and the common law impose third-party liability on the State, as an employer, for the torts of one of its intoxicated employees. Meyers points out that the State is under a statutory duty to ensure that employees do not become intoxicated while at the workplace. K.S.A. 41-719 provides that no person shall drink or consume alcohol while on any property owned by the State. For additional support, Meyers cites the general rule that public officers and employees have a duty to supervise their employees. 63A Am. Jur. 2d, Public Officers and Employees § 301, p. 885. In addition, under its contractual agreement with the federal government, pursuant to 7 C.F.R. § 800.195(f)(4), the State is responsible for the direct supervision of its employees and for insuring that employees neither report for duty in an intoxicated or drugged condition nor consume intoxicating beverages or incapacitating drugs while on duty. Meyers concedes that, at most, the contract, the regulations, and statutes impose a duty upon the employer to supervise employees and ensure that they do not become intoxicated on the premises. The issue then becomes, to whom is this duty owed? Clearly, the purpose of the policies, regulations, and statutes is to ensure the quality of the work products of the employees, to protect the safety of the workplace, and to enforce the public policy against the consumption of alcoholic beverages on property owned or leased by the State. Meyers does not claim that the federal regulations and the State statutes recognize a duty to a third party whom the employee may injure while outside the scope of his employment. Rather than liability to a third party stemming from the violation of one of the regulations or statutes, Meyers contends that the employer’s duty to the general public is created by engrafting upon the regulations or statutes additional principles of modern common-law negligence, specifically the Restatement (Second) of Torts §§ 315, 317, and 319 (1963). Section 315 provides that there is no duty to control the conduct of a third person to prevent him from causing physical harm to another unless a “special relationship” exists between the actor and the third person or the actor and the injured party. Section 317 recognizes that the “special relationship” of employer and employee imposes a duty on the employer to exercise control over the employee acting outside the scope of employment under limited circumstances. Section 317 states: “§ 317. Duty of Master to Control Conduct of Servant “A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.” Comment (b) to § 317 states: “A master is required to police his own premises .... On the other hand, the master as such is under no peculiar duty to control the conduct of his servant while he is outside of the master’s premises, unless the servant is at the time using a chattel entrusted to him as servant.” This duty of the employer to control an intoxicated employee acting outside the scope of his employment was discussed in Pursley for Benefit of Clark v. Ford Motor, 462 N.E.2d 247 (Ind. App. 1984). There, the plaintiff sought recovery from an employer who allowed an employee to drink clandestinely on the job. After completing his shift and leaving the company premises, the intoxicated employee lost control of his car and killed the plaintiff s decedent. The court held that because the accident occurred off the premises and the employee was not using the employer’s chattel, § 317 did not apply and the employer had no duty to the injured party. 462 N.E.2d at 251. See also Pilgrim v. Fortune Drilling Co., Inc., 653 F.2d 982 (5th Cir. 1981) (employer not liable under § 317 to injured motorist for allowing employee to drive home in exhausted state). The holding in Pursley is also applicable to the facts of this case. Grubaugh was neither upon the employer’s premises at the time of the accident nor was he “using a chattel of the master.” Section 319 expands upon the “special relationship” of employer and employee of § 317 and imposes a duty on those in charge of a person having dangerous propensities, providing: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” This section of the Restatement has been relied upon recently by another jurisdiction to impose liability upon an employer for injury caused to a third party by an intoxicated employee. In oral argument, appellant argued that similar reasoning in Clark v. Otis Engineering Corp., 633 S.W.2d 538 (Tex. Civ. App. 1982), aff'd 668 S.W.2d 307 (Tex. 1983), has been adopted by this court in Cansler v. State, 234 Kan. 554, and Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), and that these cases are dispositive of the issues here. We disagree. In Clark, Robert Matheson, a machinist employed by Otis, had a history of drinking while on duty. One day, while working, Matheson went to his car in the parking lot and consumed alcohol. Fellow workers told Matheson’s supervisor that Matheson was inebriated and that the supervisor should “get him off the machine.” Prior to the end of his shift, the supervisor ordered Matheson to go home and accompanied Matheson to his car. A few minutes after leaving the workplace, Matheson’s car collided with another car, killing Matheson and the two occupants of the other car. Plaintiffs, widowers of the occupants of the other car, sued Otis. The employer, Otis, moved for summary judgment contending that it had no duty to restrain its employee, Matheson, or control his actions while he was off duty, off the premises, and driving his own vehicle. The trial court granted Otis summary judgment and plaintiffs appealed. The Texas Court of Appeals reversed the trial court’s grant of summary judgment and based its reasoning on § 319 of the Restatement, quoted above. The court reasoned that once an employer takes charge of an obviously intoxicated employee, the employer has a duty to act as a reasonable and prudent employer would under same or similar circumstances. The court held that whether the employer had “taken charge” of the intoxicated employee was a jury question; therefore, the trial court’s grant of summary judgment was improper. The Texas Court of Appeals distinguished other cases by stressing the alleged assumption of control by the employer over an obviously intoxicated employee likely to be dangerous to others. The Supreme Court of Texas affirmed and denied rehearing, 668 S.W.2d 307. Clark is distinguishable from the case at bar because here there are no facts which show that the employer took charge or assumed control over the intoxicated employee. Similarly, Cansler and Fudge are distinguishable. In Cansler the plaintiff, a Bonner Springs police officer, was shot attempting to apprehend individuals in a vehicle the officer had observed committing a moving violation. The officer sued for injuries caused by the State’s employees’ failure to properly warn him that armed and dangerous convicts had escaped from the Kansas State Penitentiary. Cansler involved the application of § 319 of the Restatement (Second) of Torts. We held that, because of the special relationship existing between the State, as custodian of prison inmates, and the inmates, the State was under a common-law duty to use reasonable care to prevent inmates from doing bodily harm to others, since the State knew these inmates would be likely to cause harm. 234 Kan. at 560. However, the common-law duty imposed upon the State was inherent in the relationship itself, namely the duty to confine the seven esca pees, all serving life terms. Moreover, when these dangerous criminals escaped from the state penitentiary, the State had a duty to alert area residents by a prearranged signal and to notify area law enforcement officers promptly through the usual police communications channels. No such duty is inherent in the employer-employee relationship. Therefore, Cansler is inapplicable. Fudge involved a wrongful death and survival action against a city arising from an automobile accident when police allowed an intoxicated driver to leave a tavern parking lot and proceed on the public highway. The police were subject to a Kansas City Police Department internal order (General Order 79-44), which required that an individual incapacitated by alcohol and likely to do injury to himself or others “will be taken into protective custody.” 239 Kan. at 372-73. The police had been summoned to a Kansas City bar to deal with a disturbance. Even though the officers observed the intoxicated condition of one of the bar’s patrons, they ordered him to leave. Then, as he drove away, the police observed him in a near accident with another police car, yet allowed him to proceed. Shortly afterwards, the car driven by the intoxicated patron struck a van driven by Fudge. Fudge died as a result of the accident. This court found a duty to the injured party based on the Restatement (Second) of Torts § 324A (1963) which provides: “Liability to Third Person for Negligent Performance of Undertaking “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.” That section clearly does not apply here. The State had not undertaken to render any services to its employee, Grubaugh, that it should have realized as necessary for the protection of others. Nor was the State subject to internal mandates setting out the procedure for dealing with an intoxicated employee. Courts have recognized limited instances in which an employer may be held liable for injuries to a third party caused by an employee acting outside the scope of employment. One exception concerns off-duty employees who are either on the employer’s premises or using a chattel owned by the employer. McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So. 2d 198 (Fla. Dist. App. 1970) (employer potentially liable for employee’s reckless driving on employer’s premises); Marusa v. District of Columbia, 484 F.2d 828 (D.C. Cir. 1973) (employer potentially liable for gunshot injury inflicted by employee required to carry gun at all times). The second exception occurs when the employer voluntarily and knowingly assumes a duty to control the employee. Clark v. Otis Engineering Corp., 633 S.W.2d 538 (employer affirmatively takes charge of intoxicated employee). A third exception results when an employer is negligent in employing or in retaining an employee who the employer knew or should have known was incompetent or unfit. Plains Resources, Inc. v. Gable, 235 Kan. 580, 682 P.2d 653 (1984) (court recognized employer in such cases liable for own primary negligence). None of these exceptions apply to this case. Actionable negligence must be based on a breach of duty. Existence of duty is a question of law. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). The district court’s grant of summary judgment was correct. Neither statutory nor general principles of negligence impose a duty upon the employer to the injured party in this case. Absent special circumstances, a private employer owes no duty to a third party for tortious acts of an employee who, after consuming alcohol on the employer’s premises, leaves the employer’s premises and while off duty injures the third party. Where no duty would be imposed upon a private employer, no duty will be imposed upon the State under the Kansas Tort Claims Act. Because of our decision on this issue, we do not reach the other issues raised. Affirmed.
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The opinion of the court was delivered by Allegrucci, J.: This is an action brought by a student for injuries sustained in a sledding accident on the campus of the University of Kansas (KU). The district court granted summary judgment against the plaintiff s personal injury action, holding that the defendants were immune pursuant to K.S.A. 75-6104(n). The plaintiff, Gregory Scott Boaldin, was a freshman at the University of Kansas. On February 10, 1985, it had snowed heavily in Lawrence and, on February 11,1985, plaintiff decided to go sledding on the campus at the encouragement of several friends. One of plaintiff s friends checked out three cafeteria trays from Ellsworth Residence Hall to use in sledding. Plaintiff was unable to check out a cafeteria tray since he was not a resident of Ellsworth Hall. The residence hall permitted students to check out trays for sledding purposes in order to prevent students from stealing the trays. Plaintiff and his friends went to the open area east of Ellsworth Hall known as Daisy Hill, where several other students were also sledding using food trays, cardboard boxes, trash bags, and other items. At the bottom of the hill, one of the paths in the snow went between two trees approximately eight feet apart. Plaintiff sledded for a half hour to 45 minutes, sledding down the path between the two trees twice, and sledding down the other paths approximately ten times. During the sledding runs, plaintiff had used both a cafeteria tray and a saucer sled owned by one of his friends. On the third time plaintiff went down the path which led between the two trees, he used the saucer sled. On his prior two trips down this path, he had used the saucer sled once and had used a cafeteria tray once. On the third run, plaintiff lost control of the saucer sled and hit one of the trees at the bottom of the path. Plaintiff suffered serious back injuries, requiring two surgeries. He presently wears leg braces and is able to stand or walk for short distances on flat surfaces. He is unable to climb stairs. Sledding is a winter tradition on the hills of the University of Kansas campus and, although university officers had discussed prohibiting sledding, they concluded that such a prohibition would be unenforceable. Students were permitted to check out cafeteria trays for sledding purposes in order to prevent the theft of the trays. Prior to this incident, it had been common knowl edge that food trays were used in sledding, but it was not common knowledge that the trays could be checked out. Trays were often stolen from the cafeteria, and the more common practice was to steal trays rather than to check them out. The Daisy Hill area where plaintiff was injured has been an open space for many years. In addition to sledding, the hill is used for football, soccer, baseball, softball, Frisbee throwing, sunbathing, and other sports. KU officials make no attempt to keep students out of the area, and the area is used by the public as well as by students. On May 10, 1985, plaintiff filed the present action, naming as defendants the University of Kansas, the Kansas Hoard of Regents, and the State of Kansas. After discovery, the district court, finding the provisions of K.S.A. 75-6104(n) applicable to the present case, sustained the defendants’ motion for summary judgment. The first issue raised by plaintiff on appeal is whether the district court erred in holding that K.S.A. 75-6104(n) is applicable in the present case. K.S.A. 75-6104 provides, in part: “A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from: “(n) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.” On appeal, plaintiff advances three arguments in support of the contention that subsection (n) is inapplicable in the present case. First, plaintiff argues that the Daisy Hill area should not be considered land within the meaning of subsection (n), since there are no specific rules at the university establishing Daisy Hill as a recreational area. In particular, plaintiff notes that, while other areas of the KU campus have been expressly designated as recreational areas, the Daisy Hill area has not been so designated. Plaintiff s argument ignores the language of subsection (n). The immunity provided by subsection (n) is not limited merely to areas which have been expressly designated as recreational in nature by a governmental entity. Rather, subsection (n) provides immunity where an injury has arisen on “any public property intended or permitted to be used as a park, playground or open area for recreational purposes.” Under the plain and unambiguous wording of the statute, a governmental entity which permits public property to be used as a park, playground, or open area for recreational purposes is immune from damages arising from negligence. In the present case, the evidence is uncontradicted that KU permitted the Daisy Hill area to be used, both by students and by the public, for recreational purposes. Although the Daisy Hill area has not been expressly designated as a recreational area, it is beyond question that the university has permitted the area to be used as a park, playground, or open area for recreational purposes. In his second argument, plaintiff argues that subsection (n) is not applicable in cases in which the governmental entity being sued is not a municipality. Plaintiff supports this argument by noting, first, that all of the published decisions of this court involving subsection (n) have involved defendant municipalities. Moreover, plaintiff notes that, of the provisions of K.S.A. 75-6104, subsections (j), (k), (1), (m), (n), and (o) were passed as a result of the lobbying efforts of the Kansas League of Municipalities. Plaintiff therefore argues that the public parks provision of subsection (n) applies only to cases in which the governmental entity is a municipality. We are not convinced by plaintiff s argument. Although certain provisions of the Kansas Tort Claims Act may have received the lobbying support of the Kansas League of Municipalities, that is insufficient to compel the conclusion that these provisions of the Tort Claims Act are inapplicable to the state or its agencies. In construing a statute, courts are not justified in disregarding the clear intent of the statute appearing from its plain and unambiguous language. State v. Haug, 237 Kan. 390, 699 P.2d 535 (1985). In the present case, the immunity provisions of subsection (n) apply to any “governmental entity or an employee acting within the scope of the employee’s employment.” The Tort Claims Act expressly defines the term “governmental entity” to mean either the state or a municipality. K.S.A. 75-6102(c). Finally, the plaintiff argues that the provisions of subsection (n) should apply only where the injury occurs in an area which is “part and parcel of a specific defined area which was utilized mainly for recreational purposes.” Again, the argument of the plaintiff ignores the plain language of subsection (n), which provides for immunity where a governmental entity has permitted public property to be used as an open space for recreational purposes, and not merely where the governmental entity specifically designates certain property as recreational in nature. The plaintiff contends that, if subsection (n) is applied to property other than that which has been expressly designated as recreational, then governmental entities would also escape liability for personal injuries arising on sidewalks or public streets, since such areas are sometimes used for recreational purposes. We do not agree. This court has recognized a duty on the part of governmental entities to maintain public streets and public sidewalks in a condition reasonably safe for use. See, e.g., Sepulveda v. Duckwall-Alco Stores, Inc., 238 Kan. 35, 39, 708 P.2d 171 (1985); Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984); Warden v. City of Wichita, 232 Kan. 838, 658 P.2d 1043 (1983); Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634 (1966); Taggart v. Kansas City, 156 Kan. 478, 480, 134 P.2d 417 (1943). A holding that subsection (n) applies in the present case will not affect or vary the responsibility of governmental entities to maintain public streets and public sidewalks, since this responsibility has been recognized to exist independent of subsection (n). In the present case, the facts establish that the University of Kansas permitted the Daisy Hill area to be used for recreational purposes. The Daisy Hill area was used extensively for recreational purposes, both by the students of the university and by members of the public. The plaintiff received his injuries while using the Daisy Hill area for a recreational purpose. Applying the plain and unambiguous terms of K.S.A. 75-6104(n), the named defendants cannot be held liable for injuries allegedly resulting from the negligence of the defendants. The second issue raised by plaintiff on appeal is whether the district court erred in holding that the plaintiff had failed to show gross or wanton negligence on the part of the defendants. In Lee v. City of Fort Scott, 238 Kan. 421, Syl. ¶ 1, 710 P.2d 689 (1985), this court set out the test for establishing gross and wanton negligence: “Proof of a willingness to injure is not necessary in establishing gross and wanton negligence. This is true because a wanton act is something more than ordinary negligence but less than willful injury. To constitute wantonness the act must indicate a realization of the imminence of danger and a reckless disregard or a complete indifference or an unconcern for the probable consequences of the wrongful act.” This court emphasized in Lee that there must be evidence “to establish a realization of the imminence of danger and a reckless disregard or complete indifference to the probable consequences.” 238 Kan. at 424 (quoting Britt v. Allen County Community Jr. College, 230 Kan. 502, 510, 638 P.2d 914 [1982]). The plaintiff argues that, even if the immunity provisions of the Kansas Tort Claims Act are held to apply in the present case, summary judgment was improper since the university or its agents might have been grossly negligent in their conduct regarding sledding on campus. K.S.A. 75-6104(n) provides protection for governmental entities and their employees only for actions resulting from negligence,' and does not provide protection for injuries resulting from gross or wanton negligence on the part of the governmental entity or employee. It is a well-established rule that, in considering a motion for summary judgment, the party against whom the motion is directed is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts. Willard v. City of Kansas City, 235 Kan. 655, Syl. ¶ 1, 681 P.2d 1067 (1984). Plaintiff contends that, in viewing the record, the facts and reasonable inferences drawn therefrom support his claim of gross and wanton negligence. He first points out that the defendants were aware of the tradition of sledding in this area. In addition, sledding was encouraged by allowing food trays to be checked out for that purpose. Further, defendants knew that obstacles such as trees existed on some of the hills where students were sledding, and that students were attempting to sled between two closely situated trees behind Ellsworth Hall. One student had been injured in a prior attempt to negotiate between the two trees. Plaintiff argues that the failure of the university to prohibit sledding on campus or to install warning signs or padding around the trees near sledding areas constitutes gross and wanton negligence, for which the university receives no protection under K.S.A. 75-6104(n). We do not agree. In Lee, this court, finding that the public park provisions of K.S.A. 75-6104(n) applied to a park maintained by the defendant city, held that there was insufficient evidence in the record to establish gross or wanton negligence on the part of the defendant city. 238 Kan. at 425. The factual allegations in Lee, which we found did not constitute gross or wanton negligence, reflect much more serious misconduct than that which is asserted in the present case. In the present case, the plaintiff charges that the university was grossly negligent in failing to prevent the hazards which caused his injury. In Lee, the defendant city was charged not with merely failing to prevent the decedent’s injuries but, rather, with affirmatively creating the hazards which caused the injuries and death of the plaintiffs’ son. In Lee, the defendant city had strung steel cables between the trees surrounding the golf course in the city’s park. The steel cables were strung in order to prevent motorcyclists from traveling across the golf course, a problem which the city had experienced in the past. The son of the plaintiffs, while riding a motorcycle, struck the steel cables and received injuries ultimately resulting in his death. Allowing the cafeteria trays to be checked out was not done to encourage sledding, but to prevent the trays from being stolen for that purpose. It did not work because students continued to steal the trays rather than check them out. The plaintiff could not and did not check out a tray, nor was he using a tray at the time of the accident. The fact that defendants were aware of sledding on campus and that prior accidents had occurred is not evidence of gross and wanton conduct. Almost every recreational activity has risks of injury, and that is the reason for adopting a provision such as K.S.A. 75-6104(n). If permitting recreational activity to occur knowing that injury may result is to be considered gross and wanton conduct, then every governmental entity in this state would be guilty of gross and wanton conduct. To adopt plaintiffs argument would render meaningless the exception from liability as contained in K.S.A. 75-6104(n). The recognition of the danger occasioned by sledding between two trees was best articulated by the University Director of Housing: “Any time you attempt to sled close to an immovable object, that is bad judgment. The hill is not dangerous. The tree is not dangerous. The judgment is what’s dangerous.” We find the evidence failed to establish gross and wanton negligence by the defendants, and therefore the defendants are immune from liability pursuant to K.S.A. 75-6104(n). The judgment of the trial court is affirmed.
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The opinion of the court was delivered by Allegrucci, J.: The plaintiff, Robert Danes, filed the present civil action against the defendant, St. David’s Episcopal Church, alleging that he had received personal injuries as a result of the defendant’s negligence. Plaintiff appeals from an order of the district court granting summary judgment in favor of the defendant. Plaintiff is an associate professor of music at Washburn University, Topeka, Kansas, where he has been employed since 1973. In 1975, plaintiff entered into an oral agreement with the defendant, St. David’s Episcopal Church, under which he would undertake to provide the services of organist and choirmaster for the defendant. On October 19, 1981, plaintiff and defendant entered into a written agreement governing plaintiff s services for defendant. On October 26, 1984, plaintiff filed a petition in Shawnee County District Court, giving rise to the present action. Plaintiff alleges in the petition that, while making adjustments to the organ at the church, he was injured when a ladder furnished by defendant collapsed, thereby causing him severe injuries. The defendant filed a motion for summary judgment, contending that plaintiff was an employee of the defendant and not an independent contractor. The district court granted summary judgment in favor of defendant, ruling that plaintiff was an employee and not an independent contractor and, as such, his exclusive remedy was pursuant to the Workmen’s Compensation Act. The memorandum decision was signed by the district court and filed with the court on September 2, 1986. Although the memorandum decision does not indicate the method by which the parties were served with notice of the court’s decision, the parties agree that a copy was mailed to counsel for the parties. On September 15, 1986, plaintiff filed a motion for new trial. The district court overruled the motion on January 15, 1987. Plaintiff filed a notice of appeal with the district court on February 12, 1987. We must first determine if this court has jurisdiction to hear this case on appeal. The defendant contends we do not due to plaintiffs failure to timely file his motion for new trial. K.S.A. 60-2103(a) requires that civil appeals from a district court must be taken within 30 days of the entry of judgment. The statute also provides that the running of the time limit for an appeal may be terminated by timely filing a motion to alter or amend a judgment, or a motion for new trial. In the present case, although the plaintiff filed a motion for new trial, the motion in substance was a motion to alter and amend the judgment of the district court, and the district court essentially treated the motion as a motion to alter and amend. Under K.S.A. 60-259(f), a motion to alter or amend a judgment must be served and filed not later than 10 days after entry of judgment. The plaintiff did not file the present appeal within the 30-day time limit required by statute. Whether the time limit contained in K.S.A. 60-2103(a) was tolled by plaintiff s postjudgment motion depends upon the timeliness of that motion. If plaintiff s posljudgment motion, which effectively sought to alter or amend the judgment, was not timely filed, this court is without jurisdiction to hear the present appeal. Plaintiff argues that his postjudgment motion was timely and relies upon Supreme Court Rule 134 and K.S.A. 60-206. Supreme Court Rule 134 governs the issuance of notice of a district court’s rulings: “Whenever a judge shall make a ruling on a motion or application of any kind and there are parties affected who have appeared in the action but who are not then present, either in person or by their attorneys, the judge shall cause written notice of such ruling to be mailed to the parties or attorneys forthwith.” (1987 Kan. Ct. R. Annot. 72). K.S.A. 60-206(e) provides: “Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him or her and the notice or paper is served upon him or her by mail, three (3) days shall be added to the prescribed period.” The defendant argues that K.S.A. 60-206(e) does not serve to expand the time in which the plaintiff might file a postjudgment motion. Defendant contends that subsection (e) applies only where a party has the right or the obligation to do some act within a certain time period “after the service of a notice or other paper,” while K.S.A. 60-259 requires that motions for new trial and motions to alter or amend a judgment must be made not later than 10 days “after entry of the judgment.” Defendant, therefore, argues that K.S.A. 60-206(e) did not give plaintiff an additional three days in which to respond by filing a postjudgment motion and, as a result, his motion was filed out of time. We do not agree. K.S.A. 60-258 governs the entry of judgment. The statute provides, in part: “No judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. . . . “When judgment is entered by judgment form the clerk shall serve a copy of the judgment form on all attorneys of record within three days. Service may be made personally or by mail. Failure of service of a copy of the judgment form shall not affect the validity of the judgment.” While “entry of the judgment” occurs upon the signature and filing of the district court’s decision, this court has recognized that the timing requirements for posljudgment motions and for appeals may begin to run not upon the entry of judgment but upon notice of the entry of judgment. In Daniels v. Chaffee, 230 Kan. 32, 630 P.2d 1090 (1981), counsel was not notified of the filing of the journal entry until six months after it was filed by the trial judge. The plaintiff contended that such failure to notify did not extend the appeal time. We held: “Applying a liberal interpretation of K.S.A. 60-258 and construing that statute along with the other statutes mentioned and Rule No. 134, we hold that, where a trial court enters judgment without giving notice to the parties or counsel as required by K.S.A. 60-258 and Rule No. 134, a valid judgment is entered which is subject, however, to being set aside when attacked by post-judgment motions and proceedings. The time for filing post-judgment motions or taking an appeal from a final judgment entered without notice commences to run when there has been a compliance with K.S.A. 60-258 and Rule No. 134.” 230 Kan. at 38. The defendant attempts to distinguish Daniels on the basis that the trial court in Daniels had failed to mail notice of its decision, as required by K.S.A. 60-258, while the clerk of the district court in the present case mailed notice of the court’s decision. This is a factual distinction which ignores the policy concerns we expressed in Daniels. We stated: “In each individual case, a rule of reason must be applied to insure that the rights of the parties are protected and that they are not denied their legal rights through forces beyond their control.” 230 Kan. at 38. Although a literal reading of the statutes involved in Daniels would have required a finding that the post-trial motion was not timely filed, we rejected such a literal interpretation, noting that the code of civil procedure must be construed “to secure the just, speedy, and inexpensive determination of every action or proceeding.” 230 Kan. at 37; K.S.A. 60-102. In addition, under K.S.A. 60-265, the code “is to be applied with flexibility to see that justice is done in a particular case.” 230 Kan. at 37. In Daniels, we held that the interests of justice and a liberal interpretation of the statutes required indefinitely expanding the time for the filing of postjudgment motions until the trial court has complied with the provisions of K.S.A. 60-258 and Supreme Court Rule 134 requiring the service of notice to the parties to the action. In the present case, the issue does not involve an indefinite extension of the time in which to file postjudgment motions, but the three-day extension provided by K.S.A. 60-206(e). The same interests of insuring a just resolution of every action which required a liberal interpretation of the statutes in Daniels also requires that K.S.A. 60-206(e) be applied in the present case. In Atkinson v. U.S.D. No. 383, 235 Kan. 793, 684 P.2d 424 (1984), we held that, when aboard of education mails a notice of its decision to a teacher, the time for the teacher to appeal the board’s decision does not begin to run until the decision is mailed. 235 Kan. at 798. We also held that K.S.A. 60-206(e) applies and provides a 3-day extension of time to the normal period during which the teacher may appeal the board’s decision. 235 Kan. at 799. Although Atkinson involves different statutes than those now before us in the present case, the rationale is applicable to the present case. K.S.A. 60-2101(d) governs appeals from administrative boards and requires the appeal to be filed within 30 days of the “entry” of the board’s judgment. K.S.A. 60-2101(d) is, therefore, analogous to K.S.A. 60-259, which requires the filing of postjudgment motions to be not later than ten days after “entry of the judgment.” In Atkinson, however, this court, relying upon K.S.A. 72-5443, which requires a school board’s decision to be submitted to the teacher, determined that the time for the filing of an appeal by the teacher did not commence until the board’s judgment had been submitted to the teacher. We said: “The Board contended that subsection (e) should not be applied because service of a notice is not required as a condition for an appeal. The majority of the Court of Appeals reasoned K.S.A. 72-5443 required the Board to submit its decision to the teacher. They had determined that it is the submission which triggers the right to appeal. The use of the word submitted, rather than served in K.S.A. 72-5443 was of little consequence. It was the submission of the Board’s decision by mail which required plaintiff to file her notice of appeal within a 30-day period for appeal or forfeit the right. Therefore, when the Board submitted its decision to the teacher by mail it brought into play the provisions of K.S.A. 60-206(e), which increased the 30-day filing period to 33 days. It is held that when notice of a school board’s decision as required by K.S.A. 72-5443 is submitted by mail, and it is the submission of this decision which commences the time to take an appeal, the three-day extension of time permitted by K.S.A. 60-206(e) applies.” 235 Kan. at 799. In the present case, K.S.A. 60-258 and Supreme Court Rule 134 require that notice be given to the parties involved in the litigation. Thus, although different statutes are involved, we find the rationale expressed in Atkinson to be persuasive when applied to the present case and conclude that, where notice of the entry of judgment is mailed in compliance with K.S.A. 60-258 and Rule 134, the time for filing posljudgment motions or taking an appeal starts to run when the notice is mailed, and the three-day extension as provided in K.S.A. 60-206(e) applies. Since plaintiff s posljudgment motion was filed within 13 days of the trial court’s decision, the posljudgment motion effectively terminated the running of the time for the plaintiff to file an appeal. This court therefore has jurisdiction to address the present appeal, and we turn now to the primary issue raised by the plaintiff in this appeal. Plaintiff contends that the district court erred in granting summary judgment on behalf of the defendant. The district court adopted as findings of fact the following contentions of uncontroverted facts cited by the defendant: “1. St. David’s Episcopal Church contracted with plaintiff Robert Danes for his services as organist-choir master at the church. . . . “2. On October 19, 1981, the vestry of St. David’s Episcopal Church, which negotiates contracts for defendant, entered into a written agreement with plaintiff Robert Danes for the position of organist/choirmaster at the church at a salary of $555.00 per month retroactive to July 1, 1981. . . . “3. The original contract between plaintiff and defendant was renewed on a yearly basis until January 1,1983, when the present written contract superseded the original written contract. . . . “4. Aside from the amounts of compensation and the scheduling of summer leave time, the original contract was essentially the same as the present one dated January 1, 1983. . . . “5. Reverend Crews became pastor at St. David’s Episcopal Church on September 15, 1982. . . . “6. As Pastor of St. David’s Episcopal Church, the Reverend William Crews has ultimate authority and control over the selection of music and the details of its performance for St. David’s Church. . . . “7. According to the Canons of the Episcopal Church: “ ‘It shall be the duty of every Minister to see that music is used as an offering to the glory of God and as a help to the people in their worship in accordance with the Book of Common Prayer and as authorized by the rubrics or by the General Convention of this Church. To this end, the Minister shall have final authority in the administration of matters pertaining to music. In fulfilling this responsibility the Minister shall seek assistance from persons skilled in music. Together they shall see that that music is appropriate to the context in which it is used.’ “8. Upon Reverend Crews’ arrival at St. David’s, he instituted weekly staff meetings with Dr. Danes. . . . “9. The Rector of St. David’s always gave instructions for the particular services to be conducted at the church on a weekly basis and how the services were to be performed. . . . “11. In 1982 and specifically December of 1982, the Rector of St. David’s selected hymns for each service. . . . “12. The Rector gives signals or cues from the altar at the beginning of liturgical chants. . . . “13. In the relationship between plaintiff and defendant, the final decision in the selection and approval of a substitute organist is left to the defendant through the rector. . . . “14. The rector determines at what time Danes is to play the offertory hymns, anthems etc. . . . “15. Plaintiffs contract with St. David’s specified the services at which he was to perform. . . . “16. The rector has canonic charge of all services and makes final decisions concerning the need for an anthem, offertory, choir music, etc. including the amount, nature and type of music. . . . “18. The church pays for a substitute during Danes’ summer vacation as required by the parties’ contract. . . . “19. The organ located at St. David’s Church belongs to the defendant. . . . “20. Defendant has supplied at its own cost the organ which plaintiff plays pursuant to this agreement with the defendant. . . . “31. Reverend Crews had no knowledge or notice of any prior falls from the ladder on which plaintiff claims to have been injured on December 24, 1982. . . . “32. Plaintiff was not aware of any falls from the ladder on which he was injured prior to December 24, 1982.” The district court also adopted the following contentions of uncontroverted facts cited by the plaintiff: “1. That Plaintiff has previously worked as a consultant for churches. . . . “2. That at times Plaintiff uses or has used the organ at St. David’s for private lessons. . . . “4. That the vestry approved the Plaintiff s recommendation for the builder of the church organ and relied upon Plaintiff through the stages of the contract. . . . “6. That the church consults or consulted with Plaintiff as to what repairs are needed on the organ and who should perform them. . . . “8. That guest organist or recitalists could not be engaged to perform musical functions without prior approval by the regular organist. . . . “10. That prior to December 1982 Plaintiff was not called in or asked to attend a meeting of the vestry to discuss the organ music. . . . “11. That Plaintiff had selected the organ music and choral music for the 1984 Christmas Eve services at St. David’s. . . . “12. That Defendants had previously provided a different ladder for Plaintiff s use. . . . “14. That Plaintiff had not seen the ladder in question prior to December 24, 1984 . . . and had not used said ladder prior to December 24, 1984. . . . “15. That Mr. Robert Alward informed Plaintiff that he had obtained the ladder in question. . . . “16. That Plaintiff considered himself an independent contractor. . . . “17. Defendant did not set aside or pay any withholdings from Defendant’s compensation. . . . “18. That Plaintiff was paid at a set annual rate. . . . “19. That Plaintiff s W-4 forms from Defendant indicated that compensation paid was not employee compensation. . . . “21. Defendant did not and does not provide any health insurance benefits for Plaintiff. . . .” Finally, the district court also found the following facts to be uncontroverted: “1. Reverend Crews, rector of St. David’s Episcopal Church, discussed matters concerning volume and tempo of music performed for church services with the plaintiff. “2. The plaintiff received two Sundays sick leave per year with pay. “3. The defendant could discharge the plaintiff upon ninety days notice.” Based upon these facts, the district court concluded that plaintiff was an employee and not an independent contractor, and granted summary judgment in favor of the defendant. On appeal, plaintiff first takes issue with several of the factual determinations made by the district court. Most of the determinations with which the plaintiff now takes issue are based upon the contentions of uncontroverted fact contained in the defendant’s original motion for summary judgment. A review of the record indicates that the plaintiff did not properly respond to these contentions of uncontroverted fact in his reply to the defendant’s motion for summary judgment, and the district.court did not err in adopting these contentions within its findings of fact. Supreme Court Rule 141(b) (1987 Kan. Ct. R. Annot. 79) requires that a party opposing a motion for summary judgment present a memorandum setting forth the facts and contentions, including “a concise summary of conflicting testimony or evidence.” In Reubke v. Globe Communications Corp., 241 Kan. 595, 738 P.2d 1246 (1987), this court held that, when a party opposing a motion for summary judgment fails to comply with Rule 141(b), the district court is vested with the discretion to deem that the opposing party has admitted the uncontroverted contentions of fact and that the district court’s sound discretion will not be disturbed on appeal without a clear showing of abuse. 241 Kan. at 604. In the present case, in the plaintiffs original memorandum in opposition to the defendant’s motion for summary judgment, the plaintiff, in most instances, merely alleged that the cited contentions of uncontroverted fact were “controverted” or “contested,” without any citation to any factual authority. The trial court did not abuse its discretion and correctly found there was no genuine issue as to any material fact. “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.” Hollingsworth v. Fehrs Equip. Co., 240 Kan. 398, 400, 729 P.2d 1214 (1986); Peoples Nat’l Bank & Trust v. Excel Corp., 236 Kan. 687, 695, 695 P.2d 444 (1985); Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984). An appellate court reviewing a grant of summary judgment must read the record in the light most favorable to the party who defended against the motion for summary judgment. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 4, 662 P.2d 1203 (1983); Dugan v. First Nat’l Bank in Wichita, 221 Kan. 201, 206, 606 P.2d 1009 (1980). We have held that, if the general rules relating to summary judgment are met, summary judgment may serve as an appropriate vehicle for resolving an agent’s status as an employee under the provisions of the Workmen’s Compensa tion Act. Hollingsworth, 240 Kan. 398. In Anderson v. Beardmore, 210 Kan. 343, 502 P.2d 799 (1972), we held that an employee cannot maintain a common-law action for negligence against his employer. However, in the present case, plaintiff contends he was an independent contractor and not an employee and, therefore, the defendant was not entitled to summary judgment as a matter of law. In support of his contention, the plaintiff relies upon two federal decisions, Cutler v. United States, 180 F. Supp. 360 (1960), and Nebraska Nat. Hotel Co. v. O’Malley, 63 F. Supp. 26 (1945). In both cases, the federal court held that the musician-bandleader, for federal tax purposes, was an independent contractor rather than an employee. However, as this court has noted, each case will necessarily turn upon its own facts and a review of the circumstances existing in Nebraska Nat. Hotel and Cutler indicates that those decisions are not relevant to the present case. Both decisions deal with the employment status of bandleaders who were, in turn, responsible for other musicians playing in their bands. In Cutler, the court held that, while the plaintiff-bandleader was an independent contractor, the musicians within the band were employees of the bandleader. In the present case, on the other hand, the issue involves the nature of the employment relationship between a single employer and the single musician it has engaged to perform music on designated occasions. In Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 689 P.2d 787 (1984), the issue of employee or independent contractor was before this court and we said: “The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is . . . performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. Jones v. City of Dodge City, 194 Kan. 777, 402 P.2d 108 (1965).” 236 Kan. at 102-03. In McCarty v. Great Bend Board of Education, 195 Kan. 310, 311-12, 403 P.2d 956 (1965), we stated: “In general, it may be said that an independent contractor is one who, in the exercise of an independent employment, contracts to do a piece of work according to his own methods and who is subject to his employer’s control only as to the end product or final result of his work. [Citation omitted.] On the other hand, an employer’s right to direct and control the method and manner of doing the work is the most significant aspect of the employer-employee relationship, although it is not the only factor entitled to consideration. An employer’s right to discharge the workman, payment by the hour rather than by the job, and the furnishing of equipment by the employer are also indicia of a master-servant relation.” Each case must be decided on the basis of the facts peculiar to it. “There can be no absolute rule for determining whether an individual is an independent contractor or an employee. It is the facts and circumstances in each case that determine whether one is an employee or an independent contractor. “. . . It is often difficult to determine whether a person is one or the other, since there are elements pertaining to relations which occur without being determinative of the relationship. There is no exact method which may be employed to determine whether one is an employee or an independent contractor.” Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. at 102. Two facts are stressed by the plaintiff in his argument that he was an independent contractor rather than an employee. First, he points out that, under the contract, the defendant could not engage a guest organist or recitalist without prior approval by the plaintiff. Second, plaintiff notes that the defendant did not set aside or pay any employee withholdings from his compensation, and plaintiff s W-4 forms from the defendant indicated that the compensation was non-employee compensation. However, the fact that an employer does not withhold social security or income tax from an agent’s compensation does not alone establish the agent’s status as an independent contractor. See Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. at 106. Under the contract between plaintiff and defendant, the church rector was given the authority to determine the time plaintiff performed. The church rector also possessed the authority to make final decisions concerning the amount, nature, and type of music that was to be played. The trial court’s findings of fact also indicate that the church’s rector possessed the ultimate authority and control over the plaintiff s performances, not only as to the selection of music but also as to the “details of its performance.” The defendant paid the plaintiff by the month and also possessed the ability under the contract to discharge him upon ninety days’ notice. Finally, the defendant supplied the instrumentality that was the basis for plaintiff s services — the church organ. In light of these facts, the trial court correctly determined that plaintiff was an employee rather than an independent contractor. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by Prager, C.J.: This is an action brought by Larry Leaming, a teacher, against Unified School District No. 214, Ulysses, Kansas, alleging wrongful termination of his teaching contract and a denial of due process by failure of the school board to provide a fair hearing as required by law. In this action, the plaintiff sought recovery of damages, compensatory and punitive, and an injunction requiring plaintiff s reinstatement as a teacher and prohibiting the school board from terminating his teaching contract. In a separate action, brought against the school superintendent, Dr. Timothy Rundus, plaintiff sought recovery for tortious interference with his teaching contract. The district court entered judgment in favor of the defendant in each case, and plaintiff brought a consolidated appeal. The essential facts in the case are not in dispute and basically are as follows: (1) Plaintiff was an employee of U.S.D. No. 214 for the school year 1982-83 pursuant to a written contract dated May 11, 1982. (2) In the spring of 1983, Caroline Arrott and Patti Williams, high school students in U.S.D. No. 214, qualified for the International Science Exhibition Fair (ISEF) meeting in Albuquerque, New Mexico, to be held May 9-14, 1983. The superintendent of U.S.D. No. 214, Dr. Timothy Rundus, was informed that the plaintiff, Larry Learning, a seventh grade science teacher, intended to accompany the two girls to the meeting in Albuquerque. Since Learning had not made a formal request to be in attendance at the meeting, Dr. Rundus contacted Learning on May 3, 1983, and Learning advised Dr. Rundus that he intended to attend the meeting. He was informed by Dr. Rundus that he had teaching responsibilities and that he would not be given permission to go due to the fact that the two girls were not under his jurisdiction. He also told Learning that there was a lack of planning and poor communication with the building principal and the administration concerning the trip. (3) On May 5, 1983, the plaintiff was again advised by the superintendent that he would not be allowed to make the trip. Plaintiff stated that he understood perfectly and it was quite clear to him, but that he intended to go anyway. He was informed that this was unacceptable and he was encouraged to consider carefully the alternatives, but that if he chose to go, his resignation should be submitted to U.S.D. No. 214 by 4:00 p.m. on May 6, 1983. (4) On May 7, 1983, plaintiff called the superintendent and advised him that it was his intent to leave school on May 9, 1983, to attend the science fair. The superintendent urged him to reconsider and encouraged him to have someone else go. Dr. Rundus told Learning that, if he did go without submitting his resignation, Rundus would make a recommendation to the board of education that he be suspended, or that the board make some other arrangement concerning his contractual obligation with the district. The superintendent advised the plaintiff that the possible consequences of his action were (1) suspension from teaching duties without pay; (2) forfeiture of pay for time absent from teaching duties; and (3) nonrenewal of his teaching contract. Plaintiff contends that the superintendent told him that he would recommend to the Board that he be suspended for two weeks with pay. (5) Plaintiff left to attend the science fair at 8:30 on the morning of May 9, 1983, and a substitute teacher was secured to teach his classes. (6) Plaintiff admitted that he committed an act of defiance toward the administration of U.S.D. No. 214, and that his superior, the superintendent, made a statement to him that he was not to attend the science fair. He went anyway, notwithstanding that he had been advised that his contract would be in jeopardy. (7) Plaintiff admitted that he signed a contract with U.S.D. No. 214 in which he agreed to obey the rules and regulations of the board of education and the directions of the superintendent of schools. He also admitted that he did not obey the directions of the superintendent and defied him in attending the science fair the week of May 9-14, 1983. (8) On May 12, 1983, the superintendent of U.S.D. No. 214 sent a letter to the plaintiff advising him that an inquiry as to his alleged breach of duty as a teacher would be held by the board of education at 7:45 a.m. on May 16, 1983. The letter advised the plaintiff that his presence was expected for the purpose of establishing the facts concerning his absence from work and that decisions would be made at that time concerning his status as a teacher. (9) On May 16, 1983, at a special meeting of the board of education of U.S.D. No. 214, the six members present unanimously terminated the plaintiff s continuing contract for the 1983-84 school year on the basis of the plaintiff s violation of the contract terms. (10) On May 16, 1983, pursuant to K.S.A. 72-5437 and K.S.A. 72-5438, the plaintiff was notified of the termination. (Note: hereafter all relevant statutes are cited to the 1980 Ensley statute book.) (11) On May 27, 1983, pursuant to K.S.A. 72-5438, the plaintiff requested the matter be heard by a hearing committee and designated Melvin Wilson as a member of the committee. (12) U.S.D. No. 214 designated Richard M. Pickier as a hearing committee member, and he and Melvin Wilson designated Larry Kepley, to act as chairman of the committee. (13) On January 20,1984, a hearing was held pursuant to K.S.A. 72-5442 by the hearing committee. Testimony was recorded and cross-examination was afforded to all parties. (14) Upon request of plaintiff and by agreement a continuation of the January 20, 1984, hearing was granted and a second hearing was held on March 31, 1984. The plaintiff appeared and testified. The hearing was recorded and cross-examination was afforded all parties. (15) Subsequent to the hearing on March 31, 1984, the hearing committee rendered a written opinion finding the following: a. That Larry Learning was employed by U.S.D. No. 214 by written contract; b. that Dr. Timothy Rundus, superintendent of U.S.D. No. 214, specifically forbade Larry Learning from attending an ISEF meeting in Albuquerque, New Mexico, May 9-14, 1983; c. that Larry Learning personally knew he was not to attend the above function and such knowledge thereof was specifically and personally communicated to him by Superintendent Rundus; d. that despite such directive of forbearance, Larry Learning left his teaching position at U.S.D. No. 214 between May 9-14, 1983, and did not report to his teaching position in U.S.D. No. 214 during the dates indicated; e. that Larry Learning was in violation of his teaching contract in that he failed to obey the rules and regulations of the board of education and that he failed to obey the directives of the superintendent of U.S.D. No. 214; £ that this hearing committee upheld and sustained the decision of U.S.D. No. 214 terminating the 1983-84 teaching contract of Larry Learning. (16) The recommendation of the hearing committee was submitted to plaintiff and to defendant, U.S.D. No. 214. (17) Plaintiff did not request the board of education of U.S.D. No. 214 to provide him with a hearing or the opportunity to submit a brief subsequent to the receipt of the hearing committee’s recommendation. (18) Plaintiff did not appeal to the district court as provided by K.S.A. 72-5443, but instead filed a separate action. (19) On April 17,1987, the district court issued its findings and conclusions upon which judgment was entered in favor of the defendants and against the plaintiff. The trial court held, in substance, that it could grant summary judgment to defendants because the basic facts in the case were undisputed and showed as a matter of law that plaintiff had not been denied a due process hearing and, furthermore, that plaintiff s evidence clearly showed that plaintiff had violated his contract as a teacher and the board of education had the right to terminate his teaching contract. Plaintiff raises several issues on the appeal which, in substance, take the position that the trial court erred in granting summary judgment against plaintiff and in favor of the school district and Dr. Rundus for the reason that the record raises substantial factual issues as to whether the plaintiff was denied certain due process rights under the Kansas Due Process Procedure Act (K.S.A. 72-5436 et seq.). Before considering the specific issues raised in the case, it would be helpful to review certain basic concepts and principles of law pertaining to the termination of tenured teachers as provided by K.S.A. 72-5436 et seq. The basic provisions are covered in depth in this court’s opinion in Gillett v. U.S.D. No. 276, 227 Kan. 71, 605 P.2d 105 (1980), which states on pages 75-77 of the opinion: “At the outset, it should be stated that the dismissal of teachers and the nonrenewal of their teaching contracts is sometimes a complex, difficult process with serious implications. Because of the fact that, under the statutory procedures, the dismissal or nonrenewal of a teacher requires a long and time-consuming effort, school administrators and boards of education are often reluctant to institute such procedures against teachers who ought to be dismissed. As a result the students suffer in the quality of their education. On the other hand, teachers at times in the past have not been fairly treated and have been dismissed or nonrenewed without good reason. As a result of the due process procedure established by the legislature in 1974, teachers are now seeking and being afforded protection of their rights by the courts. In determining cases involving the dismissal or nonrenewal of a teaching contract, the courts are obligated to consider the rights of the teacher, the rights of the school board, and the rights of the school children to receive a quality education in a proper school atmosphere. In every such case, the challenge presented to the court is to provide a decision, fair and equitable both to the teacher and to the school board, with a minimum amount of disruption of the educational opportunity for the children. See Jacob-sen, Sperry, & Jensen, The Dismissal & Non-Reemployment of Teachers, 1 J. L. & Educ. 435 (1972). “Statutes providing protection for at least some tenured teachers from unjust dismissal have been in existence in Kansas for many years. Teachers and other professional employees, employed in public school systems in cities having a population of 120,000 inhabitants or more, were provided tenure by statute in 1937 (G.S. 1949, 72-5401 et seq.). In Million v. Board of Education, 181 Kan. 230, 310 P.2d 917 (1957), the purpose of the Tenure of Instructors Act (G.S. 1949, 72-5401 et seq.) was stated to be as follows: “ ‘The evident purpose of the Tenure of Instructors Act (G.S. 1949, Chapter 72, Art. 54) is to protect competent and worthy instructors and other members of the teaching profession against unjust dismissal of any kind — political, religious or personal, and secure for them teaching conditions which will encourage their growth in the full practice of their profession, unharried by constant pressure and fear, but it does not confer special privileges or immunities upon them to retain permanently their positions or salary, nor permit their interference with the control or efficient operation of the public-school system; and, notwithstanding it grants tenure to those who have taught the requisite period, it nonetheless empowers Boards of Education to discharge them for just cause in an orderly manner by the procedures specified.’ (Syl. ¶ 1.) (Emphasis supplied.) K.S.A. 72-5401 through 72-5409 were repealed in 1974. At that time, the legislature enacted K.S.A. 1977 Supp. 72-5436 et seq., as a comprehensive due process procedure covering the termination or nonrenewal of teachers’ contracts in every school district, area vocational-technical school, and community junior college in the state. It is clear to us that the statutory scheme to provide tenure for all school teachers throughout the state has the same purpose as that of the Tenure of Instructors Act which is discussed in Million. “If the courts are to carry out the legislative purpose of the teacher tenure statutes, they must require a board of education to show good cause in order to justify the dismissal or nonrenewal of a tenured teacher. The requirement of good cause is inherent in the statutory scheme created by K.S.A. 1977 Supp. 72-5436 et seq. 72-5437 provides that all contracts of employment of teachers shall be deemed to continue for the next succeeding school year unless written notice of termination or nonrenewal is served. A written notice of intent to nonrenew a contract must be served by a board upon any teacher on or before the fifteenth day of March. In passing, it should be noted that the date for notice of nonrenewal was changed in 1978 to require the written notice of the school board’s intent to nonrenew a contract must be served upon the teacher on or before the fifteenth day of April (K.S.A. 1979 Supp. 72-5437). 72-5438 requires the written notice of nonrenewal to include: “1. A statement of the reasons for the proposed nonrenewal or termination, and “2. A statement that the teacher may have the matter heard by a hearing committee. Under 72-5439, specific procedural due process requirements are set forth including the right to an orderly hearing and the right of the teacher to a fair and impartial decision based on substantial evidence. It should be noted that 72-5439(4) affords to the board the right to present its testimony and give reasons for its actions, rulings, or policies. 72-5442 places the burden of proof upon the school board in all instances other than where the allegation is that the teacher’s contract is nonrenewed by reason of the teacher’s exercise of a constitutional right. 72-5443 requires the hearing committee to render a written recommendation, setting forth its findings of fact. The recommendation of the hearing committee is required to be submitted to the teacher and to the board. The board, after considering the hearing committee’s recommendation and hearing arguments, decides whether the teacher’s contract shall be renewed or terminated. The decision of the school board is final, subject to appeal to the district court as provided by K.S.A. 60-2101. “This summary of the applicable statutes has been provided to make it clear that the purpose of the due process hearing is to inquire into the reasons for the dismissal or nonrenewal of the teacher and to determine whether or not the evidence presented establishes good cause within the spirit and purpose of the teacher tenure statutes.” The scope of review by the district court of school board decisions in a nonrenewal case is fully covered by Brinson v. School District, 223 Kan. 465, Syl. ¶ 6, 576 P.2d 602 (1978). In Brinson, this court held that, in reviewing a decision of an administrative agency under 60-2101, a district court may not substitute its judgment for that of the administrative agency or tribunal and may not examine the issues de novo; it is limited to deciding whether: (1) the agency or tribunal acted fraudulently, arbitrarily, or capriciously; (2) the administrative order is substantially supported by evidence; and (3) the tribunal’s action was within the scope of its authority. In reviewing the judgment of the district court in an administrative appeal, this court is required to determine whether the district court properly limited its scope of review. Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 451, 436 P.2d 828 (1968); Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 581 P.2d 817, rev. denied 225 Kan. 843 (1978). In this case, a full evidentiary hearing was had before the hearing committee which upheld and sustained the decision of U.S.D. No. 214 in terminating Learning’s 1983-84 teaching contract. The recommendation of the hearing committee was submitted both to the plaintiff and to the school board. The record fails to show that the school board thereafter ever took any action on the hearing report. The school board failed to notify the plaintiff teacher whether it had adopted or not adopted the decision of the hearing committee or whether the contract of the teacher should be renewed or terminated. It is clear, however, from the record, that both the plaintiff teacher and the school board knew that it was not the intention of the school board to renew plaintiff s teaching contract. Following his initial termination, plaintiff obtained a new teaching contract for the 1983-84 school year at U.S.D. No. 455 in Cuba, Kansas, at a salary of $16,800 per year. Plaintiffs salary under his contract with U.S.D. No. 214 was in the amount of $21,460 per year. The record also discloses that plaintiff renewed his contract with U.S.D. No. 455, Cuba, Kansas, for the school year 1984-85. For the school year 1985-86, plaintiff was employed by the Phoenix Institute of Technology of Phoenix, Arizona, with a variable salary. The hearing committee in the present case, by a unanimous decision including the affirmative vote of the plaintiffs own nominee on the hearing committee, voted to uphold the action of the school board. Under the provisions of K.S.A. 72-5443, as it existed prior to July 1, 1984, the recommendation of the hearing committee was to be submitted to the teacher and to the board of education. After considering the hearing committee’s recommendation and after receiving oral arguments or briefs from the teacher, the board of education was required to decide whether the teacher should be terminated or renewed. K.S.A. 72-5443 was amended, effective July 1, 1984, to provide that, if the members of the hearing committee are unanimous in their opinion, the board of education shall adopt the opinion as its decision in the matter and such opinion shall be final, subject to appeal to the district court as provided in 60-2101. That 1984 amendment was approved April 6,1984, within a week following the close of Learning’s final hearing before the special committee on March 31, 1984. However, as noted, the new statute did not become effective until July 1, 1984. We believe that, under these circumstances, in view of the fact of the amendment of 72-5443, which was about to come into effect, both the plaintiff teacher and the school board may well have assumed that the plaintiff s teaching contract for the calendar year 1983-84 had been terminated. Plaintiff made no request for a hearing or offer to submit briefs or oral arguments to the school board. Plaintiff did nothing until he filed his action against the school board over a year later on May 15, 1985. The facts set forth above raise a jurisdictional issue which must first be dealt with. Under K.S.A. 60-2101, which affords an appeal to a teacher in a contract renewal case, where a teacher protected by the teacher tenure act requests and receives a due process hearing but fails to take a timely appeal to the district court, the teacher is precluded by the doctrine of res judicata from raising the same issues in another action or proceeding. See Neunzig v. Seaman U.S.D. No. 345, 239 Kan. 654, 722 P.2d 569 (1986). Thus, if the teacher fails to take a timely appeal to the district court in a contract termination case, that ordinarily ends the litigation. In this case, however, the school board failed to act on the report of the hearing committee as required by K.S.A. 72-5443. There being no final decision of the school board, the right of the plaintiff to take an appeal to the district court was never triggered. Thus, it is clear that plaintiff was never afforded a right to appeal to the district court from the termination of his teaching contract. Under these circumstances, the plaintiff, never having been afforded his right to appeal, had the right to bring this independent action against the school board challenging the termination of his teaching contract for the year 1983-84 on the basis that he was denied his due process rights. We have concluded that the trial court properly had jurisdiction of the case to consider whether or not the plaintiff had been denied a due process hearing as required by the Kansas statutes. Plaintiff in the district court and again on this appeal maintains that he was denied procedural due process for three basic reasons: (1) His hearing before the committee was completed more than ten months after his contract was terminated. (2) He was denied due process by the service of Richard Pickier, treasurer of U.S.D. No. 214, as a member of the hearing committee. (3) He was denied due process by virtue of the school board’s failure to review the hearing committee’s decision and render a final decision as required by K.S.A. 72-5443; his right to an appeal to the district court was, therefore, denied. We will consider each of these contentions separately. In regard to the delay in his committee hearing, which was completed more than ten months after his discharge, the trial court found there was no violation of due process. We cannot say that the trial court erred in this regard. There are no specific statutory guidelines for the time to be set for a committee hearing under the Kansas Teacher Tenure Law. K.S.A. 72-5438 requires a teacher to request a hearing within fifteen days after termination. The school board is allowed fifteen days thereafter to designate a hearing committee, and the chairman must be selected within the next five days. There is, however, no specific time provided in the statute for holding the committee hearing. In Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, 652 P.2d 205 (1982), eighteen months elapsed between termination of the teacher’s contract and the hearing committee’s recommendation. The court noted that much of the delay was caused by the plaintiff s failure to file his written brief. The court did, however, list several factors for determining if the hearing time met due process requirements: “The factors to consider in determining whether the timing of a hearing comports with due process include the private interest that will be affected, the risk of an erroneous deprivation of that interest through the procedures used, and the State’s interest in the procedures used as well as the administrative burdens that any additional procedural requirements would entail.” Syl. ¶ 3. In the opinion, it is further stated that due process requires that one be given the opportunity to be heard “at a meaningful time and in a meaningful manner.” 232 Kan. at 64. In the present case, the plaintiff received both appropriate notice and a hearing. The hearing was continued for two months at the plaintiff s request. There is no suggestion that any improper motive caused delay in the hearing. In fact, the plaintiff does not argue the delay caused him any prejudice. In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S.Ct. 1487 (1985), the United States Supreme Court rejected the teacher’s argument that a delay in a hearing which does not cause harm can violate due process. The Court stated: “At some point, a delay in the post-termination hearing would become a constitutional violation. See Barry v. Barchi, 443 U.S. at 66. In the present case, however, the complaint merely recites the course of proceedings and concludes that the denial of a ‘speedy resolution’ violated due process. App. 10. This reveals nothing about the delay except that it stemmed in part from the thoroughness of the procedures. A 9-month adjudication is not, of course, unconstitutionally lengthy per se. Yet Loudermill offers no indication that his wait was unreason ably prolonged other than the fact that it took nine months. The chronology of the proceedings set out in the complaint, coupled with the assertion that nine months is too long to wait, does not state a claim of a constitutional deprivation.” p. 547. The record does not show that, at any time in the course of the committee hearing, plaintiff objected to the time of the hearing. In fact, the committee made every effort to accommodate the plaintiff and delayed the hearing for a period of two months at plaintiff s request. The record indicates that, not long after the plaintiff was first terminated, he proceeded to obtain a new teaching contract with another school district for the 1983-84 school year. He was permitted to complete his teaching contract for the school year 1982-83. Under the circumstances, we hold that the trial court correctly determined that the due process rights of the plaintiff were not violated by any delay in the committee hearing. Plaintiff next contends that he was denied due process of law by the service of Richard Pickier, treasurer of School District No. 214, as a member of the hearing committee. The board of education nominated Richard Pickier to serve as its representative on the hearing committee. Pickier was a local attorney who had no financial interest in the outcome of the case. His duty as treasurer was limited to transferring funds and he received no pay whatsoever for his services as treasurer. His services were free to the school. He was not an attorney or legal advisor for the school board. A review of the proceedings before the hearing committee showed that Mr. Pickier was concerned that the proceedings be conducted in a fair and impartial manner. At no time in the course of the proceedings did plaintiffs counsel object on the record to the service of Richard Pickier on the committee. According to an answer to an interrogatory submitted by the school board, plaintiffs attorney, Evan Nightingale, expressed his concerns to Pickier about his serving. But counsel never objected for the record about Pickier’s services. Nightingale apparently told Pickier his services might be the basis for an appeal. The district court, in its findings and conclusions of law, noted that, although Pickier was treasurer for the school board, he acted as a volunteer, received no compensation, and simply wrote and signed checks for the school district. At no time was he appearing in the controversy as attorney for the school board or the district. The trial court concluded that Pickier was under no obligation of any kind to the board of education, and that his experience and ability was an asset to the committee. The trial court also noted that the decision of the committee in upholding the termination of plaintiff s contract was unanimous and included the affirmative vote of plaintiff s designated member, Melvin Wilson. The present case does not present a situation similar to that in Coats v. U.S.D. No. 353, 233 Kan. 394, 662 P.2d 1279 (1983). In Coats, this court held that the appointment of a school board attorney to the hearing committee violated the rule of fundamental fairness. A school board attorney clearly has a conflict of interest and, as the court pointed out, he was the person who prepared all the documents and gave the school board his legal counsel in arriving at its decision to nonrenew the teacher. A school board attorney also has an obvious financial interest in confirming the school board’s decision. In the present case, although Pickier is an attorney, there has been no conflict of interest shown. He had no financial interest in the outcome of the case. Under all the circumstances, we hold that the trial court did not err in concluding the due process rights of the plaintiff were not violated by the service of Mr. Pickier on the hearing committee. The final claim by the plaintiff is based upon the fact that the plaintiff was denied a right of appeal to the district court by failure of the board of education to review the hearing committee’s decision and render a final decision. We have no hesitancy in holding that the board of education should have considered the hearing committee’s report and acted thereon so that plaintiff s statutory right of appeal to the district court would have been made possible. Several Kansas cases have noted the duty of the board of education to render its final decision under K.S.A. 72-5443. Haddock v. U.S.D. No. 462, 233 Kan. 66, 661 P.2d 368 (1983); Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 759, 648 P.2d 225 (1982); Gillett v. U.S.D. No. 276, 227 Kan. at 77. As noted heretofore, K.S.A. 72-5443 was amended effective July 1, 1984, and now provides that, if the members of the hearing committee are unanimous in their opinion, the board of education shall adopt the opinion as its decision in the matter and such decision shall be final, subject to appeal to the district court as provided in 60-2101. If the members of the hearing committee are not unanimous in their opinion, the board of education is required to consider the opinion and decide whether the contract should be renewed or terminated. The July 1,1984, amendment was held to operate retrospectively in Keller v. Board of Trustees of Coffeyville Community College, 12 Kan. App. 2d 14, 733 P.2d 830 (1987), where the Court of Appeals reasoned that the amendment affected only the procedure to be applied and, therefore, “all rights of action will be enforced under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether or not the suit has been instituted.” 12 Kan. App. 2d 14, Syl. ¶ 1. In the present case, it would be possible for this court to order the matter remanded so that the school board could make its final decision on the hearing committee’s report. However, that would accomplish little in view of the fact that the decision of the hearing committee was unanimous. We believe that the most effective way for the district court to protect the rights of plaintiff was for the district court to examine the record and determine whether or not plaintiff s due process rights had been violated. That was exactly the procedure followed by the district court. The only real issue in this case was whether the plaintiff suffered a denial of any due process rights by reason of the termination of his teaching contract for the year 1983-84. The district court, in granting summary judgment, held, as a matter of law based upon the undisputed evidence, that plaintiff by his own admissions directly defied the superintendent’s order not to absent himself for one week in May in order to attend a science fair in Albuquerque, New Mexico, with former students. The trial court stated that, although the record indicated that Learning was an excellent teacher, he chose to exercise his teaching abilities without regard to the interests of the school system and in defiance of an administrative order that he not absent himself from his teaching duties. In order to show clearly the undisputed facts in this case, it would be helpful to examine plaintiff s testimony at the committee hearing. Plaintiff s teaching contract provided, in substance, as follows: “This contract may be terminated by the Board of Education at any time for . . . failure to obey . . . the directions of the Superintendent of Schools.” The plaintiff in his testimony before the hearing committee testified in part as follows: “Q. Now, you, you’ve admitted that you committed an act of defiance towards the administration of U.S.D. # 214, is that correct? “A. Yes, that is correct. “Q. Well, how do you explain, how do mean that you committed an act of defiance? “A. Dr. Rundus, uh, as my superior made a, a statement to me that I was not to attend with these students in, uh, Albuquerque, New Mexico. “Q. And you did it anyway. “A. And I went to Albuquerque, New Mexico. “Q. Yes. After even being told that your contract would be placed in jeopardy or would be in jeopardy, is that correct? “A. He made that statement that, uh, your contract would be in jeopardy. “Q. What did that mean to you, Mr. Learning. That your contract would be in jeopardy. “A. That there would be, uh, consideration. “Q. Wouldn’t that mean that you could be fired? “A. I didn’t take it that way at that time. “Q. But doesn’t that what really your contract being put in jeopardy means that you could be fired? “A. At that particular point, I was not under that understanding, no sir. “Q. But after reflection today, don’t you think that’s what that language really could reasonably be interpreted to mean, that you might be fired? “A. Well, after what had transpired, why I guess it was.” At a later point while on the witness stand, plaintiff admitted that he breached the directive to teach his regularly assigned classes on May 9 to May 13. The evidence in this case was thus undisputed that plaintiff Learning violated his contract of employment. The board of education had clearly specified in plaintiff s contract its right to terminate Learning if he failed to obey the directions of the superintendent. Plaintiff testified that he willfully violated such directions. Under these circumstances, plaintiff was not denied any due process rights nor did he suffer any injury or damages as a result of the board of education’s failure to formally accept the findings of the hearing committee and act thereon. The undisputed facts show that the plaintiff was terminated with good cause. If the board of education had followed the statute and plaintiff had taken a statutory appeal to the district court, he could not have prevailed in view of the undisputed facts. Any district court which heard an appeal would have no right to substitute its judgment for that of the hearing committee or the school board. The school board had a legitimate cause to discharge the plaintiff under his contract, and it cannot reasonably be said that the board of education acted unreasonably, arbitrarily, or capriciously or that its order of nonrenewal was not supported by good cause. In view of the undisputed facts contained in the record, we conclude that the trial court properly decided the case by holding that plaintiff s due process rights were not violated. The board of education had the right to terminate plaintiff s teaching contract for the 1983-84 school year, because he willfully disobeyed the directions of the superintendent of schools as discussed above. As to the plaintiff s appeal in the case filed against Dr. Rundus, the decision of the trial court granting summary judgment in favor of Dr. Rundus must be affirmed. The evidence was undisputed that plaintiff s contract rights were not violated and that Dr. Rundus at all times acted in performance of his official responsibility as superintendent of schools. The judgment of the district court is affirmed.
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The opinion of the court was delivered by Holmes, J.: The State of Kansas appeals from an order of the trial court dismissing, without prejudice, an indictment charging the defendant, John L. Vakas, M.D., with 410 counts of unlawfully distributing controlled substances in violation of the Kansas uniform controlled substances act, K.S.A. 65-4101 et seq. The court found that the indictment failed to state crimes against the State. The State asserts the trial court erred in dismissing the indictment, contending the language in each count of the indictment is sufficient to charge a crime. The defendant cross-appeals, asserting the trial court should have dismissed the indictment with prejudice due to prosecutorial misconduct. The charges in the grand jury indictment read: "COUNT I: “THAT heretofore and to-wit on or about the 11th day of May, 1984 at and within the County of Montgomery and State of Kansas, the above named defendant, John L. Vakas, M.D., a registrant authorized to dispense and prescribe controlled substances for a legitimate medical purpose only then and there being, did then and there willfully, wrongfully, unlawfully prescribe a stimulant, to-wit: preludin which contains the controlled substance phenmetrazine to Larry Winston Terry for other than a legitimate medical purpose or not within the scope of a professional medical practice; all contrary to KSA 65-4107(d)(2), 65-4123 and 65-4127b.(a)(2) and against the peace and dignity of the State of Kansas. Class A misdemeanor 1 year $2500.” (Emphasis added.) The remaining 409 counts are worded essentially the same, with each count being different only in the drug prescribed and the statute classifying it as a controlled substance, and the date, time, and person for whom it was prescribed. The penalty section also varies depending on whether the drug prescribed was an opiate or narcotic (a felony) or a stimulant (a misdemeanor). Two of the statutes upon which the charges are based, K.S.A. 65-4123 and -4127b, have been amended since the events involved here, however, the amendments do not affect the issues in this appeal. K.S.A. 65-4123(d) states that: “A controlled substance shall not be distributed or dispensed other than for a medical purpose.” Thus, the issue concerns the effect of the additional word “legitimate” contained in each count of the indictment. The trial judge dismissed the indictment, finding it failed to state crimes against the State of Kansas and because he perceived the focus of the grand jury to be directed toward “the legitimacy of the purpose rather than the nature of the purpose, as a medical purpose, as proscribed in 65-4123(d).” The State argues the word “legitimate” neither changes the charge nor the elements of the crime and is merely a word of description or clarification. In the alternative, it argues the word “legitimate,” if inappropriate, is mere surplusage and should have been stricken from the indictment. The State also contends it was error for the trial court to speculate on the mental processes of the grand jury. K.S.A. 65-4123 provides in part: “(a) Except when dispensed by a practitioner, other than a pharmacy, to an ultimate user, no controlled substance in schedule II may be dispensed without the written prescription of a practitioner. “(d) A controlled substance shall not be distributed or dispensed other than for a medical purpose.” The language “not within the scope of a professional medical practice,” included in each count of the indictment, was based upon K.S.A. 65-4101(v), which defines a practitioner as: “(v) ‘Practitioner means a person licensed to practice medicine and surgery, dentist, podiatrist, veterinarian, scientific investigator or other person licensed, registered or otherwise authorized by law to administer and prescribe, use in teaching or chemical analysis or conduct research with respect to a controlled substance in the course of professional practice and research.” (Emphasis added.) The appellee asserts that the addition of the words “legitimate” and “not within the scope of a professional medical practice” to the language of K.S.A. 65-4123(d) changes the meaning and elements of the statute and does not state an offense under the statute. However, he does not seriously question the quoted language other than the effect of adding the word “legitimate.” We agree that, when the language of K.S.A. 65-4101(v) is read in conjunction with K.S.A. 65-4123(a) and (d), the language “or not within the scope of a professional medical practice” contained in each count of the indictment was proper. The court apparently relied upon the use of the word “legitimate” as the basis for its dismissal of the indictment. While it is true that the word legitimate is not contained in the statute, we are of the opinion that its use in the indictment does not change the elements of the crime, charge a different crime, fail to state a crime, or lessen the State’s burden of proof, as contended by the appellee. Whether a controlled substance is prescribed for a “legitimate medical purpose” as opposed to a “medical purpose” is to create a distinction without a difference. The word “legitimate” when used as a descriptive term is a word of common usage and understanding. Legitimate, when used as it was here, has been defined as “[r]eal, valid, or genuine.” It is also defined as “lawful, legal, recognized by law, or according to law.” Black’s Law Dictionary 811 (5th ed. 1979). Appellee contends that the rule of strict construction of criminal statutes compels an interpretation of K.S.A. 65-4123(d) that the language “other than for a medical purpose” means that if a prescription is written for a medical puipose by a practitioner no crime has been committed. He contends that stating the exception as a “legitimate medical purpose,” when the statute only requires a “medical purpose,” reduces the burden of the prosecution and improperly states the elements of the crime. We think this is an oversimplification of the issue not justified by the statute or applicable rules of construction. In State, ex rel., v. American Savings Stamp Co., 194 Kan. 297, 398 P.2d 1011 (1965), this court considered the rule of strict construction of criminal statutes, stating: “It is a fundamental rule that penal statutes must be strictly construed in favor of the persons sought to be subjected to their operations. (State v. Waite, 156 Kan. 143, 131 P.2d 708; State v. Six Slot Machines, 166 Kan. 361, 201 P.2d 1039; State v. Hill, 189 Kan. 403, 369 P.2d 365; State v. Wade, 190 Kan. 624, 376 P.2d 915.) The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. (State v. Foster, 106 Kan. 852, 189 Pac. 953.) Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. (State v. Terry, 141 Kan. 922, 925, 44 P.2d 258.)” 194 Kan. at 300. The issue before us is not really a matter of the construction of the language of the statute but whether the addition of the word “legitimate” impermissibly changes the language of the statute and fails to state a crime. It would indeed be a strained con struction of the statute to say that the legislature intended the prescription of a controlled substance for an illegitimate purpose to be lawful and within the statutory exception. Such a determination of legislative intent and construction of the statute would be ridiculous. In State v. Fowler, 238 Kan. 213, 708 P.2d 539 (1985), we held: “The rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and the true intent of the legislature.” Syl. ¶ 1. In our view, the medical purpose referred to in the statute can only mean a legitimate medical purpose. When viewed in such light the addition of the word “legitimate” does not invalidate the indictment. In State v. Garner, 237 Kan. 227, 699 P.2d 468 (1985), we stated: “K.S.A. 22-3201 provides that the information shall be a plain and concise written statement of the essential facts constituting the crime charged, which information, drawn in the language of the statute, shall be deemed sufficient. The Kansas cases applying this statute hold that an information which charges an offense in the language of the statute or its equivalent is sufficient. Further, the exact statutory words need not be used in the information if the meaning is clear.” 237 Kan. at 236-37. (Emphasis added.) The same is true of an indictment returned by a grand jury. We hold that the court erred in dismissing the indictment. Next, the State asserts in the alternative that the court committed error in failing to strike the word “legitimate” from the charges in the indictment as being surplusage. K.S.A. 1986 Supp. 22-3201(3) provides: “The court may strike surplusage from the complaint, information or indictment.” Here, the State was fully apprised of the court’s position and yet the prosecutor made no attempt to have the offending word stricken. Instead, she apparently chose to stand upon her preparation of the indictment. The State cannot now be heard to complain when it made no motion to strike the word as surplus-age. It is not the duty of the court to review and clean up, sua sponte, the pleadings of the parties. While we agree that the word “legitimate” is not part of the statute and may be considered surplusage, there was no error on the part of the court in failing to strike it from each charge of the indictment when no such request was made by either party. It may well be that on remand one of the parties will seek to have the language stricken; however, any decision thereon lies within the sound discretion of the trial court after the matter has been properly presented to it. We now turn to the cross-appeal of Dr. Vakas. He argues the indictment should have been dismissed with prejudice as a sanction against the county attorney for her prosecutorial misconduct. The defendant filed motions to dismiss the indictment on grounds of failure to comply with discovery orders and for other acts of alleged prosecutorial misconduct. He asserts the prosecuting attorney intentionally refused to comply with discovery orders, presented a biased case to the grand jury, and filed motions for the sole purpose of causing delay. Although defendant’s motions were heard, the trial court made no ruling thereon. As the trial court did not rule on the defendant’s motions for dismissal due to prosecutorial misconduct and failure to comply with discovery orders, the issues are not properly before this court and there are no orders of the court to be reviewed. Fey v. Loose-Wiles Biscuit Co., 147 Kan. 31, 36, 75 P.2d 810 (1938). The question of whether sanctions are justified and, if so, the nature of the sanctions to be imposed is a matter to be determined in the first instance by the trial court. The judgment of the district court dismissing the charges against Dr. Vakas is reversed and the case is remanded for further proceedings.
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The opinion of the court was delivered by Holmes, J: The Roard of County Commissioners of Shawnee County, Kansas, appeals from a judgment of the district court granting certain Shawnee County deputy sheriffs and former deputy sheriffs compensation for their meal periods during the five years immediately preceding February 15, 1985. Plaintiffs have cross-appealed from a denial of prejudgment interest and the denial of compensation to certain deputies attached to the narcotics division of the Shawnee County Sheriff s Office. The essential facts were primarily submitted by stipulation. The plaintiffs/appellees are current or former deputy sheriffs employed by Shawnee County. During all relevant periods they were covered by a Memorandum of Understanding (MOU) be tween the Fraternal Order of Police (F.O.P.) and the Sheriff and Board of County Commissioners of Shawnee County (Board). The MOU was adopted by resolution of the Board pursuant to K.S.A. 75-4331 as a binding agreement. The MOU provided that deputy sheriffs were normally to work eight hours per day, excluding the meal period; that the meal period was to be unpaid time and was to be no less than 30 nor more than 60 minutes; that if an employee worked during his meal period he was to be paid at the appropriate contract rate; and that employees working overtime must report it during the same 14-day pay period in which it was worked. The MOU also contained a detailed grievance and binding arbitration procedure for purposes of resolving disputes as to the interpretation or application of the contract. None of the plaintiffs ever filed a grievance concerning the contentions in this action. During their meal periods, the plaintiffs were subject to certain restrictions imposed by the sheriff. We do not deem it necessary to set forth the restrictions in detail. We do note, however, that they appear to be such as would be commonly expected of law enforcement personnel. In general, the officers were subject to call during their meal periods and were required to monitor a radio or leave a telephone number where they could be reached. Meal periods were designated by supervisors, were not regularly scheduled, and could be taken at a particular time only if authorized by a supervisor. Most deputy sheriffs were not required to wear their uniforms during their meal periods, but if they chose to do so certain restrictions were placed on their activities if in public places during their meal periods. They were encouraged to dine within the territory to which they were assigned whenever possible. Upon approval by a supervisor, they were permitted to go home during meal periods if they lived within the county and could do so within the time allowed for the meal period. However, two-officer units were to remain together during meal periods in case they were required to respond to a call. Deputies were free to stop at any restaurant they chose, but no more than two county-owned vehicles could be at any single location at the same time. Deputies were prohibited from drinking alcoholic beverages during meal periods. Other similar restrictions applied. The plaintiffs filed their petition January 7,1985, seeking (1) a declaratory judgment that they were “at work” during meal periods as a matter of law and (2) compensation at the appropriate MOU wage rate for past meal periods within the period of the statute of limitations. The defendants raised as affirmative defenses, among others, the plaintiffs’ failure to exhaust their contractual and administrative remedies, laches, estoppel, and failure to state a claim. The court bifurcated the trial, severing the issue of liability from the question of the actual compensation due, if any. Following discovery and trial on the liability issue, the court found that the defendants were liable to the plaintiffs for compensation during meal periods because of the restrictions imposed upon them by their superior officers and the sheriff. The court held that plaintiffs were not “materially relieved from duty,” and therefore meal periods constituted compensable time. However, it recognized that in those instances when a plaintiff had been granted special permission to pursue private interests which constituted a “material and effective release from duty” no compensation would be due. During the second phase of the trial, the court granted judgment to specific plaintiffs for specific amounts totaling $361,945.03 for the five-year period prior to February 15, 1985. The judgment was originally entered against the sheriff personally and the Board but was subsequently set aside as to the sheriff. Hence, the Board is the only appellant now before us. The plaintiffs have cross-appealed. This case was transferred from the Court of Appeals on motion of the parties pursuant to K.S.A. 20-3017. Appellant first contends that the district court erred in entering judgment for the appellees, because they failed to exhaust their contractual and administrative remedies as set forth in their collective bargaining agreement. Appellees respond that it is the function of the trial court to determine whether contractual remedies must be exhausted before filing suit, and that in this case the trial court properly ruled that the grievance procedures set forth in the Memorandum of Understanding were inadequate as a remedy. While appellees concede that contractual remedies generally must first be exhausted before resorting to the courts, they assert that resort to the applicable contract remedy in this case would have been inadequate and futile. They further concede that none of the appellees attempted to utilize the contractual remedies available and that in those cases where specific officers had actually performed law enforcement duties during meal periods compensation was generally paid if the appropriate claim was made pursuant to the MOU. The trial court adopted the five-year statute of limitations in K.S.A. 60-511(1) applicable to actions upon written agreements. During the five-year period, the Fraternal Order of Police, as the duly selected bargaining agent for appellees, negotiated three employment agreements with the Board. One covered the period from January 1, 1980, through December 31, 1981; the next covered January 1, 1982, through December 31, 1983; and the third was for the period from January 1,1984, through December 31, 1986. The provisions relevant to this appeal were essentially the same in all three agreements. Those provisions, as taken from the latest agreement designated C258-83, read: “§ 11.2 For the purpose of this agreement, a work week shall consist of forty (40) hours worked on consecutive calendar days except for personnel who may be assigned by the Sheriff to work on alternative work schedules. A normal work day for all personnel shall consist of eight (8) hours excluding the meal period. The meal period shall not be paid time. The meal period shall be no more than sixty (60) minutes nor less than thirty (30) minutes. Nothing herein shall limit the right of the Sheriff to prescribe alternative work schedules.” (Emphasis added.) “§ 11.5 All employees working a normal work day shall be entitled to two (2) rest periods per shift, excluding the meal period. Whenever possible, these periods shall be scheduled in the middle of each one-half (Vz) normal work day. The length of the rest periods shall be fifteen (15) minutes per period. Rest periods shall be paid time.” (Emphasis added.) “§ 14.4 If an employee works during his meal period; if an employee is called back to work beyond his workday; or if an employee is subpoenaed or otherwise ordered to appear in court or before an administrative body in connection with his duties in either a criminal or civil matter, such employee shall be paid for such work time at the appropriate rate depending on whether or not the total hours worked during the affected payroll period exceed those hours specified in Section 14.2.” (Emphasis added.) “§ 14.13 No employee shall be permitted to work overtime without reporting same during the pay period during which said overtime is worked. No employee shall have the right to waive compensation for overtime and every employee shall be paid for all overtime actually worked or given the option to receive compensatory time as further specified in Section 14.8 of this contract.” (Emphasis added.) Section 33 of the MOU sets forth a comprehensive and detailed “Grievance and Arbitration Procedure.” Subsection 33.1 provides: “§ 33.1 A grievance shall mean a dispute concerning the interpretation or application of this contract. F.O.P. Topeka Lodge No. 3 may initiate and continue a grievance on its own volition when the matter to be grieved relates to Sheriffs Department policy or procedure and impacts a bargaining unit employee or employees.” Subsection 33.2 sets forth the facts and information to be included in the written grievance; 33.3 allows for an extension of time to file a grievance by mutual consent; 33.4 provides that failure to timely file a grievance precludes further consideration. Subsection 33.5 sets forth in great detail the steps and procedure to be followed in processing a grievance. The agreement contemplates a procedure for resolving a grievance within the administrative procedure of the sheriff s office within a matter of days after the grievance arises. If the grievance is not resolved satisfactorily to the employee, subsections 33.6 through 33.8 set forth the procedure for arbitration and provide that the arbitrator’s decision will be final and binding upon the parties. The entire grievance and arbitration procedure contained in the MOU is designed to provide the employees with a simple administrative procedure for the speedy resolution of grievances. In addition, pursuant to subsection 33.1, it provides a procedure for the F.O.P. to obtain a speedy resolution of any broad policy or procedure of the sheriff s department which affects the employees generally, such as the dispute now before the court. It is conceded that none of the individual plaintiffs sought to resolve the present dispute by invoking the contractual procedures available, and apparently the F.O.P. did not seek such a resolution on behalf of its members. Appellant contends the trial court erred in finding “[t]hat the administrative remedy of the grievance procedure set forth in the Memorandum of Understanding between the plaintiffs and defendants (MOU) is inadequate to address the claims of plaintiffs for compensation due them for working during their lunch periods.” We agree with the appellant. At the outset it is clear that none of the parties to the three negotiated agreements in effect during the five-year period contemplated that appellees would receive compensation for meal periods unless actually called upon to perform law enforcement duties. Subsections 11.2 and 14.4 specifically provide otherwise. There has been no showing that the restrictions on the deputies’ activities, or comparable ones, were not in effect at the time each MOU was negotiated. To now contend that because of the restrictions the deputies were actually working during all their meal periods over the last five years flies in the face of the clear language of the MOU. Such an interpretation would render those specific provisions of the contracts a nullity. Several of the plaintiffs filed requests for compensation for meal periods when they were actually called upon to perform law enforcement duties and apparently received overtime pay for those periods. In those instances, if any, where work during meal periods was timely reported but compensation was erroneously denied, the plaintiffs had a contractual grievance procedure which they failed to pursue. Appellees assert that resort to the applicable contract remedy in this case would have been futile and inadequate. In the recent case of Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988), the court was faced with a suit for damages based upon a claim of retaliatory discharge. Coleman, an employee of Safeway, claimed she had been wrongfully discharged from her employment because of an absence from work due to injuries received on the job which were covered by the Workers’ Compensation Act. Although plaintiff was covered by a collective bargaining agreement, her action sounded in tort based upon a violation of state public policy independent of the agreement. Contrary to the facts in the present case, Coleman filed a grievance with her union pursuant to the provisions of the collective bargaining agreement, but the union refused to pursue the matter through arbitration. In Coleman, we recognized that “[arbitral procedures, while well suited to the resolution of contractual disputes, are comparatively inappropriate for the resolution of tort claims.” 242 Kan. at 813. The present case was clearly based upon the collectively bargained MOU, and recovery was granted by the trial court based upon the written contract as is readily apparent from its application of the five-year statute of limitations. While it is true that if a contractual remedy is truly inadequate it will not bar an action in the courts, there has been no showing of inadequacy or futility here. None of the appellees attempted to implement the grievance procedures pertaining to the issues involved in this case. The appellees have not shown the grievance procedures to have been inadequate or futile. See Aiello v. Apex Marine Corp., 610 F. Supp. 1255 (E.D. Pa. 1985) (failure to even request die union file a grievance defeats plaintiffs futility argument); Desrosiers v. American Cyanamid Company, 377 F.2d 864 (2d Cir. 1967) (employee failed to initiate contractual grievance procedure which did not require union assistance; allegation that employer breached collective bargaining agreement was therefore fatally defective). There is no contention by appellees of collusion between the F.O.P. and the appellant Board, that the appellant refused to cooperate in the use of the grievance procedure, or that the union’s position on the issue was contrary to that taken by the appellees in this case. Contra Aguinaga v. John Morrell & Co., 602 F. Supp. 1270 (D. Kan. 1985). See generally Annot., What Circumstances Justify Employee’s Failure to Exhaust Remedies Provided in Collective Bargaining Agreement Before Bringing Grievance Suit Against Employer in Federal Court, Under § 301 of Labor Management Relations Act of 1947 (29 U.S.C. § 185), 52 A.L.R. Fed. 591 § 4 and current supplement. While the present case does not involve the federal Labor Management Relations Act, many of the cases in the annotation are illustrative of the general principle that contractual and administrative remedies must be exhausted before resorting to court action. In Republic Steel v. Maddox, 379 U.S. 650, 13 L. Ed. 2d 580, 85 S. Ct. 614 (1965), the Supreme Court explained the strong federal policy in favor of requiring employees to first exhaust their contractual remedies before proceeding against the employer in federal court. 379 U.S. at 652-53. The Court continued: The Republic Steel holding was reiterated recently in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220-21, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985). “And it cannot be said, in the normal situation, that contract grievance procedures are inadequate to protect the interests of an aggrieved employee until the employee has attempted to implement the procedures and found them so.” 379 U.S. at 653. While this court, of course, is not bound by United States Supreme Court decisions involving its supervisory functions over federal court jurisdiction under the Labor Management Relations Act, 29 U.S.C. § 185(a) (1982) (which applies only to industries affecting interstate commerce), Kansas appellate courts have apparently followed the federal policy. See Aeronautical Dist. Lodge No. 70 v. Beech Aircraft Corp., 8 Kan. App. 2d 703, Syl., 666 P.2d 1204 (1983). In Armstrong v. Goldblatt Tool Co., 242 Kan. 164, 747 P.2d 119 (1987), this court recognized a similar policy: “In adopting the rule set forth in Cox [v. United Technologies, 240 Kan. 95, 727 P.2d 456 (1986)], the court reasoned that it was obligated to take into consideration the strong public policy which takes into account the right of parties to enter into contracts and that, where a union and an employer in their agreement decide the remedies that should be available and decide that those remedies should be final and binding, the intent of the agreement should be enforced by the courts and the remedies therein available, if adequate, should be preclusive of any others.” 242 Kan. at 168. While Cox and Armstrong have now been overruled on other grounds by Coleman v. Safeway Stores, Inc., 242 Kan. 804, the rationale of the decisions as they pertain to the requirement of exhaustion of contractual remedies for breach of the contract remains the law of this state. In the instant case, the MOU was negotiated pursuant to the Kansas Public Employer-Employee Relations Act, K.S.A. 75-4321 et seq. K.S.A. 1987 Supp. 75-4330(b) authorizes such agreements to contain grievance and arbitration procedures for “any disputes that arise on the interpretation of the memorandum agreement.” The applicable Kansas statutes are clearly consistent with the policy recently articulated by this court in Armstrong that dispute resolution procedures embodied in collective bargaining agreements, are to be recognized and enforced against those who are parties to the agreement. Cf. Gorham v. City of Kansas City, 225 Kan. 369, 378, 590 P.2d 1051 (1979) (collective bargaining agreement negotiated pursuant to K.S.A. 75-4321 et seq. can waive constitutional rights of represented employees if negotiated agreement provides fair, reasonable, and efficacious procedures by which employer-employee disputes may be resolved; and employees will be bound thereby). While appellees claim the contractual grievance and arbitration procedures would be futile and inadequate, no attempt was ever made to invoke the procedures and, indeed, subsequent developments demonstrate the fallacy of the argument. Within five weeks after the petition was filed in this case, procedures were instituted by the sheriff which resolved the dispute over meal period restrictions. If appellees had raised this issue pursuant to the contractual procedures, it might have been readily resolved or at least it could have been a subject of negotiation and perhaps resolved prior to adoption of any or all of the three agreements. Instead, appellees now attempt to recover compensation for all meal periods over a five-year period without ever having given the appellant the opportunity to address the issue as clearly called for in the MOU. Appellees cannot claim the benefits of their collectively bargained agreement, having neglected or refused to accept its burdens and responsibilities. See Evans v. Marsh, 158 Kan. 43, 49, 145 P.2d 140 (1944). We conclude the trial court erred in failing to bar the appellees from recovering under the terms of the express contract where they failed to pursue their remedies set forth in the contract. While the foregoing would appear to dispose of this appeal, both parties at oral argument voiced the opinion that it was necessary, or at least advisable, for this court to determine whether the mealtime restrictions were such that appellees were “at work” during meal periods. The trial court, based upon two cases from other states, Madera Police Officers Assn. v. City of Madera, 36 Cal. 3d 403, 204 Cal. Rptr. 422, 682 P.2d 1087 (1984), and Weeks v. Chief of State Patrol, 96 Wash. 2d 893, 639 P.2d 732 (1982), found that the deputies were “not materially relieved from duty [during meal periods] and such time is work time and is compensable.” The trial court’s reliance on those cases is misplaced. Neither involved a negotiated agreement which specifically addressed the issue of compensation during meal periods, as we have in the present case. Every job entails some degree of control by the employer over the actions of the employee. The restrictions placed upon the deputies in the present case were reasonable and of the type necessary to a proper performance of the duties of the employment. The principal objective of all law enforcement is to maintain law and order and protect the public. The restrictions placed upon the deputies in this case are not only reasonable but necessary for the proper performance of a law officer’s duties. That such restrictions exist in any law enforcement position is common knowledge and actually works to the benefit of the officers as well as the sheriff s department. Reasonable restrictions as to the conduct of officers during in-shift meal periods not only enhance the respect and reputation of the sheriff s department as a whole but also of the individual deputies. The negotiated agreements in this case clearly indicate the intent of the parties that compensation was only to be paid for mealtime when the officer was called upon to perform law enforcement duties during a meal period. The restrictions are not so onerous or confining that compliance with them constituted working by the deputies. The mere fact of being available to respond to a call by a superior officer or to assist a citizen in distress does not constitute work during the meal period. The stipulation of facts contained in the record indicates individual deputies, during meal periods, were able to keep medical and dental appointments, obtain haircuts, attend college classes, make purchases, engage in various sporting activities, and throw darts with the sheriff. We hold that unless called upon to actually perform law enforcement duties as contemplated by the MOU, the existence of the restrictions on the deputies’ mealtime activities do not, per se, result in work by the appellees. In view of the foregoing, it is not necessary to consider other arguments asserted by appellant or to consider the cross-appeal of the appellees. The judgment is reversed.
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Per Curiam: This original action in discipline was filed by the office of the Disciplinary Administrator against Hartzell J. Whyte of Kansas City, an attorney admitted to the practice of law in Kansas. The facts are not in dispute. Hartzell J. Whyte represented Caroline and Harold Shephard, defendants in a civil action in Douglas County District Court. A set of interrogatories was served on Whyte and his clients which he failed to answer. At a discovery conference, the district court heard a motion to compel an answer, and ordered Whyte, who was present, to answer within 21 days. Whyte again did not answer. He was given notice of a hearing on a motion for sanctions against his clients, but did not appear. As a result, a default judgment was entered against the Shephards. A hearing panel of the Kansas Board for Discipline of Attorneys found that there was clear and convincing evidence that respondent had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) (1987 Kan. Ct. R. Annot. 143) and recommended discipline by public censure. It Is Therefore Ordered that Hartzell J. Whyte be and he is hereby publicly censured for violation of DR 6-101(A)(3). It Is Further Ordered that a copy of this order be published in the official Kansas Reports and that the respondent pay the costs of this proceeding.
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The opinion of the court was delivered by McFarland, J.: This is an appeal by the State from the dismissal of a complaint (K.S.A. 1987 Supp. 22-3602[b][l]). At issue is the propriety of the district court’s dismissal based on its determination that the first-degree felony-murder statute (K.S.A. 21-3401) does not apply where the individuals accidentally killed during the commission of the felony of arson are accomplices of the individual charged with felony murder. For the purposes of this appeal, the facts may be summarized as follows. A Vietnamese woman hired defendant Thai Do Hoang to burn down a building in Wichita which housed a restaurant/club business. The arson fee was to be $1,000, payable $500 in advance and the balance upon performance. Neither the owner of the building nor the operators of the business therein had given permission to defendant or anyone else to burn the building. Defendant hired three assistants, Dung Anh Tran, Thuong Nguyen, and a man known only as Soubong. The four men arrived at the building sometime between 3:00 a.m. and 4:00 a.m. on October 8, 1986. Defendant broke out one of the building’s windows and Dung and Thuong crawled through to the building’s interior. Defendant handed two containers of gasoline through the window to his cohorts but remained outside with Soubong. Defendant then saw flames and smoke in the building and waited for his accomplices to return to the window. The fire department arrived at approximately 5:00 a.m. Defendant and Soubong left upon hearing the approaching sirens. The badly burned body of Dung was found in the building. Thuong was found in serious condition therein and died the next day, apparently from smoke inhalation. Bum, char, and pour patterns, as well as gasoline cans, gasoline, and timing-delay devices at the fire’s point of origin established the arson causation. The defendant was arrested the following day with $500 in one pocket and $111 in another pocket. After being advised of his Miranda rights, defendant essentially confessed to participating in the burglary/arson but denied the act was done for money. He was subsequently charged with two counts of felony murder pursuant to K.S.A. 21-3401, and one count each of burglary (K.S.A. 21-3715) and arson (K.S.A. 21-3718). At the close of the preliminary hearing, held on October 21, 1986, defendant’s trial counsel moved for dismissal of the two felony-murder counts. The judge presiding therein ruled that Kansas law allowed the defendant to be prosecuted for the deaths of his accomplices, and bound him over for trial on all counts. A renewed motion to dismiss these same counts was granted on April 7, 1987. The State, on April 8, 1987, moved the district court to dismiss the other two counts in order to effectuate its appeal herein pursuant to K.S.A. 1986 Supp. 22-3602(b)(l). See State v. Freeman, 234 Kan. 278, 670 P.2d 1365 (1983), relative to the reason for such action. The motion was sustained on April 21, 1987. This appeal by the prosecution resulted. The issue before us is whether the district court properly construed K.S.A. 21-3401 to exclude the felony-murder charges against the defendant under the facts herein. The felony-murder statute, K.S.A. 21-3401, provides: “Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.” Although we have never decided the precise issue before us, we have established considerable case law on felony murder. A review of these principles is appropriate. In felony-murder cases, the elements of malice, deliberation, and premeditation which are required for murder in the first degree are deemed to be supplied by felonious conduct alone if a homicide results. To support a conviction for felony murder, all that is required is to prove that a'felony was being committed, which felony was inherently dangerous to human life, and that the homicide which followed was a direct result of the commission of that felony. In a felony-murder case, evidence of who the triggerman is is irrelevant and all participants are principals. State v. Thomas, 239 Kan. 457, 461-62, 720 P.2d 1059 (1986); State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 (1980); State v. Underwood, 228 Kan. 294, 302, 615 P.2d 153 (1980); State v. Reed, 214 Kan. 562, 564, 520 P.2d 1314 (1974). The purpose of the felony-murder doctrine is to deter all those engaged in felonies from killing negligently or accidentally. State v. Brantley, 236 Kan. 379, 380-81, 691 P.2d 26 (1984). Whether a felony is inherently dangerous to human life must be determined when considered in the abstract only. State v. Lashley, 233 Kan. 620, 634, 664 P.2d 1358 (1983); State v. Underwood, 228 Kan. at 306. See State v. Strauch, 239 Kan. 203, 216, 718 P.2d 613 (1986). Moreover, the underlying felony in a felony-murder case must be a forcible felony, one inherently dangerous to human life. State v. Strauch, 239 Kan. at 216; State v. Lashley, 233 Kan. at 632; State v. Underwood, 228 Kan. at 305-06. K.S.A. 21-3110(8) includes arson in its definition describing a forcible felony. It is uncontroverted herein that arson is a felony which is inherently dangerous to human life. In State v. Branch and Bussey, 223 Kan. 381, Syl. ¶ 1, 573 P.2d 1041 (1978), we said: “Any participant in a life-endangering felony is guilty of first degree murder when a life is taken in the course of committing or attempting to commit a felony, regardless of whether the death was intentional or accidental.” There, during the aggravated robbery of a drug dealer, Branch made advances toward the drug dealer’s girlfriend. A struggle ensued, during which Bussey shot and killed the drug dealer. On appeal, defendants argued they could not be found guilty of murder because the killing was accidental. We rejected this argument, reasoning: “To apply the felony murder rule, it is only necessary to establish that defendants committed a felony inherently dangerous to human life and that the killing took place during the commission of the felony. (State v. Guebara, 220 Kan. 520, 523, 553 P.2d 296; State v. Goodseal, 220 Kan. 487, 553 P.2d 279.) A requirement of the felony murder rule is the fact the participants in the felony could reasonably foresee or expect that a life might be taken in the perpetration of such felony. If applied to the facts of the present, case, defendants are subject to the felony murder rule and it makes no difference that the killing was accidental. “. . . In a felony inherently dangerous to life the intent to accomplish the initial felony is transformed into malice and premeditation upon the death of a human being and the felon is guilty of first degree murder. Despite defendants’ argument that the result is harsh, it is one which society imposes upon those who commit such crimes knowing full well the possible tragic results.” 223 Kan. at 382-83. The statutory history of the felony-murder doctrine in Kansas began with the territorial government in 1855. Kan. Terr. Stat. 1855, ch. 48, § 1. Smith v. State, 8 Kan. App. 2d 684, 666 P.2d 730 (1983), rev. denied 234 Kan. 1077 (1983). See Note, Felony Murder in Kansas, 26 Kan. L. Rev. 145, 147 (1977). The territorial statute, which remained virtually unchanged until 1969, provided as follows: “Every murder which shall be committed by means of poison or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or an attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed murder in the first degree.” Kan. Terr. Stat. 1855, ch. 48, § 1(a); G.S. 1868, ch. 31, § 6; G.S. 1915, ch. 28, § 3367; R.S. 1923, 21-401; K.S.A. 21-401 (Corrick). In 1969, the Kansas Legislature adopted the new criminal code, replacing K.S.A. 21-401 (Corrick) with K.S.A. 21-3401. L. 1969, ch. 180, § 21-3401. In so doing, the revised statute eliminated the enumeration of felonies which specifically gave rise to the application of the felony-murder doctrine. In 1972, K.S.A. 21-3401 was amended to its present form which provides that murder in the first degree is “the killing of a human being ... in the perpetration or attempt to perpetrate any felony.” L. 1972, ch. 112, § 1. Neither the term “killing” nor the term “human being” was given any special meaning by the legislature. The term “killing,” which replaced the term “murder” under the prior statute, is defined as “the act of one that kills” and “that kills or relates to killing.” Webster’s New Collegiate Dictionary 634 (5th ed. 1977). Webster’s Third New International Dictionary 1242 (1961) defines “killing” as “the act of one that kills” and “having the effect of killing.” The term “killing” is a broader term than “murder.” Thus, there is no statutory history evincing an intention to restrict the crime of felony murder in Kansas. Ten years have elapsed since our decision in State v. Branch and Bussey, 223 Kan. 381. Presumably the legislature is satisfied with that decision which held that an accidental killing was within the felony-murder statute. Although not really germane to the issue before us, for completeness, State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974), should be mentioned. In Mauldin, defendant sold heroin to the victim, who later injected himself and died as a result thereof. We held this conduct was not within the purview of the felony-murder statute, reasoning: “Our statute explicitly requires that the killing be ‘committed in the perpetration or attempt to perpetrate any felony.’ Under the facts presented in the instant case the commission of the felony (the act of selling heroin) completely terminated when the seller and the purchaser parted company.” 215 Kan. at 959. Further, in State v. Murrell, 224 Kan. 689, 585 P.2d 1017 (1978), a defendant had been charged, inter alia, with the felony murder of his co-felon. The accomplice had been shot by the robbery victim in returning the defendant’s gunfire. The defendant was acquitted of felony murder. 224 Kan. at 690. The felony-murder issue was not appealed; therefore, this court was not provided an opportunity to address the issue of a felony-murder charge predicated upon the death of an accomplice. The doctrine of felony murder can certainly reach some harsh results in particular factual situations. For this reason it has been much discussed and restricted in some jurisdictions. See 13 A.L.R.4th 1226 and cases cited therein. Connecticut (Conn. Gen. Stat. § 53a-54c [1985]); New Jersey (N.J. Stat. Ann. § 2C: 11-3a[3] [West 1987 Supp.]); and New York (N.Y. Penal Law § 125.25[3] [McKinney 1987]) have, by legislative amendment, modified or eliminated deaths of co-felons from felony murder. A review of the case law of other jurisdictions is not particularly helpful herein by virtue of the wide variety of the statutory language employed in the definitions of felony murder. Missouri and Pennsylvania case law is rather significant, however. In an early Kansas case dealing with first-degree murder, we said, in dicta, that our first-degree murder statute was probably taken from an identical Missouri statute which, in turn, was similar to the Pennsylvania statute. See State v. Keleher, 74 Kan. 631, 635, 87 Pac. 738 (1906). We accepted this determination in State v. Moffitt, 199 Kan. 514, 531, 431 P.2d 879 (1967), overruled on other grounds State v. Underwood, 228 Kan. 294. The supreme courts of Missouri and Pennsylvania have held a defendant liable for his co-felon’s death in circumstances directly on point with the case herein. See State v. Baker, 607 S.W.2d 153 (Mo. 1980), and Commonwealth v. Bolish, 391 Pa. 550, 138 A.2d 447, cert. denied 357 U.S. 931 (1958). In Commonwealth v. Bolish, the Pennsylvania Supreme Court explained: “The main contention of defendant is that the felony-murder doctrine does not apply to the death of an accomplice resulting from the accomplice’s own act in the perpetration of arson. But, the fallacy in this contention lies in the disregard of defendant’s active participation in the arson of which the killing was a direct result. As we heretofore pointed out, defendant was present at the time of the commission of the crime of arson and the resulting explosion. Thus he was actively participating in the felony which resulted in death. The element of malice, present in the design of defendant, necessarily must be imputed to the resulting killing, and made him responsible for the death. This defendant’s position is no different than that of the defendant in Commonwealth v. Thompson, 321 Pa. 327, 184 A. 97; Commonwealth v. Guida, 341 Pa. 305, 19 A. 2d 98, and countless other cases wherein the death resulted, directly from the perpetration of the felony. The fact that the victim was an accomplice does not alter the situation, since the act which caused his death was in furtherance of the felony.” 391 Pa. at 553. It is argued in the case before us that felony murder applies only to the deaths of “innocents” rather than co-felons. There is nothing in our statute on which to base such a distinction. For convenience, K.S.A. 21-3401 is iterated as follows: “Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony”. (Emphasis supplied.) “Penal statutes must be strictly construed in favor of the persons sought to be subjected to them. The rule of strict construction simply means ordinary words are to be given their ordinary meaning. The statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.” State v. Dubish, 234 Kan. 708, 712, 675 P.2d 877 (1984). Dung and Thuong, the decedents herein, were human beings who were killed in the perpetration of a felony (a felony inherently dangerous to human life, as previously discussed). Defendant was an active participant in the felony and present on the scene during all pertinent times. There is nothing in the statute excluding the killing of the co-felons herein from its application. For this court to exclude the co-felons would constitute judicial amendment of a statute on philosophic rather than legal grounds. This would be highly improper. The legislature has defined felony murder. If this definition is to be amended to exclude the killing of co-felons therefrom under circumstances such as are before us, it is up to the legislature to make such an amendment. The judgment dismissing the complaint is reversed and the case is remanded for further proceedings.
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The opinion of the court was delivered by Prager, C.J.: This is a personal injury action in which the plaintiff, Christina Rood, sought to recover damages from the defendant, Kansas City Power and Light Company (KCPL), for injuries suffered when plaintiff was struck by a 35-pound metal spool which fell off the back of a moving KCPL truck trailer. The spool struck the plaintiff in the rear as she was walking along the adjoining sidewalk. The case was tried to a jury which awarded plaintiff damages in the total amount of $2,000. In á post-trial proceeding, the trial court assessed attorney fees against plaintiff s counsel as a sanction for continuing to claim punitive damages without a reasonable basis and in bad faith, pursuant to K.S.A. 60-2007. Plaintiff and plaintiff s attorneys appealed and the case was assigned to the Supreme Court. At the trial, there was no factual dispute as to how the accident occurred. An eyewitness, who testified on behalf of the plaintiff, observed the 35-pound spool fall off the KCPL truck trailer, roll down the street, and strike the plaintiff. The only real dispute in the case was the nature and extent of plaintiff s injuries and the need for certain medical services which were provided her. Plaintiff appealed the judgment for $2,000, claiming that the trial court erred in its evidentiary rulings. Plaintiff first appeals from the refusal of the trial court to admit into evidence the medical bill of Dr. Luis Alvarez in the amount of $580 for heat and ultrasound treatments performed on plaintiff s buttock. Dr. Alvarez was one of several doctors who examined and treated plaintiff. He did not testify at the trial. At the trial, before the jury, plaintiff called as a witness Dr. Bernard Abrams, a Missouri physician. Dr. Abrams examined the plaintiff following the accident. At that time, her chief complaint was that she had a cyst in her left buttock, jumping of nerves in the left thigh, and headaches. Plaintiff informed Dr. Abrams that her problems occurred after she was struck by the metal spool. In November 1984, plaintiff was examined by Dr. Alvarez for left buttock pain and left thigh pain. A diagnosis of a cyst in the left buttock was made. Physical therapy and ultrasound treatments were provided by Dr. Alvarez which did not prove beneficial and were stopped after about six weeks. Dr. Abrams described plaintiff s symptoms in great detail. He gave the plaintiff a thorough examination and found a freely moveable cyst in the middle portion of her left buttock. In Dr. Abrams’ opinion, absent preaccident complaints about the cyst, it was reasonable to suppose that the cyst was caused by the blow suffered in the accident. He was uncertain as to whether the cyst had existed prior to the accident, but was certain that a blow or trauma may cause a cyst. He recommended that the cyst be removed by surgery. Dr. Abrams testified that he was familiar with the treatments given plaintiff by Dr. Alvarez, and, in his judgment, plaintiff had been treated in a manner which was standard for her condition by receiving some form of heat, microwave, ultrasound, and diathermy. These treatments are all forms of heat which penetrate the tissues in order to treat a cyst. In her testimony at the trial, Christina Rood testified that after her injury she first saw Dr. Schechter, and later was examined by Dr. Alvarez, who treated her for six weeks and then discharged her. Plaintiff was handed a copy of Dr. Alvarez’s medical bill which contained a number of items unrelated to any injury suffered in the accident. These unrelated items were eliminated from the proffered bill. Plaintiff claimed that she had incurred medical expenses for the treatments by Dr. Alvarez in the amount of $580. When plaintiff s counsel offered Dr. Alvarez’s bill into evidence as Exhibit 9, counsel for the defendant objected on the basis that there was no proper foundation to support the reasonableness or necessity of the medical bill or to link the treatments with the accident. The trial court sustained the objection. Plaintiff then testified that the dates of the medical services listed in Dr. Alvarez’s medical bill were correct and that she was treated by Dr. Alvarez during the months of November and December 1984, either two or three times a week. She testified that the treatments gave her temporary relief from the pain. Plaintiff maintains that the trial court erred in sustaining defendant’s objection to the introduction of the medical bill of Dr. Alvarez for want of a proper foundation. Kansas law requires that medical expenses be necessary and reasonable. Lewark v. Parkinson, 73 Kan. 553, 85 Pac. 601 (1906). The reasonableness and necessity of medical bills are questions for the jury. Cansler v. Harrington, 231 Kan. 66, 643 P.2d 110 (1982). In Cansler, the injured plaintiff testified in detail about the doctors she had visited and the treatments she had received. As in this case, there was medical testimony as to the necessity for the treatment. This testimony was held to be sufficient to establish a foundation for the medical bills. Our decision in Cansler requires only that the medical bill be relevant to be admitted, and that any questions about the amount of the bill go to the weight of the evidence and not its sufficiency. Following the admission of the medical bill into evidence, the defendant is, óf course, free to challenge the necessity and amount of any medical charges. As in Cansler, the plaintiff here testified as to the treatments she received and the benefit therefrom. She testified, without equivocation, that the treatment was for pain in her left buttock, and that her buttock was bruised and sore following the accident. When she sought treatment from Dr. Alvarez, he found a cyst in her left buttock. The cyst was a constant source of pain and was positioned in the same place where the plaintiff had been struck by the spool. There was evidence that such cysts could result from a blow. Plaintiff testified that she saw Dr. Alvarez two or three times a week for six weeks and received temporary benefits. Although Dr. Alvarez did not testify, Dr. Abrams testified that the ultrasound and heat treatments of Dr. Alvarez were standard. We have concluded that there was sufficient foundation to show the relevance of the medical bill and that it was necessary as a result of plaintiff s injury. In our judgment, the refusal of the trial court to admit the medical bill into evidence for want of sufficient foundation was error which prejudiced the rights of the plaintiff. The jury awarded the plaintiff a total of $2,000, and the admission of the Alvarez medical bill could have reasonably increased her jury award by $580. The second point raised on the appeal is that the trial court erred in refusing to allow plaintiff s counsel to follow a line of questioning initiated by a juror. At the beginning of the trial, Judge McClain advised counsel that he was going to allow the jury to ask questions at the conclusion of each witness’s testimony. The procedure to be followed was for the judge to authorize a juror to write out a question and to hand it to the judge. The judge would then permit counsel to object at the bench outside the hearing of the jury. In the course of the trial, questions which are not involved on this appeal were asked by individual jurors. The propriety of questioning by the jury is not an issue raised on this appeal. During the defendant’s case in chief, Gary Gillum, a KCPL employee who was in the truck at the time the spool came off, identified a photograph marked defendant’s Exhibit C as an actual picture of a metal spool. He testified that the spool on the KCPL truck on the day of the accident was identical to that shown in Exhibit C. However, the metal spool shown in defendant’s Exhibit C was attached to a crossbar support and secured by four bolts. Pictures of defendant’s trailer taken following the accident showed that the spool which injured plaintiff was actually mounted on a T-bar and secured by spot welds, not bolts. The discrepancy was noted by a juror. At the conclusion of Gillum’s testimony, a juror asked this question: “Why has the design change from the T-Bar welding arrangement to a crossbar or bolted arrangement been made?” The witness responded, “I really can’t tell you. I suppose one is about the same as the other one, but I can’t really tell you that. I don’t know.” Plaintiff s counsel then sought to ask Gillum if a locking bolt arrangement, in Gillum’s opinion, is stronger than a weld. Defendant’s counsel objected, and the trial court sustained the objection. At the time there was no evidence in the record to suggest that defendant had changed the method of securing a spool following the accident. Plaintiff contends her counsel could properly have asked the witness which of the two methods of securing the spool was safer and whether both methods were used by KCPL at the time of the accident. Such a question would have been proper to show that, at the time of the accident, KCPL did not use the safest method of securing the metal spool to the trailer. However, a question by plaintiff s counsel tending to show that KCPL had taken remedial measures subsequent to the accident to prove negligence would have been inadmissible under K.S.A. 60-451. In view of the fact the problem was brought about as the result of the defendant’s introduction into evidence of the photograph, plaintiff s counsel should have been permitted to ask an appropriate question to determine why KCPL was securing a spool through the use of welds if it could have been better secured through the use of bolts. In view of the jury verdict in favor of plaintiff, we have concluded that, even if the ruling of the trial court not to permit further questions was erroneous, the plaintiff has not been substantially prejudiced by the ruling. The real issue in the case was the nature and extent of plaintiff s injury and damages, and the jury by its verdict found that plaintiff s injury was caused entirely by the negligence of the defendant. Thus, on this point, we hold that any error in the trial court’s ruling was harmless error which should not justify a reversal of the case. As to plaintiff s appeal based solely upon the first two points raised, we hold that a reversal for a new trial on all issues is not required in this case. The Kansas Code of Civil Procedure, at K.S.A. 1987 Supp. 60-2101(a) and (b), gives the Kansas appellate courts the jurisdiction to correct, modify, vacate, or reverse a judgment of the district court in order to assure that such judgment is just, legal, and free of abuse. The power to “correct” would appear to give an appellate court the power to allow an additur with the consent of the defendant if necessary to correct a judgment. In Kremer v. Kremer, 76 Kan. 134, 90 Pac. 998 (1907), the court stated that, if an error affects the entire case, a new trial should be granted on all issues; but when an error occurs in the trial of an issue not involving the main issue in the case, and the error can be corrected without disturbing the decision of the main issue, it should be done. Later, in Schlesener v. Mott, 107 Kan. 41, 190 Pac. 745 (1920), a modification of the judgment was directed where the jury failed to allow the defendant one item of credit. The factual circumstances in the present case differ somewhat from those in Kremer and Schlesener, but the actions of the appellate court in those cases suggest that the granting of an additur in certain cases with the consent of the defendant does not offend basic principles of justice and is within the power of the court. Throughout this country, the rule is well established that an additur may be allowed on the same basis as a remittitur, that is, by allowing the party affected (the defendant in case of additur) to accept a verdict for the added amount in lieu of the hazards of anew trial. See 5 Am. Jur. 2d, Appeal & Error § 946, pp. 373-74. The rule is well established in Kansas that either a trial court or an appellate court may condition a new trial on the plaintiff s acceptance of a remittitur. We see no reason why the same rule should not be applied under the peculiar facts of this case, where a trial court improperly excluded from the consideration of the jury one medical bill which the jury could reasonably have considered and added to the medical expenses incurred by the plaintiff as a result of her injuries. If the error in the ruling of the trial court can be corrected without requiring the parties to go through the effort and expense of a new trial, this court should modify the judgment subject to the approval of the defendant, and if defendant objects to the additur, a new trial is ordered. It is the judgment of this court that the district court’s judgment in favor of the plaintiff in the amount of $2,000 be modified to increase the award to the sum of $2,580 with the consent of defendant. If the defendant refuses to accept this modification and requests a new trial, the judgment of the trial court is set aside and the case is remanded to the trial court with directions to afford the parties a new trial on the issue of damages only. The other four points raised on the appeal involve claimed error in the ruling of the trial court imposing sanctions by assessment of attorney fees against plaintiff s attorneys for continuing to pursue a frivolous punitive damages claim without a reasonable basis in fact and in bad faith pursuant to K.S.A. 60-2007. As noted heretofore, plaintiff s attorneys appealed from that order. The trial court assessed attorney fees against the law firm of Carson & Fields, plaintiffs counsel, for pursuing a frivolous claim of punitive damages. K.S.A. 60-2007(b), (c), and (d) authorize the assessment of attorney fees and provide: “(b) At the time of assessment of the costs of any action to which this section applies, if the court finds that a party, in a pleading, motion or response thereto, has asserted a claim or defense, including setoffs and counterclaims, or has denied the truth of a factual statement in a pleading or during discovery, without a reasonable basis in fact and not in good faith, the court shall assess against the party as additional costs of the action, and allow to the other parties, reasonable attorney fees and expenses incurred by the other parties as a result of such claim, defense or denial. An attorney may be held individually or jointly and severally liable with a party for such additional costs where the court finds that the attorney knowingly and not in good faith asserted such a claim, defense or denial or, having gained knowledge of its falsity, failed to inform the court promptly that such claim, defense or denial was without reasonable basis in fact. “(c) The additional costs provided for in this section may be assessed only upon motion filed by the aggrieved party prior to taxation of costs by the clerk of the court under subsection (c) of K.S.A. 60-2002. The party against whom the additional costs are to be assessed shall be given notice of the motion and afforded an opportunity to be heard. If the additional costs are assessed, the court shall make findings with respect thereto, including the specific facts and reasons on which the findings are based. “(d) The purpose of this section is not to prevent a party from litigating bona fide claims or defenses, but to protect litigants from harassment and expense in clear cases of abuse.” The Kansas Code of Professional Responsibility, Rule 225, DR 7-102(A) (1987 Kan. Ct. R. Annot. 147), states that, in his representation of a client, a lawyer shall not file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another. A lawyer shall not knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law. DR 7-106(C) (1987 Kan. Ct. R. Annot. 148) provides that, in his professional capacity before a tribunal, a lawyer shall not state or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. Kansas statutes and Supreme Court rules give the Kansas courts the authority to impose sanctions including the assessment of attorney fees against a party or his attorney under a variety of circumstances. K.S.A. 1987 Supp. 60-211 declares, in substance, that the signature of an attorney to pleadings, motions, or other papers constitutes a certificate by the attorney that he or she has read the pleadings; that to the best of the attorney’s knowledge, information, and belief formed after reasonable inquiry, the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that the pleading is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper required to be signed is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this section, the court, upon motion or upon its own initiative upon notice and after an opportunity to be heard, shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including reasonable attorney fees. K.S.A. 1987 Supp. 60-230(g) (1) and (2) permit a trial court to impose sanctions against an attorney, including attorney fees, for failure to attend a scheduled deposition. K.S.A. 60-237 permits a trial court to impose sanctions for failure of an attorney to allow discovery. K.S.A. 1987 Supp. 60-256(g) recognizes sanctions to be imposed where an affidavit is presented in connection with a motion for summary judgment in bad faith or solely for the purpose of delay. In addition to the statutes just discussed, K.S.A. 60-721(a), 60-905, and 60-910 authorize the sanction of attorney fees under other circumstances where bad faith is shown. K.S.A. 60-2007, which is set forth earlier in this opinion, authorizes sanctions to be assessed against a party or his attorney at the time of the final assessment of costs in a civil case. There are similar provisions in the Kansas Code of Civil Procedure for Limited Actions. K.S.A. 61-1713 provides that attorney fees may be imposed as a sanction where a party, without good reason, refuses to admit the genuineness of a document or the truth of matters of fact. K.S.A. 1987 Supp. 61-2709(a) permits a trial court to award to the appellee reasonable attorney fees as a part of the costs, where the appellee is successful on appeal in a small claims case. Supreme Court Rule 7.07 (1987 Kan. Ct. R. Annot. 35) provides that if an appellate court finds that an appeal has been taken frivolously, or only for the purpose of harassment or delay, it may assess a reasonable attorney fee against the appellant or his counsel or both. These various statutes and court rules have been adopted to make it clear that a Kansas attorney has a professional duty to act in accordance with the standards of the legal profession and to encourage either a trial court or an appellate court to impose sanctions for breach of that professional duty in a proper case. We encourage the Kansas trial courts to impose sanctions under these rules to protect the litigants from harassment in clear cases of violation of professional duty. K.S.A. 60-2007, in paragraphs (c) and (d), places restraints on the Kansas courts in imposing sanctions. Section (c), which is quoted in full above, states that additional costs may be assessed upon motion filed by the aggrieved party, and the party against whom the additional cost is to be assessed is to be afforded an opportunity to be heard. If additional costs are to be assessed, the court is required to make findings with respect thereto, including the specific facts and reasons on which the findings are based. Section (d) makes it clear that the purpose of the statute is not to prevent a party from making bona fide claims or defenses, but to protect litigants from harassment in clear cases of abuse. Canon 7 of the Code of Professional Responsibility (Supreme Court Rule 225 [1987 Kan. Ct. R. Annot. 146]) provides that a lawyer should represent a client zealously within the bounds of law. At times, that professional duty and DR 7-102(A) may come in conflict and make it difficult for a lawyer to know how to proceed. Thus, in determining whether sanctions should be imposed under the statute, each case must be carefully considered on its merits and no universal rule should be applied one way or the other. Since K.S.A. 60-2007 was adopted effective July 1, 1982, various trial courts have imposed sanctions, some of which have been upheld by the appellate courts and some of which have been reversed. In Cornett v. Roth, 233 Kan. 936, 666 P.2d 1182 (1983), it was held that the assessment of attorney fees under 60-211 and 60-2007(b) lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. The assessment of attorney fees for the filing of a frivolous lawsuit was upheld in Cornett. In Betts v. General Motors Corp., 236 Kan. 108, 118-19, 689 P.2d 795 (1984), it was held that the district court did not err in denying defendant’s motion to tax extraordinary costs and attorney fees under the statute. A sanction of attorney fees was upheld in North Cent. Kan. Prod. Credit Ass’n v. Hansen, 240 Kan. 671, 732 P.2d 726 (1987). The Court of Appeals in Smith v. Dunn, 11 Kan. App. 2d 343, 346-49, 720 P.2d 1137 (1986), reversed the district court, holding that it had abused its discretion in assessing attorney fees and expenses pursuant to K.S.A. 60-2007(b), because it erroneously concluded that plaintiffs’ attorney had no reasonable basis in fact to file a claim against the defendants. The court stated in the opinion that the fact that a party’s claim is ultimately denied does not in itself indicate that the claim was frivolous. Rather, we must look at whether there was a “reasonable basis in fact” for the claim when it was asserted and whether the claim was asserted in good faith. We agree with the conclusion of the court that two separate requirements must be met before attorney fees and expenses can be assessed pursuant to K.S.A. 60-2007(b): (1) The claim asserted was without reasonable basis in fact, and (2) the claim was not asserted in good faith. With these principles in mind, we turn to the factual circumstances shown in the record in this case. The plaintiff s action was to recover damages for personal injuries caused when the 35-pound metal spool was dropped from a KCPL truck trailer, rolled down the street, and struck plaintiff. At the time the case was filed, neither plaintiff nor counsel could have known why the spool dropped from the back of the trailer until the facts were developed. Plaintiff s cause of action was based to a great extent on the doctrine of res ipsa loquitur. The attorneys for the plaintiff alleged wanton misconduct and claimed punitive damages in the plaintiff s petition. The district court in its journal entry found that the plaintiffs attorneys had probable cause to commence the cause for punitive damages, but that, during the course of the litigation, plaintiff s attorneys did not establish any reasonable or probable cause to support the factual allegations for punitive damages, and that the claim for punitive damages was continued without probable cause. The defendant in its answer alleged that plaintiff s claim for punitive damages was frivolous and asked for sanctions under K.S.A. 60-2007. In the pretrial order, plaintiff again requested punitive damages and the defendant again alleged that plaintiff s claim for punitive damages was frivolous and asked for sanctions under K.S.A. 60-2007. Thereafter, prior to trial, defendant filed a motion for attorney fees and costs, which motion was deferred pending trial. At the trial, counsel for the plaintiff, in the opening statement, did not claim that defendant’s employees were guilty of wanton misconduct or that punitive damages were proper in the case. Plaintiff did not introduce any evidence of wanton misconduct. If plaintiff s counsel in good faith believed that punitive damages were justified in the case, why was that claim not asserted at the trial? Obviously, plaintiff had no substantial evidence to justify an award of punitive damages. At the hearing on the motion to assess attorney fees, the court found that the plaintiff had continued to assert the claim against KCPL when there was no probable cause for punitive damages. The court then proceeded to assess 20% of the defendant’s total attorney fees as sanctions against the plaintiffs attorneys. The defendant’s total attorney fees amounted to $7,847.50 and the attorney fees assessed against plaintiff s counsel was in the amount of $1,452. As to the amount of the fee awarded as a sanction, $1,452, we cannot say that the trial court abused its discretion. The claim by defendant of harassment was brought up again and again and the issue was argued and briefed on several occasions. It appears that house counsel for the defendant KCPL took a more active part in the case because liability for punitive damages was not covered by defendant’s insurance. Counsel for plaintiff were afforded an opportunity to present evidence and argument on the issue. From all the circumstances set forth in the record, we cannot say that the trial court abused its discretion in its award of attorney fees against plaintiff s counsel. The judgment awarding attorney fees against plaintiff s counsel in the amount of $1,452 is affirmed. The judgment of the district court is modified in accordance with the views expressed in this opinion. With the consent of defendant, the judgment in favor of the plaintiff is increased from $2,000 to $2,580. If the defendant refuses to accept this additur and requests in lieu thereof a new trial, the district court is directed to afford the parties a new trial on the issue of damages only. Judgment affirmed as modified. Herd, J., concurs in the judgment for an additur and dissents as to the imposition of sanctions. Allegrucci, J., concurs in the result.
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The opinion of the court was delivered by Six, J.: This is a misdemeanor speedy trial case which originated in the municipal court. The City of Derby appeals the district court’s dismissal of the offense of driving under the influence of alcohol filed against the defendant Richard Lackey in municipal court. The initial dismissal in the municipal court was based on failure of the City to provide a speedy trial. The City appealed the municipal court dismissal to the district court. The single issue for this court is: Did the district court err in determining that Lackey’s speedy trial rights were violated? In our view the trial court was in error; consequently, we reverse. The appeal is based on the following stipulated facts: “1. The defendant [Lackey] was issued the DUI citation on the 5th day of February, 1987. “2. The defendant has filed first appearance before the Court on 18th day of February, 1987, at which time the Court continued the case to 25th day of February, 1987 for the defendant to obtain an attorney. “3. Mr. Hulnick entered and on the 25th day of February, 1987 the case was set for trial on 15th day of April, 1987. “4. The case was continued for trial on 15th day of April 1987 until 13th day of May, 1987 (not at the request of the defendant). “5. On 13th day of May, 1987 the trial judge dismissed the case. “6. On the 21st day of May, 1987 the case was refiled. The defendant’s first appearance was on the 17th day of June, 1987. The case was set for trial on the 19th day of August, 1987. “7. The case was continued for trial on the 19th day of August, 1987 until the 11th day of September, 1987, at the request of the defendant. “8. On the 11th day of September, 1987, the trial Court again dismissed the case for LOP [lack of prosecution] at the request of the City. “9. The case was again refiled on the 10th day of October, 1987, the first appearance was set on the 14th day of October, 1987. The case was then set for trial on 21st day of October, 1987. “10. On the 21st day of October, 1987 the case was again dismissed by the Court. This time for failure of the defendant to receive a speedy trial as provided by K.S.A. 22-3402.” The trial court ruled that the entire time period from February 25,1987, to August 19,1987, was chargeable to the City, together with the time from September 11, 1987, to October 21,1987. The trial court found the two periods totaled 217 days. No deduction was made for the time lapse between each discharge and refiling and between refiling and first appearance. The time from August 19 to September 11, a continuance requested by Lackey, was held as chargeable to Lackey. Lackey was not incarcerated at any time; thus, the parties agree that the State has 180 days to try Lackey. K.S.A. 22-3402(2). They disagree on which dates are to be included in that time period. The trial court, in computing the days remaining for a speedy trial, included all the days between dismissal and refiling and between refiling and the first appearance. The speedy trial statute applies to both misdemeanors and felonies. State v. Ransom, 234 Kan. 322, 673 P.2d 1101 (1983), cert. denied 469 U.S. 818 (1984); State v. Taylor, 3 Kan. App. 2d 316, 594 P.2d 262 (1979); Annot., Application of Speedy Trial Statute to Dismissal or Other Termination of Prior Indictment or Information and Bringing of New Indictment or Information, 39 A.L.R.4th 899. Since a preliminary hearing is not required in misdemeanor cases, it is generally at the first appearance that a misdemeanor defendant is arraigned. State v. Taylor, 3 Kan. App. 2d at 320. This is true provided the requirements for an arraignment (K.S.A. 22-3205) are met at the first appearance. 3 Kan. App. 2d at 320. Under the Ransom rule, in a misdemeanor case, only the time periods between the first appearance and dismissal and between first appearance and trial are to be included. “Where the State dismisses a pending criminal case without making a showing, of necessity, and then files a second case charging the same defendant with the same offense, a court must include the time elapsed between arraignment and dismissal of the first prosecution together with the time elapsed between arraignment and trial of the second prosecution, when calculating time for the purpose of applying K.S.A. 22-3402, the Kansas speedy trial statute.” (Emphasis added.) State v. Ransom, 234 Kan. 322, Syl. ¶ 1. The City states in its brief that there were three separate arraignments. When a misdemeanor case has been dismissed and the charges refiled, the time between the dismissal and a subsequent K.S.A. 22-3205 first appearance is to be disregarded in determining whether the time periods mandated by the speedy trial statute, K.S.A. 22-3402, have elapsed. Under the Ransom rule, the only time periods which can be aggregated are: February 25 to May 13 - Although Lackey made his first appearance on February 18, the Court continued the case to February 25 for Lackey to obtain an attorney. Lackey does not contend that this seven-day period is to be charged against the City. Days used: 77 June 17 to August 19 - (Lackey received a continuance, at his request, until September 11.) The August 19 to September 11 period is not chargeable to the State under K.S.A. 22-3402(2). On September 11, the charge was again dismissed. Days used: 63 October 14 to October 21 - The action was dismissed on October 21 for a third time. Days used: 7 The total number of days used (77+63+7) equals 147. The speedy trial clock has not yet run. Reversed.
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The opinion of the court was delivered by Herd, J.: This is a tax case wherein Marion Crow challenges the use of funds by the Board of County Commissioners of Shawnee County for the Kansas Expocentre. The county cross-appeals for an award of attorney fees and costs on the theory Crow’s appeal is frivolous. In 1983 the Board of County Commissioners of Shawnee County passed Resolution No. 83-33, which is set out below: “A resolution authorizing and directing the calling of a question submitted election to be held at the time of the general election on April 5, 1983, in Shawnee County, Kansas, for the purpose of submitting to the qualified electors of said county a proposition to issue general obligation bonds of said county in the aggregate principal amount of not exceeding $19,700,000, for the purpose of providing funds to construct on the Shawnee County fairgrounds a civic center complex consisting of buildings and parking facilities and to remodel and equip certain existing public buildings, together with all things necessary and incidental thereto, under the authority of K.S.A. 19-15,139 et seq., K.S.A. 19-15,114 et seq. and Article 1 of Chapter 10 of the Kansas statutes annotated and all amendments thereto.” The proposed civic center excited much discussion in Shawnee County. Newspaper articles informed the public that if the proposal passed, the civic center would be built under a state statute that specifically applies to building civic centers, K.S.A. 19-15,139 et seq., and would be county operated. The proposal hit a snag when it was discovered the statute did not authorize the use of bond proceeds for the renovation and repair of existing structures, as required by the plan for the Kansas Expocentre. The problem was overcome by special legislation authorizing Shawnee County- to finance repairs and reconstruction with money from the bond issue. K.S.A. 1987 Supp. 19-15,139. A report by a civic center marketing and management consultant was reported in newspapers as stating the first years of operating the Expocentre might require subsidies from government funds, with the amount of support decreasing as “event days” increased. Suggestions on ways to hold down taxes on the center were discussed. The bond proposal was submitted to the voters on April 5, 1983, as follows: “SHALL THE FOLLOWING BE ADOPTED? “Shall Shawnee County, Kansas issue and sell its General Obligation Bonds in the aggregate principal amount of not exceeding Nineteen Million Seven Hundred Thousand Dollars ($19,700,000) for the purpose of providing funds to construct on the Shawnee County Fairgrounds a civic center complex consisting of buildings and parking facilities and to remodel and equip certain existing public buildings, together with all things necessary and incidental thereto, under the authority of K.S.A. 19-15,139 et seq., 19-15,114 et seq., all as amended, and Article One of Chapter 10 of the Kansas Statutes Annotated and all amendments thereto?” The proposal was approved by a 2-1 majority. Opponents of the proposition argued the center would not only increase property taxes because of the bond issuance but would also require a tax levy for operating expenses because it would be several years before the center would be self-sufficient. It was accepted that the county had the authority to pay operating expenses for the center when needed. Receipts from the 1985 general fund tax levy were thus used to pay for operating and equipping of the Expocentre. Crow objected to the use of the general fund by protesting his 1985 taxes with the State Board of Tax Appeals. Although he raised other issues, Crow’s main argument was that the county did not have authority to pay for Expocentre operating costs and equipment from any source other than the bond issue unless a special statute authorized the county to pay operating expenses from general funds. The first issue for our determination is whether Crow has standing to challenge alleged unlawful expenditure of county funds. The longstanding general rule in Kansas is that a taxpayer may not challenge the expenditure of county funds unless he is peculiarly damaged by the county’s actions. Robinson v. Board of County Commissioners, 210 Kan. 684, 687, 504 P.2d 263 (1972). Crow .does not claim to be affected differently than any other member of the general public by the county’s actions. A private citizen may nevertheless be granted standing by statute. Haines v. Rural High School Dist. No. 3, 171 Kan. 271, 274, 232 P.2d 437 (1951). Crow made his protest to the Board of Tax Appeals under the provisions of K.S.A. 1987 Supp. 79-2005, which sets forth the procedure by which a citizen may protest his payment of taxes. Under this statute, the taxes must be paid before a protest may be filed with the county treasurer. See K.S.A. 1987 Supp. 79-2005(a); In re Tax Protest of Rice, 228 Kan. 600, 620 P.2d 312 (1980). The protest must state the grounds on which the taxpayer protests payment. Within thirty days after filing the protest, the taxpayer must file an application for refund with the State Board of Tax Appeals. The Board then sets a date for a hearing. The Board denied Crow’s motion for relief and his motion for rehearing, whereupon he appealed to the district court. The district court denied the appeal, and Crow again appealed. The case is reviewable by this court as in other civil cases. K.S.A. 77-623. K.S.A. 1987 Supp. 79-2005 is intended to provide a means of relief to those taxpayers who believe a tax levy or assessment is illegal. See K.S.A. 1987 Supp. 79-2005(b) and (c). Crow presents no evidence the general fund tax levy is illegal. Instead, he protests the county’s use of the general fund. The district court, noting the severity of the laws proscribing improper diversion of funds and their enforcement by designated public prosecutors, found the legislature did not intend to “designate each taxpayer via K.S.A. 79-2005 . . . as a private attorney general to vindicate the public interest in proper expenditure of tax funds absent circumstances legally jeopardizing the levy itself.” The court noted if the diversion amounted to fraud, the levy itself might be illegal, in which case a tax protest remedy might be found appropriate. In Baker v. Consolidated Rural H.S. Dist., 143 Kan. 695, 56 P.2d 109 (1936), a newly consolidated school district certified to the Board of County Commissioners ■ a tax levy on property situated in only one of the former districts in order to pay teacher salaries this court had determined were owed by the consolidated district. We held the levy amounted to fraud and was properly protested by individual taxpayers. The district court held the circumstances in the case at bar are in no way similar. We agree with the district court. There is no evidence of fraud or an illegal tax levy. Crow’s objection is to the use of tax funds. Absent a showing he was injured differently than other members of the public, Crow has no standing to raise the issue. It is obvious Crow’s major argument on appeal would have failed on the merits. The county has clear authority under K.S.A. 19-212, 19-229 and 19-241 to determine how its general fund shall be used in meeting county expenses, including the operation and maintenance of public buildings. The County Commissioners have exclusive control over county expenditures. See Hackler v. Board of County Commissioners, 189 Kan. 697, 369 P.2d 782 (1962). Crow’s remedy, if any, is in the political arena rather than the courts as Crow has no standing to bring this appeal. Thus, the issues on appeal are moot and require no further discussion. We have considered the county’s cross-appeal for costs and attorney fees and deny the request. The judgment of the district court is affirmed.
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Meyer, J.: In this workmen’s compensation case, the district court affirmed a director’s award of 15 percent permanent partial disability. Claimant appeals, contending he should have been awarded 100 percent disability, and the Kansas Workmen’s Compensation Fund (Fund) cross-appeals contending it should not have been held solely liable for payment of claimant’s award. Claimant was injured July 5, 1974, while employed by Triple J Construction Company, Inc. (respondent). Respondent’s business consisted of pouring concrete basement walls. Respondent is a corporation having three principal stockholders — Howard Johnson, president; Billy Jack, vice president and manager; and Carlton Johnson, an inactive stockholder. Claimant’s injury occurred while he was trying to remove a 96-pound form from a basement, assisted by two other employees. The form struck claimant and injured his back. Claimant missed work the day following the accident, but then returned to work and reported his injury. On September 20, 1974, claimant had a spinal fusion operation performed by Dr. John Lance, an orthopedist. Doctor Lance had treated claimant for back trouble in 1971 and 1972. Prior to claimant’s 1974 injury, he had performed manual labor consisting of farming, construction work, and applying fertilizer to fields. Since his injury, claimant performed manual labor; one such job consisting of lifting a maximum of 51 pounds on a limited basis. At the workmen’s compensation hearing, Doctor Lance testified claimant had a functional disability rating of 10 percent. Dr. Roy Coffey, also an orthopedic surgeon, testified claimant had a 15 percent functional disability, and Dr. Ernest Neighbor, another orthopedic surgeon, stated claimant had a 15 percent functional disability. The examiner found claimant had a 15 percent permanent partial disability; that he had a preexisting physical impairment; that the previous handicap was known by respondent at the time it hired him; and that claimant had been retained by respondent with this knowledge. Additionally, the examiner found that the injury would not have incapacitated claimant “but for” the preexisting handicap. Thus, the Fund was charged with the entire liability to claimant. The examiner’s award was sustained by the director, and the district court sustained the director’s order and adopted the examiner’s findings as its own. Claimant argues there is no support in the record for anything but a finding of total disability. He relies on Reichuber v. Cook Well Servicing, 220 Kan. 93, 551 P.2d 810 (1976), and Scott v. Day and Zimmerman, Inc., 215 Kan. 782, 529 P.2d 679 (1974), pointing out the factual similarities of these two cases with the testimony of the experts and of claimant here. In essence, claimant asserts the fact he is totally unable to perform the work he was performing for respondent prior to the injury. Thus, claimant contends that according to the Reichuber test for determining disability, he is totally disabled. Respondent and its insurer, Maryland Casualty Company, claim that under either the statutory definition of permanent total disability, K.S.A. 1979 Supp. 44-510c(a)(2), or the test of Reichuber and Scott, claimant is not totally disabled. They argue that the test is not whether claimant can return to the same job as before, as claimant contends, but whether and to what degree claimant’s ability has been impaired in the labor market for the same type of work he was capable of performing before the injury. The Fund contests the finding of sole liability. It disputes the finding that claimant is “handicapped” within the definition of K.S.A. 1979 Supp. 44-566 by taking the position that before a physical condition can constitute a “handicap,” the employee must demonstrate he was previously denied employment because of his “handicap.” The Fund admits claimant did have some preexisting back problems and that he was injured in 1971 prior to his being employed by respondent, but that since he was never denied employment for physical reasons he did not have a “handicap in obtaining employment” as required by statute. The Fund also argues that even if claimant was handicapped within the meaning of the statute that there is no substantial competent evidence to show he was knowingly hired or retained by respondent as such. In effect, the Fund challenges'Howard Johnson’s general knowledge of claimant’s weak back as insufficient to constitute knowledge on either his part or on the part of respondent corporation that claimant was handicapped. Respondent counters with the assertion that whether or not a claimant is ever denied employment because of his physical condition is not conclusive; that claimant was in fact “handicapped” as defined by statute; and that Howard Johnson’s knowledge was sufficient notice of claimant’s previous impairment not only to Howard Johnson, but also, by imputation, to respondent corporation. We will first consider whether or not the finding that claimant has a 15 percent permanent partial general disability is supported by substantial competent evidence. Jurisdiction on appeal of compensation cases is limited to a review of questions of law according to K.S.A. 1979 Supp. 44-556(c). Where the findings below are supported by substantial competent evidence, those findings will not be disturbed. Cody v. Jayhawk Pipeline Corporation, 222 Kan. 491, 493, 565 P.2d 264 (1977); Reichuber v. Cook Well Servicing, 220 Kan. at 96. In determining that matter, all testimony must be viewed in a light most favorable to the party prevailing below. Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P.2d 313 (1975). The percentage of extent of a claimant’s disability is a question of fact. Reichuber v. Cook Well Servicing, 220 Kan. at 96. The test for determining permanent partial general disability is the extent to which the injured workman’s ability has been impaired to engage in work of the same type and character he was performing at the time of his injury. K.S.A. 1979 Supp. 44-510e. At the heart of the problem in the instant case is what the parties see as a conflict between K.S.A. 1979 Supp. 44-510c and 44-510e. K.S.A. 44-510c(a)(2) gauges such disability on the ability of the workman to engage in any type of substantial and gainful employment while K.S.A. 1979 Supp. 44-510e(a) states the test is the workman’s ability to engage in work of the same type and character that he was performing at the time of his injury. Additionally, the parties are unable to agree on the application of the concepts of functional and work disability. The distinction between these two forms of disability is stated in Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 195, 558 P.2d 146 (1976): “Functional disability is the loss of a part of the total physiological capabilities of the human body. Work disability is that portion of the job requirements that a workman is unable to perform by reason of an injury.” K.S.A. 1979 Supp. 44-510c(a)(2) and 44-510e(a), which set out the two tests for permanent total and permanent partial disability, were passed as part of the 1974 amendments to the workmen’s compensation statute, effective July 1, 1974. K.S.A. 44-505(c) as amended in 1974 provides: “This act shall not apply in any case where the accident occurred prior to the effective date of this act. All rights which accrued by reason of any such accident shall be governed by the laws in effect at that time.” Therefore the substantive rights between the parties are determined by the law in effect on the date of the injury. See Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, 569, 552 P.2d 998 (1976). Cases involving findings of permanent total disability where the injuries occurred prior to July 1,1974, are not controlling as to the test used to determine permanent total disability. Many cases involving pre-1974 injuries have found a permanent total disability using the test of the extent to which a worker’s ability has been impaired to procure in the open labor market, and to perform and retain work, of the same type and character he was capable of performing before his injury. E.g., Scott v. Day and Zimmerman, Inc., 215 Kan. 782, 529 P.2d 679 (1974)—accident occurred October 9, 1970; Hall v. O’Neill Tank Company, 217 Kan. 632, 538 P.2d 965 (1975)—no accident date stated, but no mention of the amended statute; Hardman v. City of Iola, 219 Kan. 840, 549 P.2d 1013 (1976)—date of accident, September 26, 1972; Reichuber v. Cook Well Servicing, 220 Kan. 93—injury in 1969. We think it significant to note that in Hardman v. City of Iola, the respondent argued that the finding by the district court of permanent total disability was error in view of the amendment to K.S.A. 44-510c(a)(2), the same question we have presented before us now. In that case, the Supreme Court rejected the argument because it found no reason to give retroactive application to the amendment. As to accidents occurring after the 1974 amendments, the cases do not specifically address the question of when a finding of permanent total disability can be made in view of the 1974 amendment defining permanent total disability as the inability to engage in any type of substantial and gainful employment. It appears to us that the legislative intent of the 1974 act is to establish a test for work disability as follows: If the workman is permanently unable to engage in any type of substantial and gainful employment, the disability is a permanent total disability, and he is entitled to recover under 44-510c; and, if he is permanently unable to engage in “work of the same type and character that he was performing at the time of his injury,” the disability is a permanent partial disability and recovery is under 44-510e, but in an amount not to exceed the coverage provided by 44-510c. Whether a permanent injury is total or partial is determinative of which section of the statute applies. K.S.A. 1979 Supp. 44-510c covers both permanent or temporary total disability, while K.S.A. 1979 Supp. 44-510e applies to permanent or temporary partial disability. The test of being completely and permanently unable to engage in any type of substantial and gainful employment determines when disability is total, and the test of being unable to engage in work of the same type and character that was performed at the time the injury was incurred determines when a disability is partial. Since this is a case of first impression to come before the court since the 1974 amendments, we deem it advisable to set out what we consider the effect of the amendments to be. In considering a permanent partial general disability under K.S.A. 1979 Supp. 44-510e, the work disability would be measured by the reduction, expressed as a percentage, in the worker’s ability “to engage in work of the same type and character that he was performing at the time of his injury.” Conceivably, a worker could be employed full time at a higher paying job and still be considered 100 percent less able to find and retain work of the same type and character as he was performing at the time of his injury. In such case a 100 percent permanent partial disability rating might be appropriate. The main difference in effect between a permanent total disability and a permanent partial disability is that under a permanent total disability the benefits extend for the duration of the disability, not to exceed the maximum set by K.S.A. 1979 Supp. 44-510f(a), while under a permanent partial general disability, the maximum duration is further limited to not more than 415 weeks. The district court adopted the findings of the examiner which indicate that the examiner felt claimant did not have either a permanent total or a permanent partial work disability. After finding what claimant had already been paid, and what was thereafter due him, the examiner stated: “In making this finding I have not overlooked the Claimant’s earnest contention that he is totally disabled simply because the doctors testify that he should not be doing the type of work which he described. That may be so, but he probably should not have been doing that type of work since 1971 and was reasonably well able to do it until the last episode on July 5. He has had a successful surgery, and in my opinion could perform and retain such employment as he was engaged in at the time of the accident on July 5 reasonably well with occasional episodes of pain not considerably different from those which he apparently endured from 1971 until the final, precipitating incident on July 5. Nevertheless, he is certainly entitled to his anatomical disability, and respected physicians retained by both the Claimant and the Respondent agree that it is in the neighborhood of 15 percent.” The examiner’s finding was that claimant’s ability to go back to work of the same type as before was not reduced. Our question is whether that finding is supported by substantial competent evidence. The term “substantial evidence” is evidence possessing substance or relevance or which furnishes a substantial basis of fact from which the issues can be resolved. Crow v. City of Wichita, 222 Kan. 322, 332-333, 566 P.2d 1 (1977); Barr v. Builders, Inc., 179 Kan. 617, 619, 296 P.2d 1106 (1956). In viewing the record in a light most favorable to the party who prevailed below, as we are required to do, the evidence is as follows. Dr. O. C. Loughmiller, a chiropractor, testified that he had treated claimant in 1971 on three occasions and that in his opinion Grounds had a bad back in 1971 and that it was inevitable that he would eventually aggravate that condition unless he could get work where he was not required to do manual labor. He next saw claimant after the 1974 accident and referred him to Dr. John F. Lance, an orthopedic surgeon. Dr. Loughmiller refused to express an opinion as to the claimant’s ability to perform manual labor or of functional disability, preferring to leave that to Dr. Lance. Dr. Lance testified he had performed a spinal fusion on claimant after the 1974 accident. Dr. Lance denied knowledge of the 1974 accident and attributed the necessity of the spinal fusion to the 1971 injury. The trier of facts found the spinal fusion arose out of the accident in 1974, and although no one challenges that finding on appeal, the record contains sufficient competent evidence to support that finding. Dr. Lance was asked if claimant could resume work similar to that engaged in prior to 1974 “as tolerated.” He replied: “I think he probably could do that type of work. I don’t think that he would be quite as safe on that job as someone who had never had any trouble with their back and I’m not sure that anybody is totally safe on that kind of a job. The back wasn’t really built for that kind of work.” On cross-examination, claimant’s attorney described the job and inquired whether claimant would be able to handle it and Dr. Lance testified: “Yes I think that Mr. Grounds could probably go back to that kind of work and do it for some period of time at least but I think he is much more apt to get into trouble with his back again than someone who had a normal back so I wouldn’t advise it.” Dr. Lance explained that a spinal fusion puts more stress on the remaining spinal joints, and particularly on the adjacent joint to the fusion than a normal spinal joint would be subject to. He further testified that if he were performing an employment physical for a prospective employer who desired to employ claimant to do work similar to that performed before the 1974 injury that he would not recommend that he be hired for that heavy labor. He agreed that if claimant was complaining of pain from lifting 18 months after surgery, that claimant should not attempt to do any type of work that causes back distress. Dr. Lance had last examined claimant in April of 1975 when he released him to do light work as tolerated. If substantial competent testimony exists to support the trial judge’s finding that claimant could do work of the same type and character as engaged in prior to his injury, it must be found primarily in Dr. Lance’s testimony. It seems inconsistent to us that a doctor would testify that a man can perform certain labor but that he would not pass him on a physical examination to do the same job. The test, however, is not what we would have found if we had been the trier of facts. We thus hold the record contains sufficient competent evidence to support the finding that claimant is capable of performing work of the same type and character he was performing at the time of the injury. The examiner also found that claimant was entitled to the 15 percent disability rating accorded him by the medical testimony as a functional disability even though no work disability was apparent. Such an award is authorized. “[C]omputation of an award may be based on functional disability where the percent age of work disability is not proved, is less, or is none. Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. at 197.” Desbien v. Key Milling Co., 3 Kan. App. 2d 43, 45, 588 P.2d 482 (1979). Turning now to the liability of the Fund, we are not impressed with the Fund’s argument that a worker is not a handicapped employee simply because he has not been refused employment by others. The fact that a worker has never been denied employment because of a physical or mental impairment does not preclude a finding that he is a “handicapped employee” as defined in K.S.A. 1979 Supp. 44-566. We note the injury in this case occurred a few days after amendments to K.S.A. 44-567 became effective on July 1,1974, and that at such time the formal filing of Form 88, Notice of Handicapped Employee, was not required. Also, under the statute, the employer has the burden of proving that he “knowingly” retained a “handicapped employee.” Hinton v. S. S. Kresge Co., 3 Kan. App. 2d 29, 592 P.2d 471 (1978), rev. denied 225 Kan. 844 (1979). While it is apparent the employer filed no Form 88 or other notice with the director at the time of claimant’s employment, nevertheless, the findings below show that claimant was retained in his employment by his employer with knowledge of the handicap. The record contains sufficient competent evidence that (1) prior to the compensable injury the employee was suffering from a handicap as defined by K.S.A. 1979 Supp. 44-566, (2) prior to the compensable injury the employer had knowledge of the handicap, (3) the compensable injury was caused by or contributed to by the preexisting impairment, and (4) the disability would not have occurred but for the preexisting physical impairment. See K.S.A. 1975 Supp. 44-567 (since amended); Woodin, Workmen’s Compensation — The Workmen’s Compensation Fund, 24 Kan. L. Rev. 641 (1976). Howard Johnson, respondent corporation’s president, and claimant were personal friends, having known each other since childhood. Johnson hired claimant personally to be foreman even though he had known for many years that claimant had back problems. Further, Johnson had specific knowledge that claimant had a prior injury to his back in 1971 and that claimant had made a workmen’s compensation claim at that time. In fact, Johnson’s insurance agency had processed the 1971 claim. Johnson also knew that it was necessary for claimant to wear a back brace. Without reciting it here, suffice it to say that there was ample medical testimony upon which the court below could base its finding that claimant was in fact a handicapped employee at the time he was hired by respondent. The testimony of Johnson clearly is substantial competent testimony to establish the finding below that he had knowledge of claimant’s handicap, and clearly Johnson’s knowledge as president of respondent corporation is imputable to respondent. Mackey v. Board of County Commissioners, 185 Kan. 139, Syl. ¶ 5, 341 P.2d 1050 (1959). The trial court made the proper finding of disability herein, and the Fund was solely responsible for the payment of the award. Affirmed.
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Meyer, J.: This is an appeal from a criminal conviction by a jury of robbery (K.S.A. 21-3426), and unlawful restraint (K.S.A. 21-3424). Jesse Hammond (appellant) and an unknown individual went to a rural residence the morning of October 25, 1977. The two State’s witnesses testified that they were held at gunpoint. Gary D. Riekeman was robbed of a certain amount of cash at two different times, once by the appellant and once by the accomplice. The State’s witnesses further testified that they were taken from the residence at gunpoint, and one was confined in a cellar located a few feet to the north of the residence. Appellant testified that he was at the residence but denied any involvement in a robbery or in any other criminal activity. He admitted that the other individual was armed with a pistol, but denied that he was in any way involved. Appellant was arrested and charged with aggravated robbery, kidnapping, aggravated battery, aggravated assault and aggravated burglary. The aggravated assault charge was dismissed for being multiplicitous. Appellant filed two motions to dismiss on the basis that the complaint was conclusory and did not give sufficient facts for the magistrate judge to make an independent finding of probable cause. The motions were denied. At trial, appellant moved to dismiss the robbery count as being duplicitous as two offenses were charged in one count. This motion was also denied. Appellant first complains that the court committed error in refusing to grant his motion to dismiss for failure of the complaint to provide underlying facts and circumstances so that the magistrate could find probable cause for issuance of the arrest warrant. Appellant filed two motions to dismiss. The first motion was heard and denied by the district magistrate judge immediately prior to appellant’s preliminary hearing. Denial of this motion was before Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978), was handed down. His second motion to dismiss was filed after Wilbanks was handed down. This motion was denied by the district judge. The holding in Wilbanks, insofar as applicable here, was as follows: “Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate.” 224 Kan. 66, Syl. ¶ 1. And further, “A verified complaint couched in the language of the criminal statute, standing alone, is not sufficient to support a finding of probable cause. A complaint should contain sufficient factual information to enable the magistrate to make an impartial and detached finding of probable cause before a warrant is issued.” 224 Kan. 66, Syl. ¶ 4. Our Supreme Court in Wilbanks followed the precedent set by the United States Supreme Court in Giordenello v. United States, 357 U.S. 480, 2 L.Ed.2d 1503, 78 S.Ct. 1245 (1958), and Whiteley v. Warden, 401 U.S. 560, 28 L.Ed.2d 306, 91 S.Ct. 1031 (1971). Appellant’s argument is that the illegal arrest was sufficient justification for dismissal of the charges against him, but we find no case which would support this conclusion. None of the cases above stand for the proposition that an illegal arrest and detention vitiates a subsequent conviction. See United States v. Crews, - U.S. -, _, 63 L.Ed.2d 537, 100 S.Ct. 1244 (1980) (citing from Gerstein v. Pugh, 420 U.S. 103, 119, 43 L.Ed.2d 54, 95 S.Ct. 854 [1975]), where the court said: “[Rjespondent . . . cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction.” It is not the illegal arrest and restraint, per se, which causes a conviction in violation of the above cases to be set aside, although same might well give rise to a valid writ in habeas corpus. The effect of Giordenello and Whiteley are that these cases preclude the use of evidence seized incident to such an illegal arrest. Thus, these cases hold that evidence seized at the time of an unlawful arrest is inadmissible as evidence. They do not, as aforesaid, stand for the proposition that the defendant cannot be prosecuted. The arrest warrant of the appellant herein was admittedly based upon a complaint couched in the terms of the statute and the judge issuing such warrant lacked sufficient information to make an independent determination of probable cause. However, it is not contended that any evidence was seized or brought to light by reason of the arrest. Furthermore, the preliminary hearing was held immediately following the motion to dismiss and a finding of probable cause at that hearing made appellant’s continued detention legal. In State v. Addington, 205 Kan. 640, 644, 472 P.2d 225 (1970), the court said: “The law is well settled that jurisdiction of a court to try a person accused of a crime is not divested by the fact he may have been unlawfully arrested.” Again, in State v. Kearns, 211 Kan. 158, 162, 505 P.2d 676, cert. denied 414 U.S. 841 (1973), the court said: “Whatever its deficiencies, the complaint had spent its force when a preliminary hearing was held and the magistrate made the necessary findings to bind appellant over for trial.” It is true that our Supreme Court in Wilbanks stated, “To whatever extent those cases are inconsistent with the views hereafter expressed, they are disapproved.” 224 Kan. at 75. One of the cases there referred to was Addington; however, Wilbanks was clearly not intended to overrule Addington other than as it related to the proposition that a conclusory affidavit was sufficient for a finding of probable cause. We do not interpret Wilbanks as overruling the rule regarding jurisdiction to try a defendant. We commend the granting of an immediate probable cause hearing to prevent further illegal detention, because it is obvious that until the time probable cause was determined the defendant was not properly in custody. Since the court did have jurisdiction to try the defendant, the court did not err in refusing to dismiss the charges. For the reasons stated above, we conclude there is no merit to appellant’s first issue. Appellant next claims the court erred in denying his motion to dismiss the aggravated robbery count on the grounds that it was duplicitous. In State v. Campbell, 217 Kan. 756, 778, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975), the court said: “The vice of duplicity is that the jury is unable to convict of one offense and acquit of another offense where both are contained in the same count.” The remedy for duplicity was discussed in 1 Wright, Federal Practice and Procedure: Criminal § 145 (1969), p. 335: “An indictment or information charging two separate offenses in a single count is duplicitous, but this is not fatal, and does not require dismissal of the count. The proper remedy is to require the government to elect upon which charge contained in the count it will rely, and defendant is not harmed if the proof is limited to only one of the charges in the duplicitous count.” Appellant’s argument is that he was charged with the robbery of $52, whereas the proof indicated that an accomplice took $12 from the victim at one time and later appellant took $40. Thus, he was charged with two offenses. First, it should be noted, that whether the amount taken was $12, $40, or $52 is not of great significance. Since the charge was that of robbery, the amount was not crucial, in that the crime would still be that of robbery regardless of the sum taken. Moreover, the prosecution amended its information so that the $52 figure was stricken from the count of robbery. Therefore, the jury had before it only one offense and would not be faced with the dilemma of being unable to convict of one offense and acquit of another. In addition, we find that the trial court did not abuse its discretion in allowing the amendment before the case was submitted to the jury. Under K.S.A. 1979 Supp. 22-3201(4): “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” Such an amendment did not prejudice appellant’s rights nor did it charge him with an additional or different crime. Appellant next complains that the court erred in giving the instruction from PIK Crim. 68.12, the so-called “Allen” charge. (Allen v. United States, 164 U.S. 492, 41 L.Ed. 528, 17 S.Ct. 154 [1896]). The jury retired at 10:35 a.m. and met until 11:55 a.m. when they were excused for lunch. They reconvened at 1:00 p.m. and deliberated until 3:07 p.m. at which time they notified the court they were unable to reach a verdict. Despite the vigorous objection of appellant, the court, at that time, gave the Allen instruction. Just under an hour later the court again summoned the jury, at which time the following transpired: “THE COURT: Let the record show the presence of the jury, the presence of the defendant, his counsel, and the State’s attorney. Mr. Brown, as foreman of the jury I would like to ask— Now, listen carefully. I don’t want you to tell me what the count is; I just want you to tell me whether or not any progress has been made towards an agreement since the last instruction was given to you by three o’clock. “MR. BROWN: Yes, sir, we have a conviction on the robbery. “THE COURT: Now, wait a minute, I don’t want to know what it is. “MR. BROWN: I’m sorry. “THE COURT: You are reporting that you have made progress? “MR. BROWN: Right. “THE COURT: Very well, in that event I’m going to let you go back and continue your deliberations and attempt to reach a decision in every count. Now, mind you I say reach a decision for or against, convict or acquit. I’m not saying which way. If you are unable to agree on all of the counts, then you may come in and give your verdict in the counts upon which you have agreed and the other counts will be held as a mistrial. It is not— It is not incumbent upon you to agree on all four. We would like to have that, but it isn’t going— we won’t throw the case out if you don’t. So you apparently have reached some agreement, and I’m going to send you back now and ask that you continue to try to reach a full agreement. Is that clear to everyone on the jury? And those matters that you cannot agree on, then knock and report to the bailiff you cannot agree. Thank you. You may go back now and continue with your deliberations." Following the above statements of the court, the jury reconvened at 4:15 p.m. and at 4:37 p.m., only 22 minutes later, arrived at its verdicts. Our Supreme Court has long been critical of the Allen-type instruction. See State v. Oswald, 197 Kan. 251, 417 P.2d 261 (1966); State v. Basker, 198 Kan. 242, 424 P.2d 535 (1967); State v. Earsery, 199 Kan. 208, 428 P.2d 794 (1967); Bush v. State, 203 Kan. 494, 454 P.2d 429 (1969); State v. Scruggs, 206 Kan. 423, 425, 479 P.2d 886 (1971); and State v. Boyd, 206 Kan. 597, 481 P.2d 1015 (1971), cert. denied 405 U.S. 927 (1972). We conclude that the giving of an Allen-type instruction after the jury has deliberated for only 3 hours and 27 minutes, and particularly when the giving of same is objected to, is error. The error is compounded when the court calls the jury back less than one hour later and again prompts them. We do not here intend to set a time within which it would be error to give the Allen instruction, in that in each case it must be discretionary with the trial court. However, we have no hesitancy in saying that the shorter the period of deliberation has been, the more suspect is the giving of the instruction, and the more likely it is that the instruction will be coercive in nature. It may well be that there are cases with issues simple enough that such an instruction would be indicated within a few. hours of deliberation; however, the instant case was not a simple one. We conclude the court abused its discretion. Not every abuse of discretion, however, and not every error, is grounds for reversal. To constitute reversible error, same must be prejudicial when considered in conjunction with all the evidence in the particular case. In the instant case, it is hard to see prejudice since the jury remained deadlocked on two issues and therefore did not indicate coercion by its results. As to the two remaining counts, appellant was convicted of lesser included offenses of each. Considering this, and in view of the compelling, and what we consider overwhelming, evidence in this case, we conclude that the error was not prejudicial and appellant was not deprived of a fair trial. Appellant’s final claim of error is that the trial court denied him a right to a fair trial by its actions, rulings and conduct. One such complaint concerns a discussion between defense counsel and the court in the presence of the jury, as follows: “THE COURT: If he did, does that make the defendant any less guilty or more guilty if he helped process that marijuana? The fact that this man might be the biggest marijuana dealer west of the Mississippi, does that make— “MR. OPAT: I’ll withdraw the question. “THE COURT: —make your defendant any less or more guilty? In other words, it’s irrelevant whether he harvested the marijuana or whether the pillow fairy brought it in for him.” We do not look with favor on these remarks of the court in the presence of the jury. Nevertheless, we conclude appellant received a fair trial. Among other rulings of the trial court which found in favor of appellant, the court sustained an objection to an inquiry of the victim’s (Riekeman’s) drug and alcohol use on the evening before the morning of the alleged crimes. Further, the court denied the State the right to inquire into the victim’s involvement with an alleged drug rip-off with which appellant was involved. Also, the court admonished the jury to disregard the repartee between himself and counsel as to who harvested the marijuana. The court was within its discretion to exclude such testimony. In connection with his complaints against the trial court’s conduct of the trial, appellant raises the fact that the court questioned an officer to perfect the chain of custody with regard to certain pictures, when appellant objected to improper foundation. State v. Boyd, 222 Kan. 155, 158-9, 563 P.2d 446 (1977), contains the law concerning the problem of a court taking the role of a prosecutor, in the following language: “We have stated on a number of occasions that the purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant and it is a part of the business of the trial judge to see that this end is attained, even though in accomplishing the full development of the truth it sometimes becomes necessary for him to examine and cross-examine the witnesses. (State v. Blake, 209 Kan. 196, 495 P.2d 905; State v. Jones, 204 Kan. 719, 466 P.2d 283; State v. Winchester, 166 Kan. 512, 203 P.2d 229; State v. Miller, 127 Kan. 487, 274 Pac. 245; and State v. Keehn, 85 Kan. 765, 118 Pac. 851.) In recognizing the right of a trial judge to cross-examine witnesses we have always coupled such recognition with words of warning. In State x>. Winchester, supra, we stated that where the judge deems it necessary to cross-examine witnesses, he must exercise great care to prevent giving the jury the impression that he is biased against the defendant and he must not forget the function of a judge and assume that of an advocate. The same rule applies with respect to the credibility of a witness and a judge should exercise great care and caution to say nothing within the hearing of the jury which would give them an indication of what he thought about the truth or falsity of any part of the testimony. This admonition was recently repeated in State v. Jones, supra. These admonitions are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended. The judge’s attitude and the result he supposedly desires may be inferred by the jury from a look, a lifted eyebrow, an inflection of the voice — in many cases without warrant in fact. (State v. Blake, supra.) “Since the cross-examination of a witness by a trial judge is fraught with such dangerous consequences, if a trial judge sincerely believes that additional information should be obtained from a witness in order to clarify the evidence and enable the jury to arrive at the true facts, the better practice is for the trial judge to discuss the matter with counsel outside the presence of the jury and request counsel to pose the questions to the witness. Such a procedure will accomplish the full development of the truth without a direct participation by the trial judge in the examination of the witness and hence any question as to the judge’s bias may be avoided.” We have carefully reviewed the entire record in this case, and while we disápprove of certain acts and conduct of the trial court, we conclude, in view of all the circumstances, that the appellant received a fair trial and that the conduct of the trial court fails to indicate a bias on its part. Affirmed.
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Meyer, J.: This case involves a breach of compromise agreement between appellee Harvester, Inc. (plaintiff), and appellant The Goodyear Tire and Rubber Company (defendant). From 1961 to 1966 plaintiff purchased substantial amounts of hose from defendant to be used in its manufacture of hydraulic couplings. In 1966 plaintiff received customer complaints about hose incompatibility. Plaintiff advised defendant of these complaints and alleged that it lost $6,867.24 in business as a result. Defendant denied fault but to preserve the business relation entered into a compromise agreement whereby defendant wrote off the balance due from plaintiff on past purchases ($4,143.66) and agreed to give plaintiff a IVz percent discount from the then current coupling manufacturer’s price for future purchases until the remaining claim of $2,724.18 was exhausted. This agreement, according to the trial court’s findings, occurred in late 1968. In 1969, plaintiff purchased $1,077.74 worth of hose for a credit of $80.83 from defendant. Thereafter, despite continued solicitation of sales by defendant to plaintiff, plaintiff did not purchase any more hose from defendant. Plaintiff sought other sellers because of warehouse arrangements which allowed it a lower pricing level. In 1971, defendant sent a letter to plaintiff discussing the current status of the account. In January, 1974, the market for hose became tight and plaintiff was not able to secure hose elsewhere. Plaintiff placed an order for hose, but defendant had other commitments and could not supply plaintiff. Plaintiff then demanded the cash equivalent of the $2,642.75 remaining in credit under the compromise agreement. Defendant refused. Plaintiff brought this action in April, 1975, and judgment was given for the $2,642.75. Defendant raises the equitable defenses of (a) equitable estoppel, (b) laches, (c) waiver, and (d) release. Defendant argues that plaintiff is estopped from asserting its claim because for several years it did not purchase hose from the defendant. It is noted, however, that plaintiff did make certain purchases in 1969 and as late as November 1, 1971, defendant, in a letter to plaintiff, was taking issue with plaintiff as to the exact sum still due on their contract, thus indicating to us that at that time defendant still felt the deal was a continuing one. “The doctrine of equitable estoppel requires consistency of conduct, and a litigant is estopped and precluded from maintaining an attitude with reference to a transaction involved wholly inconsistent with his previous acts and business connection with such transaction.” Browning v. Lefevre, 191 Kan. 397, Syl. ¶ 2, 381 P.2d 524 (1963). “One who asserts an estoppel must show some change in position in reliance on the adversary’s misleading statement.” In re Morgan, 219 Kan. 136, 137, 546 P.2d 1394 (1976). “Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts.” United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 527, 561 P.2d 792 (1977). It was stated in Maurer v. J. C. Nichols Co., 207 Kan. 315, Syl. ¶ 3, 485 P.2d 174 (1971): “The doctrine of equitable estoppel is based upon the principle that a person is held to a representation made or a position assumed where otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon.” We conclude that, in order for plaintiff to be estopped, it would have had to give some indication that it would not purchase hose from defendant in the future. The facts do not reveal any such indication. The same might be said of defendant’s argument as to waiver. “The intent to waive known rights is essential.” Prather v. Colorado Oil & Gas Corp., 218 Kan. 111, 117, 542 P.2d 297 (1975)., The intention to relinquish a known right may be inferred from conduct. See Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 90, 367 P.2d 44 (1961). Nowhere in the record do we find any reference that plaintiff ever intended to waive its rights under the agreement. As to defendant’s claim that plaintiff is barred by the doctrine of laches, we note that: “The doctrine of laches is an equitable device designed to bar stale claims, and courts of equity will regard long passage of time in asserting claims with disfavor apart from any particular statute of limitations.” Clark v. Chipman, 212 Kan. 259, Syl. ¶ 6, 510 P.2d 1257 (1973). “Delay, by itself, does not constitute laches and an action generally will not be defeated by laches alone unless some prejudice has resulted therefrom to the rights or interests of the adverse party.” Darby v. Keeran, 211 Kan. 133, Syl. ¶ 10, 505 P.2d 710 (1973). It should be noted that plaintiff had more than an option to purchase hose; plaintiff was entitled to $2,642.75 as part of the compromise agreement. The law, as to when a right must be exercised — absent a time fixed by contract — is that same must be exercised within a reasonable time. The law in regard to what is a sufficient amount of time was stated in Clark v. Chipman, 212 Kan. 259, Syl. ¶ 7: “The mere passage of time is not enough to invoke the doctrine of laches. Lapse of time is necessarily a relative matter in which all surrounding circumstances must be taken into account. Each case must be governed by its own facts and what might be considered a lapse of sufficient time to defeat an action in one case might be insufficient in another.” Plaintiff had no duty to purchase any hose within any specified time period. Rather, the consideration for the contract was for bearance of a suit by plaintiff. We conclude laches does not bar plaintiff herein. What has been said relative to estoppel, laches, and waiver, is equally applicable to any implied release which might preclude plaintiff’s recovery herein. For the foregoing reasons, we find there is no merit to defendant’s contentions regarding estoppel, laches, waiver, and release. The trial court, as a conclusion of law, determined that by the November 1, 1971, letter from defendant to plaintiff, that defendant “unequivocally acknowledged the credit in question in the amount of $2,642.75 to be a present existing liability .. . .” The trial court considered that a three-year statute of limitations applied and that the statute began to run on or about November 11, 1968. The trial court ruled that the November 1, 1971, letter started the three-year statute anew. It also gave an alternative reason for its decision, that the cause of plaintiff’s action did not accrue until 1974 when defendant refused plaintiff’s order. We conclude that the trial court correctly held that K.S.A. 60-512 was the applicable statute of limitations. This is a three-year statute. “The general rule is that a written agreement, contract or promise in writing which falls within the five-year statute of limitations, K.S.A. 60-511(1), must contain all its material terms in writing. A contract which is partly in writing and partly oral is in legal effect an oral contract so far as the statute of limitations may be concerned. The writing necessary to have the additional protection of the five-year statute must be full and complete in itself so as not to require proof of extrinsic facts to establish all essential contractual terms.” Miller v. William A. Smith Constructing Co., 226 Kan. 172, 174, 603 P.2d 602 (1979). We do not, however, interpret the November 1, 1971, letter as an unequivocal acknowledgement of a debt, but we do conclude it had the effect of acknowledging that the deal between the parties was still, on that date, an ongoing one. That letter thus had the effect of extending the time which would be considered reasonable during which plaintiff must order. With this in mind, we conclude the three-year statute of limitations began to run on the date defendant refused to fill the 1974 order, and that same had not run when plaintiff commenced this action in April, 1975. “A cause of action accrues when the right to institute and maintain a suit arises, or when there is a demand capable of present enforcement. [Citations omitted.] There must be a right, a duty, and a default.” Holder v. Kansas Steel Built, Inc., 224 Kan. 406, 410, 582 P.2d 244 (1978). Here the default did not occur until defendant refused to fill plaintiff’s order and would not pay cash for the amount still owed under the compromise agreement. The trial court’s conclusion that the statute of limitations had not run was correct. It is not necessary for us to decide the cross-appeal on its merits. The cross-appeal was filed out of time and a motion to file the notice of appeal out of time was denied. Therefore, the court does not have jurisdiction to hear the cross-appeal. “The Supreme Court has only such appellate jurisdiction as is conferred by statute. This court has no jurisdiction to hear appeals not filed within time limits set by K.S.A. 60-2103. Absent compliance with the statutory rule, this court has the duty to dismiss the appeal.” Giles v. Russell, 222 Kan. 629, 632, 567 P.2d 845 (1977). Affirmed. Rees, J., concurs in the result.
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Parks, J.: This is an appeal from a jury conviction of felony theft by deception. K.S.A. 1979 Supp. 21-3701(&). Defendant Glenn Saylor contends that there was insufficient evidence to establish the charge of theft by deception and that the trial court erred in failing to give an instruction on attempted theft by deception. On September 27, 1978, at approximately 2:15 p.m., Sharon Tenpenny, the security manager at the Lawrence K-Mart store, observed the defendant from a security window as he strolled around the store picking up various items of merchandise, placing them in his shopping cart and wheeling them back to the same location in the hardware section of the store. Specifically, Ms. Tenpenny testified that she saw defendant make 10 or more trips back to the hardware department with merchandise — he would place items in the upper compartment of the shopping cart, disappear from view in that area of the store and then return with an empty cart. She remembered seeing defendant pick up a chain saw on two of those trips and place them in a box in the hardware department. Ms. Tenpenny also testified that she saw defendant use a small bottle of glue at the location of the box in the hardware department and later deposit the bottle on a counter before leaving the store. Following defendant’s departure from the store, Ms. Tenpenny located a box in the hardware section which belonged in the toy section. She did not move the box since several heavy items were stacked on top of it, but she noticed wet glue seeping out from under the cardboard flaps. She then notified John Pink, her area security supervisor, and Officer Fox of the Lawrence Police Department. Uppn his arrival from Kansas City, Mr. Pink went to the hardware department where Ms. Tenpenny pointed out the box which was supposed to have contained a plastic toy chest shaped like a pig. Pink testified that the lid appeared to have been opened and resealed and that the box was extremely heavy when he lifted it. Around 9:30 that evening the defendant entered the store and was observed by Ms. Tenpenny. The police were notified and Officer Fox agreed to meet Ms. Tenpenny outside the store. Ron Schwantes, the store manager, saw defendant pick up the box and place it in his shopping cart. Shortly thereafter, the defendant went through the checkout counter and paid for two items, a quart of oil and the toy chest box, marked at $13.97. Defendant was arrested outside the store in the parking lot and the box was found to contain over $500 in merchandise. Defendant relies on State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1978), to support his contention that his conviction of theft by deception should be reversed. In Finch, the evidence established that the security guard observed the defendant switch price tags on baby dresses with other tags which indicated a lower price. The guard notified the cashier of the switch but instructed her to allow the defendant to check out paying only the price marked. The court held: “[I]n order to convict a defendant of theft by deception under K.S.A. 21-3701(i>) the state must prove that the defendant with the required intent obtained control over another’s property by means of a false statement or representation. To do so the state must prove that the victim was actually deceived and relied in whole or in part upon the false representation.” Finch, 223 Kan. at 404. The court concluded that the State failed to prove actual deception and reliance. Rather than discharging the defendant completely, it held that the trial court erred in failing to submit the case to the jury under proper instructions on the lesser included offense of attempt to commit theft by deception, as defined by K.S.A. 21-3301(1). The Finch case was remanded with directions to grant a new trial on the lesser included offense. Obviously, the security and managerial employees of the vie tim (K-Mart) were not deceived by the defendant’s actions; the police had been notified and great care taken to observe the defendant’s conduct without alerting him to their suspicions. Nor could there have been any reliance by the store on defendant’s representation that he was purchasing a plastic toy chest because the store employees knew that something else was in the cardboard box. Thus the necessary elements of deception and reliance are absent. In view of the Finch decision, we must conclude that the State did not sustain its burden on the principal charge and that the trial court erred in refusing to instruct on the lesser included offense of attempted theft by deception. Because defendant must be granted a new trial on the lesser offense, we need not consider the other alleged trial errors. Judgment is reversed and the case is remanded with instructions to grant the defendant a new trial on the lesser included offense of attempt to commit theft by deception.
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Foth, C.J.: Defendant was convicted by a jury of possession of marijuana with intent to sell. K.S.A. 1978 Supp. 65-4127b(¿). On appeal he contends the evidence was insufficient to establish his intent to sell. Intent, like any element of a crime, may be shown by acts, circumstances and inferences deducible therefrom. State v. Faulkner, 220 Kan. 153, Syl. ¶ 13, 551 P.2d 1247 (1976); State v. Evans, 219 Kan. 515, 519-20, 548 P.2d 772 (1976). The standard for appellate review where the sufficiency of the evidence is challenged has recently been reformulated in State v. Voiles, 226 Kan. 469, Syl. ¶ 6, 601 P.2d 1121 (1979): “In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? Following Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979).” The State’s evidence in this case showed that defendant was arrested after officers observed him place a brown paper bag in his car. When approached by the officers as he walked away from the car, defendant first attempted to swallow and then threw away a clear plastic bag containing white powder. That bag was never found, but one of the officers opined from his brief view of it that it contained either heroin or cocaine. The brown bag in the car proved to contain approximately one pound of marijuana. It was in brick form, and was one-half of the customary two-pound or one kilogram brick. The primary testimony relied on to show that defendant intended to sell the marijuana was given by Detective Jack Henderson, a Wichita detective who had been assigned to narcotics for 3Vz years, part of that time as an undercover agent. His testimony was: (1) When he was making an undercover buy of a one-pound brick his cover story would be that he needed it to sell, not that it was for personal use. (2) The one-pound brick of marijuana was worth $90 to $150, depending on quality. (3) One pound could be broken down into 18 to 20 “one ounce” packages or bags which could be resold for $10 to $15 each. (4) The largest supply he had ever observed being held for personal use was two ounces; he had never seen anyone with, a one-pound brick for personal use. As to the kind of proof which might demonstrate an intent to sell narcotics, in State v. Faulkner, 220 Kan. at 160-1, the Court quoted approvingly from 28 C.J.S., Drugs and Narcotics Supplement § 211: “In order to sustain a conviction for possession of narcotics or dangerous drugs for purpose of sale, there must be sufficient proof of possession of such drugs, and proof that the possession was for the purpose of sale. Such proof may be circumstantial and may consist of evidence as to quantity of the narcotic, equipment found with it, place it was found, manner of packaging, and opinion of experts that the narcotic was packaged for sale.” As may be seen, the State’s evidence upon which it must rely here is essentially limited to the quantity of marijuana and its packaging in brick form. Of the other three elements referred to in Faulkner there is no evidence: there was no narcotics equipment found with the marijuana; the car in which it was found does not suggest a selling operation; and there was no expert opinion that it was packaged for sale. We do not believe a rational factfinder could, from the two elements present here, conclude beyond a reasonable doubt that defendant intended to sell the marijuana. As to the quantity, there was no evidence as to the amount reasonably necessary to satisfy the personal desires of a consumer. We are not prepared to say that one pound is a little or a lot for defendant’s personal use, and cannot believe the jury was any better equipped to make this determination than are we. See People v. Steed, 189 Colo. 212, 216, 540 P.2d 323 (1975) (7.9 ounces in 14 bags); State v. Larko, 6 Conn. Cir. Ct. 564, 571, 280 A.2d 153 (1971) (one pound in brick form); Redden v. State, 281 A.2d 490, 491 (Del. 1971) (12 ounces in three envelopes; 29 small bags; 2 cigarettes). And cf. State v. Boyd, 224 N.W.2d 609, 612-13 (Iowa 1974) (33 pounds in 2-pound bricks insufficient standing alone, but sufficient when coupled with two sets of scales and expert testimony that 2-pound bricks are customary packages for sale). In its brief the State implicitly concedes that the quantity alone was insufficient to establish an intent to sell, saying it “is not necessary to address appellant’s position” on that issue. Instead the State points to what it contends are other circumstances showing intent. Its primary emphasis is necessarily on the brick form. However, the evidence as to packaging was as ambiguous as the evidence of quantity. Had the pound been broken into ounce bags or cigarettes, it could as well or better be argued that it was packaged for retail sale. As it was, it was possessed in bulk. It could have been sold in that form, but then so could it have been sold in any other form. Detective Henderson’s testimony added little if anything to this element of the State’s case. He had purchased marijuana by the handful, by the brick, by the bag, and by the cigarette. One could only conclude from his testimony that the form in which marijuana is possessed (i.ehow it is packaged) has nothing to do with whether it is for sale. Further, while he had never observed more than two ounces held for personal use, his testimony did not establish, either by expert opinion or otherwise, that one owning more must necessarily or even probably own it for resale. His testimony related his personal experiences as a narcotics investigator and drew no conclusions as an expert. The State also relies on the value of the marijuana in the light of what it characterizes as defendant’s “poor financial position.” The only evidence on the latter element was defendant’s testimony that at the time of his arrest he was renting a house owned by his father, that he was remodeling it, and that his father was deducting the value of his work “out of my rent until I was able to pay him.” The State argues that this statement shows a need for money and supplies a motive for defendant to enter the marijuana trade. Without laboring the point, we think the State attempts to make too much out of this fragment of testimony. There is no other evidence of a “poor financial position,” and none which would suggest a motive to sell as opposed to a motive to save by making a quantity purchase. We conclude that to find an intent to sell the jury could only have indulged in pure speculation rather than drawing reasonable inferences from the evidence. Possession, however, is unchallenged, and simple possession of marijuana under subsection (a) of K.S.A. 1978 Supp. 65-4127b is a lesser included offense of possession with intent to sell under subsection (b) of that statute. State v. Woods, 214 Kan. 739, 746, 522 P.2d 967 (1974); State v. Culbertson, 214 Kan. 884, 522 P.2d 391 (1974). The appropriate remedy where a defendant has been convicted of a higher offense but the evidence supports only a lesser included offense is to sentence the defendant for the lesser offense. State v. Moss, 221 Kan. 47, 557 P.2d 1292 (1976); State v. Smith, 215 Kan. 865, 528 P.2d 1195 (1974); State v. Towner, 202 Kan. 25, 446 P.2d 719 (1968). The conviction is reversed, the sentence is vacated, and the case is remanded with directions to enter a new judgment convicting defendant of simple possession of marijuana and imposing a new sentence for that offense.
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Abbott, J.: This is an appeal from an order determining the legal residence of the decedent, Robert L. Phillips, to have been in the State of Missouri at the time of his death. His widow, Thelma L. Phillips, appeals. The practical importance of determination of decedent’s residence is that if he died a resident of the State of Kansas, his widow is entitled to claim one-half of the estate, but if the decision of the trial court that decedent died a resident of the State of Missouri is affirmed, the widow would be entitled to a significantly smaller share of the estate. The reason for this result is the will provides that in addition to a specific bequest and a specific devise, the widow receives one-third of the residuary estate and decedent’s children receive the remaining two-thirds. Pursuant to Missouri law (Mo. Ann. Stat. § 474.160.1[1] [Vernon 1979 Supp.]), that provision would be effective. If on the other hand decedent was a resident of Kansas at the time of death, the widow may elect a statutory share of one-half of the decedent’s estate pursuant to K.S.A. 59-603. The distribution of property worth more than $100,000 appears to turn on resolution of the residence question. The appellant, Thelma L. Phillips, is decedent’s second wife. The appellees, Robert L. Phillips, Jr., William W. Phillips and Paula J. Phillips, are the adult children of the decedent by a former marriage. The decedent died on February 9,1978, at his home in Johnson County, Kansas. That same day his widow petitioned the District Court of Johnson County to probate decedent’s will as the will of a Kansas domiciliary. Decedent’s three children answered by denying the decedent’s Kansas residence and requesting admission of the decedent’s will as that of a nonresident. After hearing evidence the court rendered its memorandum decision, concluding that the decedent died a resident of the State of Missouri. The widow appeals. Before reaching a decision on the residence question, we dispose of the motion by appellees to dismiss the appeal on the ground that this Court is without jurisdiction because the memorandum decision did not constitute an appealable order. In essence, appellees contend that the memorandum decision does not fall within any of the enumerated categories of appealable orders set forth in the Kansas probate code at K.S.A. 1978 Supp. 59-2401. On the other hand, the widow argues that the decision is appeal-able under three distinct subsections of 1978 Supp. 59-2401(a).. We hold that we have jurisdiction by reason of a court order dated November 28, 1978, entered after the filing of the notice of appeal, which refused to admit the will to probate as that of a resident decedent and admitted the will to probate as that of a nonresident decedent. In our view, the mentioned refusal of admission brings that order within K.S.A. 1978 Supp. 59-2401. The remaining question is whether the prematurely filed notice of appeal was effective. This issue has been resolved by Rule No. 2.03 (224 Kan. xxxiv), which states: “A notice of appeal filed subsequent to an announcement by the judge of the district court on a judgment to be entered, but prior to the actual entry of judgment as provided in Sec. 60-258, shall be effective as notice of appeal under Sec. 60-2103, if it identifies the judgment or part thereof from which the appeal is taken with sufficient certainty to inform all parties of the rulings to be reviewed on appeal. Such advance filing shall have the same effect for purposes of the appeal as if the notice of appeal had been filed simultaneously with the actual entry of judgment, provided it complies with Sec. 60-2103(fc).” Supreme Court Rule No. 2.03 also applies to appeals brought under the probate code in light of K.S.A. 1978 Supp. 59-2401(c), which states: “Except as otherwise provided in this section, appeals taken pursuant to this section shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases.” The Kansas Supreme Court recently considered the rule in Security National Bank v. City of Olathe, 225 Kan. 220, 221, 589 P.2d 589 (1979), holding that a premature notice of appeal is timely so long as it identifies the appealed judgment with sufficient certainty to inform the prevailing party below of the rulings to be reviewed on appeal. In that case, the Court found the notice of appeal to be timely since the prevailing party did not contend that it had insufficient notice of the rulings appealed. The parties here likewise made no protestations of surprise. We are satisfied we have jurisdiction by reason of K.S.A. 1978 Supp. 59-2401(a)(1). The widow’s position in this appeal is basically that the trial judge’s findings of fact are inconsistent with his decision that decedent died a Missouri resident. At the outset, it should be noted that the decedent was born and raised in Missouri and intended to retain his Missouri residence when he and his wife purchased, remodeled and moved into a home in Johnson County, Kansas, in December 1975. That fact is beyond dispute. Decedent had been active in the management of the Phillips Hotel in downtown Kansas City, Missouri. It was part of a family-owned corporation that also held title to substantial amounts of real estate in Missouri. Decedent had been active in Democratic politics in Missouri for years, and the trial judge rightfully found him to have been proud of his strong and long-standing Missouri heritage. His first marriage was terminated by divorce and he married the appellant widow in Mound City, Missouri, on March 11, 1973. The family corporations were liquidated and assets were distributed to the stockholders, at which time the decedent took up residence on a 450-acre farm in Mound City, Missouri, he had accepted as part of his distributive share. Various witnesses described the home as a hunting lodge. He also owned other real estate at that time consisting of a one-thousand-acre farm near Albany, Missouri, and a vacation home in Shell Knob, Stone County, Missouri. Decedent unquestionably was a Missouri resident until December 23, 1975, when he and the appellant moved from Mound City, Missouri, to Johnson County, Kansas. His health had started to fail prior to his move to Kansas. He had cardiovascular problems and developed inoperable lung cancer that ultimately led to his death. He expressed to his daughter and one son his intent to move back to Kansas City. They testified that their father thought medical care in Mound City was inadequate for his medical problems, and “[h]e wanted to be closer to better medical attention and also friends.” Decedent and his wife spent some seven or eight months looking at houses before purchasing the Johnson County home. The decedent contacted his lawyer specifically to ascertain how he could maintain his Missouri domicile while living in Kansas. After moving into the home in Johnson County, decedent executed his last will and testament that declared his residency as Stone County, Missouri. He registered his motor vehicles in Missouri. Decedent and Mrs. Phillips both continued to obtain Missouri driver’s licenses. They paid personal property and state income taxes in Missouri. No income or intangible tax returns were ever filed in Kansas. After they left Mound City, Missouri, they used the Missouri office address of decedent’s accountant on their tax returns. They voted in Stone County, Missouri. The decedent continued to divest himself of his Missouri real estate after moving to Kansas. We do note that although the largest acreage (one thousand acres) had been" on the market for some time, its sale was not completed until January 1978 — less than one month before the death of decedent. Decedent still owned the vacation home at Shell Knob, Stone County, Missouri, at the time he died. Evidence was presented that decedent had considered selling the vacation home, but was in no hurry to do so and it was not on the market at the time he died. The evidence indicates that the Shell Knob home was nothing more than a vacation home. It had been used four or five times a year for a week at a time by the Phillips when they lived at Mound City. As decedent’s health deteriorated, the use of the vacation home diminished. After hearing evidence, the trial judge considered the law and the evidence and issued a memorandum decision, concluding that: “Taking all the evidence into consideration and the Findings of Fact as previously announced, I conclude that Robert L. Phillips died a resident of the State of Missouri. The operative acts of voter registration, automobile registration, driver’s license issuance, tax return filings, real estate ownership and his long and close association with the State of Missouri lead me to this conclusion along with his clear intention to maintain Missouri as his legal residence as expressed in his Last Will and Testament.” Mrs. Phillips argues that the trial court’s finding No. 14 is inconsistent with its decision that decedent died a resident of Missouri and conclusively establishes that he died a resident of Kansas. Finding No. 14 reads: “When Mr. Phillips was absent from 2517 West 68th, Mission Hills, Kansas, he clearly intended to return to 2517 West 68th. It was his home. He ate, slept and lived there.” It should be noted that for jurisdictional purposes the terms “residence” and “domicile” are treated as equivalents. In re Estate of Barnes, 218 Kan. 275, 282, 543 P.2d 1004 (1975). This Court recently reviewed the well-settled Kansas rules relating to the determination of a “residence” in Teter v. Corley, 2 Kan. App. 2d 540, 542-43, 584 P.2d 651 (1978), where it was held: “The law concerning the establishment and continuance of a ‘residence’ is well stated in Estate of Schoof v. Schoof, [193 Kan. 611, 396 P.2d 329 (1964)], as follows: “ ‘The establishment of residence requires the concurrence of two factors: one physical, the other intellectual. There must be bodily presence at a location coupled with intent to remain there either permanently or for an indefinite period, before residence can be said to have been acquired. A residence once established is presumed to continue until the same has been abandoned. (Keith v. Stetter, 25 Kan. 100; Palmer v. Parish, 61 Kan. 311, 313, 59 Pac. 640.) To effect a change of residence, there must be transfer of bodily presence to another place coupled with an intent to abide in the new location either permanently or indefinitely. (Ford, Adm’x, v. Peck, 116 Kan. 74, 225 Pac. 1054.) The length of stay in the new abode is not of controlling importance, for no stated period of time is required to complete a change of residence; the change may be effectuated on the first day of arrival in the new location provided the requisite intent to establish residence therein be present. . . .’ (193 Kan. at 614.) “In reality, two separate intentions are involved: one to abandon the old location and one to abide in the new. If the last intention be formed, it necessarily includes the first. Arnette v. Arnette, 162 Kan. 677, Syl. ¶ 4, 178 P.2d 1019 (1947). “We believe the definition set forth in Estate of Schoof v. Schoof, supra, is controlling, that is, ‘residence’ requires two elements: (1) bodily presence at the location, and (2) intent to remain there either permanently or for an indefinite period.” The Kansas legislature has also set forth the statutory definition of “residence” in K.S.A. 77-201, Twenty-third, where it states: “The term ‘residence’ shall be construed to mean the place adopted by a person as such person’s place of habitation, and to which, whenever such person is absent, such person has the intention of returning. When a person eats at one place and sleeps at another, the place where such person sleeps shall be deemed such person’s residence.” The trial judge effectively found in his finding No. 14 that the decedent met the above statutory definition of “residence.” If the trial judge had concluded that the decedent died a resident of Kansas, there is ample evidence in the record to support such a finding. The Kansas home was the center of the decedent’s domestic, social and civic life; all of his mail (excluding tax matters) was delivered there; it was completely furnished and decedent’s wife resided there with him, as did the family pets; and decedent had an office in the basement of the home. The question before us, however, is whether substantial competent evidence exists to support a conclusion that the decedent died a resident of Missouri. Our scope of review is well defined. When a trial court has made findings of fact and conclusions of law, the function of this Court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976). It is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. When a trial judge sitting as a trier of facts makes a specific finding of fact on apparently conflicting or actually conflicting evidence, this Court is concerned only with evidence that supports the trial court’s findings and not with evidence that might have supported contrary findings. Steele v. Harrison, 220 Kan. 422, Syl. ¶ 1, 552 P.2d 957 (1976); Arnette v. Arnette, 162 Kan. 677, 681, 178 P.2d 1019 (1947). Where the decedent intended to reside is a question of fact. Substantial competent evidence has been defined as evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues can reasonably be resolved. Rush v. King Oil Co., 220 Kan. 616, 618, 556 P.2d 431 (1976). Even if findings of the trial judge appear to be inconsistent, the decision of the trial court may be sustained on the basis of those findings which allow the conclusion reached by the court below, if they are supported by evidence. Landrum v. Taylor, 217 Kan. 113, 117, 535 P.2d 406 (1975). Can decedent’s declarations of his “intent” to remain a Missouri resident standing alone counteract the objective intent derived from the sum of his activity in Kansas? We think not. Although no Kansas cases discuss the specific problem, commentators and several foreign jurisdictions have treated the matter and agree that the court must look beyond the expressed intent of the decedent. At 25 Am. Jur. 2d, Domicil § 24, p. 18-19, the following rule appears: “Intent is not a matter of artifice. It does not rest with a man to determine the place of his domicil by expressing an intent which is contrary to the facts in an attempt to avoid the inevitable legal consequences of such facts. The acts of the person must correspond with the purpose to change his domicil.” The American Law Institute has given the subject extensive treatment in its Restatement (Second) of Conflict of Laws (1971). Several pertinent discussions include: “g. Intention to acquire a domicil. The primary intention required for the acquisition of a domicil of choice is an intention to make a home rather than an intention to acquire a domicil. Were it otherwise, persons could choose to be domiciled in a state of low burdens and high benefits quite irrespective of where they actually happened to live. A person’s domicil of choice is in the state to which he is most closely related rather than in the state where he wishes to be domiciled. A desire to retain an old domicil does not, of itself, prevent the acquisition of a new one. “An intention to acquire a domicil in a place may on occasion have some significance. Two situations can be imagined. The first is where a person’s significant contacts are in state X and yet he desires to be domiciled in state Y. Here no effect will be accorded the desire to be domiciled in Y; such a desire cannot serve to remove the domicil from the state which is obviously that of closest relationship. “The second situation arises infrequently. It is where a person’s significant contacts are closely divided between two or more states. Here, on occasion, the person’s desires as to the location of his domicil may be permitted to tip the scales in favor of one state or the other (see Comment h and § 20, Comment c).” § 18 at 74-75. The United States Supreme Court applied such a rule in Texas v. Florida, 306 U.S. 398, 83 L.Ed. 817, 59 S.Ct. 563 (1939), when it held that declarations alone were insufficient to establish domicile because “the actual fact as to the place of residence and decedent’s real attitude and intention with respect to it as disclosed by his entire course of conduct are the controlling factors in ascertaining his domicile. [Citation omitted.] When one intends the facts to which the law attaches consequences, he must abide the consequences whether intended or not.” (at 425.) The Restatement goes on to explain: “Formal declarations. A person’s declarations as to what he considers to be his home, residence or domicil are generally admissible as evidence of his attitude of mind. Such declarations are frequently contained in formal legal documents, as wills, deeds and affidavits; they may also appear in letters, in hotel and automobile registrations and, at times, are made by word of mouth. Whatever the context, their accuracy may be suspect because of their self-serving nature, particularly when they are made to achieve some legal objective, as the avoidance of taxation or the securing of a divorce. “Informal declarations. Greater weight is likely to be accorded a person’s casual statements, such as that he is happiest in a certain place or wishes to die there, than to formal declarations of the sort discussed above. Casual statements gain credence from the fact that they were presumably uttered on the spur of the moment and with no preconceived design to gain a given end. “Acts. Actions speak louder than words, and the courts rely most heavily upon them. Residing for a considerable time in a place is persuasive evidence of domicil there, although this can be rebutted by proof that this residence was meant to be temporary or that the person has a principal home elsewhere. “Since a man’s home will usually be with his family, the place where his wife and children dwell is likely to be his domicil (see § 12 Comment g). So when he leaves his family behind and goes to another place, his domicil presumably remains unchanged. In the absence of evidence as to the place where a person lives, however, he will probably be found to be domiciled in the place where he works unless it can be shown that his job is only of a temporary nature. Similarly, the location of a person’s bank is some evidence as to the place of his domicil since, for the sake of convenience, he would presumably wish to deal with a bank close to his home. Of less weight is the location of a person’s securities since these may not require local supervision. “Beyond all this, the place to which a person has the closest and most settled relationship is likely to be that where he votes, where he belongs to a church, where he pursues his various interests and where he pays taxes of the sort that are payable only by persons who are domiciled there. The courts frequently rely heavily upon such activities. On the other hand, activities of this sort will sometimes be suspect for the reason that often they can be deliberately carried on in one place rather than in another for the express purpose of influencing a future court decision on the issue of domicil. “Motive. A person’s motive in going to a certain locality may be important evidence as to whether he intends to make his home there (see § 18, Comment f). “By way of conclusion, almost anything that bears on a person’s attitude of mind toward a place is admissible in evidence. But, in final analysis, the courts place primary emphasis upon a person’s home life and upon what he does rather than on what he says.” § 20 at 82-83. “The question whether a person’s desires as to the location of his domicil should be accorded even a limited effect may depend upon the particular issue involved. Thus, it might be thought that this should not be the case with respect to questions involving governmental benefits and burdens, as taxation, poor relief and judicial jurisdiction. On the other hand, some weight should perhaps be accorded these desires in areas where normally the desires of the person concerned are supreme, such as in matters relating to the distribution of property upon death. There is little evidence that such distinctions have been drawn by the courts.” 18 at 77. For authority that actions speak louder than words, see Charisse v. Eldred, 252 Ark. 101, 104-05, 477 S.W.2d 480 (1972); Fowler v. Clayton School District, 528 S.W.2d 955, 959 (Mo. App. 1975); Citizens Bank & Trust Co. v. Glaser, 70 N.J. 72, 357 A.2d 753 (1976); Shaw v. Shaw, 155 W. Va. 712, 716-17, 187 S.E.2d 124 (1972). Standing alone, an expressed intent to remain a resident of a state in which one no longer resides is not necessarily sufficient to retain residency when other facts are present that would indicate a contrary intent. As Restatement (Second) of Conflict of Laws notes, however, when a person’s significant course of conduct is closely divided between two or more states, his stated intent as to the state of his residence may be permitted to tip the scales in favor of that state. Something more than a mere physical move and physical presence in the new state, however, is required to establish a new domicile in the new state. We are further of the opinion that something more than merely meeting the bare requirements of K.S.A. 77-201, Twenty-third is required to establish residency for resident estate purposes. If this is not so, then once a person disposes of real estate or moves from rental property and establishes a home in another state, residence in the first state would be lost even though one did not intend to remain permanently or for an indefinite period in the second state. Nor should a presumption be created that a person intends to remain permanently or for an indefinite time in the second state based on the fact that one has knowledge of impending death and thus knows, barring a miracle, that one will never return to one’s native state. Our Supreme Court has previously stated that “[t]o effect a change of residence, there must be a transfer of bodily presence to the new location coupled with intention to abide therein either permanently or indefinitely.” Estate of Schoof v. Schoof, 193 Kan. 611, Syl. ¶ 3, 396 P.2d 329 (1964). This is a case in which the decedent had significant contacts in both states and is an appropriate case in which the trial judge could find a stated purpose and intent tips the scale in favor of finding a Missouri domicile. Other factors are present which are favorable to finding Missouri residence. A party alleging a change of residence has the burden of proving the existence of the new residence. Teter v. Corley, 2 Kan. App. 2d at 543. Having established a Missouri residence, decedent was presumed to remain a Missouri resident until he established a new residence. The decedent obviously knew his life span was limited when he expressed a desire to return to the greater Kansas City area. The trial judge did not make an express finding that the decedent intended to remain in Kansas permanently or for an indefinite time. He was in Kansas because of the advice of his lawyer that he could retain his Missouri residency, and he planned the distribution of his estate based on his Missouri residency. In addition to his voting in Missouri, paying taxes in Missouri, registering cars in Missouri and obtaining driver’s licenses in Missouri, he had other significant contacts in that state. The decedent reviewed his will and furnished a list of his considerable assets on December 23, 1977 (one and a half months before his death). All of his assets at that time except for the Johnson County home and a relatively small bank account were located in Missouri. In addition to the vacation home, decedent did not complete the sale of the one-thousand-acre farm in Missouri until some unspecified date during the calendar month preceding his death. No showing is made that the decedent might have had a greater tax burden as a Kansas resident than as a Missouri resident. The only difference drawn to our attention is that in Kansas the widow could elect to take against the will and thus receive a greater distributive share than she could receive in Missouri. Although she did not consent to the will, she was aware of its existence while the decedent was living and knew of the provisions that had been made for her. We conclude that the trial court did not err in determining that the decedent died a resident of the State of Missouri. Affirmed.
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Spencer, J.: The sole issue involved in this appeal is whether the four natural children of the decedent, all of whom were adopted by others prior to decedent’s death, are entitled to an allowance from the decedent’s estate under the provisions of K.S.A. 59-403, which provides: “When a resident of the state dies, testate or intestate, the surviving spouse shall be allowed, for the benefit of such spouse and the decedent’s minor children during the period of their minority, from the personal property of which the decedent was possessed or to which the decedent was entitled at the time of death, the following: “(1) The wearing apparel, family library, pictures, musical instruments, furniture and household goods, utensils and implements used in the home, one automobile, and provisions and fuel on hand necessary for the support of the spouse and minor children for one year. “(2) A reasonable allowance of not less than seven hundred fifty dollars ($750) nor more than seven thousand five hundred dollars ($7,500) in money or other personal property at its appraised value in full or part payment thereof, with the exact amount of such allowance to be determined and ordered by the court, after taking into account the condition of the estate of the decedent. “The property shall not be liable for the payment of any decedent’s debts or other demands against decedent’s estate, except liens thereon existing at the time of decedent’s death. If there are no minor children, the property shall belong to the spouse; if there are minor children and no spouse, it shall belong to the minor children. The selection shall be made by the spouse, if living, otherwise by the guardian of the minor children. In case any of the decedent’s minor children are not living with the surviving spouse, the court may make such division as it deems equitable.” Emphasis added. Upon application of the guardian ad litem appointed to repre sent the children, all of whom were minors, the court granted a statutory allowance of $6,000 to be divided equally among them. It is argued that it was error to do so and we agree. The precise question here presented does not appear to have been previously decided in this state. However, it has been made clear that the purpose of K.S.A. 59-403 is to make provision for the immediate needs of the surviving spouse and the decedent’s minor children, if any, during a most difficult period of readjustment. In re Estate of Barnett, 207 Kan. 484, 487, 485 P.2d 1290 (1971). As stated in O’Dell v. O’Dell, 157 Kan. 351, 353, 139 P.2d 376 (1943): “The underlying purpose and intent of the lawmakers was to provide an allowance for the benefit of the surviving spouse alone in the event there are no minor children, and to the minor children alone in the event there is no surviving spouse, and to the surviving spouse and the minor children during the minority of the latter when there are both minor children and a surviving spouse. The purpose was that they should not be left entirely destitute.” See also Author’s Comments, Vernon’s Kansas Probate Code § 59-403 (1978), pp. 113-114; 1 Bartlett’s Kansas Probate Law and Practice §§ 241, 243 (rev. ed. 1953), pp. 298, 300, 301. Such allowances are normally to be made without regard to rights of inheritance. In re Estate of Laue, 225 Kan. 177, 187, 589 P.2d 558 (1979); In re Estate of Place, 166 Kan. 528, 532, 203 P.2d 132 (1949); Pellett a Pellett, 132 Kan. 427, 295 Pac. 984 (1931). The question then before us is whether the four minor children with whom we are here concerned are the “decedent’s minor children” within the purview of the statute. Although decedent was the natural father of the children, all were adopted by others during his lifetime. After a valid decree of adoption has been entered, all of the rights, duties, and liabilities with respect to the adopted child are shifted to the adoptive parents and the natural parents have no further obligation to support the child. K.S.A. 1979 Supp. 59-2103; 2 Am. Jur. 2d, Adoption § 87, p. 930; Leach v. Leach, 179 Kan, 557, 559, 296 P.2d 1078 (1956). In the eyes of the law, these children are no longer the “decedent’s minor children” entitled to an allowance under K.S.A. 59-403. Accordingly, the order granting such allowance is vacated and this cause is remanded for further proceedings.
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Foth, C.J.: Jeffrey L. Greenberg was convicted in a trial to the court of operating an uninsured motor vehicle in violation of K.S.A. 1979 Supp. 40-3104, and was fined $100. He appeals, contending primarily that the use at trial of his admission to the investigating officer that he was uninsured violated his rights under the Fifth Amendment. Secondary contentions go to the alleged prejudice of the trial judge and to the sentence imposed. Defendant was involved in a two car accident on December 13, 1978. Both drivers were injured, and both remained at the scene until the arrival of Officer Barbara Suit of the Lawrence Police Department. She sent them independently to local hospitals for treatment, and pursued her accident investigation there. She described her interview with defendant in the following terms: “At which time I was investigating the accident, I did ask Mr. Greenberg his name, address, and for his driver’s license. He produced a New York driver’s license. And I asked him whether he had the name of his insurance company and the policy number. At that time, he advised me that .he did not have insurance.” It is this testimony on which defendant bases his Fifth Amendment claim, employing two theories. I. He first argues inadmissibility because no Miranda warning was given him before Officer Suit questioned him. This objection was raised at trial and summarily overruled. Although the issue is not as clear cut as the trial court apparently regarded it, we think the proper result was reached. “A defendant’s statements to a police officer are not automatically inadmissible for failure to give him the Miranda warning unless the statements are the product of custodial interrogation.” State v. Edwards, 224 Kan. 266, Syl. § 1, 579 P.2d 1209 (1978); State v. Bohanan, 220 Kan. 121, Syl. § 1, 551 P.2d 828 (1976). In Bohanan the Court contrasted a “custodial interrogation” where the warning is required with an “investigatory interrogation” where it is not. The latter variety was defined as “the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way.” State v. Bohanan, 220 Kan. at 128. Custodial interrogation on the other hand, requires “significant restraints on [a subject’s] freedom of movement which are imposed by some law enforcement agency.” State v. Brunner, 211 Kan. 596, Syl. § 2, 507 P.2d 233 (1973). The underlying purpose of Miranda is to protect a suspect from the coercive pressures generated by the simple fact of being in police custody. That custody usually takes the form of arrest, and Miranda itself dealt with the coercive atmosphere of the police station. The doctrine has been extended to other situations, but in those cases where it took place elsewhere “custody” has been manifested by a demonstrated intent and capacity of the interrogator to physically prevent the subject from avoiding the interrogation. E.g., Mathis v. United States, 391 U.S. 1, 20 L.Ed.2d 381, 88 S.Ct. 1503 (1968) (defendant in state prison); Orozco v. Texas, 394 U.S. 324, 22 L.Ed.2d 311, 89 S.Ct. 1095 (1969) (four police officers entered defendant’s boarding house bedroom at 4:00 a.m.). Here the defendant had not been arrested or otherwise taken into custody by Officer Suit; she had merely suggested that he needed medical attention, and he proceeded to the hospital with the assistance of friends. His situation was strongly analogous to that of the hospitalized defendant in Brunner, where “custody” was found lacking. Recognizing this, defendant argues that he was in “constructive” custody by virtue of our “hit-and-run” statute, K.S.A. 8-1602, making it a misdemeanor for a motorist involved in an injury accident to leave the scene without complying with what is now K.S.A. 1979 Supp. 8-1604. The latter statute (quoted in the next section) requires the motorist to give identification and, under some circumstances, other information including insurance data, to the other parties to the accident and to any investigating officer. The hit-and-run statute does not, in our view, create the kind of “custody” which invokes the absolute duty to give the Miranda warnings. It is not the presence of the police officer which inhibits the subject’s movement, but the possibility of criminal liability if he leaves the scene. Indeed, 8-1604 contemplates that no officer may ever be present at the scene. In that event, after giving information to the other parties, the motorist is to file a written report. While there is a certain element of coercion in the overall reporting scheme — to be dealt with below — there is no “custodial” interrogation but only “investigatory” interrogation at the scene or, as here, at the hospital afterward. The result is that defendant’s admissions were not fatally tainted by the lack of Miranda warnings. II. Defendant’s second Fifth Amendment theory is that his incriminating response to the officer’s question was coerced by the terms of the reporting statute, K.S.A. 1979 Supp. 8-1604(a): “(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person, or damage to any vehicle or other property which is driven or attended by any person, shall give his or her name, address and the registration number of the vehicle he or she is driving, and upon request and if available shall exhibit his or her license or permit to drive, the name of the company with which there is in effect a policy of motor vehicle liability insurance covering the vehicle involved in the accident and the policy number of such policy to any person injured in such accident or to the driver or occupant of or person attending any vehicle or other property damaged in such accident, and shall give such information and upon request exhibit such license or permit and, if available, the name of the insurer and policy number, to any police officer at the scene of the accident or who is investigating the accident . . . .” Emphasis added. The statute thus requires a motorist involved in an accident to furnish to other parties involved, and to any investigating officer, three kinds of information. First, there is an unqualified duty to furnish the driver’s name and address both to other parties and to an investigating officer. Second, the driver’s permit to drive is to be exhibited to other parties “if available,” and must be exhibited to an officer on demand. Third, insurance information is to be furnished “if available” either to parties or an officer. A Fifth Amendment challenge to a hit-and-run statute requiring name and address was rejected in California v. Byers, 402 U.S. 424, 29 L.Ed.2d 9, 91 S.Ct. 1535 (1971). Although there was no majority opinion in that case, in two separate opinions a majority of the justices relied on a balancing of the public necessity for enforcement of its regulations against the hazards of self-incrimination inherent in any compulsory reporting system. The balance in that case was struck in favor of the serious need to control traffic on the highways, which was found to outweigh the minimal risk of self-incrimination. Our examination of cases where a compulsory self-reporting scheme has been measured against a Fifth Amendment self-incrimination claim reveals that they fall into two groups. In the first, the reporting requirement is part of a scheme aimed primarily at enforcing the criminal law. Undesirable conduct is first made criminal, and then those who engage in it are required to report the fact under threat of further criminal sanction for failure to report. Such schemes are invariably stricken down on Fifth Amendment grounds. See e.g., Albertson v. SACB., 382 U.S. 70, 15 L.Ed.2d 165, 86 S.Ct. 194 (1965) (federal statute requiring registration of Communist Party membership); Marchetti v. United States, 390 U.S. 39, 19 L.Ed.2d 889, 88 S.Ct. 697 (1968) (federal wagering tax statutes requiring registration before engaging in the business of accepting wagers and payment of annual occupational tax); Grosso v. United States, 390 U.S. 62, 19 L.Ed.2d 906, 88 S.Ct. 709 (1968) (federal statute imposing excise tax on proceeds from wagering); Haynes v. United States, 390 U.S. 85, 19 L.Ed.2d 923, 88 S.Ct. 722 (1968) (federal statute requiring registration of certain firearms); Leary v. United States, 395 U.S. 6, 23 L.Ed.2d 57, 89 S.Ct. 1532 (1969) (federal statute imposing tax on transfers of marihuana). The second group comprises cases where the primary aim of the legislation is regulatory, and the reporting requirement seeks primarily to enforce the regulation. Again sanctions may be imposed for noncompliance, either with the regulation or the reporting requirement, but the purpose of the act is to insure compliance and not to catch criminals. The incidental possibility of self-incrimination in such cases is not enough to excuse the making of the report. Into this category fall Byers; Shapiro v. United States, 335 U.S. 1, 92 L.Ed. 1787, 68 S.Ct 1375 (1948) (defendant’s records used to convict him of Price Control Act violations); and United States v. Sullivan, 274 U.S. 259, 71 L.Ed. 1037, 47 S.Ct. 607 (1927) (federal income tax return could be compelled even though it might reveal violations of the National Prohibition Act). In the last case the Court observed, through Justice Holmes, that it would “be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime.” 274 U.S. at 263-4. Although the effective majority in Byers did not agree on all the factors to be considered in formulating an appropriate balancing test, they did agree that the risk of self-incrimination was on one side, and the government’s need on the other. They also agreed that such a test should be employed. It was appropriate there, and in our opinion is appropriate here, because the primary objective of the pertinent self-reporting scheme is not the enforcement of criminal laws. An extension of the privilege to traffic regulatory schemes would significantly interfere with societal goals unrelated to the deterrence of behavior through criminal sanctions. As Justice Harlan points out: “Technological progress creates an ever-expanding need for governmental information about individuals. If the individual’s ability in any particular case to perceive a genuine risk of self-incrimination is to be a sufficient condition for imposition of use restrictions on the government in all self-reporting contexts, then the privilege threatens the capacity of the government to respond to societal needs with a realistic mixture of criminal sanctions and other regulatory devices.” 402 U.S. at 452. Typical of the government’s response to modern societal needs is its universal regulation of who may employ our highways. As noted, the second response dealt with in our reporting statute is the production of a driver’s license, on an “if available” basis to other parties to the accident, compulsorily when requested by an officer. The latter requirement is consistent with K.S.A. 8-244, requiring every driver to carry a license and display it on the demand of a peace officer. The validity of the driver’s license requirement has never been seriously challenged so far as we know. In State v. Frizzell, 207 Kan. 393, 485 P.2d 160 (1971), a “driver’s license check lane” was found to be authorized by the statute, and the officer’s observations made while conducting the license check gave probable cause for a search of the car. The Frizzell doctrine was extended to a random stop of a single car in City of Overland Park v. Sandy, 225 Kan. 102, 587 P.2d 883 (1978). The latter case, insofar as it authorized random stops, was effectively overruled by Delaware v. Prouse, 440 U.S. 648, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979). The basis of Prouse, however, was the Fourth Amendment right to be free from unreasonable searches and seizures. In that case the random spot check was distinguished from the roadblock as being a more serious inva sion of the individual’s Fourth Amendment interests. In analyzing the relative utility of spot checks as against other means of enforcing license requirements the court observed: “The foremost method of enforcing traffic and vehicle safety regulations, it must be recalled, is acting upon observed violations. Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained. . . . Furthermore, and again absent something more than mere assertion to the contrary, we find it difficult to believe that the unlicensed driver would not be deterred by the possibility of being involved in a traffic violation or having some other experience calling for proof of his entitlement to drive but that he would be deterred by the possibility that he would be one of those chosen for a spot check.” 440 U.S. at 659-60. Emphasis added. Finally, the Prouse court specifically recognized the State’s right to check drivers’ documentation by methods that do not involve the unconstrained exercise of discretion, including “[questioning of all oncoming traffic at roadblock-type stops.” 440 U.S. at 663. It will be observed that there is no hint in the court’s language that demanding documentation of a motorist’s right to drive in any way infringes upon his Fifth Amendment rights. Indeed, the case proceeds on the premise that if the stop meets Fourth Amendment standards of reasonableness, violators who are so discovered may be prosecuted as a result of the discovery. Stops which the Court indicates meet Fourth Amendment standards include roadblocks, stops for traffic violations, and “other experiences” calling for documentation. Collisions, we suppose, are prime examples of such “other experiences.” In this case we are concerned with the third piece of information required by our statute, and that is insurance data to be furnished to other parties to the collision and to the investigating officer, in both cases “if available.” We are unable to distinguish the potential for self-incrimination in this requirement from that inherent in the driver’s license requirement — if anything, the risk is less, and the State’s need is greater. Our statute, while presenting a realistic hazard, does not require an incriminating answer. This feature serves to distinguish it from that part of the Connecticut “no-fault” statute considered in Gentile v. Altermatt, 169 Conn. 267, 304-7, 363 A.2d 1 (1975). That statute, as implemented by regulation, required a motorist involved in an accident to file a report with a separate signed section either giving insurance information or stating that there was none. Failure to complete the report subjected the motorist to license suspension and a fine. The Connecticut court found the reporting requirement constitutionally sound, but opined that the report of an uninsured motorist could not be used in a prosecution for driving without insurance because it was, in essence, a compelled signed confession. If, under our statute the question was, “Do you have insurance?” we might find the Connecticut reasoning more persuasive, although perhaps still not as compelling as the driver’s license analogy. Both the driver’s license and the insurance requirement serve important public ends: the one safety on the highway, the other financial responsibility for property loss and personal injury which might in extreme cases lead the victims to becoming public charges. Applying a balancing test as suggested by Byers leads us to the same result in both instances. There is a strong governmental interest in keeping unsafe and unqualified motorists off the highways, and the reporting requirement is reasonably designed to serve that end. The requirement is aimed at regulatory ends and not at criminal law enforcement. If an officer may constitutionally demand a motorist’s driver’s license, we see no reason why he may not inquire as to the motorist’s insurance policy, “if available.” We conclude that defendant’s admission was not impermissibly coerced by our statute and that it was properly admitted into evidence against him. III. Defendant also alleges that the trial judge demonstrated bias and prejudice against him, denying him a fair trial. The allegation is based on the judge’s expressed opinion at the outset that unless defendant had a defense to the charge by way of a valid insurance policy, a trial would be a waste of time for all involved. The remarks were, to say the least, unfortunate and ill advised. However, the judge also explicitly recognized defendant’s right to put the State to its proof. Except for a rather brusque treatment of the defense objection, he conducted the very short trial required in a manner we find unexceptionable. There was only one contested issue, and that was the admissibility of defendant’s statement to Officer Suit discussed above; there was no defense testimony and no closing argument on either side. Although we can’t condone the trial judge’s remarks, they did recognize the reality of the situation, and we find they did not result in an unfair trial. IV. Finally, defendant complains that the $100 fine imposed represented a penalty for exercising his constitutional right to a trial. In this he is patently correct. The trial court’s concluding words were: “The defendant will be found guilty. Based upon the fact that this is, in the Court’s opinion, just a waste of time, the Court is going to assess a fine that will be set in the amount of one hundred dollars — the normal fine is fifty dollars— together with the costs.” Penal sanctions imposed vindictively, as official retaliation for an accused’s exercise of constitutional rights, cannot be sustained. North Carolina v. Pearce, 395 U.S. 711, 723-4, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969). “[W]hether a defendant exercises his constitutional right to trial . . . must have no bearing on the sentence imposed.” Hess v. United States, 496 F.2d 936, 938 (8th Cir. 1974), citing numerous cases. In its brief the State urges that “[t]he attempted frustration of justice in such cases by appeal to technicality should hardly be approved of by the courts.” We cannot characterize defendant’s Fifth Amendment argument in this case as an “appeal to technicality,” even though in the long run we reject the argument. Even if it were so, in our accusatorial and adversary system of criminal justice an accused is entitled to have the State prove his guilt by competent, admissible evidence. The “technicalities” involved in that process are the stuff of which our law is made. The conviction is affirmed, but the sentence is vacated and the case remanded to the trial court for the imposition of a new sentence in accordance with the principles set forth above. Costs on appeal are assessed one-half to defendant and one-half to the State. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966).
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Abbott, J.: This is an interlocutory appeal by the State pursuant to K.S.A. 1979 Supp. 22-3603 from an order sustaining the defendant’s motion to suppress two confessions given by the defendant to law enforcement officers. The defendant, Terry R. Baker, is charged with thirteen counts of burglary. At issue are two separate confessions made by defendant on the night of April 3, 1979, after he and his friend, Tim Parker, voluntarily accompanied Det. James H. Raby, an officer with the Ottawa Department of Public Safety, to the Franklin County Sheriff’s Department. The defendant was not arrested at any time material to this decision. Defendant was placed in the sheriff’s private office, where he remained alone for approximately ten minutes. Det. Brad L. Gilges, an officer with the Franklin County Sheriff’s Department, entered the sheriff’s of fice. Gilges and the defendant had attended grade school together. Defendant was given the Miranda warning. Det. Gilges told defendant that the coat defendant was wearing matched the description of a coat taken in a burglary, including the initials “V.A.N.” written in ink on the label. Defendant denied any knowledge of that burglary. Det. Gilges then confronted the defendant with evidence which was found at the scene of a burglary in the form of a piece of paper that had the name “Sherry” and a phone number on it. Defendant was informed that the phone number was that of Sherry Wall, and she had stated that she had given a piece of paper exactly like it to defendant. The defendant replied, “You’ve got me.” The defendant then stated he would tell everything if Gilges would promise to aid him in getting mental help. Considerable controversy exists as to what was said concerning both the request for mental help and the replies to that request. The defendant then gave a recorded statement to Det. Gilges which was followed by a second recorded statement to Det. Raby. Both statements were subsequently transcribed. The statements go into considerable detail, giving the dates and times of numerous violations of criminal laws by the defendant, including specific details of how entry was made, descriptions of the entrance to buildings and items taken. None of the conversation was taped prior to the defendant’s agreeing to give a confession. It is difficult to comprehend why the entire interview was not tape recorded, as the failure to record the entire interview invariably leads to claims that prohibited conduct occurred prior to the use of a recording device. The trial court suppressed defendant’s confessions as hearsay based on K.S.A. 60-460(f), which states in pertinent part: “In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged [is admissible] if, and only if, the judge finds that the accused when making the statement was conscious and was capable of understanding what he or she said and did, and that the accused was not induced to make the statement ... by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.” The trial court sustained the motion to suppress the confessions, finding that (1) the State had not sustained its burden of convincing the court that defendant was capable of understand ing what he said, regardless of the truth or falsity of his confessions; and (2) the confessions were made as the result of promises by a deputy whom the defendant reasonably believed to have the authority to carry them out, and that defendant’s belief in the promises could likely cause him to make false statements in order to obtain the benefits promised. To be admissible in evidence as an exception to the hearsay rule under K.S.A. 60-460(f), a confession or extrajudicial statement by an accused must have been freely and voluntarily made. The voluntary nature of a statement must be established by a preponderance of the evidence, and by statute (K.S.A. 22-3215[4]) the burden is on the prosecution to prove the statement is voluntary and admissible. State v. Kanive, 221 Kan. 34, 35, 558 P.2d 1075 (1976). Furthermore, when there is a conflict in testimony given by the defendant and that produced by the State as to the voluntary character of a confession, it is to be determined like any other question of fact; and although a finding by the trial court is open to review, it has a much better opportunity to ascertain the truth than that afforded to this court and its conclusion, if supported by substantial competent evidence, cannot be disturbed. Holt v. State, 202 Kan. 759, 764-65, 451 P.2d 221 (1969). Is there sufficient competent evidence to support the trial court’s finding that defendant, by virtue of his drugged and intoxicated condition, was not capable of understanding what he said and did when he gave the confessions? We think not. We note that at the conclusion of the evidence the trial judge stated: “Well, gentlemen, let me establish a problem I’m experiencing. Surely, it’s not the position of the defendant that he didn’t know what he was doing that day because of drugs, is it? “MR. LATIMER: Yes, that is a part of it. It’s a part of the sum total. “THE COURT: He’s recalled details that are phenomenal as far as the Court is concerned. The Court now feels that at this stage that this defendant, no matter what he was on, recalls exactly what happened that day and that the only question now before this Court is whether or not the confessions were elicited on a promise, not because that he didn’t know what he was doing. “Is that your position, that he didn’t know what he was doing? “MR. LATIMER: Your Honor, that is a portion of my position. The case law is — -I know the Court is well aware of this — and the Court has to look at the totality of the circumstances, and I’m not saying that he didn’t know what he was doing, but I’m saying the fact that he was taking drugs, these drugs, had influenced him in a manner when you get into the promise situation that it’s a part of the totality of the circumstances; and I’m not going to try to — -(Emphasis supplied.) “THE COURT: Well, all right. I’m going to allow you to examine the defendant as to the other drugs on that basis.” No additional evidence was admitted following the above comments and the hearing ended at that point. The trial judge in his order of suppression obviously changed his mind. Although a trial judge has every right to change a tentative conclusion, we are of the opinion he was right the first time. Even viewing the evidence in a light most favorable to the defendant, ignoring the strong evidence of defendant’s mental alertness and lack of intoxication and his detailed recall of the crimes in his recorded confessions (as we are required to do under our applicable scope of review), there still exists no substantial competent evidence to support a finding of mental incompetency. The fact that an accused had been drinking and using drugs does not per se establish involuntariness. State v. Young, 220 Kan. 541, 547-48, 552 P.2d 905 (1976); State v. Harden, 206 Kan. 365, 370-72, 480 P.2d 53 (1971). The statutory test for admissibility of the confessions is, was the accused “capable of understanding what he or she did” at the time the confessions were made? K.S.A. 60-460(j). When the record is viewed in a light most favorable to the accused, it reveals that the accused’s friend, Timothy Parker, testified that in his opinion the accused was intoxicated from alcohol and drugs that day. Although he did observe defendant drinking beer, he did not see him take any drugs and based his opinion about the use of drugs on the way the defendant “acted.” As examples, he said that the defendant walked faster than normal, laughed at jokes that were not funny, and called people “butter fingers” if they spilled a glass of beer. His evidence, standing alone, is insufficient to support a finding that the accused was not capable of understanding what he was doing when he gave the confessions. If sufficient competent evidence exists, it must be found in the testimony of the accused. The accused testified that he had been taking miscellaneous drugs for a long time and that for some nine months preceding the giving of the confessions he had taken speed each day. The day he gave the confessions, he took a form of speed called “preludes” at 7:00 a.m. A little after noon, he joined Parker and drank a few pitchers of beer. After an hour or two he left the tavern and walked around town smoking mari juana and “downed three hits of 'microdot’, which is an acid,” a form of LSD. He gives no further account of his time until he was picked up around 9:30 p.m. by Raby. Later he testified he took three to five microdots. He further testified: “Q. (BY MR. LATIMER) Were you high or intoxicated by drugs and/or alcohol at that time? “A. Yes, I was. “Q. To what degree or to what extent? “A. Oh, I’d say on an age level from one to ten, I was probably about five years old. “Q. Now, you’ll have to explain that. “A. About half of what my I.Q. should have been. “Q. I don’t understand your answer. Will you explain the answer to the Court? “A. Well, I was high enough and drunk enough to where I had about half the I.Q. I should have had. “Q. And how did you arrive at this determination? “A. By the testimony I gave the police that night and the laughing I was doing and the constant slang I was using, like ‘yeah’ and ‘uh-huh’ and stuff like that that shows up in the testimony. “Q. So, how would you compare your mental state right now, today, at this very minute as compared to when you were talking to Officer Gilges about mental help on April 3rd, 1979 at about 10:00 p.m.? “A. Well, at this time, I’d say right now sitting here, I have the I.Q. of at least a high school graduate. At that time, I’d say maybe a seventh grader.” The accused did not testify he was not capable of understanding what he was doing when he gave the confessions, and we are unable to reasonably construe from his testimony that he did not fully understand what he was doing. Although it does not enter into our decision, the testimony of the accused at the suppression hearing was clear and concise as to what occurred when the confessions were given and that, coupled with defendant’s detailed recall of the crimes as evidenced by his confessions, must have been what the trial judge had in mind when he commented at trial that he felt the only question before the court was whether the confessions were elicited on a promise. If the triál court’s order of suppression is affirmed, it must be on the basis of K.S.A. 60-460(/)(2) that the accused was induced to confess by promises made by the authorities regarding his mental health treatment and that such promises were likely to cause the accused to make false statements. Before any conversation was had concerning other burglaries, the defendant had voluntarily given to the law enforcement officers a coat which linked defendant with one burglary, and he had made an incriminating statement (“You’ve got me”) when confronted with evidence concerning a second burglary, It was the defendant who initiated the suggestion of a potential promise. In State v. Harwich 220 Kan. 572, 575, 552 P.2d 987 (1976), the Kansas Supreme Court held that when the promises are solicited by the accused, freely and voluntarily, the accused cannot be heard to say in accepting the promises that he was the victim of compelling influence. Our Supreme Court also rejected an inducement argument in State v. Creekmore, 208 Kan. 933, 935, 495 P.2d 96 (1972). There, the defendant was accused of incest and carnal knowledge of a female under the age of eighteen years. One of the detectives suggested that if the charges were true, the accused needed psychiatric help and that he would do what he could to obtain psychiatric help for the accused. The accused testified he confessed in hopes he might be sent to a mental institution for a shorter time than if he was convicted and sent to prison. The Supreme Court there affirmed the trial court’s decision that the statement was freely and voluntarily given. In State v. Smith, 216 Kan. 265, 530 P.2d 1215 (1975), the Supreme Court rejected an accused’s contention that a detective’s promise to speak to the judge if defendant cooperated with him was coercive. As we view the accused’s confession before us, it was nothing more than the product of the accused’s voluntary act for his own benefit, which does not make the confession inadmissible. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 348, 9 L.Ed.2d 357, 364, 83 S.Ct. 448, rehearing denied 372 U.S. 950 (1963). There is no substantial competent evidence in the record, even when viewed in a light most favorable to the accused, to support the trial court’s ruling on promissory inducement, and the record does not support a finding that the promises made were likely to cause the accused to make a false confession. The evidence in the record is such that the accused could not reasonably construe it to mean that he was being promised that he would be referred to a mental facility either as an outpatient or by incarceration as opposed to prison. Standing alone, the mere promise to attempt to help the accused by recommending to the county attorney and judge hearing the case that defendant receive mental help of some unspecified nature does not vitiate a confession otherwise freely and voluntarily given. Reversed.
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Swinehart, J.: This is an appeal from an order of the district court of Sumner County denying plaintiff George Alexander’s motion to restore his appeal from an adverse decision of the Appeals Committee of the State Department of Social and Rehabilitation Services of Kansas to the district court’s docket because his counsel did not receive a notice of hearing on the motion. On appeal the plaintiff argues that the failure to so notify his attorney of record denied him due process and equal protection of the law. On December 19, 1975, the State Appeals Committee of S.R.S. sustained an earlier decision of the Wellington District Office denying George Alexander’s petition for excess shelter costs in the amount of $505.64. The plaintiff appealed this decision on January 16, 1976, to the district court of Sumner County. The matter was scheduled for hearing on October 18, 1976, at which time the court dismissed the action with prejudice because plaintiff did not perfect his appeal as required by K.S.A. 1978 Supp. 60-2101 in that he failed to have prepared and filed with the district court true copies of all relevant proceedings before S.R.S. and also failed to pay the required docket fee. Alexander had not been represented by counsel up to this point. On November 5, 1976, the plaintiff filed a motion through counsel Tom L. Schwinn for an order reversing, vacating or otherwise modifying the October 18 order and for additional time to properly perfect his appeal. Although originally set for hearing on November 15, 1976, the matter was continued several times. On August 16, 1977, the court clerk notified plaintiff, Schwinn and defendant’s counsel that the hearing was set for September 2, 1977. The plaintiff notified the court prior to September 2 that Schwinn was no longer representing him. In addition, prior to September 2 Schwinn also notified the court and defendant’s counsel that he had been dismissed by the plaintiff and that he had written plaintiff advising him to retain other counsel for the hearing. On September 2, however, the plaintiff appeared without counsel and again advised the court that Schwinn was not representing him. He further stated that he was securing another attorney and asked for a continuance. Mr. Schwinn was not present on this date. The court then granted a continuance to allow plaintiff to secure new counsel. The clerk notified Michael Moline, attorney for S.R.S., and plaintiff by mail on September 20,1977, that by order of the court the case would be heard on October 5, 1977. At Moline’s request, the case was continued until October 7, 1977, and Moline so notified Alexander. However, Mr. Schwinn was not mailed a copy of either notice, nor had he filed any motion for withdrawal. The plaintiff appeared pro se at the October 7,1977, hearing. At the hearing, the court asked plaintiff whether he was represented by counsel and plaintiff stated that Schwinn had ceased handling the case six to eight weeks earlier. Plaintiff further informed the court that he had not secured other counsel, although he had made several attempts to do so. The court then entered judgment denying plaintiff’s motion for reinstatement because plaintiff again failed to file a transcript of hearing and other pleadings required under K.S.A. 1978 Supp. 60-2101. On February 1, 1978, plaintiff filed a motion through Tom Schwinn to reinstate the case to the docket. He alleged that he had been denied due process and equal protection under the Fourteenth Amendment because Schwinn had not been served with a notice of the October 7, 1977, hearing as required by K.S.A. 60-205(fo), and that Schwinn had not been relieved of his duties by court order nor had plaintiff been served a notice of withdrawal as required by Rule No. 117, 224 Kan. Ixii. The court denied the motion. Additionally, the trial court found plaintiff failed to appeal within the proper time from the October 7, 1977, order and that the motion to restore the case to the docket did not extend the time to appeal and was not a substitute for, nor an alternative to, an appeal. On appeal the plaintiff contends that the October 7, 1977, action denied him due process and equal protection of the law because his attorney of record was not notified of the hearing on the motion for reinstatement as required by K.S.A. 60-205(b) and because he had not been served with a notice of withdrawal by his attorney as provided in Supreme Court Rule No. 117,224 Kan. lxii. K.S.A. 60-205(b) provides: “Whenever under this article service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court.” Supreme Court Rule No. 117 reads as follows: “WITHDRAWAL OF ATTORNEY. An attorney who has appeared of record in any proceeding may withdraw; but he shall be relieved of his duties to the court, his client, and opposing counsel only when he has served a motion for withdrawal on the client and on opposing counsel, filed a copy of the motion and proof of the service thereof with the clerk, and the judge has entered an order approving the withdrawal. No such order shall be required if another attorney authorized to practice law in this state is appearing of record to represent the client.” K.S.A. 60-205(b) allows the court to order service upon a party, rather than upon his attorney. Here in its March 15, 1978, journal entry, filed April 4, 1978, the court noted that based upon the representations made by the plaintiff on September 2, 1977, i.e., that his attorney of record Tom Schwinn no longer represented him, the court had ordered that notice of the October 7 hearing to restore the appeal be served upon the plaintiff. Therefore, we find that the trial court properly complied with the provisions of K.S.A. 60-205(b) by ordering service of notice of the motion upon the plaintiff. This finding obviates any consideration of plaintiff’s argument regarding Supreme Court Rule No. 117, 224 Kan. lxii. Consequently, the plaintiff’s allegations that he was denied due process and equal protection of the laws are without merit. Judgment is affirmed.
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Parks, J.: This appeal involves the redemption of real property sold under an order of sale. The defendant owner, Robert W. Youker, appeals from an order which required him to pay at redemption a higher interest rate than that of his mortgage. The purchaser, J. R. Sherman, cross-appeals and contends that the trial court erred when it upheld a local court rule which authorized the redemption funds to be held by the clerk of the district court. In late 1977, Capitol Federal Savings & Loan Association foreclosed the mortgage on two Leawood lots owned by Youker. The property was purchased by Sherman under an order of sale. The district court ordered that a six-month period of redemption be set and a certificate of purchase be delivered to the buyer. Within the six-month redemption period, Youker gave the clerk of the district court a money order which included the purchase price paid by Sherman, the cost of one year’s insurance premium, and interest at the rate of 9% percent. Youker contemporaneously filed a motion challenging the right of the purchaser to receive interest at a rate other than the judgment rate (6%) or the rate set forth in the original mortgage note (8%). The trial court held that the higher rate (9%%), which the purchaser had to pay to acquire the funds for the purchase of the lots, was the appropriate interest rate to be paid by Youker. The court also upheld its local rule which authorized the clerk of the district court to hold redemption funds paid by certified check, money order or personal check for a period of 21 days. Inasmuch as the purchaser is not a creditor of the defendant owner, the rate of 6 percent per annum provided for in K.S.A. 16-201 is not applicable. This leaves for our consideration only the mortgage rate of 8 percent and the 9% percent rate which Youker paid to effect redemption. The redemption of real property is controlled by K.S.A. 1979 Supp. 60-2414. Subsection (a) generally defines the right of the property owner to redeem “any real property sold under execution, special execution, or order of sale, at the amount sold for, together with interest, costs and taxes, at any time within twelve (12) months from the day of sale, for the amount paid by the then holder of the certificate of purchase together with interest, costs and taxes to the date of redemption . . . .” An earlier version of this statute was interpreted in Clark v. Nichols, 79 Kan. 612, 100 Pac. 626 (1909). There, as in this case, the foreclosed mortgage bore an 8 percent rate, the redemption statute did not specify a rate of interest to be paid, and the purchaser at sale was neither a general creditor nor the mortgagee. The court concluded: “The sale and redemption are in a sense parts of the foreclosure proceeding. The contract rate on a mortgage or other debt which constitutes the lien is carried into the judgment. While in a certain sense the foreclosure and sale satisfy and extinguish the mortgage and judgment, they do not destroy them so far as the mortgagor is concerned. . . . [I]t is reasonable to infer that the legislature, in dealing with the foreclosure of liens and the sale of property to satisfy such liens, had in mind the rates of interest which the debts or liens carried. ... In the act regulating the redemption of real estate sold at judicial sale the provisions fixing the rights of creditors to redeem from each other at specified times specially refer to the liens of the mortgage and judgment, and in speaking of the interest in the same connection it is fair to infer that it was the mortgage and judgment rate which was in the mind of the legislature. ” Clark, 79 Kan. at 615-616. (Emphasis supplied.) This rule provides certainty in determining the appropriate rate of interest on redemption. Following Clark, the court in Morris v. Hettinger, 98 Kan. 74, 157 Pac. 404 (1916), held that the owner was required to pay “the rate of interest which the mortgage bore.” We hold that the rule enunciated in Clark and Morris is still the law in Kansas. Accordingly, the trial court erred when it ordered Youker to pay interest at the rate of 9% percent instead of the mortgage rate of 8 percent. We next consider the question raised on cross-appeal concerning the validity of the district court rule which requires the clerk of the district court to hold certain redemption funds. At oral argument we learned that the money was paid to the purchaser within seven days. The adoption of such a rule is a matter of court administration and lies within the province of the court. We find this administrative plan to be a reasonable means by which the clerk is protected from drawing on funds which may not exist. Accordingly, the trial court was correct in upholding this rule. We also affirm the trial court’s holding that the redeemer-landowner is not obligated to pay interest on the tendered sum during the period the funds were held by the clerk. By statute, interest is to be paid “to the date of redemption.” That date is the one on which the money is paid in to the clerk, not the date it is paid out by the clerk. The judgment is affirmed as to its ruling on the validity of the court rule and as to its holding that the redeemer is not obligated to pay interest during the time the funds were held by the clerk. It is reversed insofar as it required the redeemer to pay 9% percent interest rather than the 8 percent mortgage rate.
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Meyer, J.: Tommie L. Robinson (appellant) was convicted by a jury of the crimes of theft (K.S.A. 21-3701[a]), and burglary (K.S.A. 21-3715). On the morning of January 7, 1979, a burglar alarm was activated at Action Auto Radio, Inc., in Wichita. An investigating officer learned that two auto radios had been taken. He observed distinct footprints in the snow outside the store and followed them to an opening under a nearby house where he discovered the stolen property. Surveillance was set up at the location and appellant was observed kneeling by the opening. Appellant started walking away carrying a sack. When police called out to him, he dropped the sack and ran. He continued to run even after a warning shot was fired but was soon apprehended. Appellant testified at trial that he had been in the area earlier and had seen someone running with the goods; that he had followed that person’s footprints to the opening under the house, had placed the goods in a sack which he found under the house, and then left with the goods. He denied taking the goods from Action Auto Radio, Inc. The shoeprints which the officer first followed after discovering the break-in were not those of tennis shoes, while appellant was wearing tennis shoes at the time of his apprehension. Testimony was that the burglar alarm had gone off prior to 10:00 a.m., and appellant was observed leaving the house with the goods at about 11:38 a.m. A statement of appellant’s, made to the officers after his arrest, was admitted into evidence in rebuttal of his testimony over appellant’s objection. Appellant was found guilty of both charges. His motion for a new trial based on newly discovered evidence of alibi was denied. Appellant first complains that the trial court erred in failing to instruct the jury as to misdemeanor theft (K.S.A. 21-3701). While misdemeanor theft is clearly a lesser included offense of felony theft (State v. Green, 213 Kan. 547, 516 P.2d 926 [1973]), it is not necessary to give the instruction where the value of the stolen goods is established at over $100.00, and where there is no evidence of a value of less than $100.00. State v. Nesmith, 220 Kan. 146, 152, 551 P.2d 896 (1976). The stolen radios had a malfunction, and the owner of Action Auto Radio, Inc., testified that for that reason he did not intend to sell them. He stated the radios cost him $59.95 each, and that each had a normal retail price of $119.00. He testified that he could get $59.95 for each of them by sending them back to the wholesaler. Appellant contends the fact the owner did not intend to sell them, and that they were defective, is sufficient evidence of a value of less than $100.00 to require an instruction on misdemeanor theft. Appellant’s claim in this regard lacks merit for two reasons. First, the store owner testified that he could have sold the radios for “in the neighborhood of $75.00” in their “as is” condition, and while the owner did not specifically say that he could get that for each of them, it is very clear by the context in which his testimony was given that that is what he meant. Second, the rule that fair market value is the value to be used in determining whether a theft is a felony or a misdemeanor does not exclude other methods of determining value. And where the stolen goods have a unique or peculiar value to the owner, then evidence of such value is fully competent in the absence of proof of fair market value. In State v. Inverarity, 150 Kan. 160, 92 P.2d 45 (1939), the defendant claimed there was no competent evidence establishing the value of the stolen articles. The following appears in Inverarity, at pages 160-161: “The property taken consisted of farming implements. The owner was a witness and testified, naming the articles taken, stating their condition for use, and that they were usable as farming tools and equipment. He testified as to the value of each article, in some cases basing his opinion on what similar articles had sold for at public sales. Appellant contends that market value was not proved, and that the owner’s testimony as to value was incompetent. He cites no authority in support of his contention. In Lawson v. Southern Fire Ins. Co., 137 Kan. 591, 599, 21 P.2d 387, this court recognized the rule that an owner is presumed to know the value of his property and may therefore give testimony with respect thereto.” The Inverarity case was cited with approval in State v. Ireton, 193 Kan. 206, 392 P.2d 883 (1964). Other jurisdictions have dealt specifically with the valuation problem. “In the absence of a market value, evidence of the actual value, or the replacement value, or the saleable value at a secondhand dealer, or its value to the owner, or the sale price for junk, of the property stolen has been held admissible. However, it is well settled that evidence of any other valuation but the market value of stolen property has been held inadmissible unless it is first shown that there is no market value.” State v. Clark, 13 Wash. App. 782, 788, 537 P.2d 820 (1975), citing from 52A C.J.S., Larceny § 118, p. 619. “It is true, as appellant contends, that the fair market value of personal property is the test to be applied in order to determine whether the theft of such property constitutes grand theft or petty theft (Pen. Code, § 484; People v. Lathrop, 37 Cal. App. 2d 341 [99 P.2d 330]; People v. Lenahan, 38 Cal. App. 2d 39 [100 P.2d 515]; People v. Cook, 233 Cal. App. 2d 435 [43 Cal. Rptr. 646]). However, this rule is by necessity subject to the qualification that under circumstances where, for example, the property has a unique or restricted use and an extremely limited market, the actual or replacement cost to the one from whom it was stolen is its fair market value. Otherwise, valuable property rights in certain kinds of property vitally needed in industry would be seriously jeopardized by the mere fact that once stolen the only remaining use for such property, and hence the only market therefor, is as ‘salvage.’ Accordingly, we agree with respondent’s assertion that under these circumstances the term ‘market value’ is synonymous with the term ‘replacement value.’ ” People v. Renfro, 250 Cal. App. 2d 921, 924, 58 Cal. Rptr. 832 (1967). We hold the rule as to value to be used in determining whether a theft is a felony or a misdemeanor is that same is the fair market value, except where an item or items constituting the res of the theft has no fair market value, or where the value is peculiar to the owner from whom the property was stolen, then its “money” value to the owner is a proper test. We stress “money” value in order to make it clear that mere sentimental considerations cannot be attributed value when that term is used in the field of criminal law. In the instant case the owner from whom the property was stolen could have received over $100.00 in value for the stolen items, and no other witness testified as to value. Furthermore the owner never testified to a value of less than $100.00. It was, therefore, proper for the trial court to refuse to give an instruction on misdemeanor theft. See also State v. Jordan, 62 Kan. 868, 63 Pac. 1126 (1901). In this regard it is also claimed by appellant that a specific question should have been directed to the jury (as per PIK Civ. 2d 9.20) as to the value of the stolen goods. While that instruction might have been necessary under other circumstances, under all of the evidence in this case the same was not necessary. The issue instruction as to theft had as one of its requirements that the jury had to find the value of the stolen goods was “more than $100.00” in order to find appellant guilty. We conclude it was not prejudicial error for the trial court to decline to give a value instruction as per PIK Civ. 2d 9.20. Appellant next complains that the trial judge should have given an instruction defining “unlawful deprivation” as a lesser included offense. There is no merit to this contention. Here there was no evi dence that appellant took the property with the intent of depriving the owner temporarily. Appellant denies taking the property from the owner. He denies any criminal intent whatever. Appellant testified at trial that he intended to return the goods to the owner. He admitted taking them from under the house. If his intent when he removed the goods from under the house was to take them to their owner, then he was not guilty of any crime at all. “Intent may be established by circumstantial evidence.” State v. Goodman, 3 Kan. App. 2d 619, 627, 599 P.2d 327 (1979). Appellant next complains that the court erroneously admitted his prior statement, given in response to custodial interrogation, solely on the ground it was not a voluntary statement. The statement was offered after appellant had testified. A Jackson v. Denno hearing was held in which it was determined that the statement was voluntarily made. That determination by the trial court will be accepted on appellate review if supported by substantial competent evidence. See State v. Thompson, 221 Kan. 165, Syl. ¶[ 2, 558 P.2d 1079 (1976). In State v. Roberts, 223 Kan. 49, Syl. ¶ 5, 574 P.2d 164 (1977), it is said: “When a confession or statement by a defendant has been found involuntary it is unreliable and untrustworthy and it does not then satisfy the legal standards necessary for admissible evidence. It must then be excluded whether offered in the state’s case in chief or for impeachment purposes.” Also, in State v. Thompson, it was claimed that the low intelligence of the defendant precluded his statement from being voluntary. The court stated: “The mental deficiencies of the defendant may be an important factor in determining whether or not a confession was voluntarily given. That fact alone, however, is not conclusive evidence on the issue.” 221 Kan. at 170. Here, the appellant claims he had little education, he was handcuffed while being questioned, and was in the interrogation room for some period of time before being questioned. He further claims that he did not understand what the detectives were talking about, and that he was confused about his Miranda rights. It is not contradicted that the evidence showed there were no threats or promises, and that there was no odor of alcohol or anything unusual about appellant’s eyes — he exhibited no erratic behavior. There was substantial evidence to support the trial court’s finding that the statement of the appellant was voluntary. The appellant does not now contend the Miranda warning was not properly given nor that there was not sufficient evidence to find an effective waiver of his Miranda rights. However, we construe the record to disclose these questions were not decided by the trial judge; his attention was directed by counsel solely to voluntariness. Assuming no proper and effective waiver of appellant’s Miranda rights, still the statement was admissible for the purpose of impeachment of the credibility of appellant. In Harris v. New York, 401 U.S. 222, 225-6, 28 L.Ed.2d 1, 91 S.Ct. 643 (1971), the court stated: “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. [Citations omitted.] Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment. “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.” See also Oregon v. Hass, 420 U.S. 714, 43 L.Ed.2d 570, 95 S.Ct. 1215 (1975). The test, where a statement is offered for impeachment purposes, is not whether it meets Miranda requirements, but rather whether “the trustworthiness of the evidence satisfies legal standards.” Harris v. New York, 401 U.S. at 224. While the trial judge conducted a Jackson v. Denno hearing, and concluded that the statement was voluntarily made, he expressed no other finding but simply held the statement “would be admitted on cross.” We conclude that under these circumstances, the statement was admissible to impeach appellant’s credibility. Appellant claims there was insufficient evidence to support a guilty verdict as to the burglary charge. This claim also lacks merit. The standard of review in a criminal case is whether the evidence when viewed in the light most favorable to the prosecution convinces the appellate court that a rational factfinder could have found defendant guilty beyond a reasonable doubt. See State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979); State v. Henderson, 226 Kan. 726, 603 P.2d 613 (1979); State v. McGhee, 226 Kan. 698, 602 P.2d 1339 (1979). Here, the evidence showed appellant in possession of the stolen goods, that he had them at the “stash” location, that the tracks of the thief and of appellant were of the same size (although of a different type of shoe), that appellant ran when called out to by the.officers and continued to run after a warning shot. Appellant also claimed that he found the sack in which he transported the stolen items under the house. In State v. McFall, 219 Kan. 798, 799, 549 P.2d 559 (1976), the court said: “Possession by an accused of recently stolen property is sufficient to sustain convictions for burglary and theft where a satisfactory explanation is not given.” While appellant’s statement as to. how he found the stolen goods has some plausibility, it is apparent the jury did not believe him. More importantly, however, his conviction does not depend on possession alone, but on the entirety of the circumstances, the most important of which have been set out above. Appellant’s claim that the trial court abused its discretion in not granting a new trial based on newly discovered evidence likewise lacks merit. The supreme court, in discussing the rules of K.S.A. 22-3501 as to the granting of a new trial for newly discovered evidence, states: “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 re-trial. [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 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.” State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993 (1977). Appellant’s newly discovered evidence consisted of a “witness” who claimed he saw appellant some Sundays. He could not recall whether or not he had seen appellant on the Sunday of the burglary. Assuming, arguendo, that appellant met the requirement of the evidence being actually “newly discovered” and that he could not have discovered this witness ahead of trial, and assuming further that everything the witness said was true, such evidence would fall far short of constituting an alibi for appellant. It cannot be said that such testimony would likely have produced a different result at the trial. The trial court did not abuse its discretion in refusing to grant a new trial. Affirmed.
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Abbott, J.: Four separate requests for judicial review have been consolidated in this case. All of the requests involve State Corporation Commission Docket No. 115,485-U. The Gas Service Company is a public utility authorized to transact business in Kansas as a foreign corporation. It is engaged in the distribution and sale of natural gas for domestic, commercial and industrial uses. On June 23, 1978, it filed an application with the State Corporation Commission (Commission) for a rate increase to customers in Kansas which, based upon a test year ending June 30, 1978, would produce an additional $12,603,724. Midwest Gas Users Association (Midwest) and Seymour Foods, Inc., (Seymour) filed a petition to intervene. Midwest is an unincorporated, nonprofit association of some 155 business concerns and corporations which are substantial users of natural gas in Kansas, Missouri and Oklahoma. Seymour operates a large processing plant in Topeka, Kansas, and is an industrial customer of Gas Service. The Commission found that Midwest and Seymour have interests adequate to warrant their participation and granted them leave to intervene. Hearings were completed on January 23, 1979, and the matter was taken under advisement. On March 16, 1979, the Commission announced to the press that it was granting a rate of return that would produce an additional $960,574. On July 5, 1979, an order confirming the original announcement of March 16, 1979, was mailed to the parties by the Commission. The order does not contain sufficient findings to permit meaningful review, and it obviously was not intended to do so. The order recited in part: “The Commission shall issue a subsequent order in this proceeding which shall make additional findings consistent with this order.” The order further mandated Gas Service to file tariffs within thirty days in accordance therewith. The Commission did not allow Gas Service to collect the additional revenue until after its first order was mailed on July 5, 1979. The increase was put into effect when tariffs were filed with the Commission on July 9, 1979. Applications for rehearing were filed on July 16, 1979, by Gas Service, General Motors (no longer a party), Midwest and Seymour in accordance with K.S.A. 1979 Supp. 66-118b. The matters were set for oral argument and on August 20, 1979, the Commission denied the requests for rehearing. On the same date, the Commission mailed its second or “final” order (also reciting the date of March 16, 1979), wherein it made findings of fact and conclusions of law regarding its previous order. Applications for rehearing were thereafter filed by Gas Service, Midwest, Seymour and General Motors. Oral argument was held and the Commission denied the requests for rehearing. In the interim, Gas Service, Midwest and Seymour timely filed their applications for judicial review to this Court. Gas Service, Midwest and Seymour take the position that all proceedings taken by the Commission after its statutory denial of their applications for rehearing on the first order were null and void; and that the first order is unlawful and unreasonable because it fails to contain findings of basic facts as required by law. We have no hesitancy in saying the first order upon which the Commission acted does not contain a concise and specific statement of the relevant law and basic facts. Securities Comm’n v. Chenery Corp., 318 U.S. 80, 87 L.Ed. 626, 63 S.Ct. 454 (1943); Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P.2d 660 (1968); Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 743, 433 P.2d 572 (1967); K.A.R. 82-1-232(a)(3). The Commission does not contend otherwise. Its position is that the first order is an interim one and that the Commission’s statement, “The instant order is a final order of the Commission insofar as it grants rate relief to Applicant in the amount of $960,574.00 and adopts the rate design proposed by Applicant in this proceeding,” was intended to let the litigants know that the amount of rate increase and rate design would not be changed in the final order. Applicant and intervenors argue that the first order is called a final order by the Commission, is a final order, and therefore procedurally it became a final order before the second order was issued and thus the Commission had no jurisdiction to issue the second order. We agree with the Commission that the first order was a lawful and reasonable interim order, issued under the authority of K.A.R. 82-l-232(c) and designed to fill the gap between the times the decision was rendered and the full order could be issued. The Commission recognized that its first order was inadequate as evidenced by the statement that a subsequent order containing additional findings would be issued. Having issued an interim order, the Commission had jurisdiction to issue its second and final order. In any event, there appears to be no useful purpose in holding the first order void solely because the findings are inadequate. The appropriate remedy for inadequate findings is to remand the case for additional findings of fact and conclusions of law. Cities Service Gas Co. v. State Corporation Commission, 201 Kan. at 238; see also K.S.A. 60-252(a), and In re Atwood, 2 Kan. App. 2d 680, 681, 587 P.2d 1 (1978). Since the Commission has already issued a full order, the remedy of remanding the case solely for inadequate findings becomes a useless act and meaningless, as the Commission would obviously adopt as its findings those contained in the second order. We need not ascertain whether we have authority to retain jurisdiction while remanding for additional findings of fact, or what the effect would be if we reversed and remanded without retaining jurisdiction, as we are of the opinion the first order was an interim order. An interim order becomes moot when superseded by a final order fixing permanent rates. Six Cities v. State Corporation Commission, 213 Kan. 413, 516 P.2d 596 (1973); Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 595 P.2d 735, rev. denied September 11, 1979. Thus, the question raised as to the adequacy of the findings will be determined on the basis of the findings in the second and final order. An administrative agency’s decision must express basic facts on which it relies with sufficient specificity to convey to the parties, as well as to the courts, an adequate statement of the facts which persuaded that agency to arrive at its decision. Blue Cross & Blue Shield v. Bell, 227 Kan. 426, Syl. ¶ 1, 607 P.2d 498 (1980); Kansas Public Service Co. v. State Corporation Commission, 199 Kan. at 745. The Commission could have expressed its rationale in more detail in some instances, a statement that can be and usually is made in nearly every case considering the adequacy of findings. Our review of the record before us indicates adequate although not exceptional compliance with K.S.A. 60-252(a) and K.A.R. 82-l-232(a)(3). Cities Service Gas Co. v. State Corporation Commission, 201 Kan. at 230-32. Before turning to Gas Service’s remaining six issues with multiple subheadings, we dispose of the two remaining contentions of Midwest and Seymour that the Commission erred in refusing to permit them to cross-examine the Commission’s witness, economist John C. Dunn, on the issue of relative risk of customer classes, and in excluding evidence which they contend tended to show that there was not a natural gas supply shortage. An objection was sustained to cross-examination of the Commission’s witness Dunn on the basis it was beyond the scope of the direct examination. Midwest and Seymour also contend Dunn was not made available at a later date for cross-examination. Generally, cross-examination is limited to the scope of direct examination. The trier of facts is vested with considerable discretion in determining the proper scope of cross-examination and, absent a showing of an abuse of that discretion, the trier’s rulings with respect thereto will not be disturbed on appeal. State v. Watkins, 219 Kan. 81, 86, 547 P.2d 810 (1976); Frame, Administrator v. Bauman, 202 Kan. 461, Syl. ¶ 1, 449 P.2d 525 (1969). The general tenor of Dunn’s testimony relates to rate base issues, but the desired cross-examination of him related to rate design issues — specifically, relative risk factors. Although certain portions of his testimony relate to the risk issue, it appears that the Commission’s ruling was proper considering the primary emphasis of Dunn’s testimony and the Commission’s substantial interest and its discretion in proceeding with an orderly discussion of the issues. Midwest’s assertion that it was unable to call Dunn as a witness is not supported by the record. K.A.R. 82-1-230(c) provides that a party may call an adverse witness and this right is fortified by the right of subpoena under K.A.R. 82-1-227(a). The record does not show that Midwest attempted to utilize the appropriate provisions, but instead relied on its argument that it was entitled to cross-examine Dunn. Under these circumstances, the Commission’s rulings as to Dunn appear to be something less than an abuse of discretion. Midwest and Seymour offered exhibits 47 and 48 during their examination of Stanley Whiteaker, CPA, but they were excluded on the basis that they were hearsay, cumulative and irrelevant. Exhibit No. 47 is a statement that J. Richard Jones, a Cities Service Gas employee, made to a legislative committee. The statement is hearsay and was excluded as such. No viable argument was made to the Commission as to why exhibit No. 47 should not be excluded as hearsay, and the Commission did not err in excluding it. Exhibit No. 48 is a statement that James Stuck, an employee of Gas Service Company, apparently gave to the Federal Energy Regulatory Commission. Midwest and Seymour interpret the statement as a declaration against interest by Stuck while acting in his capacity as an authorized agent of Gas Service Company; the interpretation is to the effect that there is no gas shortage in the United States. Our reading of the excluded statement does not convince us it is an admission against interest. As we view the statement, it does not affirmatively state there is no gas shortage. It does describe where Gas Service and its suppliers are affected by various curtailment programs. We cannot say that Midwest and Seymour were prejudiced by the exclusion or that the Commission abused its discretion in excluding exhibit No. 48. We turn now to the issues raised solely by Gas Service concerning three rate orders issued by the Commission. The standard of review is well established and need not be reiterated here, having recently been restated in Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d at 380-81, and cited with approval in every rate case considered by this Court since its filing. Gas Service argues that the Commission arbitrarily and erroneously adhered to a rigid test year concept and excluded certain evidence from consideration. The Commission replies that a test year is authorized by K.A.R. 82-l-231(c) and that the Commission has the discretion to utilize out-of-period information to make appropriate adjustments. The Commission does insist when an applicant requests that out-of-period adjustments be considered that both benefit and detriment be considered. As we view the record, the Commission appears to have considerable reluctance in accepting out-of-period adjustments, but it does not have a hard and fast rule against them. The Commission does consider out-of-period adjustments which are likely to significantly and/or permanently affect rates. If the Commission accepted all offered out-of-period adjustments, the concept of the test year would be a nullity. We cannot say the Commission adheres to a rigid test year concept which results in its arbitrarily excluding evidence. Specific complaints concerning the Commission’s refusal to make out-of-period adjustments follow. Gas Service complains that the Commission should not have reduced its proposed rate base by $614,220. The reduction is for construction work in progress (CWIP) that was substantially complete (80 percent or more) during the test year, but not operational at the end of the test year. The projects were in service at the time of the rate hearing. The Commission found that the projects were not used or required to be used to provide services to ratepayers and did not include them in the rate base for the test year. The Commission also excluded minor CWIP (construction work in progress with an expense of less than $1,000) from the rate base, stating: “The Commission finds that the inclusion of minor construction work in progress in rate base is violative of the principle that only the property of the utility used or required to be used to provide service to the customers should be included in rate base. We agree with Staff that Applicant has the option of capitalizing AFUDC [allowance for funds used during construction] on minor construction work in progress. Accordingly, we find that Staff Adjustment No. 6 to rate base is appropriate and is hereby adopted.” The Commission is authorized to include CWIP that will be completed within one year or less of the test year by virtue of language added in 1978 to what is now K.S.A. 1979 Supp. 66-128, as follows: “For the purposes of this act, property of any public utility which has not been completed and dedicated to commercial service shall not be deemed to be used or required to be used in said public utility’s service to the public, except that, any property of a public utility, the construction of which will be completed in one (1) year or less, may be deemed to be completed and dedicated to commercial service.” (Emphasis added.) As we view the statute, it is not mandatory that the Commission include the cost of CWIP and our Supreme Court so indicated in language found in Kansas City Power & Light Co. v. KCC, 224 Kan. 86, 578 P.2d 254 (1978). The question was whether the statute, prior to addition of the portion quoted above, required or precluded inclusion of CWIP in the rate base. The Court held at page 88: “It is the opinion of the court that under the statute, as then constituted, the inclusion or exclusion of CWIP in the rate base was a discretionary function of the Commission to be based upon a factual determination, from the evidence submitted, whether the requested CWIP was ‘property . . . used or required to be used in its services to the public within the state of Kansas, . . .’ (K.S.A. 66-128.) See Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, 544 P.2d 1396 (1976).” The Court then commented on the 1978 addition, stating: “House Bill 2070 attempts to clarify the legislative intent of 66-128 in that it specifically excludes all CWIP from consideration by the Commission except any CWIP which will be completed in one year or less may be included by the Commission in its determination of the rate base. The inclusion of CWIP continues to be a discretionary matter for the Commission only to the extent that it will be completed in one year or less.” (at 89.) In this case, neither the major nor minor CWIP was completed and in service at the end of the test year, but it was all completed at the time of the rate hearing and within six months after the end of the test year. Thus, by statute, inclusion of the CWIP was discretionary with the Commission, “based upon a factual determination, from the evidence submitted, whether the requested CWIP was ‘property . . . used or required to be used in its services to the public within the state of Kansas.’ ” As to major CWIP, Gas Service contends that the Commission acted “unlawfully and arbitrarily” by failing to make a factual determination as to whether the projects were used or required to be used, and further “unreasonably” excluded the projects when they were completed within one year of the end of the test year. Although Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, 544 P.2d 1396 (1976), did not involve CWIP, the Supreme Court gave some indication of the meaning of “used or required to be used” by stating at 674: “This is not to say that a unit or segment of a facility that has become obsolete or whose production is far in excess of present or near future needs, or for any valid reason, is not used or required to be used and can be setoff or separated from a facility otherwise used, cannot be excluded from rate base under the statute.” If the property is CWIP to be completed within one year and as a factual matter is not “in excess of present or near future needs” or is in some other way remote from the purpose of providing service to the public, it “may” be included in the rate base. The Commission’s factual determinations as to the major CWIP borders on being inadequate, and persuasive argument is made that the Commission appears to have excluded major CWIP merely because the projects were not in service at the end of the test year. That rationale was advanced by the Commission and rejected by the Supreme Court in Kansas City Power & Light Co. v. KCC, 224 Kan. 86. The Commission in this case did present evidence that to include the major CWIP could cause a mismatch between revenue and expense and lead to a distortion in the rate setting process. Gas Service offered little evidence of why major CWIP should be included other than the fact the projects were completed within the test year. Given a liberal construction, the Commission order does find that the items were not used or required to be used at the end of the test year and were excluded due to a “loss of synchronization” between the rate base and operations. Although Gas Service complains of the use of “buzz” words such as “synchronization” and “annualization” in the testimony and findings, they appear to be nothing more than jargon that provides a means of communication within the industry. Obviously the Commission can consider both the benefit and detriment to a public utility by including CWlP in the rate base. The Commission allows the utility to capitalize funds used during construction on all CWIP, a viable alternative to the inclusion of CWIP in rate base. C. Phillips, The Economics of Regulation, 252, 253 (rev. ed. 1968). Gas Service does capitalize major CWIP. As to minor CWIP, Gas Service argues that it is infeasible to capitalize interest on minor projects. The Commission found that capitalization of funds used during construction was available to Gas Service, and this finding was based on expert testimony. We would be substituting our judgment for that of the Commission if we were to hold its finding unreasonable, for the finding is based on substantial evidence. Based on the record before us, we cannot say the Commission was so far wide of the mark so as to be outside the realm of fair debate. Graves Truck Line, Inc. v. State Corporation Commission, 215 Kan. 565, 527 P.2d 1065 (1974). Gas Service next argues that the Commission’s decision to increase accumulated depreciation, amortization, and amortization for annualized depreciation expense is unlawful and unreasonable. The Commission, following past practice, held that if a public utility includes depreciation expenses in operations, the corresponding amount must be removed from the rate base to prevent over-collection of authorized rates. Gas Service contends that the Commission’s method would result in its never receiving a return on that portion of the plant that is annualized for expense, because it is eliminated from rate base before a return is earned. The Commission had before it conflicting testimony from apparently well-qualified witnesses. It adopted findings based on the expert testimony that the method it chose to adopt would prevent the Kansas ratepayers from paying the expense twice. The adjustment is supported by substantial competent evidence and does not result in confiscation of Gas Service’s property. We also find Gas Service’s argument that the Commission deprived Gas Service of a return on working capital requirements to be without merit. Gas Service raises a number of areas it argues falls within this category. Both the staff and Gas Service conducted lead-lag studies designed to calculate the cash working capital requirements. A lead-lag study reflects the lag in the number of days between the payment of operating expenses by Gas Service and the receipt of payment from customers for service rendered. A public utility may include an appropriate amount of working capital in the rate base in order that the utility’s investors receive a return on required capital. Lag time differed substantially between the two studies. Gas Service used the actual receipt day for customer payments, and staff reasoned that Gas Service was compensated by charges for late payments and used either the date cash was received or the due date, whichever was earlier. Our Supreme Court has said that a public utility may include in the late payment charge a sum “to cover extension of credit” as well as a charge to defray the expense involved in securing payment of the bill. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, 565 P.2d 597 (1977). The cost of extending credit provides a return on the amount unavailable to the company to cover the cost of operations due to the late payment by the customer. The fact that the late charge is placed in operating revenue by Gas Service is immaterial. The Commission also used the due date on bills paid by the utility and did not recognize advance payments. To us, it is within the realm of fair debate whether ratepayers should be responsible for working capital requirements increased by voluntarily advancing payments, thus we cannot say the Commission’s position is erroneous. Gas Service argues that staff determined and the Commission found a lead time of 89.59 days for federal income taxes accrued. Gas Service argues the offset is unreasonable because no federal taxes are paid for which accruals will be available to meet its cash requirements. Tax accruals provide a positive source of cash for working capital and should prevent a utility from requiring customers to pay a return on funds already supplied by them in the form of prepaid taxes. N.W. Pub. Serv. v. Cities of Chamberlain, Etc., _ S.D __, 265 N.W.2d 867, 875 (1978); Pacific Tel. & Tel. Co. v. Public Util. Com., 62 Cal. 2d 634, 44 Cal. Rptr. 1, 401 P.2d 353 (1965); Ill. Bell Tel. Co. v. Comm. Com., 55 Ill. 2d 461, 303 N.E.2d 364 (1973); Cincinnati v. P. U. C, 161 Ohio St. 395, 119 N.E.2d 619 (1954); Cleveland Elec. Illuminating Co. v. Pub. Util. Comm., 42 Ohio St. 2d 403, 330 N.E.2d 1 (1975). The Commission also excluded compensating bank balances from working capital. Gas Service takes the position that exclusion is unreasonable primarily because the utility must maintain such balances in order to obtain favorable interest rates and to keep its short-term credit open. Ten percent of the line of credit available is maintained in each of the banks for an average of $4,312,000. Other jurisdictions have disallowed rate base treatment of compensating bank balances. See Boston Edison v. Dept. of Public Utilities, _ Mass __, 375 N.E.2d 305 (1978); Re Missouri Public Service Co., 25 Pub. U. Rep. 4th 24 (Mo. 1978); Re Iowa Pub. Service Co., 21 Pub. U. Rep. 4th 339 (S.D. 1977); Re Otter Tail Power Co., 21 Pub. U. Rep. 4th 254 (S.D. 1977); Re Montana-Dakota Utilities Co., 21 Pub. U. Rep. 4th 1 (Mont. 1977). As we construe the Commission’s finding, it is to the effect that Gas Service has failed to sustain its burden of showing that a compensating balance is absolutely necessary to keep open a line of credit and that the cost of short-term credit should not be reflected in cash working capital requirements. From our review of the voluminous record we cannot say the Commission’s decision is unreasonable, for it appears to be based on substantial competent evidence. Gas Service’s arguments concerning agents’ working capital and the 45-day rule are without merit. Sufficient competent evidence is present in the record to support the Commission’s exclusion of the agents’ working funds from working capital. The 45-day rule that Gas Service complains of was not applied by the Commission in this case. The Commission used the rule as an additional yardstick by which to gauge the validity of the two conflicting lead-lag studies. The Commission also increased Gas Service’s operating revenues and operating expenses by eliminating Gas Service’s one percent adjustment which had reduced customer usage in the general service category due to estimated decreases in usage. Gas Service presented opinion evidence that because of energy conservation implementation by ratepayers, total usages would be reduced by one percent. It did not present evidence of any studies made on which it based the opinion. On rebuttal, it attempted to introduce a study based upon past years’ experience as opposed to future years. The evidence could have been admitted in Gas Service’s case in chief. It is thus discretionary with the court whether it should be admitted on rebuttal. Jacks v. Cloughley, 203 Kan. 699, 457 P.2d 175 (1969). Although the study was not admitted into evidence, the statistics used in the study appear to have been largely introduced through witnesses and the gist of the study was before the court. As we view the Commission’s findings, a prospective study was desired and it was not satisfied that the decline in usage was likely to continue. We cannot say the Commission abused its discretion or that its decision is arbitrary. We view Gas Service’s complaint to be more in the nature of a request that we substitute our judgment for that of the Commission and hold that a one percent reduction can reasonably be expected. We are prohibited from substituting our judgment for that of the Commission. Gas Service in its application equalized gas purchases and sales, and the Commission made an adjustment proposed by its staff to account for lost and unaccounted-for gas (excess of gas purchased over gas sold and represented generally by gas leaks and metering errors). Gas Service’s witness testified that equalized gas purchases and sales are not actual situations. We cannot say the adjustment was unreasonable, particularly in view of the fact that Gas Service offered no rebuttal on this issue. Several specific expense items requested by Gas Service were disallowed. A general rule regarding expenses is stated in Mississippi River Fuel Corp. v. Federal Power Com’n, 163 F.2d 433, 437 (D.C. Cir. 1947): “Expenses (using that term in its broad sense to include not only operating expenses but depreciation and taxes) are facts. They are to be ascertained, not created, by the regulatory authorities. If properly incurred, they must be allowed as part of the composition of the rates. Otherwise, the so-called allowance of a return upon the investment, being an amount over and above expenses, would be a farce.” The Commission had previously ordered Gas Service to implement a customer or energy audit program. Based on this order, Gas Service requested an increase in operation expenses in the amount of $320,349 to reflect the costs of implementing such a program. Although no findings whatsoever were made by the Commission in this regard, both parties agree the Commission disallowed the request. The costs of the program were not refuted by the staff, although it contended such figures were speculative and relied on testimony from Gas Service witness Fink that the program had not been instituted and no expenses had been incurred even as of the date of the hearing. The staff argues the program “was not a known and determinable change occurring outside of the test year at a time certain.” The general rule is that the Commission may not arbitrarily disallow an actual, existing operating expense incurred during a test year. See Application of Wilm. Suburban Water Corp., 58 Del. 494, 504, 211 A.2d 602 (1965). A corollary to the general rule is that claims for future expenses which are merely conjectural should not be allowed in rate proceedings. Re Mountain States Teleph. & Teleg. Co., 14 Pub. U. Rep. 3rd 230, Syl. ¶ 8 (Wy. 1956). With respect to adjustments outside the test year, the following excerpts fairly summarize the applicable law: “Although the use of a test year is proper, the Commission, in exercising its legislative function of fixing utility rates for the future, should not be blind to the future. It may adjust the results of the test year by allowing for known changes to make the test year representative of the future. . . .” Commonwealth v. VEPCO, 211 Va. 758, 771, 180 S.E.2d 675, 89 Pub. U. Rep. 3d 395 (1971) (emphasis added). “Ratemaking, by its very nature, is prospective and in order to neutralize the negative effects of speculation and guesswork about future economic conditions, it is accepted practice to base future rates upon known past and present conditions through the use of data gathered during a specified test period. [Cite omitted.] This process of prognostication creates a conflict between the need to lend some finality to ratemaking by utilizing a well-defined, finite test period and the need to base calculations upon the latest available relevant data which often pertains to time periods other than the test period. [Cite omitted.] A satisfactory resolution of this conflict is that when known and measurable post-test-year changes affect with certainty the test-year data, the commission may, within, its sound discretion, give effect to those changes. [Cite omitted.]” Narragansett Elec. Co. v. Harsch, 117 R.I. 395, 416, 368 A.2d 1194 (1977) (emphasis added). In a rate proceeding, utility expenses, to be allowable, must be justified. In re Board’s Investigation of Tele. Cos., 66 N.J. 476, 333 A.2d 4, 8 Pub. U. Rep. 4th 36 (1975). In the present case, the justification for Gas Service’s requested adjustment for the energy audit program appears to be quite strong in light of the fact that institution of the program was ordered by the Commission itself. However, the testimony is unequivocal that initiation of the program was to be at least six months outside of the test year and the expenses sought in relation thereto, though not controverted by staff, are nonetheless by definition conjectural. Under such circumstances, it appears that the Commission did not abuse its discretion, especially in light of testimony concerning the frequency of rate applications by Gas Service. Recause of the uncertainty of the data offered by Gas Service due to the total lack of historical information, the Commission’s decision to disallow the expense appears to be reasonable. In determining the legitimate expense of a utility for rate-making purposes, experience is the best criterion, and guesswork as to the future cannot be substituted for this experience. Alabama Public Serv. Com’n v. Southern Bell T. & T. Co., 253 Ala. 1, 42 So. 2d 655, 84 Pub. U. Rep. NS 221 (1949). When actual information is available, either at the time of Gas Service’s next rate application or during the interim, the Commission will be in a better position to assess the reasonableness and accuracy of this particular item. Gas Service presented opinion evidence to the effect that as the number of customers served by Gas Service increases, the expenses associated therewith also increase and do so essentially in proportion to the net customer gain. Conflicting evidence is in the record. The theory underlying Gas Service’s proposed increase (proportional increases between customers and expenses) is somewhat erroneous and has been so recognized in Pennsylvania, where their Commission reduced requested expenses, stating: “Some operating expenses vary in an'approximately constant ratio to the number of customers or the quantity of energy output. It is also apparent that other expenses, such as some administrative expenses, do not vary in proportion to energy sold or number of customers served.” Pub. Util. Comm. v. Metropolitan Edison Co., 13 Pub. U. Rep. 3d 29, 68-69 (Pa. 1956); cf. Pennsylvania PUC v. Duquesne Light Co., 16 Pub. U. Rep. 4th 36, 55 (Pa. 1976). Thus, we cannot say the Commission’s reduction of the amount claimed by Gas Service was unreasonable or, in view of Mr. Elic’s testimony, that it is unsupported by substantial competent evidence. The Commission’s decision concerning adjustments for retirement plan expenses and group insurance premium costs is supported by substantial competent evidence and is reasonable. The Commission amortized the rate case expenses over a two-year period rather than a one-year period. The Commission’s usual practice is to amortize rate case expenses over a period equal to the usual period of time between rate relief applications of the applicant. Gas Service argues it filed cases in December 1976, February 1978, June 1978, and June 1979, thus it should have been allowed the entire expense during the test year. A witness testified Gas Service filed rate cases in 1972, 1974 and 1976, and that the February 1978 case was merely an extension of the 1976 case. Of course, the June 1978 application is the one before us. Based on the evidence, the Commission’s decision to amortize over a two-year period cannot be said to be arbitrary and capricious. It is next argued that the Commission unlawfully and unreasonably reduced bad debt expenses. The Commission attempted to normalize bad debts, reasoning that 1978 had been an unusually cold year and that the bad debts in 1978 were running from 100 to 200 percent higher than in previous years. The propriety of allowing a utility a proper expense for uncollectible accounts or bad debts is usual. Pacific Gas & Electric Co. v. Railroad Commission, 26 F. Supp. 507, 529 (N.D. Cal. 1939); Chambersburg Gas Co. et al. v. P. S. C., 116 Pa. Super. Ct. 196, 225, 176 A. 794 (1935); Re Hampton Water Works Co., 43 Pub. U. Rep. NS 321, Syl. ¶ 4 (N.H. 1941). The procedure utilized in the present case, matching revenues or sales with bad debts, appears to be in conformity with an accepted method of computation. See, e.g., P. U. C. v. York Teleph. & Teleg. Co., 53 Pub. U. Rep. 3d 146 (Pa. 1963); Re Michigan Consol. Gas Co., 36 Pub. U. Rep. 3d 289 (Mich. 1960); Re Southern California Gas Co., 35 Pub. U. Rep. 3d 300 (Cal. 1960). Although the Commission appears to have based the present computation on the test year, most decisions appear to favor an averaging over a longer period of time. Re Southwestern Bell Teleph. Co., 98 Pub. U. Rep. 3d 30 (Kan. 1973) (five years); Re Southern Connecticut Gas Company, 7 Pub. U. Rep. 4th 364 (Conn. 1974) (three years); Re Consumers Power Co., 3 Pub. U. Rep. 4th 350 (Mich. 1974) (five years). In the present case, the Commission’s decision to adopt staff’s adjustment appears to be based on two major considerations: (1) the utility’s proposed 50 percent increase was speculative, and (2) the utility’s proposal was unduly inflated due to abnormal conditions occurring in the test year. Both propositions are supported by the evidence. Witness Holeman’s testimony indicates the subjective nature of the requested allowance. Additionally, the unusual weather conditions occurring within the test year are a matter of history. It has been stated that abnormal or nonrecurring expenses may be disallowed entirely or amortized. Cincinnati v. P. U. C., 161 Ohio St. at 400; see generally 3 Pub. U. Rep. Digest 2d, Expenses § 11 (1963). Since the test year should represent average normal conditions (Customers of Electricity v. Village of Boonville, 8 Pub. U. Rep. NS 493 [N.Y. 1935]), the Commission’s allowance of staff’s adjustment is reasonable in light of the historical abnormal conditions within the test year. As far as the mathematical error alleged by Gas Service, it appears to us that the figure claimed to be erroneous is an opinion expressed by staff’s expert and is erroneous only if one accepts the testimony of Gas Service’s witness that it was arrived at by mismatching of sales and bad debts, a method the Commission did not use. The utility additionally disagrees with the Commission’s deletion of the expense of employing home economists as home service representatives. Gas Service relies on Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 73, 386 P.2d 515 (1963), wherein the Commission allowed as expense to the utility certain dues and charitable donations to the Chamber of Commerce. The Court stated: “It is concluded that such expenditures are necessary if a company, firm or individual is to maintain its standing and good will in a community. Such expenditures should be allowed as a legitimate expense in any business. They are, however, subject to strict scrutiny by the Commission as to their reasonableness and propriety. Decisions may be found supporting both sides of the argument. Their review would serve no purpose here. It has not been the policy of this state to penalize any individual or corporation for assuming reasonable charitable and civic responsibilities.” In the present case, the Commission specifically found that the value of the service representatives mainly involved “the provision of good will to the Company.” Southwestern Bell appears to be strong authority for the proposition that such a finding mandates a reversal of the Commission’s disallowance of this expense. On the other hand, Southwestern Bell may be distinguished on the basis that it involved charitable donations and dues as opposed to salaries paid to Gas Service employees. Additionally, the use of the term “good will” by the Commission, though unfortunate when considering the rule of Southwestern Bell, appears to indicate that the expenses were disallowed because they were not beneficial to the utility’s business function and thus not properly includable as an appropriate expense. The Commission could have reasonably found that such items were more in the nature of an unreasonable promotional expense rather than a charitable or civic activity. Even if Southwestern Bell applies, the strict scrutiny standard is to be used by the Commission and arguably this Court should pay extreme deference to the Commission’s decision in such regard. Finally, there appears to be merit to the Commission’s argument that the expenses claimed were not reasonably established in light of the absence of testimony regarding the benefit derived from the expenditures and the time spent by the employees in the performance of their various services. The mere actuality of an operating expense does not establish its reasonableness or necessity and a mere increase in expenditures does not necessitate rate adjustment. In re Wilm. Sub. Water Corp., 58 Del. 8, 39, 203 A.2d 817 (Del. Super. 1964). It has been held that a commission may disallow any expenditure for promotional practices or advertising from operating expenses for rate-making purposes unless the utility establishes that such expenditure is beneficial to all customers. State v. Oklahoma Gas and Electric Company, 536 P.2d 887, 894 (Okla. 1975). We are fully cognizant of the fact that this particular issue represents a very small percentage of the money involved and the parties did not devote an undue amount of time to this issue. Based on the record before us, we cannot say the order is unreasonable as it does reveal that the employees spent a percentage of their time on such things as teaching gourmet cooking classes as opposed to conservation instruction. Even if we were to hold the order to be unreasonable, it is such an infinitesimal sum when compared to the amount involved in the rate hearing that it does not have an impact significant enough to justify reversal solely on this point. The Commission relied primarily on two factors in reaching its decision to reduce payroll expenses: (1) decline in employee levels and (2) end-of-period payroll expenses that were more correctly computed by staff. The determination of the reasonableness of the Commission’s action is essentially a factual one. The staff presented convincing evidence that the employee levels declined during the test year and, by reasonable implication, the requested payroll expenses were overstated by Gas Service’s failure to take such fact into consideration. Second, the staff’s application of payroll increases to certain payroll levels, as adequately described in the Commission’s decision, appears to be a reasonable method of computing payroll expenses. Additionally, the utility’s method clearly provides for a substantial amount of payroll expense ($1,308,879) based on future expenditures which are arguably speculative and remote. The staff’s computation allowed for a few specific out-of-period adjustments where employee levels and payroll adjustments are relatively certain, but disallowed a majority of the other requested expenses. Considering the nature of the testimony adduced, it appears that the Commission’s adoption of staff’s methodology is not unreasonable. The Commission decreased operating and maintenance expenses based on conflicting testimony. Gas Service wanted to “normalize” operation and maintenance expenses, claiming the test year expenses were abnormally low compared to anticipated and budgeted expenses. The Commission’s disallowance of the requests recognizes the reasonableness of the test year data, particularly relying on Gas Service’s own testimony that budgeted expenditures have been historically overstated. Based on the evidence adduced at the hearing and the general rules regarding out-of-period adjustments, the Commission’s decision is based on adequate evidence. Considering the historical data as to prior budgeted items, the Commission’s refusal to base its rates on information it considered speculative appears to be reasonable. A controversy arose over property taxes for 1979. Again, the argument raised by Gas Service is a question of fact. The Commission adopted the staff’s computation of total company assessment, based on the January 1, 1978, figure over the increase proposed by Gas Service, based on estimates as of June 30, 1978, because the former figure was a known figure occurring within the test year, whereas the latter figure was unknown and speculative. Such action cannot be termed unreasonable. Since any estimate in this regard is speculative, the Commission’s decision to rely on historical data instead of projected increases cannot be said to be unreasonable. The Commission modified deferred taxes to reflect the cost of removal. Both parties agree the subject of deferred tax accounting for cost of removal is complex. Gas Service explains it as follows: “It involves federal income tax law and is tied into depreciation rates. Over the years, the tax law has changed the accounting of tax depreciation for a public utility. Prior to 1969, most regulatory commissions required that accelerated depreciation be ‘flowed through’ to utility customers. With the Tax Reform Act of 1969, ‘normalization’ of tax benefits was required if the utility chose to use an accelerated method of accounting for tax depreciation. (§ 167(1)(3)(G) of the I.R.C.) Normalization is the adjustment of the tax expense allowed for rate making so that it equals the amount which would have been payable if the straight-line method had been used to compute the depreciation expense deduction on the tax return. The difference between book and tax accounting under normalization is deferred over a period of time and subsequently recognized. ‘Flow through’ is the regulatory practice of recognizing the tax benefits of accelerated depreciation in the year that they are taken on the tax return. Gas Service uses accelerated depreciation and normalizes the tax benefits for regulatory purposes on its books through a deferred account.” Staff comments that: “The problem arises because of differences in the determination of income for tax purposes and book purposes for various accounting items. Thus, in a given year a company may use a higher depreciation rate, and consequently greater deductible depreciation expense, for tax purposes than for book purposes. The actual taxes paid are therefore less than the book treatment would indicate. The depreciation recognized for tax purposes will not be reflected on the books until subsequent years. For rate-making purposes, this timing difference is treated two possible ways, as determined by the Internal Revenue Code and the Commission. The two approaches are known as normalization and flow-through. “Under normalization, the amount of income taxes, or tax expense, is normalized so that it is considered equal to the book treatment. The tax benefits from use of accelerated depreciation are deferred and recognized for rate-making purposes over a subsequent period of time. “Under flow-through, the tax benefits are recognized for rate-making purposes in the same year in which the greater deduction is taken on the income tax return. Flow-through thus passes on to the ratepayer the lower actual taxes paid by the utility for a given year. The term flow-through should be distinguished from flow-back, which refers to deferral and subsequent recognition under normalization. “The purpose of both of the above approaches is to reconcile the difference between book treatment and tax treatment of various items so that the ratepayer at some point receives the same tax benefits as the utility. Although the testimony on this issue occasionally refers to flow-through, the normalization approach is the primary concept involved.” Neither party cites a case, utility decision, or tax regulation in support of its position, leading us to believe it is a policy decision for the Commission based on the evidence before the Commission. Substantial evidence is in the record to support the Commission’s choice, thus we cannot say it is unreasonable. In summary, many of Gas Service’s complaints are that the Commission should have adopted different accounting principles or reached different results from those desired by Gas Service. The Commission gave consideration to each item on the merits, then exercised its discretion, and we find no clear and major mistakes of sufficient importance to justify setting aside the order of the Commission. Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. at 87. Affirmed.
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