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The opinion of the court was delivered by
Beier, J.:
This appeal concerns Kathryn Swank’s challenge to her driver’s license suspension for driving under the influence of alcohol and the appropriate role, if any, for evidence and legal argument regarding post-driving alcohol consumption.
Factual and Procedural Background
This case began when Yates Center Police Officer Jacob G. Morrison responded to a 1:46 a.m. call about Swank driving recklessly. The call had been placed by Jana Waddell, who said she and Swank had been in an argument at Waddell’s ex-husband’s home. Waddell alleged that Swank chased her home and then sped back and forth in front of Waddell’s house, almost striking Waddell’s car. Waddell described Swank as highly intoxicated and Swank’s driving as erratic.
After speaking with Waddell at her house, Morrison left to search for Swank. He found her a few blocks away in Waddell’s ex-husband’s driveway. Swank had pulled into the driveway and was already out of her car. Morrison saw no alcohol in her hands as he approached her.
According to Morrison, Swank admitted that she had been drinking and admitted that she had followed Waddell. Morrison did not ask Swank if she had consumed any alcohol after she pulled into the driveway, i.e., after she had stopped driving.
Morrison arrested Swank for suspicion of driving under the influence, and Swank submitted to an Intoxilyzer 8000 breath test at the police station. Swank’s breath alcohol concentration was .203.
After the test, Morrison returned to Waddell’s ex-husband’s driveway and searched Swank’s car. He found an open can of still-cold beer in a Koozie.
Notes from the Kansas Department of Revenue administrative hearing leading to Swank’s license suspension show that the hearing officer was aware Morrison had not asked Swank about any post-driving alcohol consumption and had not personally seen Swank driving or attempting to drive. The notes also record that Swank’s counsel moved unsuccessfully to dismiss the proceeding, arguing Morrison had “no reason to believe” that Swank was driving under the influence.
Swank filed a petition for judicial review of the agency decision. Her petition did not say explicitly that Morrison lacked “reasonable grounds to believe that Swank was operating a vehicle while under die influence,” the exact language of K.S.A. 8-1020(h)(2)(A), but it alleged that “[t]he evidence presented at the administrative hearing through the testimony of the arresting officer reflected that the arresting officer did not ever see [Swank] operate the motor vehicle on the date in question” and did not “provide’ evidence that [Swank] was under the influence of alcohol at the time she operated the vehicle.” It also alleged that the agency’s order of suspension was “without adequate support, is therefore unlawful, arbitrary and capricious, and in fact contrary to the evidence presented at the administrative hearing.”
District Judge Daniel Creitz conducted a de novo evidentiary hearing on Swank’s petition, where he heard testimony from Morrison and Swank.
Morrison’s testimony was consistent with the summary set out above. In addition, he acknowledged that, had Swank consumed alcohol after she pulled into the driveway, her post-driving consumption could have had an impact on her Intoxilyzer result.
Swank’s testimony before Judge Creitz conformed in large part to Morrison’s. As might be expected, however, it also contained details helpful to Swank’s explanation of her behavior and Intoxi-lyzer result.
On the night of her arrest, Swank said, she had consumed three beers at about 6 p.m. She admitted to arguing with Waddell and to following her, but she said she was not drinking at that point. Swank estimated that 15 to 20 minutes passed between the time she left Waddell’s street and the time she pulled into the driveway where Morrison found her. When she got out of her car, Swank testified, she was upset; and she drank from a half-pint bottle of “Hot Damn” alcohol. Swank said that she thought that she had thrown the bottle away before Morrison arrived. She said she did not consume any alcohol other than the Hot Damn after driving. She admitted that the open beer Morrison later found in her car belonged to her.
The district judge ruled in Swank’s favor and set the agency order of suspension aside, stating at the hearing that Morrison
“did not have reasonable grounds to believe [Swank] was operating or attempting to operate the motor vehicle while under the influence of alcohol .... The issue is the intervening — intervening consumption, which is really uncon-troverted .... I read (h)(1), K.S.A. 8-1020, it’s conjunctive, not disjunctive; and what I mean by that, paragraph one, you have to prove A, B, C and D; and the same applies to paragraph two, when a breath test failure has occurred you have to prove all of those A through H, and it’s ‘and H.’ ”
The judge’s written order read in pertinent part;
“[T]he court finds that it cannot be determined from the evidence that the officer had reasonable grounds to believe tire person was operating a vehicle while under tire influence, in accordance with K.S.A. 8-1020(h)(2)(A), in that the evidence does not establish that tire Petitioner had a blood alcohol level of .08 or greater, K.S.A. 8-1020(h)(2)(G), while operating or attempting to operate a vehicle, K.S.A. 8-1020(h)(2)(H).”
The Department of Revenue appealed to the Court of Appeals. It did not raise any jurisdictional concern. It argued that Judge Creitz had misapplied the law under K.S.A. 8-1020(h)(2), effectively requiring it to demonstrate that Swank’s blood alcohol content was greater than .08 at the time she was driving, something it characterized as “a practical impossibility.” It also argued that post-driving alcohol consumption could not, as a matter of law, be considered by a district court on a driver’s appeal from a license suspension, citing Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 631, 176 P.3d 938 (2008). In the alternative, the Department argued, if post-driving consumption can be considered, it does not negate the existence of reasonable grounds.
The Court of Appeals panel reversed the district court. Swank v. Kansas Dept. of Revenue, No. 102,223, 2010 WL 446036 (Kan. App. 2010) (unpublished opinion). It agreed with the Department’s criticism of the standard of proof applied by Judge Creitz, determined that the evidence demonstrated the existence of Morrison’s reasonable grounds, and said that Swank’s post-driving alcohol consumption could not be considered because it was not among the legal issues enumerated in K.S.A. 8-1020(h)(2). Swank, 2010 WL 44603, at *3-4.
We granted Swank’s petition for review. After we did so, the State filed a supplemental brief. That brief, for the first time, conceded that post-driving consumption is a fact that may be considered among other facts that may or may not lead to a law enforcement officer’s reasonable suspicion that a suspect has been driving under the influence. Having surrendered on this point of law, the State argued that the Court of Appeals panel nevertheless correctly determined that reasonable grounds existed in this case.
At oral argument before this court, the State advocated for its revised position. It also, for the first time, questioned the existence of subject matter jurisdiction in the district court, because, in its view, Swank failed to plead the issue of reasonable grounds in her petition for judicial review.
Discussion
Subject Matter Jurisdiction
Subject matter jurisdiction may be raised at any time. See State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010); Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). Parties cannot confer subject matter jurisdiction by failure to object to the absence of it. Kansas Bd. of Regents v. Skinner, 267 Kan. 808, Syl. ¶ 5, 987 P.2d 1096 (1999). And a district court’s lack of subject matter jurisdiction to support a ruling means that an appellate court cannot acquire subject matter jurisdiction to review that ruling. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004). Thus, even though tire Department did not challenge the district court’s subject matter jurisdiction over Swank’s petition for judicial review until its counsel presented oral argument before this court, we must begin our discussion with an analysis of whether Swank’s petition for judicial review was sufficient to confer subject matter jurisdiction on the district court and, in turn, this court.
K.S.A. 8-1020(h)(2) circumscribes the scope of an administrative hearing on a driver’s license suspension, setting forth an exclusive list of issues that may be addressed. See Martin, 285 Kan. at 631. That list includes “whether ... [a] law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence.” K.S.A. 8-1020(h)(2)(A).
The Department is correct that Swank’s petition for judicial review does not include an express challenge to the existence of Morrison’s “reasonable grounds.” Rather, the petition contends that Morrison did not observe Swank driving and that he did not “provide evidence that [Swank] was under the influence of alcohol at the time she operated the vehicle.” It also alleges that the agency order of suspension is “without adequate support” and “in fact contrary to the evidence presented at the administrative hearing.”
In Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 148 P.3d 538 (2006), we recognized that K.S.A. 77-614(b) controls the required content in a petition for judicial review of an agency driver’s license suspension. See Bruch, 282 Kan. at 777-85. The statute reads:
“A petition for judicial review shall set forth:
(1) The name and mailing address of the petitioner;
(2) the name and mailing address of the agency whose action is at issue;
(3) identification of the agency action at issue, together with a duplicate copy, summary or brief description of the agency action;
(4) identification of persons who were parties in any adjudicative proceedings that led to the agency action;
(5) facts to demonstrate that the petitioner is entitled to obtain judicial review;
(6) the petitioner’s reasons for believing that relief should be granted; and
(7) a request for relief, specifying the type and extent of relief requested.”
Bruch also held that a petitioner must strictly comply with the statute’s pleading requirements. Bruch, 282 Kan. at 781. In Bruch, we held that the petition’s assertions that “the officer lacked reasonable suspicion to begin a DUI investigation” and that the officer “lacked probable cause to arrest” were too vague to give the district court subject matter jurisdiction to consider the petitioner’s challenge to the administrative hearing admissibility of the results of a preliminary breath test. See Bruch, 282 Kan. at 775, 786.
We came to the opposite conclusion 3 years later in Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 396-408, 204 P.3d 562 (2009). In that case, the petition alleged that the motorist had been subjected to an illegal preliminary breath test, that the motorist’s inability to subpoena witnesses to the administrative hearing violated due process, and that a search of the motorist’s vehicle was illegal. We held that the petition had strictly complied with K.S.A. 77-614(b)(5)’s command to state facts supporting standing, exhaustion of administrative remedies, and timeliness, even though those concepts were not mentioned explicitly. We also held that the petition strictly complied with K.S.A. 77-614(b)(6)’s command to state reasons for relief specific enough to place the district court and the agency on notice of the issues to be raised. Kingsley, 288 Kan. at 407-08.
We do not have a Bruch problem here. Swank’s petition for judicial review is more similar to the petition before us in Kingsley. Swank did not word her petition generally, forcing the agency to guess at the specifics undergirding it. She explicitly alleged specific reasons for relief under K.S.A. 77-614(b)(6) — that Morrison had not observed Swank’s driving and that his testimony in the administrative hearing was insufficient to qualify as evidence that she “was under the influence of alcohol at the time she operated the vehicle.” Thus, she asserted, the order of suspension was “without adequate support.” If Swank’s petition failed at anything, it failed to choose and articulate a general label for her claims from among the permitted legal issues enumerated by K.S.A. 8-1020(h)(2). What it did not say was that her specific allegations called into question the existence of Morrison’s “reasonable grounds” under K.S.A. 8-1020(h)(2)(A).
This omission is not fatal. ‘While it is a better practice for the language in the petition for judicial review to mirror the statutory basis for the specific relief requested, the failure to cite to specific statutory language will not result in a lack of jurisdiction to review the agency decision.” Kingsley, 288 Kan. at 406-07.
Our conclusion that the district court had subject matter jurisdiction in this case also is consistent with the fair notice purpose of the strict compliance pleading requirement discussed in Bruch and Kingsley. See Kingsley, 288 Kan. at 406 (petition for judicial review strictly complies with K.S.A. 77-614[b] when reasons for relief set forth in it give court, agency notice of issues to be raised); Bruch, 282 Kan. at 779 (aims of K.S.A. 77-6I4[b] to assist people in filing appeals from administrative actions, to facilitate judicial task by serving notice upon opposing parties, reviewing court of issues to be addressed, relevant facts). The record before us demonstrates adequate notice to and comprehension of the nature of Swank’s claims on the part of the agency and the district court judge. The Department of Revenue’s counsel had participated in the administrative hearing in which the presiding officer noted Swank’s unsuccessful motion to dismiss for lack of Morrison’s “reason to believe,” as well as Morrison’s failure to inquire about post-driving consumption. As to Judge Creitz, given the wording of his ultimate spoken and written rulings, it is plain that he understood the import of the petition’s allegations, including Swank’s challenge to Morrison’s “reasonable grounds” in the absence of any inquiry about post-driving alcohol consumption.
Post-driving Alcohol Consumption
We turn now to the question that prompted this court to grant Swank’s petition for review: What is the proper role of evidence and argument regarding post-driving alcohol consumption in a license suspension proceeding? We address this question briefly, despite the Department of Revenue’s change of heart in its supplemental brief and at oral argument, because the Court of Appeals erred in its interpretation of K.S.A. 8-1020(h)(2).
K.S.A. 8-1020(h)(2) provides:
“If die officer certifies that the person failed a breath test, the scope of the [administrative] hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments diereto, while having alcohol or other drugs in such person’s system;
(B) die person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or deadi;
(C) a law enforcement officer had presented die person widi the oral and written notice required by K.S.A. 8-1001, and amendments thereto;
(D) die testing equipment used was certified by the Kansas department of health and environment;
(E) the person who operated the testing equipment was certified by the Kansas department of health and environment;
(F) the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment;
(G) the test result determined that the person had an alcohol concentration of .08 or greater in such person’s breath; and
(H) the person was operating or attempting to operate a vehicle.”
The Court of Appeals held that this statute’s silence on post-driving alcohol consumption meant that such consumption could not be considered in a license suspension proceeding. But this statute clearly and unambiguously limits only the issues that can be considered, not the evidence that can be marshaled by the parties to determine the outcome on those issues. See Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656, 256 P.3d 845 (2011) (whether officer has reasonable grounds under K.S.A. 8-1020[h][2][A] identified as “issue”). Swank’s argument, with which the Department of Revenue now agrees, is that post-driving alcohol consumption is a fact potentially relevant to the determination of the enumerated issue of whether an officer had “reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol.” K.S.A. 8-1020(h)(2)(A); cf K.S.A. 8-1020(l)(2) (addressing evidence that can be admitted at administrative hearing on license suspension, including testimony of licensee).
A panel of the Court of Appeals that shared one member with the panel in this case so held in Katz v. Kansas Dept. of Revenue, 45 Kan. App. 2d 877, 893-94, 256 P.3d 876 (2011), where the panel stated:
“There may be instances where a driver’s consumption of alcohol after operating a vehicle but prior to taking a breath test may properly result in KDR’s decision not to suspend driving privileges. But that post-driving consumption, under aplain reading of K.S.A. 2009 Supp. 8-1020(h)(2) (A)-(H), should be evaluated by KDR’s administrative hearing officer and the courts in the context of the officer’s reasonable grounds to believe whether the driver had operated the vehicle while under the influence of alcohol. K.S.A. 2009 Supp. 8-1020(h)(2)(A). The more alcohol a person drinks after driving but before testing, the more unreasonable may be the officer’s grounds for belief that the person drove while under the influence of alcohol.”
Courts in Nevada and Missouri also have recognized the potential relevance of post-driving alcohol consumption in similar cir cumstances, although they have been careful to note that it is the information known to the officer at the time that matters and that courts should avoid giving post-driving alcohol consumption controlling weight. See Warner v. Missouri Director of Revenue, 240 S.W.3d 745, 751 (Mo. App. 2007) (“We do not see how the fact that the Narrons informed the officer that Warner had two beers after the accident necessarily totally demolished the value of all the factors mentioned above tending to create probable cause to believe that Warner was intoxicated and driving at the time of tire accident.... We think a reasonable officer would consider all the pertinent information available.”); Weaver v. State, Dept. of Motor Vehicles, 121 Nev. 494, 498-99, 117 P.3d 193 (2005) (“That Weaver chose later to modify his story and testify at the hearing that when he returned home after the accident he consumed four or five shots of tequila and five or six beers has no impact upon the inquiry into the reasonableness of the officers beliefs because this was not part of the information evaluated by Officer Kisfalvi at the scene.”).
Both points are well taken. We would add only that an officer cannot insulate his or her assessment of the existence of reasonable grounds from review or criticism by a district or appellate court by maintaining a posture of willful ignorance on a suspect’s post-driving alcohol consumption. Reasonableness is key. If the situation is such that a reasonable law enforcement officer would investigate, it behooves an actual officer to do so. This is particularly true when an officer’s personal observations of the scene or the suspect suggest the possibility of post-driving alcohol consumption. Such consumption is a factor to be considered and evaluated, not ignored.
Because the Court of Appeals erred as a matter of law in refusing to consider Swank’s testimony about her post-driving alcohol consumption, this case must be reversed and remanded to the Court of Appeals for reevaluation under the correct legal standard. “ ‘Reasonable grounds to believe’ a driver is under the influence . . . demands consideration of the behavior of a driver before, during, and after he or she is behind the wheel.” Martin, 285 Kan. at 632. According to Swank’s testimony before Judge Creitz, her behavior after she was behind the wheel included her consumption of the Hot Damn, and that fact could appropriately be considered as part of the evaluation of the existence of Morrison’s reasonable grounds on de novo judicial review of her driver’s license suspension. See K.S.A. 8-1020(p) (judicial review “shall be trial de novo”). Likewise, it is common sense that Morrison’s apparent failure to investigate post-driving alcohol consumption by Swank could have undercut the reasonableness of his reasonable grounds under 8-1020(h)(2)(A). On remand the Court of Appeals must examine these possibilities through the lens of the correct standard of review.
Existence of Reasonable Grounds
Although the parties have worded the second question in this case in a variety of confusing ways, once the role of post-driving alcohol consumption is understood, the ultimate issue still requiring resolution by the Court of Appeals is whether Judge Creitz erred in determining that reasonable grounds were lacking.
An appellate court generally reviews a district court’s decision in a driver’s license suspension case to determine whether it is supported by substantial competent evidence. Allen, 292 Kan. at 657 (citing Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 233-34, 32 P.3d 705 [2001]). Only when there is no factual dispute does an appellate court exercise de novo review. Allen, 292 Kan. at 657 (citing State v. Ingram, 279 Kan. 745, 752, 113 P.3d 228 [2005]).
Further, Kansas courts evaluate “reasonable grounds” by looking to probable cause standards. Allen, 292 Kan. at 656. “Probable cause is determined by evaluating the totality of the circumstances,” giving consideration to “the information and fair inferences therefrom, known to the officer at the time of arrest,” with “no rigid application of factors.” Allen, 292 Kan. at 656-57.
Swank does not dispute the Intoxilyzer test result. See K.S.A. 8-1020(h)(2)(G). Nor does Swank dispute that she was operating or attempting to operate a vehicle. See K.S.A. 8-1020(h)(2)(H). It appears that she challenges only the sufficiency of proof of the temporal relationship between her test result and her driving, as well as the connection of both to the existence of Morrison’s reasonable grounds under K.S.A. 8-1020(h)(2)(A).
In its supplemental brief, the Department of Revenue argues that K.S.A. 8-1020(h)(2)(A) does not require that the evidence establish Swank had a particular breath alcohol concentration at the time she was driving. We agree. As the Court of Appeals panel observed, it is, practically speaking, impossible for an Intoxilyzer test result to be obtained simultaneously with vehicle operation or attempt to operate. The only required temporal relationship between testing and operation or attempt to operate is any implied by the reasonable grounds standard in K.S.A. 8-1020(h)(2)(A) and by K.S.A. 8-1020(h)(2)(F), which prescribes that testing procedures comply with those set out by the Kansas Department of Health and Environment. This would include any regulation for timely test administration.
Having said this, however, we do not read Judge Creitz’ spoken or written rulings to mean that he required a demonstration of what is, practically speaking, impossible. On the contrary, we believe his remarks were directed at the effect uninvestigated post-driving alcohol consumption might have on the probative value of a test result of .08 or greater, when the issue before the court is whether a law enforcement officer had reasonable grounds to believe that the suspect was under the influence while driving. See Katz, 45 Kan. App. 2d at 890 (plain reading of K.S.A. 8-1020[h][2][A]-[H] provides meaningful connection; temporal relationship between operating motor vehicle, being under influence of alcohol established when evidence shows officer had reasonable grounds to believe person operating vehicle while under influence of alcohol). It is evident to us that Judge Creitz’ comments were meant to emphasize this point in the context of a case including evidence of such consumption.
On remand, the Court of Appeals — bearing in mind that Judge Creitz had an opportunity to observe the demeanor and presentation of Morrison and Swank on the witness stand, an opportunity no appellate court can have — must confine itself to determining whether there is substantial competent evidence to support Judge Creitz’ ruling that reasonable grounds were lacking. The Court of Appeals reevaluation must take into account that it was legally permissible for Judge Creitz to consider Swank’s testimony about her post-driving alcohol consumption and any evidence that Morrison did or did not investigate it thoroughly. The Court of Appeals must also read Judge Creitz’ spoken and written comments about the absence of reasonable grounds in the context framed by the post-driving consumption evidence before him, not as his demand that the Department’s proof of breath alcohol concentration meet an unrealistically high bar.
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The opinion of the court was delivered by
Green, J.:
Kansas One-Call System, Inc. (One-Call) appeals from the summary judgment of the trial court in favor of the State of Kansas in One-Call’s suit challénging the constitutionality of the 2008 amendments in House Bill 2637 to the Kansas Underground Utility Damage Prevention Act (KUUDPA), K.S.A. 66-1801 etseq. On appeal, One-Call raises four claims contending that the 2008 amendments to KUUDPA violate: (1) the one-subject rule contained in the Kansas Constitution; (2) the separation of powers doctrine; (3) the Fourteenth Amendment to the United States Constitution right to equal protection; and (4) the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the taking of private property for public use without just compensation. Because the challenged amendments are valid, we affirm.
Facts
One-Call began as a voluntary association of utility companies in 1983. Now, it is a nonprofit corporation that comprises the majority of utility companies in the State of Kansas. Since its creation, One-Call has provided information to its members about future planned excavation activities, and it gives its member utility companies an opportunity to mark the location of their underground facilities before excavation work starts. One-Call makes money by charging a referral fee for alerting its members of a planned dig. In some years, One-Call nets revenue; in others, it incurrs a loss. In 1993, the Kansas Legislature adopted One-Call’s business model and enacted the KUUDPA. K.S.A. 66-1801 etseq.; L. 1993, ch. 217; H.B. 2041 (1993).
The KUUDPA created a mandatory program designed to protect the State’s underground utility infrastructure from excavation damage and to protect the public from harm. K.S.A. 66-1801 et seq. The KUUDPA requires diggers to inform a centralized “notification center” of their intent to dig before they start excavating. See K.S.A. 66-1803 (“An excavator shall not engage in excavation near the location of any underground facility without first having ascertained, in the manner prescribed in this act, a location of all underground facilities in the proposed area of the excavation.”). The notification center then passes along the dig information to the applicable utility operators. See K.S.A. 66-1805. Upon receiving notification of the proposed dig, utility operators are required to mark the locations of underground utilities to avoid accidental utility strikes. K.S.A. 66-1806(a). The parties agree that “the notification center is the linchpin to the program, ensuring that excavator’s project information reaches utility operators, who then identify the location of any potentially affected underground utilities.”
In 1993, One-Call began managing and operating the notification center for the State. Utility membership became mandatory. The relationship between One-Call and the notification center is in dispute. One-Call maintains that it is the notification center while the attorney general argues on behalf of the State that it is simply the entity that runs the notification center.
In 2008, the Kansas Legislature amended the KUUDPA. These amendments are the cause for One-Call’s lawsuit because both One-Call and its utility members will be affected financially by the amendments. The 2008 amendments include the following changes to the KUUDPA:
• mandated that potable water and sanitary sewage operators become members of the notification system. K.S.A. 2011 Supp. 66-1802(e); K.S.A. 2011 Supp. 66-1805(a).
• trifurcated tire utility members into different tiers creatively identified Tier 1, Tier 2, and Tier 3. K.S.A. 2011 Supp. 66-1802(p), (q), (r).
• regulated the membership fees that can be collected from Tier 2 and Tier 3 members. K.S.A. 2011 Supp. 66-1802(r); K.S.A. 2011 Supp. 66-1805(j);
• imposed several public accountability requirements on the State’s notification center, including deeming the notification center to be a public agency making its business records subject to the Kansas Open Records Act and the Kansas Open Meetings Act. K.S.A. 2011 Supp. 66-1805(1), (n).
Tier 1 members are the non-water utilities. K.S.A. 2011 Supp. 66-1802(p). There are no restrictions on how the notification center may charge a Tier 1 member for each referral. Tier 2 facilities are the water utilities. K.S.A. 2011 Supp. 66-1802(p). The notification center may only charge Tier 2 utilities 50% of what Tier 1 facilities are charged — K.S.A. 2011 Supp. 66-1805(i) — but some larger water utilities may become Tier 3 facilities. To be a Tier 3 member, a larger (more than 20,000 customers) water utility must create its own in-house notification center and employ at least two people to flag the location of its underground utilities. K.S.A. 2011 Supp. 66-1802(r). The notification center may not charge a Tier 3 facility a referral fee; instead the Tier 3 member pays a flat fee of $500 dollars per year. K.S.A. 2011 Supp. 66-1802(r). Although not entirely clear, it would seem that the notification center is not required to inform a Tier 3 member of a proposed dig. Instead, the notification center must provide the excavator with the Tier 3 member’s contact information. K.A.R. 82-14-4(c).
One-Call sued to enjoin enforcement of the amendments of House Bill 2637 on the grounds that the amendments violate the original purpose provision from Article 2, § 16 of the Kansas Constitution and the “one-subject” rule. In addition, One-Call contends that the amendments violate the separation of powers doctrine by usurping the power of the Kansas Corporation Commission (KCC); the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by imposing new requirements on the notification center; and the Takings Clause of die Fifth Amendment to the United States Constitution by setting limits on the fees that may be charged to water and wastewater utility operators. The trial court granted summaiy judgment in favor of the State. One-Call appealed, and we transferred this case on our own motion under K.S.A. 20-3018(c).
Analysis
Standard of Review
Here we are asked to review the trial court’s grant of summary judgment and review the constitutionality of the 2008 amendments to KUUDPA. Our standards of review are familiar.
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summaiy judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
“Determining a statute’s constitutionality is a question of law subject to unlimited review. But under the separation of powers doctrine, this court presumes statutes are constitutional and resolves all doubts in favor of a statute’s validity. Courts must interpret a statute in a way that malees it constitutional if there is any reasonable construction that would maintain the legislature’s apparent intent.” Brennan v. Kansas Insurance Guaranty Ass’n, 293 Kan. 446, 450, 264 P.3d 102 (2011) (citing State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 [2009]).
An agency’s or board’s statutory interpretation is not afforded any significant deference on judicial review. Ft. Hays St. Univ. v. Uni versity Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010).
Do the Amendments to KUUDPA Violate the Kansas Constitutions One-subject Rule?
One-Call contends that the trial court erred in failing to enjoin the enforcement of the 2008 amendments to KUUDPA on the grounds that the amendments violated Article 2, § 16 of the Kansas Constitution, also known as the one-subject rule. The one-subject rule was adopted by convention and ratified by voters in 1859. It was later enacted in 1861 and has been amended only once since then, in 1974. L. 1861, p. 53; L. 1974, ch. 458, sec. 1. It states:
“No bill shall contain more than one subject, except appropriation bills and bills for revision or codification of statutes. The subject of each bill shall be expressed in its title. No law shall be revived or amended, unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed. The provisions of this section shall be liberally construed to effectuate the acts of the legislature.”
The 1974 amendment made important changes in the one-subject rule. First, the amendment added an exception for appropriation bills. Second, it added the liberal interpretation clause. This clause states: “The provisions of the section shall be liberally construed to effectuate the acts of the legislature.” Under this statutory rule of construction, courts construe the statute to effect the beneficial purpose of the statute.
The purpose of the one-subject rule is to prevent legislative abuses such as “logrolling.” “Logrolling” refers to a situation in which several legislators combine their unrelated proposals and present them as separate provisions of one bill. The bill then is able to pass by virtue of the combined votes of the separate factions. The perceived evil of this practice is that a measure can pass which, standing alone, would have been defeated. Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 622, 549 P.2d 864 (1976).
The title of the House Bill 2637 is as follows:
“AN ACT concerning utilities; relating to telecommunications; relating to pricing flexibility and the lifeline service program; concerning the citizens’ utility rate payer board contracting for professional services; relating to the underground utility damage prevention act; concerning local exchange carriers and carriers of last resort; amending K.S.A. 66-1802, 66-1804, 66-1805, 66-1806, 66-2006 and 66-2009 and K.S.A. 2007 Supp. 66-2005 and repealing the existing sections.” L. 2008, ch. 122; H.B. 2637.
In 2008, the Kansas Legislature amended the KUUDPA to require the notification center to comply with the Kansas Open Records Act (KORA) and the Kansas Open Meetings Act (KOMA). The amendment states:
“The notification center established pursuant to this section shall be and is hereby deemed to be a public agency and shall be subject to the provisions of the open records act, K.S.A. 45-215 et seq., and amendments thereto, and the open meetings act, K.S.A. 75-4317 et seq., and amendments thereto . . ..” K.S.A. 2011 Supp. 66-1805(1).
One-Call asserts that House Bill 2637 contains two subjects: (1) the requirement that One-Call comply with KORA and KOMA, and (2) the utilities themselves. It claims that the two subjects are too dissimilar to have any relationship or connection between them. The State argues that each component of House Bill 2637 is related to public utilities and contends that One-Call’s challenge is without merit.
We have determined that a statute does not violate the single-subject rule unless “invalidity is manifest.” KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 676, 941 P.2d 1321 (1997). Legislation is valid under Article 2, § 16 of the Kansas Constitution, so long as the provisions of the bill are “all germane to the subject expressed in the title,” and will be invalidated only where “an act embraces two or more dissimilar and discordant subjects that cannot reasonably be considered as having any legitimate connection with or relationship to each other. [Citation omitted.]” KPERS, 262 Kan. at 676. A bill’s subject can be as comprehensive as the legislature chooses, as long as it constitutes a single subject and not several different ones. State v. Reves, 233 Kan. 972, 978, 666 P.2d 1190 (1983).
The question then is whether the provisions of House Bill 2637 are germane to, or connected to, House Bill 2637’s subject title of utilities and reference to the KUUDPA. The trial court determined that the subjects within the legislation were germane to the broad subject of public utilities. In response to One-Call’s argument that House Bill 2637’s title should mention something about the notification center becoming a public agency subject to new requirements (KOMA and KORA), the trial court determined that neither KOMA nor KORA include a list of public agencies subject to their provisions. And the trial court further determined that the KOMA and KORA requirements need not be mentioned in the title. As for One-Call’s contention that the title should include reference to the Corporation Code under K.S.A. Chapter 17, Articles 63, 65, and 75, the trial court determined that One-Call’s contention was devoid of authority that the legislature intended to make the statutory provisions of the Corporation Code, KOMA, or KORA controlling. Moreover, the trial court determined that the Corporation Code does not prohibit more specific statutory regulation for certain corporate entities.
As stated earlier, a title of a bill can be broad and comprehensive and can even include minor subjects. Yet, those minor subjects must be capable of being combined to form “one grand and comprehensive subject.” KPERS, 262 Kan. at 677. The broad topic of utilities is listed in the title of House Bill 2637 and serves as the larger umbrella category under which the KUUDPA falls. And House Bill 2637’s multiple and diverse subjects are related and germane to one another under the all-encompassing category of utilities.
For example, KOMA and KORA relate to and have a connection with the broad term “utilities” because the notification center is under the purview of tire KUUDPA, which is contained in House Bill 2637. In addition, the KUUDPA clearly relates to and has a logical connection with utilities through its work to protect the State’s underground utility infrastructure from excavation damage and to protect the public from harm.
Moreover, to violate the single subject rule, a bill must have two dissimilar subjects that have no legitimate connection with each other. Reves, 233 Kan. at 978. Here, there is a legitimate connection because KORA and KOMA are related to KUUDPA, which is related to utilities in general,- and we have held that Article 2, § 16 should be “liberally construed.” Moreover, we have declared that a statute is legitimate under that provision unless “invalidity is manifest.” KPERS, 262 Kan. at 676. While the Kansas Legislature cannot disobey constitutional limitations in the enactment of laws, there is a strong presumption in favor of the validity of any bill passed by the legislature. State, ex rel., v. Shanahan, 178 Kan. 400, 403-04, 286 P.2d 742 (1955).
We reject One-Call’s contention that House Bill 2637 contained two subjects. As a result, we determine that the 2008 amendments to KUUDPA did not violate the one-subject rule.
Separation of Powers Doctrine
Next, One-Call contends that the 2008 legislative amendments to KUUDPA violate the separation of powers doctrine because that legislation was adopted after the Kansas Legislature had delegated legislative authority to the KCC under the 2006 amendment to the KUUDPA. In other words, One-Call maintains in its brief that the KUUDPA cannot be amended by the legislature without a revocation or amendment of “the powers previously delegated to the KCC by the legislature as set forth in K.S.A. 66-1813 and 66-1815.” But before we consider if there was a separation of powers violation, we first must determine what type of power was delegated to the KCC under the 2006 amendment.
One-Call’s argument about what type of power was delegated to the KCC is startlingly inconsistent. In its reply brief to the trial court, One-Call stated that the original version of KUUDPA in 1993 granted an administrative and a police function. One-Call then stated that when KUUDPA was amended to create K.S.A. 2011 Supp. 66-1815, the delegation of power became “as broad a delegation of power possible” without defining what type of power that was.
In its brief, One-Call first makes reference to the legislative branch by stating that the legislature delegated legislative power to the KCC. One-Call then makes reference to the executive branch by citing State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, Syl. ¶ 10, 955 P.2d 1136 (1998), where we stated that once the legislature delegates a function to the ex ecutive branch, it may only revoke that authority by enacting another law. One-Call does not otherwise reference executive power in its brief other than this quote from caselaw in arguing that the legislature needed to first revoke or amend the previously delegated power to the KCC before enacting the 2008 amendments. Later, in its brief, One-Call states that the provisions come under “administrative, rule making or regulatory exercises,” indicating administrative power was delegated to the KCC.
On the other hand, the State maintains that the power delegated to the KCC was administrative only. And the State further contends that the KCC’s power still depends entirely on the legislature.
The trial court rejected One-Call’s argument. Although the trial court determined the delegated power to be legislative, the trial court held that the legislature did not intend to divest itself of legislative authority over the KCC.
Administrative power is the power to administer or enforce laws, while legislative power is the power to make laws rather than the power to enforce them. State ex rel. Tomasic, 264 Kan. at 303. A legislature’s delegation of legislative power to make a law is improper, unless the Kansas Constitution permits delegation of legislative power to a different branch of government. If the constitution does not permit that type of delegation, the separation of powers doctrine is violated because legislative power is vested in the legislature only. But the legislature can delegate the power to fill in the details of an enacted statute. And standards to govern the exercise of such authority may be implied from the statutoiy purpose. State ex rel. Tomasic, 264 Kan. at 303-04, Syl. ¶ 6.
To distinguish whether the legislature has delegated legislative power or administrative power, tire specific standards set out in the delegation must be considered. If the standards are specific, meaning they contain sufficient policies and standards to guide the nonlegislative body, the legislature has delegated administrative power. The legislature can delegate to administrative bodies discretion to “ ‘ “fill in the details,” ’ ” provided there are definite standards to guide the exercise of authority. 264 Kan. at 304.
The power delegated to the KCC was administrative because the power to adopt rules and regulations is administrative in nature. See State, ex rel., v. Columbia Pictures Corporation, 197 Kan. 448, Syl. ¶ 4, 417 P.2d 255 (1966). The language in K.S.A. 2011 Supp. 66-1815 is identical to that definition of administrative law: it gives the state corporation commission “full power and authority to adopt all necessary rules and regulations for carrying out the provisions.” (Emphasis added.)
We have previously identified the KCC as an administrative body, requiring the legislature to provide a clear standard of governing the exercise of delegated authority. See Citizens’ Utility Ratepayer Bd. v. Kansas Corporation Comm’n, 264 Kan. 363, 395, 956 P.2d 685 (1998); Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 491, 495, 720 P.2d 1063 (1986). The power delegated meets this requirement.
The delegation here was specific because K.S.A. 2011 Supp. 66-1815 limited tire KCC’s power to adopting necessary rules for carrying out provisions K.S.A. 2011 Supp. 66-1801 through K.S.A. 66-1814. The KCC was not given free rein to create new rules unrelated to those specified provisions. One-Call has cited no authority in support of its position that the legislature ever delegated legislative power to the KCC. And our research has revealed no case in which our appellate courts have ever held that the legislature has delegated legislative power to the KCC.
We further note that K.S.A. 2011-Supp. 66-1815 is not much more expansive than die earlier unchallenged provision, K.S.A. 66-1813, which states drat KUUDPA “shall be administered and enforced by the state corporation commission.” The only added power the KCC received from the legislature in 2006 was the power to adopt rules and regulations to carry out KUUDPA, which it was already required to do when KUUDPA was created in 1993.
The separation of powers doctrine was not violated by a delegation of administrative power to the KCC. Because there was no usurpation of powers, the trial court properly granted summary judgment to the State on this claim.
What is the Relationship Between One-Call and the Legislatively Created “Notification Center”?
Before we can address One-Call’s last two issues, we must determine the relationship between the notification center and One-Call. One-Call’s brief routinely refers to the 2008 amendments as legislative interference with a private business. According to One-Call’s brief, One-Call is the notification center. Yet, tire State refers to the amendments as legislation that regulates a creature of statute — the notification center — and not a private business — One-Call. The trial court went to some lengths to draw a distinction between the notification center and One-Call.
The original bill in 1993 defined notification center as “a center operated by an organization which has a minimum of five underground operators participating . . . .” H.B. 2041 (1993) (Before House Committee Revision). Now, a notification center is defined as a “statewide communication system operated by an organization.” K.S.A. 2011 Supp. 66-1802(i). Similar to K.S.A. 2011 Supp. 66-1805(a), the definition was changed to reflect the intent that there be only one notification center. See L. 1993, ch. 217, sec. 2(g)-
K.S.A. 2011 Supp. 66-1805(a) currently states: “This act recognizes tire establishment of a single notification center for the state of Kansas.” The legislature apparently believed that K.S.A. 2011 Supp. 66-1805(a) created a notification center. For example, K.S.A. 2011 Supp. 66-1805(1) reads: “The notification center established pursuant to this section ....” (Emphasis added.) If the notification center is established by statute — K.S.A. 2011 Supp. 66-1805(a)— it is not One-Call. And K.S.A. 2011 Supp. 66-1805(o) creates the process under which operation of the notification center is determined. For example, every 5 years the notification center must determine who will operate it. Even the definition of the notification center supports the argument that it is an entity separate from One-Call. See K.S.A. 2011 Supp. 66-1802(i) (a “communication system operated by an organization”). Finally, while not indicative of legislative intent, the KCC regulations define the notification center as the “underground utility notification center operated by Kansas one call, inc.” K.A.R. 82-14-l(k) (2011 Supp.).
Under the general rules of statutory interpretation, “[vjarious provisions of an act in pari materia must be construed together in an effort to reconcile the provisions so as to make them consistent, harmonious, and sensible.” (Emphasis added.) Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, Syl. ¶ 4, 221 P.3d 588 (2009). “Additionally, legislative intent is to be determined from a general consideration of the entire act. An appellate court’s duty, as far as practicable, is to harmonize different statutory provisions to make them sensible.” Dillon Real Estate Co. v. City of Topeka, 284 Kan. 662, Syl. ¶ 9, 163 P.3d 298 (2007).
Despite the lack of crystal clear language, the statutory scheme does not support the heart of One-CaH’s argument that One-Call is the notification center. Instead, it is readily apparent that the notification center is a governmental contractor that is currently operated by One-Call. Otherwise, under K.S.A. 2011 Supp. 66-1805(o), it would require One-Call to solicit proposals to run One-Call. Dillon Real Estate Co., 284 Kan. 662, Syl. ¶ 8 (“The legislature is presumed to not enact useless or meaningless legislation, and an appellate court’s interpretation of a statute should avoid absurd or unreasonable results.”). A more logical reading of the entire KUUDPA would require the notification center to solicit proposals from companies like One-Call to determine its operator. The trial court correctly concluded that One-Call is an entity distinct from the notification center.
Equal Protection Claim
One-Call next argues that the trial court erred in rejecting its equal protection claim because some of the 2008 amendments to KUUDPA caused it to be treated differently from other private and nonprofit corporations without any rational basis.
The Fourteenth Amendment to the United States Constitution guarantees equal protection under the law “to any person,” and the Kansas Constitution Bill of Rights § 1 uses similar language. Here we are asked to determine whether some of the 2008 amendments to KUUDPA impermissibility violate One-Call’s right to equal protection under the law.
In Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 255 P.3d 1186 (2011), we reiterated the steps in analyzing an equal protection claim:
“The first step of an equal protection analysis is to determine the nature of the legislative classifications and whether the classifications result in arguably indistinguishable classes of individuals being treated differently. . . .
“After determining tire nature of the legislative classifications, a court examines the rights which are affected by the classifications. The nature of the rights dictates tire level of scrutiny to be applied. . . .
“The final step of the analysis requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable level of scrutiny.” 292 Kan. at 315-16.
Do the 2008 Amendments to the KUUDPA Treat Indistinguishable Classes of Organizations Differently?
One-Call claims that it is being treated differently than every other private not-for-profit corporation in Kansas. Most of One-Call’s argument focuses on the application of KOMA and KORA to it. In support of its argument, One-Call relies on our caselaw in Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 722 P.2d 1093 (1986), In re Arbitration between Johns Constr. Co. & U.S.D. No. 210, 233 Kan. 527, 664 P.2d 821 (1983), and tire Court of Appeals opinion in Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 6 Kan. App. 2d 444, 629 P.2d 1174, rev. denied 230 Kan. 819 (1981), for support. One-Call also relies on several attorney general opinions.
The State responds with two arguments. First, it contends that One-Call fails the first step of equal protection analysis because it is not similarly situated to any other company. The State is correct. Second, it argues that KOMA and KORA apply to the notification center under our prior caselaw.
In 2008, the Kansas Legislature amended K.S.A. 66-1805(1) and deemed the notification center to be a public agency subject to KOMA and KORA. The statute states:
“(1) The notification center established pursuant to this section shall be and is hereby deemed to be a public agency and shall be subject to the provisions of the open records act, K.S.A. 45-215 et seq., and amendments thereto, and the open meetings act, K.S.A. 75-4317 et seq., and amendments thereto, except that the notification center or board of directors, or successor managing organization shall not disseminate, malee available or otherwise distribute data or information provided by an operator of a tier 1, 2 or 3 facility unless such dissemination, making available or distributing is necessary for the state corporation commission or the notification center to carry out legal duties or specific statutory duties prescribed under this chapter.” K.S.A. 2011 Supp. 66-1805(1).
One-Call contends that the Kansas Legislature performed a “frontal lobotomy” on the traditional rules governing the application of KOMA and KORA. See State ex rel. Murray v. Palmgren, 231 Kan. 524, 535, 646 P.2d 1091 (1982) (discussing the five-part test for determining if an organization is a public agency subject to KOMA). But the legislature is not required to follow our prior five-part test in determining whether to designate the notification center a public agency.
One-Call asks us to ignore K.S.A. 2011 Supp. 66-1805(1) and use its caselaw to determine if the notification center is a public agency under KOMA and KORA statutes. One-Calls argument might have merit if it were not for K.S.A. 2011 Supp. 66-1805(1), which specifically designates the notification center as a public agency subject to KOMA and KORA. The caselaw and attorney general opinions cited by One-Call are simply irrelevant. Likewise, the State’s response that the notification center is a public agency under previous caselaw is immaterial.
Political or taxing subdivisions of the state are subject to KORA and KOMA. See K.S.A. 75-4318(a) (KOMA); K.S.A. 45-217(f) (KORA). K.S.A. 2011 Supp. 66-1805(1) states that tire notification center is a public agency subject to KORA and KOMA. Every case cited by the parties involved a question of whether an organization is subject to KORA and KOMA absent a statutory provision that states the entity is subject to KORA and KOMA. Here, the question is not whether the notification center is a public agency under K.S.A. 75-4318(a) or K.S.A. 45-217(f). To the contrary, the legislature has already answered that question in the affirmative by enacting K.S.A. 2011 Supp. 66-1805(1).
One-Call does not cite a single Kansas authority in making its argument. As the State points out, by law One-Call cannot be similarly situated to any other Kansas company because it operates the “single notification center for the state of Kansas.” K.S.A. 2011 Supp. 66-1805(a). Consequently, One-Call fails the first step of equal protection analysis. See Rails-Trails, 292 Kan. at 315 (“indistinguishable classes of individuals being treated differently”).
Nevertheless, according to One-Call, the notification center s public accountability statutes are unconstitutional. “The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Tigner v. Texas, 310 U.S. 141, 147, 60 S. Ct. 879, 84 L. Ed. 1124 (1940). The Equal Protection Clause allows states to write into law differences that exist in those areas which public power is exerted. Tigner, 310 U.S. at 147 (“And so we conclude that to write into law differences between agriculture and other economic pursuits was within the power of the Texas legislature.”).
For example, in explaining that the Kansas Legislature has the constitutional authority to impose a burden on a party that may not be contractually waived or assumed by another party, we stated: ,
“The Kansas Legislature has tire constitutional authority to impose a burden on a party that may not be contractually waived or assumed by another party. [State v. Mwaura,] 4 Kan. App. 2d [738,] 470-41[, 610 P.2d 662, rev. denied 228 Kan. 807 (1980)]. For example, the legislature may constitutionally impose on the seller of a used car a nondelegable duty to see that the car meets minimum safety standards. 4 Kan. App. 2d at 741. The legislature similarly has the constitutional authority to protect the lives and property around underground utilities.” Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 277, 202 P.3d 7 (2009).
The notification center furnishes an important public service. Double M Constr., 288 Kan. at 272 (The KUUDPA “creates a statutory duty to the public to ensure the safety and integrity of underground utilities.”). And “[t]he legislature similarly has the constitutional authority to protect the lives and property around underground utilities.” 288 Kan. at 277. As a result, tire Kansas Legislature has the authority to write into law differences that exist in those areas in which public power is exerted. Thus, One-CalFs equal protection claim fails.
Fifth Amendment Violation
Finally, One-Call, in its taking claim, contends that the trial court improperly rejected its assertion that the fee provisions of the amendments “fix rates which are so low as to be confiscatory.”
Under the 2008 amendments, One-Call may charge Tier 2 facilities (water utilities) only 50% of what it charges Tier 1 facilities (other utilities). K.S.A. 2011 Supp. 66-1805(j). Additionally, a Tier 3 facility (large water utilities with their own separate “one-call system”) owes the notification center only $500 annually. K.S.A. 2011 Supp. 66-1802(r). One-Call contends that the fee structure is a taking without just compensation.
First, One-Call contends that the legislature lacked any authority “to implement the rates to be charged by [One-Call]” because it delegated that authority to the KCC. That line of reasoning is totally unrelated to a taking analysis, and it apparently makes reference to One-Call’s second issue. Second, One-Call relies on a 1921 federal district court opinion from Louisiana and argues that the setting of the rates for Tier 2 and Tier 3 facilities is “clearly a taking of property.” See O’Keefe v. City of New Orleans, 273 F. 560 (D.C. La. 1921). On the other hand, the State argues that One-Call has not suffered a taking because it may charge Tier 1 members whatever it desires.
The Takings Clause of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that private property shall not be “ Taken for public use, without just compensation.’ ” Lingle v. Chevron U.S.A., Inc. 544 U.S. 528, 536, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005). As we recently stated in Zimmerman, “[t]he Fifth Amendment’s guarantee ‘is designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Zimmerman v. Board of Wabaunsee County Commr’s, 293 Kan. 332, 345, 264 P.3d 989 (2011) (citing Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 4 L. Ed. 2d 1554 [1960]).
In this case, One-Call is required to comply with extensive government regulation, and there is little debate that the government may regulate private property. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124-26, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978) (discussing types of property regulation that the Court held did not constitute a taking). But as we recognized in Zimmerman, the difficulty rests in determining when the government has gone so far in its regulations to effectuate a taking:
“ ‘[G]overnment regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster — and that such “regulatory takings” may be compensable under the Fifth Amendment. In Justice Holmes’ storied but cryptic formulation, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” 260 U.S. at 415. The rub, of course, has been — and remains — how to discern how far is “too far.” In answering that question, we must remain cognizant that “government regulation — by definition — involves the adjustment of rights for the public good” [citation omitted] and that “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” [Citations omitted.]’ ” Zimmerman, 293 Kan. at 345.
Determining when the government has gone too far is, as the Kansas Supreme Court states, “the rub.” There are two types of regulations that the United States Supreme Court considers per se takings. “ ‘First, where government requires an owner to suffer a permanent physical invasion of her property — however minor — it must provide just compensation.’ ” Frick v. City of Salina, 290 Kan. 869, 885, 235 P.3d 1211 (2010) (citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538, 125 S. Ct. 2074, 161 L. Ed. 2d 876 [2005]). The second rule applies to “regulations that completely deprive an owner of ‘all economically beneficial us[e]’ of his or her property.” Frick, 290 Kan. at 885 (citing Lingle, 544 U.S. at 538).
Did the Kansas Legislature Take One-Call’s Private Property by Establishing the Tier System for Referral FeesP
Kansas statutes require that all utilities in Kansas become a member of the notification center. K.S.A. 2011 Supp. 66-1805(a). And tire notification center is required to notify its member utilities of any proposed excavation, assuming the member utility has underground facilities near the excavation site. K.S.A. 2011 Supp. 66-1805(b), (c); K.A.R. 82-14-4. While an excavator is not explicitly required to call tire notification center to ascertain the location of underground utilities, no excavation near underground facilities may proceed in Kansas unless the excavator has ascertained the “location of all underground facilities in the proposed area of the excavation.” K.S.A. 66-1803; K.A.R. 82-14-2. But see K.S.A. 2011 Supp. 66-1804 (malting an exception for emergency excavations). The parties agree that the notification center is the linchpin to tire notification program as it handles most of the notification center requests in the State.
As previously discussed, One-Call, a private company, operates the notification center and is required to notify utilities of proposed excavations. So long as One-Call operates the notification center, the government appears to be requiring a private company (One-Call) to engage in the production of services. Traditionally, in utility rate regulation takings cases, there is a statute that requires the utilities to provide efficient and sufficient service to the public. See K.S.A. 66-101b. But in stark contrast to the traditional cases, there is no statute that requires One-Call to run the notification center. There is no taking because no private property is being used for a public purpose. This case, therefore, is analogous to Yee v. Escondido, 503 U.S. 519, 112 S. Ct. 1522, 118 L. Ed. 2d 153 (1992).
In Yee, the City of Escondido in 1988 enacted rent control ordinances that set mobile home rents back to their 1986 levels and prohibited rent increases without the approval of the city board. The petitioners, mobile home park owners, sued arguing that the rent control law deprived them of “all use and occupancy of [their] real property” to the extent it constituted a taking. 503 U.S. at 525. The Supreme Court disagreed. The rent control ordinances regulated the relationship between the landlord and the tenant, but they did not require the petitioners to rent their mobile homes. The petitioners voluntarily rented their land to mobile home owners and were not required to continue to do so. As a result, the rent control ordinances did not authorize an unwanted physical occupation of the petitioners’ land and was not a per se taking. Yee, 503 U.S. at 531; see also Bowles v. Willingham, 321 U.S. 503, 517, 64 S. Ct. 641, 88 L. Ed. 892 (1944) (rent control ordinance not a taking because it did not require that the property owners to rent their property); Garelick v. Sullivan, 987 F.2d 913, 916 (2d Cir. 1993) (“By contrast, where a service provider voluntarily participates in a price-regulated program or activity, there is no legal compulsion to provide service and thus there can be no taking.”). Likewise, One-Call has voluntarily agreed to participate in a price-regulated program or activity, and there is no legal requirement that it must operate the notification center. Thus, there is no taking.
One-Call’s takings claim is also foreclosed by the fact that the fee structure attacked by One-Call does not prohibit the operator of the state’s notification center from recovering the costs of providing notification services. The legislation places no cap on fees imposed on Tier 1 utility members while limiting fees on water and wastewater utility operators. As applied to One-Call, this limitation imposes no increased costs on One-Call because it is undisputed that One-Call must raise member fees to cover those increased expenses. Under these circumstances, One-Call has not suffered a taking. The ability to pass along all expenses to members of the notification center ensures that One-Call will always be able to recoup its costs. Even assuming that tire new fee structure deprives One-Call of any money in the short-term while it adjusts its fees, One-Call retains the ability to cover its expenses, which means that just compensation is available to it.
Where an entity can pass along costs to others, such as customers or members, just compensation is available for any taking that may have occurred, negating any Fifth Amendment claim. See Kansas City Power & Light Co. v. Kansas Corporation Comm’n, 238 Kan. 842, 715 P.2d 19 (1986). In Kansas City Power & Light Co., the KCC had entered an order implementing a portion of a federal statute concerning the encouragement of entities to cogenerate electricity, and the order required electric utility companies to allow cogenerators of electricity to connect to the utilities’ systems, to purchase electricity from cogenerators, and to pay cogenerators the avoided energy cost saved by the utility by not producing the energy received. 238 Kan. at 843, 846. Kansas City Power & Light Company (KCP&L) challenged the KCC order on several grounds, including that the requirement to pay cogenerators the avoided energy cost was an unconstitutional taking. The court noted that the function of requiring compensation for a taking is “to put tire owner in as good a position pecuniarily as he would have occupied if his property has not been taken.” 238 Kan. at 848 (quoting Olson v. United States, 292 U.S. 246, 54 S. Ct. 704, 78 L. Ed. 1236 [1927]). Accordingly, the court rejected the takings claim because KCP&L “is allowed to charge its ratepayers its avoided cost paid to tire cogenerators, plus a profit.” 238 Kan at 848. Because the utility company was made whole through recouping any additional costs, it received just compensation.
One-Call’s situation is analogous to KCP&L. Whenever One-Call’s expenses exceed revenues, it can increase fees to cover those increased costs. Under the amendments, any increased costs may be passed along to Tier 1 utilities and, in part, to Tier 2 utilities, whose rates are capped at 50% of Tier 1 utilities. Thus, One-Call retains the ability to pass through costs and has not been deprived of any money. For that reason, no taking has occurred as a result of the amendments. Consequently, One-Call’s takings argument fails.
Affirmed.
Moritz, J., not participating.
Green, J., assigned. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, David G. Shriver, of Topeka, an attorney admitted to the practice of law in Kansas in 1975.
On September 2, 2011, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of die Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on September 12, 2011. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 20, 2011, when the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.3 (2011 Kan. Ct. R. Annot. 433) (diligence); 3.3(a)(1) (2011 Kan. Ct. R. Annot. 559) (candor toward tribunal); and 8.4(c) (2011 Kan. Ct. R. Annot. 618) (engaging in conduct involving misrepresentation).
The panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“6. The Respondent drafted wills and trusts for each of his parents, Gamer E. and Martha J. Shriver. In the wills, the Respondent was named as executor and trastee. The Respondent is one of three children. The Respondent has two sisters: Linda Shriver and Kay Kwon. The Respondent’s father passed away on March 1, 1998.
“7. From time to time, the Respondent sought and obtained bank loans to finance his law practice and his personal living expenses. After the Respondent’s father s death, the Respondent’s bank loans were under-collateralized. The Respondent’s mother agreed to have a $50,000 mortgage placed on her residence to serve as collateral on the Respondent’s bank loans. The Respondent’s mother did not request a promissory note to secure the Respondent’s obligation. Rather, die Respondent’s mother simply asked die Respondent to make sure that if he had not paid off the mortgage prior to her death, that upon her death, die Respondent take the mortgage into account in dividing the assets equally among the three children. The Respondent agreed.
“8. Mrs. Shriver set up various certificate of deposit accounts. Mrs. Shriver included the Respondent and his sister, Linda, as signatories on the accounts. Mrs. Shriver informed the Respondent that she set up the accounts so that if he needed money, he could use those accounts. Additionally, Mrs. Shriver provided the Respondent with a power of attorney.
“9. Using the power of attorney, the Respondent cashed two certificates of deposit, receiving $36,019.91. Again, Mrs. Shriver did not request that the Respondent provide a promissory note. Mrs. Shriver simply directed that the Respondent malte it fair and equal with his sisters upon her death. Again, the Respondent agreed.
‘TO. During her lifetime, Mrs. Shriver also provided financial assistance to Linda Shriver, Linda’s children, and Kay Kwon.
“11. On July 24, 2004, Mrs. Shriver passed away.
“12. On August 16, 2004, the Respondent filed a petition for probate of will and issuance of letters testamentary. In the petition, the Respondent listed real property in the approximate value of $150,000 and personal property in tire amount of $40,000.
“13. On September 9, 2004, tire Court appointed the Respondent to serve as tire executor of his mother’s estate. Accordingly, the Court issued letters testamentary to the Respondent.
“14. The Respondent failed diligently to bring the estate to closure. It took the Respondent two years to sell Mrs. Shriver’s real property.
“15. During tire time the estate was pending, from time to time, Linda Shriver and Kay Kwon requested that the Respondent make distributions from the estate to them. The Respondent agreed and provided Linda Shriver and Kay Kwon with funds from the estate without seeking or obtaining court approval. Additionally, from time to time, tire Respondent made distributions to himself, again without seeking or obtaining court approval.
“16. On November 29,2007, the Respondent filed an inventory and valuation. Pursuant to K.S.A. 59-1201, the inventory should have been filed within 30 days after the Respondent’s appointment as executor of the estate. The Respondent filed the inventory and valuation more than three years after his appointment. The Respondent failed to include reference to the mortgage or the certificates of deposit in the inventory.
“17. Thereafter, on April 28, 2009, the Respondent filed a petition for final settlement and an accounting. The Respondent failed to include tire mortgage, certificates of deposit, and the distributions in the accounting.
“18. On November 4, 2008, Tammy M. Martin entered her appearance [on] behalf of Linda Shriver and Kay Kwon.
“19. On December 22, 2008, the Respondent filed a notice of filing closing statement.
“20. On June 15, 2009, Linda Shriver and Kay Kwon filed an objection to the petition for final settlement and accounting. In the objection, Linda Shriver and Kay Kwon argued that the Respondent failed to include all the certificates of deposit, the Respondent failed to include the mortgage, the Respondent paid funds to heirs without court approval, and the Respondent distributed die proceeds of the estate in an unequal fashion.
“21. Eventually, on April 14, 2010, the Respondent filed an amended inventory and valuation. In die amended inventory and valuation, the Respondent included the mortgage, the certificates of deposit (’oral promissory obligation of David Shriver’), and die distributions made to die three heirs.
“22. On August 20, 2010, die Court finally entered a journal entry of final settlement. In die journal entry, die Court entered a judgment against die Respondent, in favor of Kay Kwon in the amount of $4,650.00. Additionally, the Court entered a judgment against the Respondent, in favor of Linda Shriver in the amount of $15,000.00. Finally, the Court entered a judgment against the Respondent in favor of Ms. Martin in the amount of $5,000.00.
“CONCLUSIONS OF LAW
“23. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 3.3(a)(1), and KRPC 8.4(c), as detailed below.
“24. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to provide diligent representation to his mother’s estate. The Respondent opened the estate in 2004 and it was not closed until 2010. Because the Respondent failed to act with reasonable diligence and promptness in representing his mother’s estate, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“25. KRPC 3.3(a)(1) provides that ‘[a] lawyer shall not knowingly malee a false statement of material fact or law to a tribunal.’ The Respondent made false statements of material fact to the Court when he failed to include the mortgage, the certificates of deposit, and the distributions made to the heirs in the inventory and accounting. Because the Respondent provided false information to the Court, the Hearing Panel concludes that the Respondent violated KRPC 3.3(a)(1).
“26. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he filed an inventory and an accounting which did not include references to the mortgage, the certificates of deposit, and the distributions made to the heirs. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“AMERICAN BAR ASSOCIATION
“STANDARDS FOR IMPOSING LAWYER SANCTIONS
“27. 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, tire potential or actual injuiy caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“28. Duty Violated. The Respondent violated his duty to tire public to maintain his personal integrity.
“29. Mental State. The Respondent knowingly violated his duty.
“30. Injury. As a result of tire Respondent’s misconduct, tire Respondent caused actual injuiy to tire legal profession and his sisters.
“31. Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in tire degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in- this case, found tire following aggravating factors present:
“32. Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by dishonesty and selfishness. By failing to disclose tire mortgage[,] tire, certificates of deposit, and tire distributions made to the heirs, the Respondent put himself in a position to receive a greater distribution of tire proceeds from his mother’s estate than she intended.
“33. Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 3.3, and KRPC 8.4. As such, the Hearing Panel concludes that the Respondent committed multiple offenses.
“34. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law September 12,1975. Thus, when the Respondent engaged in tire misconduct, he had been practicing law for more tiran 30 years.
“35. 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, tire Hearing Panel, in this case, found tire following mitigating circumstances present:
“36. Absence of a Prior Disciplinary Record. During the Respondent’s 30 year practice, he has not previously been disciplined.
“37. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent testified candidly regarding his misconduct at the hearing on tire formal complaint.
“38. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support'ofthe Character and. General Reputation of the Attorney. The Respondent is an active and productive member of the bar. He enjoys tire respect of his peers, friends, and clients and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel.
“39. Remorse. At the hearing on the formal complaint, the Respondent expressed genuine remorse for having engaged in the misconduct.
“40. In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.12 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.
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injuiy or potential injury to a client.’
“RECOMMENDATION
“41. The Disciplinary Administrator recommended that the Respondent be suspended from the practice of law for an indefinite period of time. Counsel for the Respondent recommended that the Respondent be censured and that the censure be published in the Kansas Reports.
“42. Eased upon the findings of fact, conclusions of law, the significant mitigating circumstances, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for a period of 90 days.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of tire parties and determines whether violations of KRPC exist and, if they do, the discipline to be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.’ ” ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of both the hearing before the panel and the hearing before this court. He filed no exceptions to the hearing panel’s final hearing report. The panel’s findings of fact are thus deemed admitted, and we adopt them. See Supreme Court Rule 212(c), (d) (2011 Kan. Ct. R. Annot. 352).
The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore also adopt the panel’s conclusions.
The only remaining issue before us is the appropriate discipline. At the hearing before this court, at which the respondent appeared, the office of the Disciplinaiy Administrator continued to recommend that the respondent be suspended indefinitely. The respondent continued to request censure and asked that the censure be published in the Kansas Reports. As referenced above, the hearing panel recommended that respondent be suspended from the practice of law for 90 days.
A majority of this court — after consideration of the seriousness of the respondent’s violations, particularly those demonstrating a lack of candor, and the aggravating and mitigating factors — holds that a 6-month suspension from the practice of law is appropriate. A minority of this court would adopt the panel’s recommendation of a 90-day suspension.
Conclusion and Discipline
It Is Therefore Ordered that David G. Shriver be suspended from the practice of law in the state of Kansas for 6 months, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2011 Kan. Ct. R. Annot. 280).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas reports.
Nuss, C.J., not participating.
Rebecca W. Crotty, District Judge, assigned. | [
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On June 11, 2010, the court placed the respondent, Biyan W. Smith, on probation for a period of 2 years with specific conditions of supervision and reporting. In re Smith, 290 Kan. 738, 233 P.3d 737 (2010).
On June 27, 2012, the respondent filed a motion to terminate 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 him 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 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 shall be assessed to the respondent.
Dated this 3rd day of July, 2012. | [
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The opinion of the court was delivered by
Johnson, J.:
James C. Woods appeals the district court’s dismissal of his appeal of tire appraisers’ award, in an eminent domain action initiated by the Unified Government of Wyandotte County/ Kansas City, Kansas (Unified Government). The district court found that Woods’ notice of appeal, filed 48 days after the filing of the appraisers’ report, was untimely under K.S.A. 2009 Supp. 26-508. Woods contends that Unified Government failed to comply with the notice requirements applicable to eminent domain proceedings and, therefore, the district court should have extended the 30-day statutory deadline for appealing the appraisers’ award. Finding that the district court did not have the authority to extend or modify K.S.A. 2009 Supp. 26-508’s jurisdictional requirement that a party’s notice of appeal of an appraisers’ award must be filed within 30 days of the filing of the appraisers’ report, we dismiss Woods’ appeal.
Factual and Procedural Overview
In 2009, Unified Government commenced a proceeding to condemn certain real estate, including a tract owned by Woods. On December 2, 2009, the court-appointed appraisers filed their report, fixing the amount of tire awards for the property affected by the eminent domain action. On December 7, Unified Government filed a document with the district court entitled “Notice of Filing of Appraisers’ Report,” which recited that Unified Government had informed the named defendants that the appraisers’ report had been completed and that the report was filed in the office of the Clerk of the District Court of Wyandotte County. Woods now contends that he did not receive the notice that the appraisers’ report had been filed.
On December 21, 2009, Unified Government paid the awards for all of the condemned real estate, and Woods acknowledges that on the following day, December 22, he received notice from Unified Government that his award had been paid into the district court. Woods did not file his notice of appeal of the appraisers’ award on his condemned real estate until January 19,2010. Unified Government responded with a motion to dismiss Woods’ appeal as untimely.
The district court heard the motion to dismiss on April 6, 2010. At that hearing, Woods’ attorney simply argued that he had believed that he had 30 days from die December 22 notice of award payment in which to file his client’s notice of appeal. The attorney also mentioned that he had been informed by counsel for Unified Government that “there was a certificate of mailing of this notice of the appraisers award on December 2nd or shortly after that period of time.” But Woods’ counsel asserted that the only notice Woods received was the December 22 notice of award payment. In response to the court’s direct inquiry as to the documents that he had received, Woods stated that “[t]hey sent me other information out in regards to the meeting that was taking place and the appraisal.” No attempt was made to identify the other documents to which Woods might have been referring.
Subsequently, on April 15, 2010, the district court dismissed Woods’ appeal, finding that it was barred because it was filed past the statutory deadline. Woods then filed this appeal, in which he simply states the issue to be: “Did Mr. Woods timely file his appeal?” His argument revolves around a contention that Unified Government failed to mail him notice of the December 2, 2009, filing of the appraisers’ report and, therefore, he is not bound by the statutory appeal period. Unified Government responds by: (1) complaining that Woods has changed his argument on appeal; (2) contending that it substantially complied with the statutory notice requirements of K.S.A. 2009 Supp. 26-505; and (3) arguing that the district court lacked subject matter jurisdiction to hear the appeal.
Appellate Jurisdiction
Woods’ argument on appeal hinges upon his contention that Unified Government did not comply with the notice provisions of the Eminent Domain Procedures Act, K.S.A. 26-501 et seq. (EDPA). See K.S.A. 26-516 (naming the Act). Specifically, Woods points to K.S.A. 2009 Supp. 26-505, which required Unified Government, within 3 days of receiving notice that the appraisers had filed their report with the clerk of tire district court, to mail a written notice of the filing of the appraisers’ report to every person who owned any interest in any of the property being taken, and then to file in the office of the clerk of the district court an affidavit showing proof of the mailing of such notice. Woods asserts that Unified Government did not mail him a notice of the filing of the appraisers’ report and that Unified Government also failed to file the required affidavit with the court.
Unified Government acknowledges that it did not file an affidavit with the court. However, it asserts that the document it did file, entitled “Notice of Fifing of Appraisers’ Report,” substantially complied with the statutory notice requirements. Further, Unified Government argues that the district court never acquired jurisdiction over the appeal because of the untimely notice of appeal. Accordingly, we begin with the jurisdiction question, because if a district court lacks subject matter jurisdiction over an issue, an appellate court does not acquire jurisdiction over the matter on appeal. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
Standard of Review
The existence of appellate jurisdiction is a question of law over which an appellate court possesses unlimited review. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).
Kansas courts only have such appellate jurisdiction as is conferred by statute, and in the absence of compliance with the statutory rules, a court has the duty to dismiss the appeal. In re Condemnation of Land v. Stranger Valley Land Co., 280 Kan. 576, 578, 123 P.3d 731 (2005). To the extent we must engage in statutory interpretation to determine jurisdictional circumstances, this court has unlimited review. See In re D.M.-T., 292 Kan. 31, 33, 249 P.3d 418 (2011).
Analysis
“An eminent domain proceeding is a special statutory proceeding and is not a civil action covered by the code of civil procedure.” Miller v. Bartle, 283 Kan. 108, Syl. ¶ 2, 150 P.3d 1282 (2007). Instead, “[t]he procedure for exercising eminent domain, as set forth in [the EDPA], shall be followed in all eminent domain proceedings.” K.S.A. 2009 Supp. 26-501(a). The EDPA provision governing Woods’ attempt to appeal was K.S.A. 2009 Supp. 26-508, which provided:
“(a) If the plaintiff, or any defendant, is dissatisfied with tire award of the appraisers, such party, within 30 days after the filing of the appraisers’ report, may appeal from the award by filing a written notice of appeal with the clerk of the district court. The appeal shall be deemed perfected upon die filing of die notice of appeal. In the event any parties shall perfect an appeal, copies of such notice of appeal shall be mailed to all parties affected by such appeal, within three days after the date of the perfection thereof. An appeal by the plaintiff or any defendant shall bring the issue of damages to all interests in the tract before the court for trial de novo. The appeal shall be docketed as a new civil action, the docket fee of a new court action shall be collected and the appeal shall be tried as any other civil action. The only issue to be determined dierein shall be the compensation required by K.S.A. 26-513, and amendments thereto.
“(b) This section, as amended by this act, shall be construed and applied prospectively, as well as retroactively to July 1, 2003, and shall apply to all eminent domain proceedings pending on or commenced after July 1, 2003.”
In Stranger Valley, this court had occasion to construe a prior version of the statute — K.S.A. 2004 Supp. 26-508 — to identify which of the requirements set forth in the statute were jurisdictional. That version did not have a subsection (b), and the first sentence of the prior statute read as follows:
“If the plaintiff, or any defendant, is dissatisfied with the award of the appraisers, such parly, within 30 days after the filing of tire appraisers’ report, may appeal from the award by filing a written notice of appeal with the clerk of the district court and patting the docket fee of a new court action.” (Emphasis added.) K.S.A. 2004 Supp. 26-508.
Likewise, the next sentence of the current statute, providing that the appeal is deemed perfected upon the filing of the notice of appeal, was not contained in the prior version being applied in Stranger Valley. 280 Kan. at 578-79; L. 2006, ch. 192, sec. 13.
Ultimately, the Stranger Valley court found that the two requirements set forth in the first sentence of the statute, i.e., timely filing the notice of appeal and paying the docket fee, were jurisdictional requirements. However, the remainder of the statute dealt with procedures to be followed after the appeal was perfected, and, therefore, those requirements were not jurisdictional. Specifically in that regard, Stranger Valley held that “the failure to docket the appeal as a new civil action does not defeat subject matter jurisdiction.” 280 Kan. 576, Syl.
Importantly for our purposes, Stranger Valley also noted that a district court is “without jurisdiction to enlarge the time for filing a notice of appeal in an eminent domain proceeding pursuant to K.S.A. 2004 Supp. 60-206(b) or to permit a filing out of time for excusable neglect as provided by K.S.A. 60-260(b). [Citation omitted.]” 280 Kan. at 586. That holding is consistent with our subsequent declaration in Bartle that an eminent domain case is a special statutory proceeding to which the Kansas Code of Civil Procedure is inapplicable. 283 Kan. 108, Syl. ¶ 2.
Shortly after the December 9, 2005, filing of Stranger Valley, the current version of 26-508 was published in the Kansas Register on May 25, 2006. L. 2006, ch. 192, sec. 13. It is obvious that the 2006 amendments were intended to clarify that the paying of the docket fee was not to be a jurisdictional requirement, contrary to the holding in Stranger Valley. But, pointedly, while the legislature was amending 26-508, it did not alter or amend the portion of the “plain and unambiguous language of the first sentence of the statute,” which Stranger Valley said requires “[t]he filing of a notice of appeal within 30 days” to perfect an appeal. 280 Kan. at 580. In other words, the legislature left intact this court’s holding that the filing of a notice of appeal within 30 days of the filing of the appraisers’ report is a jurisdictional requirement.
Likewise, the legislative amendments to 26-508 did nothing to alter or amend Stranger Valley’s declaration that a district court has no statutory authority to enlarge or extend the period in which a dissatisfied party can appeal the appraisers’ award. Surely, if the legislature had intended otherwise, it could have set forth any exceptions to the strict application of the filing deadline when it was amending 26-508 to eliminate the paying of the docket fee as a jurisdictional requirement. It did not do so. Accordingly, the plain and unambiguous language of K.S.A. 2009 Supp. 26-508 makes the filing of a notice of appeal within 30 days of the filing of the appraisers’ report an absolute requirement to invoke the subject matter jurisdiction of the district court, and there are no statutory exceptions which would authorize the district court to enlarge or modify the statutory deadline.
Woods intimates that it is unfair to strictly apply the jurisdictional requirement in his case, because he was not properly advised of the filing date of the appraisers’ report, i.e., he did not get timely notice that the 30-day period had commenced to run. The evidence is conflicting on that point. Moreover, one’s first response to such an equitable argument might be that, on the date that Woods acknowledges he received such notice (December 22, 2009), he still had plenty of time to get a timely notice of appeal filed with the district court by the deadline of January 4, 2010. He has not explained what prevented him from doing so.
Nevertheless, we could not offer Woods relief regardless of the facts or the equities in his case. Recently, we abolished the unique circumstances doctrine, which previously had allowed a discretionary enlargement of the time to appeal in equitable situations such as where the district court had misled the appellant on tire time to appeal. Board of Sedgwick County Comm’rs v. City of Park City, 293 Kan. 107, 120, 260 P.3d 387 (2011) (overruling Johnson v. American Cyanamid Co., 243 Kan. 291, 758 P.2d 206 [1988], and Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 [1988]). Our Park City decision was principally based on Bowles v. Russell, 551 U.S. 205, 127 S. Ct. 2360, 168 L. Ed. 2d 96 (2007), wherein tire United States Supreme Court held: “Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the unique circumstances’ doctrine is illegitimate.” Bowles, 551 U.S. at 214. Given that an appeal to the district court from an appraisers’ award in an eminent domain action is nevertheless an appellate proceeding, see Stranger Valley, 280 Kan. at 578, the district court, like the United States Supreme Court and Kansas Supreme Court, had no authority to create any equitable exception to the jurisdictional requirement that the notice of appeal be filed within 30 days of the appraisers’ report.
In other words, the district court had no other choice but to dismiss the untimely-filed appeal. Likewise, we have no choice but to dismiss this appeal because we are powerless to review an issue over which the district court lacked subject matter jurisdiction.
Before concluding, however, we pause to clarify that our decision does not mean that we are offering any opinion as to the validity of Woods’ claim of procedural impropriety. Unified Government should have been constrained to exercise its power of eminent domain “only on the occasion and in the mode and manner prescribed by the legislature. Statutes conferring and circumscribing the power of eminent domain must be strictly construed.” Nat’l Compressed Steel Corp. v. Unified Gov’t of Wyandotte County/Kansas City, 272 Kan. 1239, 1255, 38 P.3d 723 (2002). Further, we do not decide whether the notice Woods received comported with due process. However, those issues were improper subjects for an appeal of the appraisers’ award pursuant to K.S.A. 2009 Supp. 26-508, where the court “does not have jurisdiction to consider constitutional issues or any issue other than the compensation due under K.S.A. 26-513.” Bartle, 283 Kan. at 121. Woods’ “outside issues,” such as the Unified Government’s improper exercise of its power of eminent domain or any alleged violation of Woods’ due process rights, could “only be litigated in a separate civil action, usually by suit for injunction.” Nat’l Compressed Steel Corp., 272 Kan. at 1245. Woods failed to seek that remedy.
Appeal dismissed. | [
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The opinion of the court was delivered by
Johnson, J.:
Anthony Frye was convicted of aggravated battery at a bench trial. He appealed to the Court of Appeals, claiming that (1) the district court failed to insure a valid waiver of Frye’s right to a trial by jury; and (2) the evidence was insufficient to support Frye’s conviction for severity level 7 aggravated battery. The Court of Appeals reversed on the jury trial issue and declined to decide die sufficiency of the evidence challenge. State v. Frye, No. 101,292, 2010 WL 744799 (Kan. App. 2010) (unpublished opinion). The State petitions for review, arguing that the Court of Appeals decision was erroneous because the jury trial issue was not properly preserved for appeal and, in the alternative, because the handwritten waiver Frye signed at trial was sufficient to establish a knowing and voluntary waiver of the right to a jury trial. The State also asks us to find that the evidence was sufficient to support the district court’s guilty verdict. Finding that the Court of Appeals had jurisdiction to consider the validity of Frye’s jury trial waiver; that the district court did not advise Frye of his right to a juiy trial or effectively accept a jury trial waiver; and that the evidence was sufficient to support the district court’s verdict of guilty of severity level 7 aggravated battery, we affinn the Court of Appeals and remand the case to the district court for a new trial.
Factual and Procedural Overview
The incident giving rise to Frye’s charges occurred in the early morning hours of August 8,2007, at a party hosted by Frye’s neighbor. After arriving home about 2 a.m., Frye crashed his neighbor’s party and spent the next 30 minutes or so drinking and talking with Jared Lund, who would become the victim in this case.
Frye began walking home, after being asked to leave because the party was winding down. En route home, he heard some of the partygoers talking about his strange behavior and heard James Stewart say, “We should have whooped his ass.” That comment prompted Frye to return to the party in an agitated state, with clenched fists and breathing heavily, where he had a heated exchange with Stewart.
Believing that he had developed a rapport with Fiye, Lund stepped in to try to diffuse the situation. Frye testified that he felt crowded by Lund and some of the others, and he repeatedly asked them to back away. One of Lund’s friends encouraged him to step away because he feared that Fiye was about to hit Lund. When Lund looked back from addressing the friend, Frye struck him in the face with an elbow. The blow knocked out two of Lund’s teeth and severely damaged two others — injuries that required extensive orthodontic work to repair.
Frye was initially charged with misdemeanor batteiy and, at a scheduling conference, Fiye’s attorney informed the court that he would prefer a bench trial. But the complaint was subsequently amended to charge a felony, and after a preliminary hearing on March 4, 2008, Frye was bound over for trial on a count of level 4 aggravated battery. At the arraignment 6 days later, Frye requested a “juiy trial setting,” and the court set a pretrial conference for May 19, 2008.
The record is silent as to what happened in the case thereafter, until the district court conducted a bench trial on May 30, 2008. The only explanation as to why the case was tried to the bench is the prosecutor’s statement, at the beginning of the bench trial, that defense counsel “and her client have signed a waiver of jury trial that was originally scheduled at this time,” and the prosecutor’s later statement that he “thought this was going to be a juiy trial until late yesterday afternoon.” The transcript does not reflect that tire trial court advised Fiye of his right to a jury trial or made any further inquiry into the purported waiver. Likewise, the record contains no defense objection to the bench trial.
At the conclusion of the bench trial, the court found that the State had failed to prove beyond a reasonable doubt that Frye intended to cause Lund great bodily harm, as required for the charge of severity level 4 aggravated battery. Instead, the court found that the evidence established that Frye was guilty of the lesser included offense of severity level 7 aggravated battery for having intentionally caused physical contact in a rude, insulting, or angry manner and in a manner whereby great bodily harm, disfigurement, or death could have been inflicted.
Notwithstanding that the issue was raised for the first time on appeal, the Court of Appeals considered Frye’s challenge to his jury trial waiver because a resolution of the issue was “necessary to serve the ends of justice or to prevent a denial of fundamental rights.” Frye, 2010 WL 744799, at *1. The panel reversed Frye’s conviction and remanded the case, finding that the trial court had erred in failing to specifically advise Frye on the record of his right to juiy trial before proceeding with the bench trial. 2010 WL 744799, at *2. Specifically, the panel concluded that the trial court had not complied with the waiver requirements set forth in State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). The panel also concluded that its reversal rendered unnecessary any consideration of the sufficiency of the evidence issue. Frye, 2010 WL 744799, at *2. This court granted the State’s petition for review, which raised both the issue of the jury trial waiver and the sufficiency of the evidence issue.
Preservation of the Jury Trial Waiver Issue
As part of its challenge to the Court of Appeals holding on the jury trial waiver issue, the State contends that the panel should not have considered the issue because appellate courts lack jurisdiction to determine the validity of a jury trial waiver when the argument was not raised before die district court. The State suggests that this court’s decision in State v. Luna, 271 Kan. 573, 577, 24 P.3d 125 (2001), prohibited the Court of Appeals’ review of Frye’s jury trial waiver. We disagree.
Standard of Review
The State does not favor us with a standard of review for the preservation portion of its jury trial waiver argument. It simply contends, erroneously as will be discussed later, that the question of whether a defendant effectively waived juiy trial is a question of fact, which would be reviewed for substantial competent evidence. To the contrary, the question of whether appellate courts lack jurisdiction to determine the validity of a jury trial waiver when the issue is raised for the first time on appeal is a question of law subject to our unlimited review. See State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007) (whether jurisdiction exists is a question of law subject to unlimited review).
Analysis
The Court of Appeals acknowledged that “[ojrdinarily, constitutional grounds for reversal asserted for the first time on appeal are not properly before an appellate court for review. State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009).” Frye, 2010 WL 744799, at ’1. In turn, the State acknowledges that the Court of Appeals cited to State v. Hawkins, 285 Kan. 842, 176 P.3d 174 (2008), for tire proposition that there are exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, one of which is where “consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights.” Frye, 2010 WL 744799, at 1.
The State responds to the Hawkins citation with an apparent non sequitur. The State’s petition for review asserts that Frye’s attorney is presumed to be competent because he was a member in good standing of the bar and that Frye has not proved his attorney to be ineffective under the test from Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2502, 80 L. Ed. 2d 674 (1984). The issue on appeal is not a claim of ineffective assistance of counsel. Perhaps the State was attempting to counter any notion that Frye was denied his fundamental right to counsel, albeit the Court of Appeals was quite explicit in finding that a preservation exception applied because of “the denial of the right to a jury trial.” Frye, 2010 WL 744799, at *1.
Regardless of which fundamental right needed to be protected on appeal in this case, the point is that this court continues to apply exceptions to the general rule that issues not raised before the district court cannot be raised on appeal, i.e., we continue to apply exceptions to the preservation rule. See, e.g., State v. Foster, 290 Kan. 696, 702, 233 P.3d 265 (2010) (reciting three exceptions to general preservation rule, including “consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights”). And, the very fact that exceptions exist establishes the character of the preservation rule as being prudential, rather than jurisdictional. An appellate court does not have discretionary power to entertain an appeal over which it lacks jurisdiction. Cf. Flores Rentals v. Flores, 283 Kan. 476, 481, 153 P.3d 523 (2007) (“Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute; the appellate courts do not have discretionary power to entertain appeals from all district court orders.”). Likewise, an appellate court cannot create equitable exceptions to jurisdictional requirements. Board of Sedgwick County Comm’rs v. City of Park City, 293 Kan. 107, Syl. ¶ 3, 260 P.3d 387 (2011). Accordingly, this court could not create and apply exceptions to the preservation rule if it were a jurisdictional requirement for appellate review.
The State relies heavily on the holding in Luna. There, a juvenile challenged his certification to be tried as an adult and asserted that he had not knowingly and voluntarily waived his constitutional right to a jury trial. Then Chief Justice McFarland, writing for the court, summarized the facts relevant to the jury trial waiver in a few sentences, which we will edit only slightly; The day before his jury trial was to begin, Luna appeared before the district court to request a waiver of trial by jury. After Luna advised the court that it was his decision to waive a jury trial and that his choice was not the result of pressure, promises, or threats, the district court accepted the waiver. A bench trial was commenced on June 30,1999, but part way through the trial, it was continued at defense counsel’s request until August 10, 1999.
The next short paragraph of the Chief Justice’s opinion related that Luna had not sought to withdraw his jury trial waiver or otherwise object in the district court. Further, the jury trial waiver did not appear in Luna’s docketing statement, but rather “[t]he issue first appears in the defendant’s appellate brief, filed April 21, 2000.” 271 Kan. at 577.
The next paragraph contained the court’s holding and rationale, which we will set out in its entirety:
“Where constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review, and the exceptions to that rule do not apply in this case. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). Under tire circumstances, we conclude the waiver of the jury trial issue is not properly before us, nor was it properly before the Court of Appeals.” 271 Kan. at 577.
In State v. Mason, 268 Kan. 37, 986 P.2d 387 (1999), to which Luna referred, the court recited the general preservation rule with respect to constitutional grounds raised for the first time on appeal and described the “exceptional circumstances” which would allow an appellate court to nevertheless consider such issues. Then, Mason court disagreed with the defendant’s contention that his case involved such an exceptional circumstance, explaining its decision in the following sentence: “Although the issue is a legal one, Mason’s argument is without merit and his cited authority neither relevant nor applicable.” 268 Kan. at 39.
Both Luna and Mason acknowledged that there are exceptions to the general preservation rule. As noted above, the very existence of court-made exceptional circumstances precludes our interpreting Luna as impliedly holding that tire preservation rule is jurisdictional. Moreover, we cannot divine from Luna’s cursory holding that the decision intended to establish a bright-line rule that the general preservation rule is always to be strictly applied without exception in cases involving a challenge to a jury trial waiver.
To the contrary, an opinion that recites scarcely more rationale than the equivalent of “because we say so” is arguably of marginal precedential value and certainly should not be the foundation for a watershed change in our law. Moreover, the issue presented in this case — whether the court has advised a defendant of his or her right to a jury trial — should be one of the last to be denied the opportunity for exceptional treatment. If the district court fails to properly advise a defendant of the nature and extent of his or her constitutional right to a jury trial, how does that defendant know to object to the court's failure to inform, i.e., how does the defendant know what the defendant does not know? Granted, defense counsel should know, but the ability to waive the fundamental right to a trial by jury rests solely with the defendant and Irving informs us that the responsibility to inform a defendant of his or her jury trial right rests squarely with the presiding judge.
From the record before us in this appeal, it appears as if the district court made no effort to ascertain the validity of the rather unusual handwritten jury trial waiver. Nor does the record reflect that the court advised Fiye of his right to a trial by juiy. Under those circumstances, we can find no error in tire Court of Appeals’ determination to apply an exception to the general preservation rule.
Validity of Handwritten Waiver
The State argues in the alternative that the district court was correct to accept the handwritten waiver because Frye knowingly and voluntarily waived his right to a jury trial. That declaration assumes a great deal of information that is not in the record on appeal, and we must reject it.
Standard of Review
As noted earlier, the State contends that the question of whether a defendant waived the right to jury trial is purely a factual question, subject to a substantial competent evidence standard of review. That contention is incomplete. We do employ a substantial competent evidence standard to examine the factual underpinnings of a district court’s decision to accept a jury trial waiver. But the question of whether those settled or undisputed facts constitute a voluntary and knowing waiver of defendant’s right to a jury trial is a legal question subject to unlimited appellate review. See State v. Barnes, 293 Kan. 240, 260, 262 P.3d 297 (2011).
Analysis
The parties’ recitations concerning a jury trial were somewhat curious throughout this proceeding. In its petition for review, the State declares that Fiye’s attorney “first indicated a preference for a bench trial setting at a scheduling hearing on December 17, 2007.” But the dates related by the State indicate that, at the time of tire first purported statement of preference, Frye was charged with a misdemeanor. K.S.A. 22-3404(1) provides that “[t]he trial of misdemeanor cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant’s counsel.” In other words, defense counsel’s oral statement of preferred method of trial was of no avail at that point.
Later, after the complaint was amended to charge a felony and Frye was bound over at preliminary hearing and subsequently arraigned, his counsel requested a “jury trial setting.” At this point, however, the defendant did not need to taire any action to receive a jury trial; the default in a felony case is a jury trial. As the Court of Appeals correctly observed:
“K.S.A. 22-3403(1) requires all felony cases be tried to a jury unless the defendant and the State, with the district court’s consent, submit the matter to a bench trial. The right to a jury trial is guaranteed to a criminal defendant under the United States Constitution and the Kansas Constitution. U.S. Const. Amend. VI; Kan. Const. Bill of Rights §§ 5, 10.” Frye, 2010 WL 744799, at *1.
In other words, not only was Fiye entitled to a jury trial under the federal and state Constitutions, but, pursuant to Kansas statutory law, a bench trial required the explicit approval of all concerned: the defendant, the prosecutor, and the court. K.S.A. 22-3403(1). So, again, defense counsel’s request for a jury trial setting was superfluous.
The Court of Appeals assessed the validity of Frye’s purported jury trial waiver under the requirements set forth by the Kansas Supreme Court nearly 40 years ago, in State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). Irving required that a jury trial waiver cannot be accepted “ ‘unless the defendant, after being advised by the court of his [or her] right to trial by jury, personally waives his [or her] right ... in writing or in open court for the record.’ ” (Emphasis added.) 216 Kan. at 590 (quoting American Bar Association Standards for Criminal Justice, Trial by Jury, Section 1.2[b], p. 7).
The State contends that Frye did effect a waiver through the handwritten document filed with the court. That document is in the record on appeal and, quite franldy, it raises more questions than it answers. First, it is not dated. We cannot rule out the possibility that Frye executed the waiver when he was charged with a misdemeanor and not constitutionally entitled to a jury trial. In that event, the waiver would have been ineffectual, or at least unnecessary, when executed.
Next, the alleged waiver contains a purported signature for the “Attorney for Mr. Frye,” albeit that signature follows the word, “Approved,” i.e., the attorney did not attest that the above signature on the waiver is that of his client, Anthony R. Frye. We do not know for certain who handwrote the waiver — Frye or his attorney or someone else. Finally, the text of the waiver, in its entirety, reads: “I, Anthony R. Frye, do hereby waive (give up) my right to a Jury Trial in the above captioned case and desire to try the case to tire Court.” Pointedly, the document does not even hint that Frye may actually know what his “right to a Jury Trial” may be or understand what it means to “try tire case to the Court.” In the context of a defendant’s right to counsel, we have said that it is not up to the defendant to know what “fully advised” means, but rather “[i]t is the judge who is burdened with assuring that [the defendant’s] rights have been adequately protected.” State v. Hughes, 290 Kan. 159, 171, 224 P.3d 1149 (2010).
Notwithstanding the efficacy of the handwritten waiver, however, the State fails to clear the Irving hurdle that requires that the written waiver be after tire defendant is “advised hy the court of his right to a jury trial,” (Emphasis added.) 216 Kan. at 590. There is absolutely nothing in the record indicating that the district court made any attempt to advise Frye of the nature and extent of his constitutional right to a trial by jury.
The State attempts to side-step the requirement that the court advise the defendant of his or her jury trial right by arguing that the totality of the circumstances indicate that Frye really wanted a bench trial. One of the “circumstances” relied upon by the State is the statement by Frye’s counsel that he preferred a bench trial, way back when he was charged with a misdemeanor. Of course, that argument is totally unavailing because, at the time of the stated preference, Frye did not have a constitutional right to a jury trial for the misdemeanor with which he was charged. Actually, the State’s argument accentuates the reason for the requirement that tire district court advise a criminal defendant of his or her rights under the circumstances in which the defendant is placed. Here, Frye’s rights changed during the course of his prosecution, when the charges were elevated from a misdemeanor to a felony.
In short, the district court did not comply with tire 37-year-old Irving requirements to accept a valid waiver of a defendant’s right to a trial by jury. The bench trial verdict must be reversed and the matter remanded to afford Frye his constitutional right to a trial by jury or to effect a valid waiver of the same.
Sufficiency of the Evidence
The State also petitioned for review on the issue of the sufficiency of the evidence to support the district court’s guilty verdict on the severity level 7 version of aggravated battery. The Court of Appeals opined that it was unnecessary to consider the sufficiency of the evidence issue, given that it was reversing on the jury trial issue. Frye, 2010 WL 744799, at *2. We must respectfully disagree with that determination. If Frye were to successfully challenge the sufficiency of the evidence to support his conviction, the remedy is an outright reversal, rather than a remand for a new trial. See State v. Scott, 285 Kan. 366, Syl. ¶ 2, 171 P.3d 639 (2007) (“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.”). Therefore, we discern that we must consider whether the district court’s verdict was supported by substantial competent evidence in order to determine the appropriate disposition of the case, after appeal.
Standard of Review
The State suggests that we apply a clearly erroneous standard of review because this was a bench trial. But we have said that convictions arising from bench trials and those arising from juiy trials are reviewed by this court utilizing the same standards on appeal. See State v. Houpt, 210 Kan. 778, 780, 504 P.2d 570 (1972). Under that standard, this court reviews sufficiency of tire evidence claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Martinez, 290 Kan. 992, 1003, 236 P.3d 481 (2010); State v. Johnson, 258 Kan. 61, 67, 899 P.2d 1050 (1995) (applying standard to appeal from a bench trial conviction).
“ ‘In reviewing tire sufficiency of the evidence, 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.’ ” State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011) (quoting State v. Doyle, 272 Kan. 1157, 1162-63, 38 P.3d 650 [2002]).
Analysis
The version of aggravated battery for which the district court convicted Frye is defined in K.S.A. 21-3414(a)(l)(C) as follows: “[I]ntentionally 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.” Before the Court of Appeals, Frye did not dispute the physical aspects of the crime, i.e. -, that he elbowed Lund in the mouth. Rather, he contended that the State had failed to prove that he possessed the requisite intent.
The State tried Frye on the severity level 4 version of aggravated battery which required the State to prove that defendant intentionally caused great bodily harm to or disfigurement of another person. K.S.A. 21-3414(a)(l)(A). The district court found that the State had failed to prove that Frye intended to cause the serious injuries that resulted from his act. But the district court found that “the evidence does substantiate a claim that there was an intentionally caused physical contact in a rude, insulting, or angry manner or in a manner whereby great bodily harm, disfigurement or death could have been inflicted.” We agree.
In his brief to the Court of Appeals, Frye appears to suggest that the intent required for the severity level 7 version of aggravated battery is something more than just an intentional contact with another in a rude, insulting, or angry manner. He argues that the defendant must intend to make the contact in a manner that could cause great bodily harm. That argument tends to conflate the severity level 7 intent to make contact with the severity level 4 intent to cause great bodily harm. We do not discern that the intent provisions overlap in that way.
The severity level 7 version addresses the defendant’s intention to act. The manner in which the act occurred, i.e., the instrument or manner used to malee contact, is simply another fact to be proved, but it is not part of the mens rea of that offense. In contrast, the severity level 4 version does require an intent to do the harm that results. Cf. State v. Deal, 293 Kan. 872, 269 P.3d 1282, 1284 (2012) (focusing on the distinction between an intention to act, i.e., to hit, and an intention to obtain a result, i.e., to kill).
Essentially, then, to uphold Frye’s conviction for the severity level 7 version of aggravated battery, we must find that there was sufficient evidence from which the trial court could reasonably infer that Frye intended to hit Lund with his elbow; that the contact was not accidental. There was testimony from a number of eyewitnesses indicating that Frye returned to the party, looking as though he was ready to fight. But we really need look no further than Frye’s own testimony.
The prosecutor gave Fiye an opportunity to clarify his intent by inquiring on cross-examination whether he hit Lund because he felt crowded or whether the contact was unintentional. Yet, Fiye did not say that the contact was unintentional. Instead, he responded: “The damage was not intended. I did not want him to get hurt. I just wanted him to get back from me. That’s all I wanted. That’s it.”
Obviously, the trial court took Frye at his word. The court refused to convict Frye of severity level 4 aggravated battery because “[t]he damage was not intended.” On the other hand, Fiye’s refusal to say that the act was accidental or unintentional, especially when coupled with the other circumstantial evidence, supported the trial court’s finding that Frye intended to make contact with Lund in a rude, insulting, or angiy manner. The evidence was sufficient to support the conviction.
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Per Curiam:
This is a contested original proceeding in discipline filed by the office of the Disciplinary Administrator against the Respondent Brian R. Johnson of Lawrence, an attorney admitted to the practice law in Kansas in 1988.
On August 25,2010, the office of the Disciplinary Administrator filed a formal complaint against Respondent, alleging violations of the Kansas Rules of Professional Conduct (KRPC) related to his representation of an arson suspect and her husband and his handling of a workers compensation matter while administratively suspended. Respondent filed an answer. The office of the Disciplinary Administrator filed an amended complaint on November 1, 2010. Respondent served a proposed plan of probation. A panel of the Kansas Board for Discipline of Attorneys held a hearing on April 27, 2011, where Respondent was personally present and represented by counsel. The Deputy Disciplinary Administrator orally amended the complaint, without objection, at the outset of the hearing.
The panel determined that Respondent violated KRPC 1.7(a)(2) (2011 Kan. Ct. R. Annot. 484) (concurrent conflict of interest), KRPC 5.5(a) (2011 Kan. Ct. R. Annot. 594) (unauthorized practice of law), Supreme Court Rule 208(c) (2011 Kan. Ct. R. Annot. 327) (failure to notify Clerk of change of address), and KRPC 8.4(c) (2011 Kan. Ct. R. Annot. 618) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The panel’s Final Hearing Report included the following findings of fact, conclusions of law, and recommendation to the court:
“FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. Brian R. Johnson (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 13245. His last registration address with the Cleric of tire Appellate Courts of Kansas is . . . Lawrence, Kansas. . . . The Respondent was admitted to the practice of law in the state of Kansas on April 14, 1988.
“2. In 2008, [J.G.H.] and her husband, [K.H.], owned a house in Jefferson County, Kansas, subject to a mortgage. [They] held a [homeowner’s] insurance policy on the home.
“3. On January 12, 2008, Mrs. [H.] purchased incendiary devices including firewood and matches. Thereafter, Mrs. [H.] set tire Jefferson County, Kansas, home on fire. At tire hearing on the Formal Complaint, Mr. [H.] testified that Mrs. [H.] told him why she set their home on fire. According to Mr. [H.], Mrs. [H.] burned the house because tire house had been burglarized several times, that someone stood on their front porch and said that ‘it would be a shame if the house burned down,’ that Mrs. [H.] had been a crime victim in tire past, that she did not want to be a victim again, and that she did not want to give ‘them’ the satisfaction of burning their house down.
“4. The fire that Mrs. [H.] set caused $30,000-$60,000 in damage to the home.
“5. Thereafter, a friend referred Mrs. [H.] to the Respondent for representation. Over time, Mrs. [H.] paid the Respondent approximately $20,000 for the representation.
“6. Initially, the Respondent instructed Mr. and Mrs. [PI.] to cooperate with the insurance investigation. However a few days later, the Respondent instructed Mr. and Mrs. [PI.] to no longer provide any information to the insurance company regarding tire fire.
“7. The Respondent advised Mrs. [H.] that if someone filed a claim with the insurance company that Mrs. [H.] would go to jail for attempting to defraud the insurance company. The Respondent advised Mrs. [H.] that she needed to pay off the mortgage so that the bank holding the mortgage would not make a claim with die insurance company.
“8. After Mrs. [H.] retained the Respondent to represent her in relation to any criminal proceedings brought against her as a result of die fire, the Respondent informed Mr. [H.] that he had certain rights under the insurance policy. The Respondent informed Mr. [H.] that he would represent Mr. [H.] with regard to die insurance policy. Mr. [H.] paid the Respondent an additional $5,000 for the representation associated with die insurance policy.
“9. Mrs. [H.’s] interests and Mr. [H.’s] interests were in conflict. The Respondent failed to explain die conflict of interest to Mr. [H.] and Mrs. [H.]. The Respondent did not suggest to Mr. [H.] that he seek separate representation. The Respondent did not seek or obtain written consent after consultation from Mrs. [H.] or Mr. [H.] for the conflicting representations.
‘TO. During the relevant time period, the Respondent was an employee of a law firm in Lawrence, managed by John M. Knox. In September or October, 2008, in accordance with firm policy, Mr. Knox reviewed ‘pre-bills.’ In so doing, Mr. Knox noticed that tire Respondent had charged Mrs. [H.] for a 2 hour conference with Michael Hayes, the Jefferson County Attorney. The entry caught Mr. Knox’ attention because by that time Mrs. [H.’s] case was no longer active and two hours seemed like an inordinately long meeting with a prosecutor.
“11. After taking note of the entry for a two hour meeting with Mr. Hayes, Mr. Knox called Mr. Hayes and asked him whether he had met with tire Respondent. Mr. Hayes informed Mr. Knox that he had not spoken to the Respondent in months.
“12. Mr. Knox also asked the Respondent about tire conference with Mr. Hayes. The Respondent indicated that he had, in fact, met with Mr. Hayes. The Respondent indicated that he billed two hours for the meeting because he had to drive to Jefferson County for the meeting and that Mr. Hayes was not immediately available and that the Respondent had to wait some time to meet with Mr. Hayes.
“13. Mr. Knox conducted a thorough review of Mrs. [H.’s] bill[s]. In so doing, Mr. Knox learned that Mrs. [H.’s] bills had never been sent to her.
“14. Based upon tire statement made by Mr. Hayes that he had not seen the Respondent in months, in September or October, 2008, Mr. Knox terminated the Respondent’s employment with his law firm.
“15. Following the termination of his employment, the Respondent failed to change his address with attorney registration.
“16. Thereafter, Mr. Knox called Mr. and Mrs. [H.] and asked them to meet with him regarding the Respondent. Mr. and Mrs. [H.] met with Mr. Knox. During that meeting, Mrs. [II.] indicated that that was the first time she had seen the bills associated with the Respondent’s representation of her. Mrs. [H.] indicated that a number of entries on tire bills were not accurate.
“17. Specifically, Mrs. [H.] indicated that she did not meet with the Respondent on July 26, 2008, a Saturday, for two hours.
“18. Mr. Knox refunded the fees that were held in the attorney trust account in Mr. and Mrs. [H.’s] name. Additionally, Mr. Knox suggested that they contact another lawyer who is also an accountant to audit the bills to determine what portion of the fees paid by Mr. and Mrs. [H.] was earned by the Respondent and what portion should be returned to Mr. and Mrs. [H.]. Mr. and Mrs. [H.] did not agree to do so.
“19. Later, Mrs. [H.] provided Mr. Knox with a letter demanding $190,000, which included a refund for all fees paid and also a payment for the full value of the house that Mrs. [H.] intentionally burned.
“20. For the compliance period ending June 30, 2009, the Respondent failed to comply with annual requirements of the Kansas Continuing Legal Education Commission to maintain his law license. As a result, on October 6, 2009, the Kansas Supreme Court suspended his license to practice law.
“21. Despite the court’s order of suspension, the Respondent engaged in the practice of law. Specifically, the Respondent entered his appearance before the Division of Workers’ Compensation [on] behalf of Raymond Silva.
“22. On February 25, 2010, tire Kansas Supreme Court reinstated the Respondent’s license to practice law.
“CONCLUSIONS OF LAW
“1. Rased upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.7(a)(2), KRPC 5.5(a), KRPC 8.4(c), and Kan. Sup. Ct. R. 208, as detailed below.
“2. KRPC 1.7 provides:
‘(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(2)there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by á personal interest of the lawyer.
‘(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) tire representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.’
With regard to the insurance policy, Mrs. [PL’s] interest was in conflict with Mr. [H.’s] interest. The rules do not permit the Respondent to represent clients with conflicting interests without taking certain steps. The Respondent failed to take the steps required by KRPC 1.7(b). Further, the Hearing Panel declines to conclude whether or not the representation was impermissible according to KRPC 1.7(b)(3). As such, the Plearing Panel concludes that the Respondent violated KRPC 1.7(a)(2).
“3. KRPC 5.5(a) prohibits the unauthorized practice of law. After the Kansas Supreme Court suspended the Respondent’s license to practice law, the Respondent continued to practice law. Specifically, the Respondent entered his appearance before the Division of Worker’s Compensation in behalf of Raymond Silva. As such, the Hearing Panel concludes that die Respondent violated KRPC 5.5(a).
“4. “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he billed [Mrs. H.] for ‘Conference Client’ on July 26, 2008, when he did not meet with Mr. or Mrs. [H.] and when he billed for a conference with County Attorney Hayes which did not occur. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c) by billing his client for conferences which he never held.
“5. Attorneys are required to notify the Clerk of the Appellate Courts of any change of address within 30 days. Kan. Sup. Ct. R. 208(c). The Respondent’s employment with Mr. Knox’ firm ended in September or October, 2008. As of July, 2009, the Respondent’s registered address continued to be Mr. Knox’ firm. Thus, the Hearing Panel concludes that the Respondent failed to properly notify the clerk of the Appellate Courts of his change of address within 30 days as required by Kan. Sup. Ct. R. 208(c).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, tire 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 avoid conflicts of interest, his duty to the public to maintain personal integrity, and his duty to the legal profession to comply with the registration and annual requirements to maintain a license to practice law.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of tire Respondent’s misconduct, the Respondent caused actual injury to his client 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 previously failed to comply with the annual requirements to maintain his law license on five separate occasions. In 1989, the Respondent failed to pay the CLE fee and his license was suspended. In 1993, the Respondent failed to pay the CLE fee and his license was suspended. In 1995, the Respondent failed to complete the requisite CLE hours and his license was suspended. In 2000, the Respondent failed to pay the attorney registration fee and his license was suspended. In 2001, tire Respondent failed to pay the CLE fee and his license was suspended.
“Dishonest or Selfish Motive. The Respondent billed for conferences with his client and with the County Attorney which he did not have. Including a false entry in a billing statement is dishonest. Accordingly, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty.
“A Pattern of Misconduct. The Respondent has engaged in a pattern of misconduct. For six separate reporting years, the Respondent has failed to comply with the annual requirements to maintain his law license.
“Multiple Offenses. The Respondent engaged in conduct that amounted to violations of multiple rules. Specifically, the Respondent violated KRPC 1.7, KRPC 5.5, KRPC 8.4, and Kan. Sup. Ct. R. 208. As such, the Hearing Panel concludes that the Respondent committed multiple offenses.
“Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. At the hearing on tire Formal Complaint, the Respondent failed to directly answer many of the questions posed to him. Throughout his testimony, tire Respondent appeared to be evasive. The Respondent's evasive appearance is a deceptive practice.
“Vulnerability of Victim. Based upon their appearance before tire Hearing Panel, the Hearing Panel concludes that Mr. and Mrs. [H.] were clearly vulnerable to the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted tire Respondent to tire practice of law in 1988. Thus, the Respondent has substantial experience in the 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, tire Hearing Panel, in this case, found the no mitigating circumstances present.
“In addition to tire above-cited factors, tire Hearing Panel has thoroughly examined and considered the following Standards:
‘4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injuiy to a client.’
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, tire public, or tire legal system.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be suspended from tire practice of law in the State of Kansas for a period of one year. It does not appear that tire Respondent made a recommendation as to the disposition of this case.
“Based upon the findings of fact, conclusions of law, and tire Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law in the State of Kansas for a period of six months. While it is clear to the Hearing Panel that the Respondent violated the Kansas Rules of Professional Conduct cited, he was working with very difficult clients who were not immediately forthcoming with the facts that the Respondent needed to make decisions about representing them. Notwithstanding this, he was successful in keeping Mrs. [H.] from being charged with a crime during his period of representation. Additionally, by assisting Mr. and Mrs. [H.] with the insurance issue, he was able to prevent additional legal trouble for them. However, the Hearing Panel believes that suspension is warranted in this case as it will serve as a deterrent to others and it will ensure the Respondent’s future compliance with the conflict and dishonesty rules.”
Respondent filed exceptions to the panel’s report. These exceptions included the following material:
“2. In paragraph 4 of the Conclusions of Law, the Board found that die evidence supported a finding that Respondent engaged [in] conduct that involved dishonesty when he billed for a conference with County Attorney Hayes which did not occur, and when he billed for a meeting with Mrs. [H.] on July 26, 2008 which did not occur. However, there was a lack of any evidence that the conference with County Attorney Hayes did not occur. In fact, at the outset of the Final Hearing, the attorney for the disciplinary administrator withdrew allegation No. 10: falsely reported face to face meeting with Jefferson County Prosecutor on February 1, 2008. Finally, paragraph 17 of the Findings of Fact the Board observed that the respondent billed for a meeting with Mrs. [H.] on July 26, 2008, is not supported by clear and convincing evidence because the client was never billed for that meeting according to testimony by Respondent’s managing attorney John Knox. Moreover, testimony established that the date of July 26th may have been an unintentional error.
“3. In paragraph 16 of the Findings of Fact[,] the Board observed that Mrs. [H.] testified that when Mr. Knox showed her various billing that [it] was the first time she had seen bills associated with her case. The testimony established that, at the outset of the Respondent’s representation, Mrs. [H.] requested that no bills be sent to her residence. Thereafter, the Respondent reviewed billings at his office during conferences. At the hearing, Mr. Knox testified that he did not believe Mrs. [H.’s] claim that she never saw the billings.
“4. In paragraph 2 of the Conclusions of Law and paragraph 9 of the Findings of Fact, the Board found that the evidence supported a finding, with regard to the insurance policy, that Mrs. [H.’s] interest was in conflict with Mr. [H.’s] interest. ... To the contrary, the evidence supports a finding that no adverse or conflicting interest existed. Respondent testified that on or about January 25, 2008[,] that Safeco insurance investigator forwarded correspondence outlining the insured duties and forwarded a proof of loss form for both of the [H.’s] to sign. The Proof of loss form (for the purpose of providing the insurer with tire formal claim) is documentation that an insurance company requires to support a formal claim. The proof of loss form requires both insureds [to] certify that the loss was not done with intent to defraud[,] i.e.[,] the loss was not intentional],] and [to] sign and swear that the information is accurate to the best of their knowledge. Intentional loss means any loss arising out of any act committed by or at the direction of any insured],] with the intent to cause a loss. In sum, since both insured[s] must sign, there is no adverse or conflicting interest. The innocent spouse exception does not apply. Further, the respondent reasonably believed that he was able to provide competent and diligent representation to each affected client. In fact, the Board found the respondent’s representation with the insurance issue was able to prevent additional legal trouble for the [H.’s]. Finally, while each affected client did not give informed consent, confirmed in writing, Mr. [BL] and firm manager attorney John Knox testified that two or more meeting[s] occurred where the possible conflict was discussed. The Respondent and Mr. Knox suggested] to Mr. [H.] that he seek separate representation. In fact Mr. [H.] testified that as a result, he never considered filing any claim with Safeco or s[ought] separate representation.
“5. In paragraph 3 and 5 of the Conclusions of Law, the Board found that the evidence supported a finding that the respondent practiced law after being suspended and diat he failed to notify the Appellate Courts of any change of address within 30 days. Granted, the respondent practiced law after being suspended[;] however, he was unaware of the suspension because a notice was not received. While it appears the failure to receive notice was due to Respondent[’s] failure to notify the Appellate Courts of any change of address, the Respondent received his Bar card for 2009 on or before July 1, 2009[,] at his law office from the Supreme Court. The discrepancy cannot be reconciled. However, it questions the finding that the Respondent failed to notify the Appellate Courts of any change of address.
“6. The Board found that tire evidence supported a finding that the Respondent failed to directly answer many of the questions posed to him. The Board felt the Respondent appeared to be evasive and that the evasive appearance is a deceptive practice. However, the Board cites to no specific instance or testimony to support this contention.
“7. The Board found that the Respondent made no recommendation as to the disposition of the case. To the contrary, Respondent requested probation and submitted a plan of supervision pursuant to Supreme Court rule.
“8. The Respondent received a Final Hearing Report wherein it reflected that Respondent’s Exhibits 1 through 49 were admitted. The Final Hearing report filed with the Court does not reflect that finding.
“9. In paragraph 20 of the Findings of Fact[,] the Board observed that Respondent failed to comply with annual requirements of the Kansas Continuing Legal Education Commission. The Respondent’s testimony indicates that compliance was achieved on June 30, 2009. However, due to a disruption at the CLE seminar on June 30th, Respondent notified the Bar Association that he could not take credit for one (1) hour of the seminar because he was not continually in the room. As a result, Respondent attended a seminar on July 15th to satisfy his requirements. Thereafter, fees were paid to the CLE. Unfortunately, the late fee was omitted. Further, the Respondent received his Bar card for 2009 on or before July 1, 2009[,] at his law office from the Supreme Court following the payment of fees prior to July [1,] 2009. Yet Respondent failed to receive late fee notices from the CLE in spite of receiving the Bar card from the Kansas Supreme Court.
“10. In paragraph 7 of the Findings of Fact[,] the Board observed that Respondent advised that ‘if someone filed a claim with the insurance company Mrs. [H.] would go to jail’, and that ‘Mrs. [H.] needed to pay off [the] mortgage [so that the bank holding the mortgage] would not make a claim with the insurance company[.’] Those statements are an [oversimplification] of the conversations. The testimony indicates that the clients were advised that making a claim against [an] insurance company certifies that the loss was not done with intent to defraud[,] i.e.[,] the loss was not intentional and you must sign and swear that the information is accurate to the best of [your] knowledge. Further, the testimony indicates that the clients were advised that CNB ... as loss payee’ is authorized to file claim under the mortgage. Paying the mortgage removed the status as loss payee[.’] Further, this discussion occurred at the time CNB . . . sent notice of default to the clients for failing to [safekeep] the property after the fire and notified tire insurance company of their intent to make an insurance claim.
“11. In paragraph 15 of die Findings of Fact[,] the Board observed drat Respondent failed to change his address with registration. Testimony establishes that Respondent paid all fees to the Supreme Court prior to July 1[,] 2009[,] and received his Bar card for 2009 on or before July 1, 2009[,] at his law office from the Supreme Court following his association with the Knox firm. The office of registration had the requisite information concerning Respondent’s address.
“12. In paragraph 21 of the Findings of Fact[,] the Board observed that‘despite of the court’s order of suspension, the Respondent engaged in the practice of law[.’] Testimony indicates that the Respondent never received notice from the Court. Once he received notice from the Division of Workers Compensation of his suspension, Respondent complied with the payment of late fees and sought reinstatement. [There] was never an instance where Respondent knowingly ignored the Court’s Order.
“13. In sum, Respondent takes exception to the Boards[’s] findings under the heading of American Bar Association Standards for Imposing Lawyer Sanctions to wit: Duty Violated as discussed above, Mental State as Respondent did not knowingly violate his duties, Injury as the Respondent did not cause actual injury to his client or legal profession, Dishonest or Selfish Motive as Respondent did not include a false entry in a billing statement.” (Emphasis added.)
In his brief to this court, Respondent collapses the above litany into two arguments: (1) Violations of KRPC 1.7(a)(2), KRPC 5.5(a), Supreme Court Rule 208(c), and KRPC 8.4(c) were not established by “substantial, clear, convincing, and satisfactory evidence”; and (2) the panel failed to support its description of his performance at the hearing as “evasive” with specific examples from the record, meaning the aggravating circumstance of a deceptive practice during the disciplinary process was not demonstrated. Respondent’s brief parrots many of the numbered exceptions.
Standard of Review
In a disciplinaiy proceeding, this court considers the evidence, the findings of fact and conclusions of law of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, the discipline to be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” Lober, 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). When the court assesses the existence of clear and convincing evidence, it refrains from weighing conflicting evidence, assessing witness credibility, or redetermining questions of fact. See In re B.D.-Y., 286 Kan. 686, 699, 187 P.3d 594 (2008).
With this standard of review as our guide, we address each of Respondent’s arguments in turn.
KRPC 1.7(a)(2)
KRPC 1.7(a)(2) prohibits representation of a client if it involves a concurrent conflict of interest. Such a forbidden conflict exists if there is a substantial risk that the representation of one client will be materially limited by the lawyer’s responsibilities to another client. A lawyer cannot proceed in the face of such a conflict unless, among other things, each affected client gives informed consent, confirmed in writing. KRPC 1.7(b)(4) (2011 Kan. Ct. R. 484).
Respondent admits that he did not obtain an informed consent, confirmed in writing, from Mr. and Mrs. [H.]. He argues that no such consent was necessary because no concurrent conflict ever existed.
The evidence is undisputed that, at the same time Respondent was being paid to represent arson suspect Mrs. [H.] — who he knew had increased the policy limits on the couple’s home and been videotaped buying accelerants or other incendiary materials on the day of the fire — he entered into representation of Mr. [H.] to research whether Mr. [H.] should pursue the homeowner’s insurance proceeds as an innocent spouse. Respondent would have us overlook this concurrent representation of two clients who may not have been united in legal interest — either civilly or criminally— because he ultimately concluded that both spouses qualified as the “insured” under the homeowner’s policy and that neither should sign the proof of loss form. He further argues that both spouses initially fell under law enforcement suspicion in the investigation of the house fire and that his good results should excuse any ethical lapses on the route to them.
None of Respondent’s arguments is even minimally persuasive.
A lawyer is not permitted to risk each of his or her client’s rights to disinterested, competent, timely legal advice on the chance or in the hope that a later factual discovery or crafty legal argument will eliminate a concurrent conflict between the clients. When Respondent took on representation of Mr. [H.], he owed him all of the same duties of loyalty and care that Respondent already owed Mrs. [H.]; and, as far as Respondent knew at the time, the spouses’ factual circumstances and resulting legal positions were widely divergent and at least potentially at dramatic odds. Civilly, Respondent was still entertaining the possibility that Mr. [H.] could seek insurance reimbursement for the fire damage, regardless of Mrs. [H.’s] conduct. Criminally, Respondent knew that law enforcement had highly incriminating circumstantial evidence against Mrs. [H.]. There was no similar evidence against Mr. [H.]. Respondent’s statement that both Mr. and Mrs. [H.] were in law enforcement’s sights early on does nothing to reassure us on the conflict question. In fact, it intensifies our concern. A lawyer cannot jointly represent two criminal codefendants with inconsistent defenses. See State v. Aguilar, 290 Kan. 506, 513-15, 231 P.3d 563 (2010).
Another piece of evidence, one that Respondent has not contested or attempted to excuse, is even more damning. Respondent accepted and followed Mrs. [H.’s] instruction not to disclose certain information to Mr. [H.], despite any bearing die information might have had on Mr. [H.’s] legal position. KRPC 1.7(a)(2) does not permit an attorney to suffer a unilateral information embargo by one client to compromise his advice to or strategies on behalf of another concurrent client. This particular evidence demonstrates that there was not merely a substantial risk that Respondent’s representation of one spouse would be materially limited by his representation of the other; the risk was fully realized.
On this record, we adopt the panel’s conclusion that Respondent violated KRPC 1.7(a)(2).
KRPC 5.5(a) and Supreme Court Rule 208(c)
KRPC 5.5(a) (2011 Kan. Ct. R. Annot. 594) prohibits the practice of law “in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.” Respondent states in his exceptions and his brief to this court that he “practiced law after being suspended.” He attempts to excuse this lapse by arguing that he was not aware of his suspension because he received no notice of it. Supreme Court Rule 208(c) (2011 Kan. Ct. R. Annot. 327), however, requires Kansas attorneys to notify the Clerk of the Appellate Courts of any change of address within 30 days; and Respondent admits in his brief that he “must take responsibility” for any discrepancy in his address records at the Clerk of the Appellate Courts’ office.
Respondent’s exceptions and brief attempt to take issue with the insufficiency of his 2009 continuing legal education compliance and failure to pay the CLE late fee that led to his administrative suspension. Regardless, his admission of practice while suspended and belated acceptance of responsibility for any infirmities in the Clerk’s address records constitute clear and convincing evidence to support the panel’s conclusion that Respondent violated KRPC 5.5(a) and Supreme Court Rule 208(c). We adopt that conclusion as our own.
KRPC 8.4(c)
The panel also concluded that Respondent violated KRPC 8.4(c) (2011 Kan. Ct. R. Annot. 618) by billing Mrs. [H.] for a July 26, 2008, client conference and an August 12, 2008, county attorney conference, neither of which occurred.
The Client Conference
The page in the Disciplinary Administrator s Exhibit 5 cited to support this panel conclusion is a statement “For Services Rendered Through 8/5/2008” containing a $300 charge for a 2-hour client conference on July 26, 2008. It also records that payment of the $300 charge was made by Mrs. [H.] on August 4, 2008.
The live testimony at the panel hearing on the occurrence of this client conference was, by Respondent’s own admissions in his brief to this court and in oral argument, conflicting. Mrs. [H.] testified that she and her sister went to Respondent’s office on that date, waited more than an hour for him in the firm’s parking lot, called Respondent and was told that he needed to reschedule, and then left. Mr. Knox, the firm’s managing partner and the person who first reported suspicions about Respondent’s inflated or fraudulent billing to the Disciplinary Administrator, testified that he was in the office all day on July 26, 2008, a Saturday, and saw neither Mrs. [H.] nor Respondent there. Respondent, on the other hand, testified that he met with Mrs. [H.] and her sister on July 26, 2008, as previously scheduled. According to Respondent, Mrs. [H.] and her sister arrived at the office first, and then Mr. Knox called Respondent in.
Respondent takes the position in his brief that the evidence of the nonoccurrence of the July 26, 2008, client conference must be undisputed to meet the Disciplinary Administrator’s clear and convincing burden of persuasion. He is incorrect. The fact that there is contrary evidence on a point does not automatically or as a matter of law render proof of one side of the story less than clear and convincing. See B.D.-Y., 286 Kan. at 699. Were the legal rale as suggested by Respondent, any unscrupulous lawyer could insulate himself or herself from all disciplinary sanction merely by adopting a “deny, deny, deny” strategy.
In this case, by Respondent’s own admission, the Disciplinary Administrator sponsored two witnesses who testified clearly that Respondent never appeared at his office for a meeting with Mrs. [H.] and her sister on July 26, 2008. Disciplinary Administrator’s Exhibit 5 completed the necessary proof on the KRPC violation, plainly demonstrating that Respondent nevertheless billed for a 2-hour meeting with Mrs. [H.] and that she paid his $300 fee for the client conference that never was.
On this record, we adopt the panel’s conclusion that Respondent violated KRPC 8.4(c) by billing for a nonexistent July 26, 2008, client conference.
The County Attorney Conference
The statement “For Services Rendered Through 8/5/2008” in Disciplinary Administrator’s Exhibit 5 does not reflect a county attorney conference. However, four pages deeper into that exhibit, a document labeled “PRE-BILL” reflects a tentative $300 charge for a 2-hour county attorney conference on August 12, 2008. The date and time in the upper right-hand corner of this PRE-BILL is “10/16/08” and “10:46 AM.” The document’s second page contains four options that appear to be designed for a billing attorney to check to provide direction to administrative staff. These options read: “Fees and Costs [ ]”; “Fees Only [ ]”; “Costs Only [ ]”; and “Don’t Bill [ ].” None of these options is checked.
Mr. Knox testified, and Respondent confirmed, that such PRE-BILLS were internal firm documents that billing attorneys and sometimes Mr. Knox would review before authorizing final bills to be prepared and sent to clients. This PRE-BILL does not show that Mrs. [H.] was ever billed for the August 12, 2008, county attorney conference or that either or both of them ever paid the tentative $300 charge. And there was no testimony that this particular charge was ever included in a final bill to Mrs. [H.] or paid by her.
Paragraph 10 of the complaint and amended complaint filed by the Disciplinary Administrator in this action incorrectly identified the date of the allegedly nonexistent county attorney meeting as February 1, 2008. Respondent’s answer did not admit, deny, or state that he lacked sufficient information to respond to Paragraph 10. However, in Paragraph 19 of the complaint and amended com plaint, the Disciplinary Administrator alleged: “Respondent admits improprieties in his billing records associated with his representation of Mr. and Mrs. [H.] to the extent that he improperly billed for the meeting -with the County Attorney.” In his answer to the complaint, Respondent admitted the allegations of Paragraph 19.
The date of the county attorney conference was amended, without objection, from February 1, 2008, to August 12, 2008, at the opening of the panel hearing.
According to Mr. Knox’ testimony before the panel, Respondent initially denied any mistake or intentional misrepresentation in the PRE-BILL recording the August 12, 2008, county attorney conference. Mr. Knox testified that he came upon the PRE-BILL as part of his regular review of such documents and that it raised a red flag because the case for Mrs. [H.] was no longer particularly active and 2 hours seemed too long for a county attorney conference. Mr. Knox then called the county attorney, who said he had not talked to Respondent in months. When Mr. Knox confronted Respondent with this information, Respondent said that the August 12, 2008, conference with the county attorney had occurred, that he had not gotten its date wrong in the PRE-BILL, and that he recorded 2 hours of time because it required him to drive from Lawrence to Jefferson County and wait until the county attorney was available to see him. After Mr. Knox told Respondent about Mr. Knox’ conversation with the county attorney, Mr. Knox fired Respondent.
Respondent’s answer to Paragraph 19 of the complaint, i.e., his admission of a billing impropriety regarding the county attorney conference, was inconsistent with his initial version of events, as testified to by Mr. Knox. It was consistent, however, with his informal response to Mr. Knox’ report to the Disciplinary Administrator, which stated generally: “I must acknowledge that I committed billing improprieties.” And Respondent again admitted wrongful conduct during his testimony at the panel hearing: “At that time it was one that I saw, and that related to a billing of August 12th I believe. That billing . . . had indicated that I had had a meeting with the district attorney of Jefferson County. That meeting did not occur.”
Now Respondent has again changed his story. He asserts in his exceptions:
“[TJhere was a lack of any evidence that the conference with County Attorney Hayes did not occur. In fact, at the outset of tire Final Hearing, the attorney for the disciplinary administrator withdrew allegation No. 10: falsely reported face to face meeting with Jefferson County Prosecutor on February 1, 2008.”
Respondent also argues that evidence he billed for a nonexistent county attorney conference cannot be clear and convincing because, given Mr. Knox’ intervention, Mrs. [H.] never received a final bill. In his brief to this court, Respondent argues that “[t]he only evidence that could conceivably support the amended charge is a Pre-Bill dated and generated on October 16, 2008.”
Respondent’s new arguments on the county attorney conference are shockingly disingenuous. After repeatedly admitting “impropriety” and that the August 12, 2008, county attorney conference did not occur, most recently in his testimony under oath at the panel hearing, Respondent now says there is scant or no evidence to support a KRPC 8.4(c) violation tied to the nonexistent meeting. Respondent also boldly misrepresents what occurred at the outset of his panel hearing, saying the Deputy Disciplinary Administrator withdrew the county attorney conference allegation. The transcript of the hearing could not be clearer: The Deputy Disciplinary Administrator merely amended the date of the fraudulently recorded conference, with no objection from Respondent’s counsel.
Respondent’s essentially legal argument that he cannot be held in violation of 8.4(c) for “billing” for the nonexistent county attorney conference because the PRE-BILL never made it into final bill form ignores the language of the governing KRPC provision. Although the panel’s conclusion did pin the county attorney conference violation to billing of Respondent’s client, such a billing was not necessary. KRPC 8.4(c) forbids conduct involving dishonesty, regardless of whether the mark ever learns of the con. Respondent admitted that the county attorney conference for which he recorded 2 hours to be billed to Mrs. [H.] never occurred. The recording of the time reflected in the PRE-BILL was conduct involving dishonesty. It matters not that Knox prevented the lie from reaching its intended target.
On this record, we adopt the panel’s conclusion that Respondent violated KRPC 8.4(c) in connection with the nonexistent county attorney conference of August 12, 2008. Although Respondent did not ultimately succeed in delivering a fraudulent final bill for that conference to his clients, there is clear and convincing evidence that he had every intention of doing so, that he lied to Mr. Knox when that intention was discovered, that he did not change his story until Mr. Knox reported him to the Disciplinary Administrator, and that he is now more than willing to misrepresent the content of the record on this point to this court.
Deceptive Practice During the Disciplinary Process
Respondent’s final argument is that the panel failed to support its description of his performance at the hearing as “evasive” with specific examples from the record. This failure, he asserts, means that there is no aggravating circumstance of a “Deceptive Practice During the Disciplinary Process.”
We need not reach the question of whether the panel’s failure to set out specific examples of evasive behavior or testimony undermines the existence of the aggravating circumstance at the time of the panel hearing or when the panel drafted its Final Hearing Report. We are satisfied that the existence of the aggravating circumstance is amply justified on the overwhelming negative power of Respondent’s deceitful behavior in fashioning his exceptions, some of which contradict one another, contradict Respondent’s earlier representations (some sworn), or flagrantly misrepresent the record. His assertion that the Deputy Disciplinary Administrator withdrew the county attorney conference allegation rather than amend its date is one example of such a misrepresentation. His assertion that testimony supported the idea that the July 26 date for the client conference was an unintentional error is another. There was no such testimony before the panel. This impression of Respondent’s willingness to shade the truth was reinforced by Respondent’s brief and by his oral argument before this court. The Deputy Disciplinary Administrator’s description of Respondent’s approach as a “shell game” is apt, and we have no hesitation in finding the existence of the aggravating circumstance of a deceptive practice during the disciplinary process.
Sanction
Having rejected Respondent’s exceptions to the panel’s Final Hearing Report, we move to the question of appropriate sanction for his violations of KRPC 1.7(a)(2), KRPC 5.5(a), Supreme Court Rule 208(c), and KRPC 8.4(c). In addition to our discussion of the aggravating circumstance of a deceptive practice during the disciplinary process, we adopt the panel’s findings of additional aggravating circumstances and no mitigating circumstances. Although Respondent’s exceptions fleetingly referenced a few of the other multiple aggravating circumstances, tire only one challenged in his brief was the one dealt with in the preceding section of this opinion.
At the panel hearing, the Deputy Disciplinary Administrator advocated for a 1-year suspension from the practice of law. Before us at oral argument, her recommendation changed to “at least” a 1-year suspension. Respondent points out that he sought probation. The hearing panel recommended a 6-month suspension from the practice of law.
This court is especially alarmed by Respondent’s inability to appreciate or unwillingness to accept the existence of a concurrent conflict of interest between Mr. and Mrs. [H.]. Respondent’s misrepresentations in his exceptions, brief, and oral argument also are troubling. These concerns cause a majority of the court to favor the longer 1-year suspension for which the Deputy Disciplinary Administrator advocated at the time of the panel hearing. A minority of the court would impose a 6-month suspension, as recommended by the panel.
It Is Therefore Ordered that Respondent Brian R. Johnson be suspended from the practice of law in the state of Kansas for a period of 1 year, beginning on the date of filing this opinion.
It Is Further Ordered that before reinstatement, the Respondent be required to comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379) and undergo a hearing pursuant to Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380).
It Is Further Ordered that the costs of this proceeding shall 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
Rosen, J.:
Marvin Hansford was named and served as a defendant in a real property partition action in Shawnee County. Although he did riot respond tb the partition petition and failed to claim that he was the sole owner of any of the legally described property, he later sought to establish a claim to a portion of the partitioned land against its purchaser. The district court granted the purchaser’s motion for summary judgment, and the Court of Appeals affirmed in Hansford v. Silver Lake Heights, No. 102,122, unpublished opinion filed June 4, 20101 We granted Hansford’s petition for review, and we affirm the conclusions of the courts below.
The record shows that Hansford’s grandfather acquired the northeast fractional quarter of Section 3, :Township 11 South, Range 14 East of the 6th P.M., in Shawnee County (the east land) in 1929. He deeded the east land to four relatives, including Hans-ford’s father, in 1939. A small portion of that land was later sold to a water district for a water tower.
In 1947, Hansford’s father acquired 50 acres of the land adjacent to the east land. He later sold 40 acres of the land, retaining 10 acres that abutted the east land to the west and on which a house was located (the west land). In 1962, following the intestate death of Hansford’s father, the heirs conveyed full title to both the east and west lands to Hansford’s mother, Viola Hansford.
On January 14, 1997, Viola deeded the west land to Hansford. The deed described the property as:
“The East 10 acres of the East 50 acres of the Northwest quarter of section 3, township 11, South range 14, East of the sixth P.M., Shawnee County, Kansas.”
On Januaiy 15, 1997, Viola deeded tire east land to Hansford and other relatives as tenants in common. A barbed wire fence lay on the land that the conveyance deeds described as part of the east land, near the boundary with the west land. Hansford maintained the fence and stored personal property and ran cattle on the land west of the fence from 1997 on. The fence ran obliquely to the legal property boundary so that it varied from 58.3 feet to 78.6 feet east of the boundary line.
Viola died on March 12, 2005. Then one of the tenants of the east land, Ora May Bateman, died, and, on November 8, 2006, the executor of Bateman’s estate filed a petition to partition the interests in the east land. None of the other tenants in common, including Hansford, filed responses or entered an appearance and, on March 2, 2007, the district court entered an order finding that the defendants owned the east land as tenants in common and ordering partition of the property. The partition petition and orders explicitly described the property at issue as:
“The Northeast Fractional Quarter of Section 3, Township 11 South, Range 14 East of the 6th P.M., Shawnee County, Kansas, EXCEPT a tract beginning at a point on the North line of said Section 3, which point is 3015.00 feet East of the Northwest corner of said Section 3; thence South at right angles to said North line of said Section 3, a distance of 217.80 feet; thence East parallel to the North line of said Section 3 a distance of 200 feet; thence North at right angles to the North line of said Section 3, a distance of 217.80 feet; thence West along the North line of said Section 3, a distance of 200 feet to the point of beginning .”
The water district owned the property that was excepted in the metes-and-bounds description.
After the time for any of the tenants in common to assert a claim to the partitioned property had passed, the district court entered an order directing that the east land, as described above, was to be sold at auction. On August 15, 2007, the auctioneers filed a report certifying that they had sold the east land, as described above, to Silver Lake Heights, LLC, for $372,900. On the same day, the district court entered an order confirming the report of sale and ordering the sheriff to convey to Silver Lake Heights a deed for the above-described property. On August 27, 2007, the district court entered an order confirming the deed conveying the east land to Silver Lake Heights.
On September 18, 2007, the district court entered an order allowing partial distribution of the proceeds of the sale, but it withheld Hansford’s share of about $83,000 until he removed his personal property, including cattle, from the real estate and paid Silver Lake Heights for related expenses. He moved his property from the east side of the fence to the west side of the fence, and Silver Lake Heights apparently found this relocation adequate until it conducted a formal survey a few months later. On October 25, 2007, the court entered an order of final distribution, finding that Hansford had removed his cattle and other personal property from Silver Lake Heights’ land and ordering distribution of Hansford’s share of tire sale proceeds.
Silver Lake Heights subsequently ordered a survey of the land that it had purchased, which revealed that the legal description contained in the deed of sale included the fence and a strip of land west of the fence. On May 15, 2008, Hansford filed a petition in Shawnee County District Court seeking to quiet title and to enjoin Silver Lake Heights and others from trespassing and removing property. He alleged in the petition that the strip of land west of the barbed wire fence belonged to him through theories of adverse possession and boundary by agreement.
Following limited discovery, Silver Lake Heights filed a motion for summary judgment. Hansford responded and included a cross-motion for summary judgment. The district court held that summary judgment in favor of Silver Lake Heights was proper because Hansford had failed to assert his claim during the partition action and was consequently barred from asserting the claim in a collateral action. Plansford appealed, and the Court of Appeals affirmed. Hansford, slip op. at 3-6.
Discussion
Our standard for reviewing an order granting summary judgment is de novo. In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1043, 271 P.3d 732 (2012).
‘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 tire conclusions drawn from tire 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).” Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).
See Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009).
Partition actions are governed by K.S.A. 60-1003. K.S.A. 60-1003(b), relating to petitions in partition actions, reads:
“The answers of the defendants shall include allegations of the nature and extent of their respective interests. They may also deny the interests of any of the plaintiffs, or any of tire defendants. Any claim of adverse possession shall be affirmatively pleaded and the burden of proving the same is on the defendant.”
This court has previously noted the plenary scope of partition actions: “A partition action is particularly designed and suited to settle any and all rights of cotenants in and to the property involved. The district court in such a proceeding has full and complete power to adjudicate every legal and equitable right of the parties to the litigation.” (Emphasis added.) Jones v. Anderson, 171 Kan. 430, 435, 233 P.2d 483 (1951).
This court has recently considered the extent to which collateral actions may undermine the finality of a partition action.
When the petition in a partition action identifies the subject property by its legal description without noting any exceptions or reservations, the parties are on notice that the entire estate is involved. McGinty v. Hoosier, 291 Kan. 224, 241, 239 P.3d 843 (2010). A partition action passes all of tire grantor’s estate unless the intent to pass less is expressly or necessarily implied in the terms of the grant. McGinty, 291 Kan. at 241; see K.S.A. 58-2202. The failure of a party to take a direct appeal challenging the form of the pleadings, the description of the property, or the order of the sale precludes that party from malting a collateral attack on the judgment in the partition action. McGinty, 291 Kan. at 241; see Jones, 171 Kan. at 435-36.
The petition and deed in the present case identified the subject property by its legal description and made no note of exceptions or reservations. As a general rule, the boundaiy line between adjacent properties is determined by referring to the deeds and the intention of the parties as reflected by the description in the deeds, and when there is no ambiguity in the descriptions they are to be taken as the conclusive evidence of the intention of the parties. When the property descriptions are unambiguous and are set out in the deeds, a survey is all that is needed to establish the true boundary. Fritzler v. Dumler, 209 Kan. 16, 21-22, 495 P.2d 1027 (1972). In the absence of fraud or mutual mistake, a transfer of real property based on described boundaries conveys the land within those boundaries, even if that tract contains a different amount of acreage than one of the parties may have understood. Maxwell v. Redd, 209 Kan. 264, 267-68, 496 P.2d 1320 (1972).
Hansford failed to assert an interest in the described property before the district court, and he failed to take a direct appeal challenging the description of the property. The partition action concluded with a court-ordered auction, a court-approved sale, and a conveyance of deed to Silver Lake Heights, all using the same legal description, without Hansford asserting any interest in the subject property. He is therefore precluded from making a collateral attack on the judgment in the partition action.
Hansford nevertheless contends that he established a boundary by agreement with his mother before she conveyed the east land to the tenants in common. Can a boundary by agreement, if such an agreement existed, defeat Silver Lake Heights’ claim to the strip west of the fence?
K.S.A. 60-1003(b) requires the defendants in a partition action to include in their answers “allegations of the nature and extent of their respective interests.” If Hansford had an interest in the east land by virtue of a boundaiy by agreement, then the statute governs that interest and required him to answer the petition.
There is good reason to require a party asserting such an interest to plead that interest in the partition action.
If a party may raise a boundary by agreement at any time, even after the partition action is concluded, then Hansford could have waited a full 15 years to assert his interest. At that time, Silver Lake Heights would have been able to assert a defense of adversely possessing Hansford’s land under K.S.A. 60-503; up until that time, Hansford would be able to reclaim the property to the detriment of whatever development Silver Lake Heights carried out on that land.
Furthermore, the partition statute provides for land valuation by appointed commissioners prior to sale of the partitioned land. K.S.A. 60-1003(c)(2). A sale of the land must be for no less than two-thirds of the value set by the commissioners. K.S.A. 60-1003(c)(4). If a party waits until after the sale has been consummated to challenge the description of the property, the entire partition action may be undermined — the commissioners will have valued the land based on the legal description, and it is easy to imagine that removing a pprtion of that land from the appraisal may dramatically diminish the accuracy of the valuation.
For these reasons, as well as because of the express language of die partition statute, we reaffirm the rule articulated in McGinty and Jones that the failure of a party to take a direct appeal challenging the description of the property in a partition action precludes that party from making a collateral attack on the partition orders.
The district court and the Court of Appeals held that summary judgment was proper. Hansford contends nevertheless before this court that his factual claim of a boundary by agreement not only defeated summary judgment for Silver Lake Heights but mandated summary judgment in his favor because Silver Lake Heights did not contest the existence of a boundary by agreement in its pleadings.
It is not enough that a fact be disputed, however, to defeat summary judgment. That fact must be material to the conclusive issues on appeal. See Osterhaus v. Toth, 291 Kan. 759, Syl. ¶ 1, 249 P.3d 888 (2011). Because this litigation is governed by the statutory requirement that a defendant raise an asserted property interest when answering a partition petition and by the rules set out in McGinty, 291 Kan. at 241, and Jones, 171 Kan. at 435-36, the facts that Hansford wanted the district court to consider were immaterial.
Hansford contends that, the language in the partition orders and conveyance deed notwithstanding, he already owned the land west of the fence when the partition action took place. Because a partition action does not expand property rights but merely unifies them, die partition orders and deed of sale could not have included property not owned in common. See In re Moore, 173 Kan. 820, 827-28, 252 P.2d 875 (1953) (deed cannot convey property over which district court did not have jurisdiction).
The problem in the present case is one of timing. There is little doubt drat Hansford could have presented evidence supporting his claim of boundary by agreement if he had asserted that interest in an answer to the partition petition. Had he done so, the existence of an agreement to make the fence the property boundaiy could have been highly material, and the executor of the estate would have been required to rebut his claim. Affidavits and the testimony of Hansford, neighbors, and surveyors might all have been relevant to sorting out a disputed factual issue.
But Hansford waited until after the property, including the strip he now claims, had been partitioned and sold to assert his interest. This is not a case of a mistaken boundary line. It does not involve some neighbor who will suddenly lose a strip of land because the deed inaccurately described the borders of tire partitioned property. This is a case in which one of the tenants in common, one who was on notice that the property which has been subject to the same description over the course of decades and in several conveyance deeds, was going to be sold. If Hansford was going to claim an exception from that property, he had to do so in the partition action prior to tire sale.
Under analogous circumstances, a federal district court has noted that equities operate against a party who knows of his or her claim to a property interest and who stands silent during the partition action:
“Here, however, [defendant] Midgett wore both hats. In her capacity as a co-tenant, she was made a party to the partition proceeding. This provided her with tire opportunity to contest tire survey as erroneous in her capacity as an adjoining landowner. At that time, she could have asserted that the boundaries were wrong and that she owned a portion of the surveyed tract outright. Instead, she accepted the money, and thereby benefited from the sale of the land as described in the deed. She cannot now avoid its burdens.” Davis v. Scarborough, No. 89-37-CIV-2, 1991 WL 335374, at *5 (E.D.N.C. 1991) (unpublished opinion), aff'd No. 91-1758, 1992 WL 48015 (4th Cir. 1992) (unpublished opinion).
Like the defendant in Dams, Hansford wore multiple hats. He was the adjoining landowner with a putative interest in the property west of the fence line. He was also a cotenant of the property that included the fence, and he benefitted from the sale of that property. By standing silently while the east land was partitioned and sold, he benefitted from the sale; he then sought to benefit from his silence by bringing an action against the purchaser that also undermined tire interests of the other cotenants. It was reasonable and lawful for Silver Lake Heights to rely on public notices and deeds of sale; it had been given no reason to suspect that a private agreement between a cotenant and a party not involved in the partition action might have reduced its interest.
Hansford also contends that by paying out the final sales proceeds, Silver Lake Heights equitably conceded that it was only buying the land east of the fence. And by the time Silver Lake Heights conducted the survey, Hansford claims Silver Lake Heights was estopped from asserting a claim to any land west of the fence.
Hansford’s argument is essentially one of adverse possession, a claim he has abandoned. He contends that he moved his personal property and cattle from one part of Silver Lake Heights’ land to another part, either under a claim knowingly adverse to Silver Lake Heights or under a belief of ownership. When Silver Lake Heights did not immediately contest that relocation and instead distributed sales funds to him, he maintains, it forfeited its right to that land, even though the decision was based on a mistake and was rectified within a few months. The only thing missing from this scenario to turn it into an adverse possession argument is the 15-year requirement of K.S.A. 60-503.
Hansford suggests that there is another kind of adverse possession that does not rely on the 15-year statute of limitations. Under this theory, the adverse possession becomes effective immediately upon a party taking some kind of action inconsistent with possession.
In order for estoppel to bar property claims, there must be a false representation or concealment of material facts; the material facts must be misrepresented or concealed with knowledge of the actual facts; the party to whom the representation is made must be without knowledge or means of knowing the real facts; there must be an intention that the representation will be acted upon; and the party to whom the representation is made must rely on the representation or act upon it to that party’s prejudice. Place v. Place, 207 Kan. 734, Syl. ¶ 4, 486 P.2d 1354 (1971).
Several elements of estoppel are missing in the present case. It was not Silver Lake Heights that falsely represented that the fence was the property line; it was Hansford who did not make public his claim to the strip of land west of tire fence. Silver Lake Heights did not intend that Hansford would act upon the uncertainty of the property line by laying claim to the strip of land. Finally, Hans-ford was not prejudiced by his own assertion of ownership of that land, except that he subsequently had to move his property and cattle further west.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Moritz, J., not participating.
Gregory L. Waller, District Judge, assigned. | [
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The opinion of the court was delivered by
Leben, J.:
Pedro Torres was convicted of two counts of rape against the 11-year-old daughter of a woman who lived with Torres in Wichita. At trial, the State was allowed to present evidence related to Torres’ conviction nearly two decades earlier for one count of indecent liberties with a child — evidence that was admitted to show Torres’ plan by evidence that he had such a similar method of committing such crimes that it would be reasonable to conclude that he had committed this one based on the earlier one.
But our court has held that the prior crime must be “ ‘so “strikingly similar” in pattern or so distinct in method of operation as to be a “signature” ’ ” for it to be admitted for this purpose. State v. Prine, 287 Kan. 713, 735, 200 P.3d 1 (2009) (quoting State v. Jones, 277 Kan. 413, 423, 85 P.3d 1226 [2004]). Torres’ prior crime was not sufficiently similar to the later alleged rape to meet this test.
The victim of the earlier crime, who was 14 when it took place, testified that she was a young teenage girl looking for attention that she got through sexual activity with Torres, a neighbor, and they frequently had sexual relations before they were seen by police in bed together at an area hotel. She testified that her mother, who was not dating Torres, was aware of her daughter’s relationship with Torres. The victim in the newer case was 11 and lived in the same house with Torres, who was involved in a relationship with the victim’s mother. The victim in this case testified that Torres’ advances were unwelcome and caused her pain and that her mother didn’t believe her when she told her mother about the abuse; these events ended when the victim reported them to authorities.
The evidence of tire earlier improper conduct was thus wrongly admitted in evidence at Torres’ trial, and we are not able to dismiss this error as harmless (i.e., as having had no effect on the trial’s outcome). We therefore must order a new trial.
Torres has raised several additional issues on appeal. Most of them relate to his sentences and need not be considered because he must be retried and, if convicted, resentenced. Until then, we cannot consider a challenge to Torres’ now-unknown potential sentence. Torres has raised one issue related to the instructions given to the jury at his trial. We address that issue because it impacts a retrial on these charges.
Factual Background
To evaluate the admissibility of Torres’ earlier conviction, we must first set out sufficient facts to frame the parties’ legal dispute. The victim in this case, V.H., lived with her mother, Bertha R., and Torres in Wichita. Bertha had met Torres by telephone, through Torres’ sister, while Bertha was living in Mexico with Bertha’s 18-year-old son, Daniel, and V.H. Torres traveled to Mexico to visit Bertha several times, and he suggested that Bertha and V.H. come to live with him in Wichita. Bertha accepted the offer in December 2006, and the two moved to Wichita; her son, Daniel, stayed in Mexico.
Bertha had no relatives in Wichita and didn’t work after moving to Kansas; Torres provided the only household income. She testified that Torres “never let me talk with anyone” and “never let me go anywhere alone” in Wichita. In April 2007, Daniel became ill and Torres bought bus tickets so that Bertha and V.H. could visit him in Mexico. In May, Torres joined them in Mexico, and all three returned to Wichita in July 2007.
In October 2007, V.H. approached one of her teachers, Martiza Gardner, and said that Torres was molesting her. V.H. told Gardner that Bertha didn’t believe this was happening, but V.H. reported to Gardner that Torres had put his “thing” and fingers into her private part. Interviews followed with school personnel and later with a police detective and a social worker.
V.H. told the detective and social worker that Torres touched her chest and her “private part” with his “private.” She identified her “private part” as the area that included her vagina and indicated the male “private” as the area that includes the penis, using a diagram of male and female bodies. She then specifically said that Torres had touched her “private area” with both his finger and his “private.” When Torres used his finger, she said it went inside her private part and went in a circular motion. She said that he had kissed her mouth, cheeks, neck, and chest. V.H. said that after each encounter, which occurred in her bedroom, her stomach hurt and her private part bled. She said Torres had first touched her in this manner in January 2007, that it had occurred “five or six times,” but that it didn’t happen again after their return from Mexico in July. No medical examination was done since the alleged activity had occurred months before.
When V.H. testified in December 2007 at a preliminary hearing, she said that Torres did these things not only before the trip back to Mexico but also after they had returned in July. In fact, she testified that it would happen “[a'Jlmost every night.” The State ultimately amended its charge to allege one count of rape between December 1, 2006, and April 1, 2007 — corresponding to the time frame before Bertha and V.H. returned to Mexico — and a second count of rape between July 1, 2007, and October 31, 2007, after they had returned to Wichita.
At trial, V.H. again testified that the events had occurred many times, generally around midnight in her bedroom. She would awaken to Torres pulling the covers off her bed. She also testified that the same sexual acts (penetration with Torres’ finger and private part) occurred in Torres’ guesthouse, which was behind his main house. She again testified that the abuse took place both before and after she had returned briefly with her mother to Mexico.
The jury heard testimony from V.H. and Bertha, as well as from school and police personnel who had interviewed V.H. when she initially disclosed these events to them. The jury also heard from Billie T., a 34-year-old woman who testified that she’d had sexual relations with Torres three to four times a week when she was 14. The jury convicted Torres on both counts of rape against V.H. The district court sentenced Torres as an aggravated habitual sex offender under K.S.A. 2006 Supp. 21-4642 to life in prison on each count, with the sentences to run concurrently.
Analysis
I. The District Court Erred in Admitting Evidence of the Defendant’s Prior Conviction.
Under the Kansas Rules of Evidence, established by statute, whether evidence may be presented that a person committed some earlier crime or civil wrong is governed by K.S.A. 60-455. This statute recognizes “the danger that the evidence [of a defendant’s specific past action] will be considered to prove the defendant’s mere propensity to commit the charged crime.” State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009). Accordingly, the statute places limits on when such evidence may be presented.
We must determine whether evidence was properly admitted at Torres’ April 2008 trial by applying the version of this statute, K.S.A. 60-455, that was in effect at the time of the trial and also when Torres allegedly committed these crimes. It provides that evidence of prior crimes and civil wrongs may not be admitted to prove a person’s general disposition to commit the charged crime, but it may be admitted for limited purposes, such as to show the defendant’s plan:
“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. 60-455 and 60-488 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.” K.S.A. 60-455.
K.S.A. 60-455 allows the admission of otherwise inadmissible evidence when the district court determines that its evidentiaiy value outweighs the potential for undue prejudice. See State v. Richmond, 289 Kan. 419, 435-36, 212 P.3d 165 (2009).
We have established a three-part test for the district court to use in determining whether evidence about a person’s prior crimes or civil wrongs may be admitted under K.S.A. 60-455, and for an appellate court to apply when reviewing these matters on appeal. These steps were recently summarized in State v. Inkelaar, 293 Kan. 414, 424, 264 P.3d 81 (2011):
• First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in tire case. The appellate court reviews this determination independently, without any required deference to the district court.
• Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion.
• Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, tiren the district court must determine whether the probative value of the evidence outweighs the potential for undue prejudice against the defendant. The appellate court also reviews this determination only for abuse of discretion.
If the evidence meets all of these requirements, it is admitted, but in a jury trial the district court must give the jury a limiting instruction telling the jurors tire specific purpose for which the evidence has been admitted (and reminding them that it may only be considered for that purpose). 293 Kan. at 424.
The district court ruled that Torres’ past conduct was relevant to prove plan and preparation, and it gave the jury a limiting instruction that the evidence of Torres’ earlier conduct could “be considered solely for the purpose of proving the defendant’s preparation and plan.” In its appellate brief, the State offers no suggestion that the evidence could be admitted to show preparation. And a claim not briefed is deemed abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). We therefore examine only whether the evidence was properly admitted to show Torres’ plan.
Plan evidence may be admitted under either of two theories.
In one, there is some direct or causal connection between tire earlier conduct and the crimes charged. Jones, 277 Kan. 413, Syl. ¶ 2. In such a case, since the two events are causally connected, proring the defendant’s involvement in the earlier incident logically tends to establish the defendant’s involvement in the charged crime as well. But there is no direct or causal connection here between Torres’ 1988 relationship with Billie T. and his alleged rape of V.H. in 2007, so we must look to the second theoiy.
Under the second theory, the two events do not have to be directly or causally connected, but the method of committing the prior act must be so similar to the method used in the charged crime that it is reasonable to conclude that the same individual committed both acts. Jones, 277 Kan. 413, Syl. ¶ 2. In such a case, the method of committing the act is so distinctive that even without a direct connection between the events, the evidence logically tends to establish the defendant’s involvement in the charged crime.
In Prine, 287 Kan. 713, we carefully reviewed our cases under this second theory with recognition that we had not always consistently stated how similar the methods must be to meet admissibility standards. 287 Kan. at 730-35. We concluded that the best way to state the standard was to require that the methods in the earlier and present cases be so strikingly similar in pattern or so distinct in method of operation as to be a signature:
“[T]his standard governs examination of whether particular evidence has probative value .... If a defendant’s prior bad act is so strikingly similar in pattern or so distinct in method of operation as to be a signature, then it is probative of defendant’s plan in the case at bar. If it is not, then the evidence has no probative value on plan and the evidence is irrelevant if offered for that purpose. On appeal, we will review a district judge’s decision under the ‘signature’ standard for an abuse of discretion. [Citation omitted.]” 287 Kan. at 735.
Even under the deferential standard for abuse-of-discretion review, see State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), it was error to admit evidence of the 1988 events involving Billie T. because those events simply are not sufficiently similar to the 2007 events alleged to have occurred involving V.H. The conduct in common between the old events and the charged crime must be something more than the similarities common to nearly all sexual-abuse cases. Prine, 287 Kan. at 731 (citing Jones, 277 Kan. at 422-23, and State v. Davidson, 31 Kan. App. 2d 372, 384, 65 P.3d 1078, rev. denied 276 Kan. 971 [2003]). Here, there are not enough similarities to make the two events “strikingly similar in pattern” or “so distinct in method of operation” as to make the method of committing these acts the “signature” of the defendant, Torres. See Prine, 287 Kan. at 735.
There are, of course, some similarities. Both girls were 14 or under; Torres had sexual relations with Billie T. and is alleged to have done so with V.H., and the State notes that Torres provided some financial support to both girls’ mothers. But there are far too many differences to meet the test for plan evidence:
• Torres’ relationship with the victims began in different ways. He was merely a neighbor to Billie T., but he started a committed relationship with V.H.’s mother and V.H. called him “Dad.”
• Billie T. testified that she was a young teenage girl looking for attention, which she got from Torres, then a man in his forties. While such a relationship is inherently coercive, it was significantly different than Torres’ alleged relationship with V.H. She testified that his actions were unwelcome and caused her pain.
• V.H. was 11 when Torres allegedly began to abuse her, while Billie T. was 14 when Torres began sexual activity with her and nearly 15 when that ended.
• The relationship between Torres and Billie T. ended only because authorities spotted them together at a hotel, while V.H. reported Torres to authorities.
• Torres’ financial support to the girls’ mothers arose in significantly different ways. Billie T.’s unemployed mother was Torres’ neighbor, and she welcomed some financial help after her husband left the country. V.H.’s mother worked and supported her family before leaving Mexico, but testified that Torres did not let her work in Wichita.
The State suggests that we should ignore the rule we stated for plan evidence in Prine because that decision was rendered after Torres’ trial. But the Prine decision interpreted the same version of K.S.A. 60-455 that was in place when Torres was tried and when he allegedly committed his crimes; the trial in Prine occurred before Torres’ trial; and Prine reconciled our prior cases: it did not create a new rule that had never before been applied. We therefore apply tire Prine rule here — even though, as in Jones, the evidence wasn’t sufficient to establish similarity under any of the tests we had applied before Prine under K.S.A. 60-455. See Jones, 277 Kan. at 423 (noting that evidence was insufficient whether standard was “ ‘signature’ ” or “ ‘strikingly similar’ ” or “even ‘similar enough’ for K.S.A. 60-455 purposes”).
In sum, we have carefully reviewed the evidence regarding these two events. The evidence of similarity is less here than in cases in which we have upheld the admission of such evidence. See State v. Overton, 279 Kan. 547, 554, 112 P.3d 244 (2005) (finding sufficient similarity where both victims were 14 years old, defendant met both at school, discussed family problems with each, kissed and fondled each, hired each as babysitters to provide opportunity to be alone, and raped each boy in similar locations in his house); State v. Moore, 274 Kan. 639, 648, 55 P.3d 903 (2002) (finding sufficient similarity where victims were of comparable age, defendant videotaped victims before fondling their genital areas and exposing his penis, and both crimes occurred privately where defendant “had control of the environment”); State v. Rucker, 267 Kan. 816, 826, 987 P.2d 1080 (1999) (finding sufficient similarity where victims were similar in age and relationship to the defendant, sex acts were very similar, and defendant threatened to kill pets of both victims if they disclosed the abuse); State v. Damewood, 245 Kan. 676, 678-83, 783 P.2d 1249 (1989) (finding sufficient similarity given same pattern of conduct that involved arranging time alone with young teenage boys, meeting them for beekeeping activities, and performing similar sexual acts on each). We find the present case much closer to those in which we have held the admission of plan evidence was improper. See Prine, 287 Kan. at 735-36 (finding similarity insufficient to admit plan evidence when defendant performed different sex acts with each victim, even though the victims were roughly the same age); Jones, 277 Kan. at 421-23 (finding similarity insufficient to admit plan evidence when the sexual relationship started differendy with each victim, different sexual acts were performed, and the frequency of sexual events varied even though victims had similar relationship to defendant). The district court abused its discretion by admitting Billie T.’s testimony.
Even if evidence has been wrongly admitted under K.S.A. 60-455, that doesn’t automatically require setting aside a jury’s verdict: the error still may be harmless. Prine, 287 Kan. at 736. So we must also determine whether the wrongful admission of this evidence was harmless error. In accordance with K.S.A. 60-261, before we can declare an error harmless, we must determine that it didn’t affect a party’s substantial rights — meaning that it didn’t affect the trial’s outcome. Ward, 292 Kan. at 565. Because the wrongful admission of evidence here doesn’t implicate any of the defendant’s constitutional rights, to declare this error harmless we must be persuaded by the State (as the party benefitting here from the wrongly admitted evidence) that there is no reasonable probability that the error affected tire trial’s outcome. See State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012); Ward, 292 Kan. at 565.
Notably, the State made no argument in its brief that the admission of this evidence would have been harmless if we rejected the State’s position that it was properly admitted. The failure to make that argument waives it. See McCaslin, 291 Kan. at 709. Even if the State had briefed the issue, however, we could not find this error harmless. There were substantial credibility issues in this case: V.H. admitted that her trial testimony was different than what she had told police officers on two key points. First, she told the police that Torres had touched her only five or six times, but she said at trial that he’d done so almost daily. Second, she admitted having told police that the last such event was in Februaiy 2007, while at trial she said that the last time was the day before she spoke to a teacher in October 2007. In addition, there was no physical evidence to corroborate her testimony. We are unable to make the finding required to conclude that the error was harmless, i.e., that there is no reasonable probability that the wrongful admission of tire evidence about Billie T. affected the trial’s outcome.
The State also argues in a letter submitted under Supreme Court Rule 6.09 (2011 Kan. Ct. R. Annot. 49) that we should find the error harmless by applying a new version of K.S.A. 60-455 that was enacted and became effective in 2009, after Torres was tried, convicted, and sentenced, and after Torres had filed his appeal. We decline to do so here.
The State made no mention of the 2009 amendment to K.S.A. 60-455 in the brief it filed in October 2009, 5 months after tire statutory amendment took effect. There are serious constitutional questions that would arise were we to apply a statutory change in evidence law made after a criminal trial had been held so that crucial evidence — inadmissible under the rules in place when the defendant was tried — magically became admissible while the case was on appeal. In its most famous case interpreting the Ex Post Facto Clause of the United States Constitution, the United States Supreme Court said that the provision applied to “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648 (1798); see also Miler v. Florida, 482 U.S. 423, 429, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987) (quoting Colder). The State’s Rule 6.09 letter provides no legal argument regarding whether retroactive application of the amended statute would violate the Ex Post Facto Clause. Because the State’s letter was not submitted until the last business day before oral argument, the defendant’s response, which argues that retroactive application of K.S.A. 60-455 would violate the Ex Post Facto Clause, came after oral argument. We therefore conclude that the State’s claim that the 2009 statute should be applied when considering whether evidence was admitted in error in Torres’ 2008 trial is inadequately briefed and therefore not properly before us in this case. See State v. Raskie, 293 Kan. 906, Syl. ¶ 5, 269 P.3d 1268 (2012) (failing to adequately brief issue waives it); Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (same).
Under the evidentiaiy rules in place when Torres was tried, important testimony was admitted in error and that error cannot be ignored as harmless. Torres is therefore entitled to a new trial.
II. The Defendant Has Not Shown Reversible Error in the Jury Instructions.
Torres makes two claims that the jury instructions given were in error.
First, before deliberations began, the district court gave the jury what we often refer to as an “Allen-type” instruction, telling the jurors that they should try if at all possible to reach a verdict. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Torres contends it was error to give this instruction. Because no objection was made, however, Torres would have to show clear error in the giving of this instruction, meaning that there must have been a real possibility that the jury would have rendered a different verdict had the instruction not been given. See State v. Magallanez, 290 Kan. 906, 925, 235 P.3d 460 (2010).
Since the date of Torres’ trial, we have concluded that it is error to give the Allen-type instruction that was given to Torres’jury, but we have concluded in several cases that it was not clear error. See State v. Washington, 293 Kan. 732, 739-42, 268 P.3d 475 (2012) (citing cases); State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009). We conclude that we need not decide the issue in Torres’ case. Because the case must be retried, we presume that the district court in any retrial will follow Salt, Washington, and our other cases holding that this instruction should not be given.
Second, Torres argues that the district court’s instruction on juror unanimity — -a pattern jury instruction that the jurors “must unanimously agree upon the same underlying act” — was insufficient. Torres had argued at trial that the instruction should have been modified to say “the same specific underlying act.” To consider Torres’ argument, we must step back to consider why this unanimity instruction is given.
When the State relies on multiple acts to support one charge, a unanimity instruction is generally required to make sure that all jurors have indeed agreed that the defendant committed one of the specific acts alleged, although a unanimity instruction is not required if the State adequately elects which act it is relying upon. State v. Sanborn, 281 Kan. 568, 569, 132 P.3d 1277 (2006); see also State v. Colston, 290 Kan. 952, 968-69, 235 P.3d 1234 (2010). For this reason, a pattern jury instruction on unanimity has been prepared, PIK Crim. 3d 68.09-B, and that pattern instruction was the basis for the district court’s instruction here:
“The State claims distinct multiple acts which each could separately constitute the crime of rape. In order for the defendant to be found guilty of rape, you must unanimously agree upon the same underlying act.”
The parties agree that this is a multiple-acts case, recognizing that V.H. testified at trial that Torres penetrated her either with a finger or his penis on several occasions and at different locations during each time period charged as two criminal counts of rape. See State v. Voyles, 284 Kan. 239, 244-45, 160 P.3d 794 (2007) (finding multiple acts when conduct spanned several months and several locations). Thus, either a proper unanimity instruction or a clear election by the State as to the specific act it relied upon was needed, and the district court chose to address that need by using the pattern unanimity instruction. The use of pattern instructions is encouraged, though not mandatory, because deviating from the pattern instructions risks including erroneous language or omitting words that may be essential to a clear statement of the law. See State v. Tully, 293 Kan. 176, 197, 262 P.3d 314 (2011).
We see no error here in using the pattern instruction’s language, “same underlying act,” instead of the defendant’s proposed language, “same specific underlying act.” The first definition of “same” in the American Heritage Dictionary is “[b]eing the very one; identical.” American Heritage Dictionary 1550 (5th ed. 2011). The instruction’s reference to “the same underlying act” was sufficiently precise to tell the jury what its members needed to conclude to convict, and Torres does not claim that the State’s closing argument misled the juiy in any way on this point.
Since there may be a retrial, we note one way in which the unanimity instruction could be appropriately modified when the State relies upon multiple acts to support its charge and, as here, there is more than one count in which evidence of multiple acts was presented. In such cases, it would be better practice to modify the end of the pattern instruction to read: “you must unanimously agree upon the same underlying act for each count.” That additional language, “for each count,” would make even clearer that the unanimity instruction applies separately to each count.
Some additional factors in Torres’ case support the conclusion that there was no instruction error here. The evidence in Torres’ case consisted not only of multiple occasions on which sexual acts were said to have occurred during each charged time period but also of two types of penetration. The jury asked during deliberations whether it could submit a verdict on both digital and penile penetration, and the court responded (after consultation with counsel) that it could. The jury then indicated in its verdict that it had found that both digital and penile penetration had occurred during each of the charged time periods.
The jury did not have to agree on the specific date of either offense, or even the specific location, so long as it concluded that the offense occurred in Sedgwick County during the time frame charged. See Colston, 290 Kan. 952, Syl. ¶ 4. The jury needed only to unanimously conclude that one penetration, either digital or penile, occurred during each of the charged time frames, and the jury was told that it must “unanimously agree upon the same underlying act.” The jury also concluded that both digital and penile penetration had occurred during each time frame charged. We find no error in the jury instruction on this point.
III. The Issues Defendant Raises Regarding His Sentence Are Moot.
Torres raises two additional issues — that he should not have been sentenced as an aggravated habitual sexual offender and that the sentence he received constituted cruel and unusual punishment — that relate only to his sentence. Because the case is being remanded for a new trial, Torres’ convictions and sentences are, of course, set aside. We cannot forecast the result of that new trial, and challenges to Torres’ prior sentences are now moot. See State v. Miller, 293 Kan. 46, 54, 259 P.3d 701 (2011); State v. Vaughn, 254 Kan. 191, 205, 865 P.2d 207 (1993).
The judgment of the district court is reversed, and this case is remanded to tire district court for further proceedings consistent with this opinion.
Davis, C.J., not participating.
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The opinion of the court was delivered by
Luckert, J.:
After allowing discovery on the issue of whether Kansas courts could exercise personal jurisdiction over some of the defendants in this case, the district court granted defendant Tel-Instrument Electronics Corp.’s (TIC) motion to dismiss for lack of personal jurisdiction. On interlocutory appeal from that decision, the parties dispute the correct standard for judging a motion to dismiss for lack of personal jurisdiction filed under K.S.A. 2011 Supp. 60-212(b)(2) when that motion is decided after discovery and after submission of supporting affidavits, documents, and deposition excerpts but without an evidentiary hearing. We hold that plaintiff Aeroflex Wichita, Inc. (Aeroflex), as the party with the ultimate burden of establishing jurisdiction and as the party responding to a motion to dismiss presented to the district court without an evidentiary hearing, need only establish a prima facie basis for jurisdiction. In determining if that prima facie burden has been met, a district court should view factual disputes in the light most favorable to the nonmoving party, and an appellate court applies the same standard de novo.
Applying that standard, we determine that the district court erred by weighing the evidence rather than granting all favorable inferences to Aeroflex. Aeroflex presented a prima facie case of jurisdiction based on a conspiracy between TIC and its codefen-dants, over whom the court has jurisdiction. This prima facie showing provides a basis to conclude (1) there was an agreement to steal trade secrets and other proprietary information from Aeroflex and (2) there were acts performed in Kansas by the coconspirators in furtherance of the conspiracy. Consequently, we reverse the district court’s ruling on the motion to dismiss and remand for further proceedings.
Facts and Procedural Background
This lawsuit arose out of a multimillion-dollar contract awarded in 2009 to TIC by the United States Army. The contract related to a high-technology radar-transponder test system. Both TIC and Aeroflex participated in a competitive bid contest that led to the 2009 contract. Before the 2009 contract, the system had been manufactured for the Army by Aeroflex.
As early as 2002, it was known the Army was planning to solicit bids for an upgrade to the system that Aeroflex had been manufacturing. By at least that point in time, Aeroflex began working on an upgrade. From 2005 to 2006, the Army issued three sole-source proposals for Aeroflex to provide the upgraded system. The first proposal was cancelled, and the second was negotiated but never awarded. After the. third request for proposal, TIC protested the decision to issue a sole-source contract, asserting it had tire capability to perform the upgrade. The Army reviewed TIC’s protest and ultimately opened the contract award process to competition.
Soon after the Army’s decision, TIC hired two Aeroflex employees. First, TIC hired Chris Allen as its Director of Marketing. According to Aeroflex, Allen had “intimate knowledge” of tire pricing structure for the system. He was also aware of and had been involved in the design process as well as the preparation of Aeroflex’s previous proposals to the Army. Second, just a few months after hiring Allen, TIC hired Kenneth Filardo as its Director of Engineering. Filardo had been the chief design authority for Aeroflex’s work on the upgrade. According to Aeroflex, Filardo had been “intimately involved in each facet of the design, development and manufacture of the ... test sets and their upgrades” and had played a “key role” in the development of Aeroflex’s proposals to the Army.
Allen and Filardo had each signed an Aeroflex “Employee Patent, Copyright, and Non-Disclosure Agreement.” Upon their resignations from Aeroflex, Aeroflex sent letters to each of them and reminded them of the agreement.
Approximately 1 year later, the Army solicited proposals for the upgrade kits. After 6 months of review and negotiation, the Army awarded the contract to TIC. Aeroflex filed a protest of the contract award, alleging in part that TIC had stolen its trade secrets. The protest led to an investigation and report by the Army to the Government Accountability Office (GAO) rejecting Aeroflex’s claim.
Aeroflex then filed this lawsuit. In a verified petition, Aeroflex alleged Filardo and Allen breached their nondisclosure agreements with Aeroflex. As to TIC, Aeroflex alleged TIC could not have economically developed or manufactured an upgrade without using Aeroflex’s trade secrets and confidential and proprietary information. Aeroflex alleged claims of misappropriation of Aeroflex’s trade secrets, tortious interference with Aeroflex’s business relationships, and civil conspiracy against all three defendants.
In asserting a basis for a Kansas court to exercise personal jurisdiction over die defendants, the verified petition alleged Filardo is, and at all times material to the lawsuit has been, a Kansas resident. Aeroflex acknowledged that Allen had been an Arizona resident since 2003, but it alleged his many contacts with Kansas through his employment with Aeroflex were sufficient for the court to have personal jurisdiction over him. The petition also stated: “Filardo, Allen, and TIC . . . intentionally targeted Aeroflex Wichita, whose headquarters and facilities they knew to be located in Kansas, and knew that these actions, if successful in their aims, would cause economic injury in Kansas to Aeroflex Wichita.”
After being served with the petition, TIC specially appeared and challenged personal jurisdiction by filing under K.S.A; 2011 Supp. 60-212(b)(2) the motion to dismiss that is the subject of this appeal. Before ruling on the motion, the district court permitted limited discoveiy, ordering that Aeroflex “may take depositions on the jurisdictional issue of defendant Kenneth Filardo, of defendant [TIC], under K.S.A. 60-230(b)(5), and a corporate representative . . . regarding business activities of [TIC], in Kansas.” Later, after limited discoveiy confirmed that Filardo had been working for TIC from his Kansas residence approximately 1 week per month, the district court allowed additional discovery relating to Filardo’s time sheets.
At the completion of discovery, Aeroflex responded to the motion to dismiss by arguing the district court had jurisdiction under the Kansas long-arm statute, specifically K.S.A. 2011 Supp. 60-308(b)(1)(A), (B), and (E), in that TIC transacted business in Kansas, committed a tortious act in Kansas, and entered into a contract with a Kansas resident to be performed at least in part in Kansas. Affidavits and documents were attached to the written arguments. In addition, Aeroflex sought permission to file an amended petition. The district court allowed the filing of the amended petition but granted TIC’s motion to dismiss.
In ruling on the motion to dismiss, the district court considered TIC’s contacts with Kansas, finding:
“15. TIC is a publicly traded company that has only two Kansas shareholders accounting for less than 1% of its outstanding shares. It has and maintains no facilities, offices, leases, property, accounts, licenses, operations or employees in Kansas. . . .
“16. TIC has never focused sales efforts toward Kansas customers, targeted advertisements or bulk e-mail in Kansas, or advertised in Kansas. No employees travel to Kansas to conduct business. It generates virtually no revenue from Kansas (.12% in 2007 and .33% in 2008) and it is not subject to Kansas taxation.”
The district court also found that Allen performed no work for TIC in Kansas. Filardo on the other hand did perform work on TIC’s proposal from his Kansas residence, although “the exact amount can’t be determined.”
The district court then drew the legal conclusion that Aeroflex failed to make a prima facie showing of personal jurisdiction over TIC. In reaching this conclusion the court determined the alleged causes of action did not arise out of any business transactions in Kansas, Aeroflex “failed to make a prima facie showing that tire causes of action arose from the commission of a tortious act in Kansas,” and that TIC did not enter into a contract with a Kansas resident “for some or the entire contract to be performed in Kansas.” With regard to the alleged misappropriation of trade secrets as it relates to jurisdiction, the court also found Aeroflex did not show that Filardo committed an act in Kansas in furtherance of the conspiracy or that TIC purposefully availed itself of the privilege of conducting activities in Kansas. Finally, tire district court found Aeroflex failed to show that the exercise of jurisdiction would be reasonable under due process requirements.
Although tire district court granted TIC’s motion to dismiss for lack of jurisdiction, Filardo and Allen remain as defendants. Fi-lardo, a Kansas resident, did not raise a challenge to personal jurisdiction. And although Allen, an Arizona resident, did challenge personal jurisdiction, the district court found personal jurisdiction existed because Allen was sued for actions arising under an employment contract entered into with a Kansas resident (Aeroflex) and at least partially performed in Kansas.
Aeroflex appeals the district court’s dismissal of the case against TIC. The case against Filardo and Allen was subsequently stayed by the district court, pending this appeal. This court has jurisdiction under K.S.A. 20-3018(c) (transfer by this court).
Standard Before the District Court and the Standard of Review
Before discussing the substance of the parties’ arguments, we must determine the standard or test that controlled the district court’s determination of whether Kansas could exercise personal jurisdiction over TIC. This determination requires us to decide which party had the burden of persuasion and the nature of that burden. Then, we must determine the standard that applies to our review of the district court’s determination of whether that standard or test was met.
The parties seem to agree that the standard or test may vary, depending on the procedural posture of the motion, that is whether the motion is considered before discovery, after discovery, or after an evidentiary hearing. There is very little discussion of these various procedures in Kansas law or of the standard or test to be applied in each situation.
K.S.A. 2011 Supp. 60-212(b)(2), the provision under which TIC’s motion was filed, provides no assistance. It does not indicate whether the decision is limited to the pleadings or whether matters outside the pleadings may be considered and, if so, what standard applies. Another portion of the statute, K.S.A. 2011 Supp. 60-212(d), applies to some motions to dismiss where matters outside the pleadings are considered, but its application is limited to motions filed pursuant to K.S.A. 2011 Supp. 60-212(b)(6) (failure to state a claim upon which relief can be granted) or K.S.A. 2011 Supp. 60-212(c) (motion for judgment on the pleadings). TIC’s motion pursuant to K.S.A. 2011 Supp. 60-212(b)(2) is not included.
Kansas’ statute is not unique in this regard. In fact, Kansas’ statute is patterned after Rule 12 of the Federal Rules of Civil Procedure. Without direct guidance in Rule 12(b)(2), federal courts have defined procedures and the applicable standards for considering motions to dismiss for lack of personal jurisdiction. We turn to these federal decisions for persuasive guidance, as we have on other occasions when considering issues relating to civil procedure. See Back-Wenzel v. Williams, 279 Kan. 346, 349, 109 P.3d 1194 (2005).
Many federal cases, including decisions of the United States Supreme Court, have recognized that federal district courts have wide discretion in determining the most appropriate mechanism for resolving a motion to dismiss for lack of personal jurisdiction. See Catholic Conf. v. Abortion Rights Mobilization, 487 U.S. 72, 79, 108 S. Ct. 2268, 101 L. Ed. 2d 69 (1988) (recognizing a court’s “inherent and legitimate authority” to issue orders of discovery and other orders as necessary for the court to determine jurisdiction); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978) (“where issues arise as to jurisdiction or venue, discovery is available to ascertain the facts bearing on-such issues”); Gibbs v. Buck, 307 U.S. 66, 71-72, 59 S. Ct. 725, 83 L. Ed. 1111 (1939) (“As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court.”); see also 5B Wright & Miller, Federal Practice and Procedure: Civil § 1351 (3d ed. 2004) (5B Wright, § 1351), p. 305 (‘When a federal court is considering a challenge to its jurisdiction over a defendant or over some form of property, the district judge has considerable procedural leeway in choosing a methodology for deciding the motion.”).
Exercising this discretion, the district court may choose from several procedures for handling a motion to dismiss. Before trial, the district court may determine the outcome based on the pleadings; “ ‘on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing'on the merits of the motion.’ [Citation omitted.]” Serras v. First Tennessee Bank Nat. Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989); see 5B Wright, § 1351, pp. 305 & 308-09. Additionally, rather than make a pretrial determination, the court “may await the trial on the merits with the fact issues being left to the jury for determination.” 5B Wright, § 1351, pp. 308-09. Indeed, the United States Supreme Court has indicated that the determination should be deferred until trial if the issue of jurisdiction is dependent upon a decision on the merits. Land v. Dollar, 330 U.S. 731, 735, 67 S. Ct. 1009, 91 L. Ed. 1209 (1947). As the Tenth Circuit Court of Appeals has explained, “[t]he purpose of postponing a determination upon a jurisdictional question when it is tied to the actual merits of the case is to prevent a summary decision on the merits without the ordinary incidents of a trial including the right to jury. [Citations omitted.]” Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir. 1965). We hold that these same principles apply in Kansas.
In this case, the district court chose to make a pretrial determination after discovery and supplementation of the record with written evidence and affidavits. TIC suggests in that procedural circumstance a plaintiff must establish the requirements for personal jurisdiction by a preponderance of the evidence. Further, it argues, if discovered evidence is presented to the district court, the court can weigh conflicting evidence and make factual findings related to jurisdiction. Finally, TIC argues that because the district court made “findings” based on such discovery “evidence,” regardless of the fact that information consisted of “written materi als,” this court should give deference to those findings and examine whether the district court’s factual findings were supported by substantial competent evidence.
To support its arguments, TIC cites cases from other jurisdictions. See, e.g., Shapiro, Lifschitz & Schram, P.C. v. Hazard, 24 F. Supp. 2d 66, 70 (D.D.C. 1998) (“[I]n situations where the parties are permitted to conduct discovery on the jurisdictional issue a plaintiff must prove personal jurisdiction by a preponderance of the evidence.”); see also Jung v. Association of American Medical Colleges, 300 F. Supp. 2d 119, 128 (D.D.C. 2004) (quoting Hazard, 24 F. Supp. 2d at 70); In re Vitamins Antitrust Litigation, 270 F. Supp. 2d 15, 20 (D.D.C. 2003) (“[pjlaintiffs must establish personal jurisdiction ... by a preponderance of the evidence”); BBA Aviation PLC v. Superior Couri, 190 Cal. App. 4th 421, 429, 117 Cal. Rptr. 3d 914 (2010) (“If the jurisdictional facts are conflicting, we review the lower court’s factual determinations for substantial evidence, but still review its legal conclusions de novo.”); State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 188 N.C. App. 302, 304, 655 S.E.2d 446 (2008) (Where district court denies motion to dismiss for lack of personal jurisdiction and makes findings of fact, “review is limited to whether the . . . court’s findings of fact are supported by competent evidence in the record and whether the conclusions of law are supported by the findings of fact.”).
Aeroflex, on the other hand, argues it only needed to present a prima facie case and the district court should have considered the record in the light most favorable to Aeroflex in resolving the motion. To support this argument, Aeroflex cites federal cases, cases from other states, and decisions of this court that apply this standard. The various federal cases on which Aeroflex relies represent “[t]he most common formulation found in the [federal] judicial opinions,” which is that the plaintiff “needs only make a prima facie showing when the district judge restricts her review of the Rule 12(b)(2) motion solely to affidavits and other written evidence.” 5B Wright, § 1351, pp. 275 & 286-88.
In other words, the authority cited by TIC is a minority view. Further, the rationale of the minority line of cases has been criticized. For example, Hazard, Jung, and In re Vitamins Litigation have been called into question because the analysis relied on a Second Circuit Court of Appeals decision that has subsequently been “clarified.” See Heller v. Nicholas Applegate Capital Management, 498 F. Supp. 2d 100, 107-08 (D.D.C. 2007) (citing In re Baan Co. Securities Litigation, 245 F. Supp. 2d 117, 124-25 [D.D.C. 2003]) (criticizing Hazard line of cases and, after discussing caselaw from other circuits, adopting “ ‘factually documented’ ” prima facie standard). In the clarifying opinion, the Second Circuit held that the preponderance standard applies only if the district court has already held an evidentiaiy hearing. Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996).
The Second Circuit’s holding in Metropolitan Life Ins. Co. is consistent with most other federal cases. As one court stated, it is only when the court conducts an evidentiary hearing to determine disputed issues of fact and weighs credibility that the burden “quite properly increases” to “the same standard that would obtain if the matter were deferred to trial: the preponderance of the evidence.” Serras, 875 F.2d at 1214; see 5B Wright, § 1351, p. 287. Under these cases, the fact that discovery has been conducted relating to jurisdiction does not determine the burden; the determining factor is whether there has been an evidentiary hearing. See 5B Wright, § 1351.
If we apply these federal cases, Aeroflex has the burden to establish a prima facie case of jurisdiction. “[F]or purposes of such a review, federal courts will, as they do on other motions under Rule 12(b), take as true the allegations of the nonmoving party with regard to the jurisdictional issues and resolve all factual disputes in his or her favor.” 5B Wright, § 1351, pp. 288 & 299.
Several states have adopted the same approach. See, e.g., Planning Group v. Lake Mathews Mineral, 226 Ariz. 262, 264 n.1, 246 P.3d 343 (2011) (stating when there is no evidentiary hearing regarding lack of personal jurisdiction, appellate court reviews district court’s decision and factual findings de novo, viewing facts in light most favorable to plaintiff but accepting as true uncontrov-erted facts put forward by defendant); Home Depot Supply v. Hunter Management, LLC., 289 Ga. App. 286, 286, 656 S.E.2d 898 (2008) (where motion decided without evidentiaiy hearing and based solely upon the written submissions of the parties, any disputes of fact must be resolved in the light most favorable to the party asserting the existence of personal jurisdiction, and appellate court exercises de novo review); Evans v. State, 908 N.E.2d 1254, 1256 (Ind. App. 2009) (“ ‘The standard of appellate review of rulings on motions to dismiss on jurisdictional grounds depends on whether the trial court resolved disputed facts, and if so, whether the trial court conducted an evidentiaiy hearing or ruled on a paper record.’ . . . Here, the trial court’s decision is based on a paper record. Thus, our review is de novo.”).
This multistate view is consistent with the decisions of this court. Although this court has not specifically outlined the procedures available to a district court for resolution of a motion to dismiss for lack of personal jurisdiction and has not addressed whether the burden of persuasion varies depending on the procedure, this court has stated:
“Whether jurisdiction exists is a question of law. [Citation omitted.] The plaintiff bears the burden of establishing personal jurisdiction over the defendants. Where, as here, the issue of personal jurisdiction is decided pretrial on the basis of the pleadings, affidavits, and other written materials, any factual disputes must be resolved in the plaintiff s favor and the plaintiff need only make a prima facie showing of jurisdiction.” (Emphasis added.) Merriman v. Crompton Corp., 282 Kan. 433, 439, 146 P.3d 162 (2006).
In earlier cases, we have also held that “ ‘when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing.’ ” In re Hesston Corp., 254 Kan. 941, 954, 870 P.2d 17 (1994).
This standard is not only consistent with the common approach in federal courts and in tire courts of other states, it is consistent with this court’s caselaw in contexts other than personal jurisdiction. We have generally applied a preponderance of the evidence standard where the district court has the power to weigh and evaluate the evidence in the same manner as if it were adjudicating the case on the merits and making findings of fact based on a weighing of the credibility of the evidence. See In re Estate of Ewers, 206 Kan. 623, 626, 481 P.2d 970 (1971). In contrast, when presented with affidavits, the parties do not have the ability to test evidence through cross-examination, and the district court does not have the opportunity to judge credibility and does not take on the role of factfinder. Generally, “[i]n determining whether a prima facie showing has been made, the district court is not acting as a factfinder.” Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir. 1992); see also Estate of Draper v. Bank of America, 288 Kan. 510, 517, 205 P.3d 698 (2009) (recognizing general rule that appellate court construes written documents de novo and without regard to district court’s ruling); Cranford v. State, 39 Kan. App. 2d 12, 18, 176 P.3d 972, rev. denied 286 Kan. 1176 (2008) (Malone, J., concurring) (questioning ability to review for substantial competent evidence when the preliminaiy hearing is nonevidentiary and advocating de novo review).
Further, the view that the evidence must be considered in the light most favorable to the plaintiff (the nonmovant) is consistent with the standard applied to motions filed under K.S.A. 2011 Supp. 60-212(b)(6) where matters outside the pleadings are considered. K.S.A. 2011 Supp. 60-212(d) (summary judgment standard applies); see Thomas v. Board of Shawnee County Comm’rs, 293 Kan. 208, 227, 262 P.3d 336 (2011) (when considering summary judgment motion, district judge must consider evidence in light most favorable to nonmoving party); Wachter Management Co. v. Dexter & Chaney, Inc., 282 Kan. 365, 368, 144 P.3d 747 (2006) (K.S.A. 60-212[b][3] motion regarding venue); Kluin v. American Suzuki Motor Corp., 274 Kan. 888, 893, 56 P.3d 829 (2002) (K.S.A. 60-212[b][2] motion regarding personal jurisdiction); see also Behagen v. Amateur Basketball Ass’n of U.S.A., 744 F.2d 731, 733 (10th Cir. 1984), cert. denied 471 U.S. 1010 (1985) (if the parties present conflicting affidavits, tire court resolves all factual disputes in plaintiffs favor; plaintiffs prima facie showing is sufficient notwithstanding the contrary presentation by defendant); Environmental Ventures, Inc. v. Alda Services Corp., 19 Kan. App. 2d 292, 295, 868 P.2d 540 (1994) (“The court may consider affidavits and documentary evidence in determining whether such a showing has been made but must give the plaintiff the benefit of all factual doubt.”).
Hence, we reject TIC’s arguments and conclude that, even though there was discovery, when a defendant’s K.S.A. 2011 Supp. 60-212(b)(2) motion to dismiss for lack of personal jurisdiction is decided before trial on the basis of the pleadings, affidavits, and other written materials and without an evidentiary hearing, any factual disputes must be resolved in the plaintiffs favor and the plaintiff need only make a prima facie showing of jurisdiction.
Next, TIC argues Aeroflex cannot rely on allegations in the petition to meet this burden. It suggests that because there has been discovery, Aeroflex must present some evidence on every point required to establish the basis for jurisdiction over TIC. This position is not consistent with our decision in In re Hesston, where we stated:
“The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant’s affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff s favor, and tire plaintiffs prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.” ’ [Citations omitted.]” In re Hesston, 254 Kan. at 954 (quoting Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1417 [10th Cir. 1988]).
Applying this procedure, the district court could consider the allegations in Aeroflex’s petition unless TIC controverts the allegation with an affidavit or other evidence. If TIC controverts the allegation, Aeroflex must come forward with some evidence in rebuttal. Then, the district court considers the evidence in the light most favorable to Aeroflex rather than weighing conflicting evidence.
If a district court’s decision regarding a K.S.A. 2011 Supp. 60-212(b)(2) motion to dismiss for lack of personal jurisdiction is appealed, an appellate court reviews the district court’s determination under a de novo standard. See Merriman, 282 Kan. at 439; Kluin, 274 Kan. at 893; In re Hesston, 254 Kan. at 954-55; see also 5B Wright, § 1351, p. 314 (“[A] district court’s dismissal on jurisdictional grounds is reviewed de novo by the court of appeals for errors of law and with regard to the facts if the district court relied solely upon the pleadings and affidavits.”).
Here, although the district court stated Aeroflex needed only make a prima facie showing, it did not indicate that it considered the facts in the light most favorable to Aeroflex. In fact, the court’s findings reflect that it weighed and found persuasive the facts contrary to Aeroflex’s position. For example, the district court relied on die “fact the U.S. Army’s investigative report rejected the plaintiffs claim.” Yet, there is no suggestion that determination has any preclusive effect; it is just evidence.
Recognizing we might conclude the district court weighed evidence, TIC presents an alternative argument justifying the district court’s weighing of the evidence. Specifically, TIC suggests that Aeroflex acquiesced in the district court’s treatment of the parties’ submissions as a proffer of evidence in place of an evidentiary hearing. According to TIC, this acquiescence occurred when Aeroflex objected to TIC’s suggestion that an evidentiary hearing should be held and suggested that instead the parties should be allowed to conduct additional discovery. To support its argument that a preponderance of the evidence standard may apply in such a situation, TIC cites Boit, 967 F.2d 671.
In Boit, the court recognized an evidentiary hearing does not require “evidence [be] ‘taken orally in open court.’ [Citation omitted.]” Boit, 967 F.2d at 676. As support for this conclusion, the court cited the federal equivalent to K.S.A. 60-243(d) — Fed. R. Civ. Proc. 43. The Kansas version states: “When a motion relies on facts outside the record, the court may hear the matter on affidavits or on declarations pursuant to K.S.A. 53-601, and amendments thereto, or may hear it wholly or partly on oral testimony or on depositions.” K.S.A. 2011 Supp. 60-243(d).
Despite this provision, the Boit court noted there were several considerations relevant to the determination of whether the hearing would be conducted in this manner, and an inappropriate application of these considerations could be an abuse of discretion. Among the factors to be considered is whether issues of credibility must be resolved. Boit, 967 F.2d at 676. A second consideration is whether the case could “preclude a party from asserting at trial— and before a jury if one has been demanded — contentions of fact contrary to what the district court found at the pretrial hearing.” Boit, 967 F.2d at 677. The court noted that this concern was “[especially troubling... when, for example, long-arm jurisdiction depends on a finding that the claim on the merits arises out of the defendant’s contacts with die forum state.” Boit, 967 F.2d at 677. The constitutional right to a trial by juiy “animates” these concerns, the court concluded. Boit, 967 F.2d at 677. A third consideration relates to how the proceeding will impact judicial efficiency, remembering that “ ‘[jJudicial resources may be more efficiently deployed if the court holds but one [preponderance-of-the-evidence] hearing on the contested facts.’ [Citation omitted.].” Boit, 967 F.2d at 677. A final consideration is whether postponing proof by a preponderance of the evidence until trial will allow proof “ ‘in a coherent, orderly fashion and without the risk of prejudicing [plaintiffs] case on the merits.’ [Citation omitted.]” Boit, 967 F.2d at 677. The court concluded: “Concerns about troublesome implications of preponderancé-of-the-evidence findings weigh heavily in favor of determining a motion to dismiss on the prima facie standard. [Citation omitted.]” Boit, 967 F.2d at 677.
In this case, there is no indication the district court gave notice it was conducting a hearing pursuant to K.S.A. 2011 Supp. 60-243(d) or that the parties discussed the possibility. This brings into question whether there was acquiescence. Certainly, we cannot find an explicit statement by Aeroflex in which it acquiesced to such a proceeding. But it is not clear that acquiescence or notice is necessary.
Nevertheless, even if we were to agree with the Boit court and conclude the district court conducted a K.S.A. 2011 Supp. 60-243(d) evidentiary hearing without taking any testimony orally in open court, the various factors listed in Boit needed to be considered. Our review of the record does not reveal anything suggesting that the district court weighed any factors relating to whether it was appropriate to have conducted this type of hearing. Such a failure is an abuse of discretion. See Boit, 967 F.2d at 676-78; State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (abuse of discretion may occur when court fails to apply correct law or. consider ations).
Further, many of the district court’s conclusions, such as whether the defendants committed a tortious act and did so in Kansas, depend on the merits of tire lawsuit. As we have noted, the caselaw suggests that in such circumstances the ruling on jurisdiction should most appropriately be deferred until a full trial on the merits.- Consequently, we reject TIC’s suggestions that the preponderance' of evidence standard applies and that the district court was entitled to weigh evidence.
In summary, if TIC presented evidence refuting a point necessary to a finding of jurisdiction, Aeroflex had to respond with some evidence but needed to only make a prima facie showing. In determining if Aeroflex met that burden, the evidence must be considered'in the light most favorable to Aeroflex, as the party opposing the motion. With that standard in mind, we begin our de novo review of whether there was jurisdiction.
Long-Arm Jurisdiction
Before discussing the specifics of the parties’ submissions, it is helpful to examine what Aeroflex had to establish in order to make a prima facie case-of personal jurisdiction over TIC. Such a discussion necessarily begins with Aeroflex’s claims.
In this regard, we first note that Aeroflex claims Kansas has specific, not general, jurisdiction over TIC. This distinction relates to the two broad types of personal jurisdiction a state can exercise. Specific jurisdiction refers to jurisdiction over causes of action arising from or related to a defendant’s actions within a forum state. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n.8, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984); Merriman, 282 Kan. at 440. The Kansas long-arm statute, K.S.A. 2011 Supp. 60-308(b), defines when Kansas exercises specific jurisdiction over a nonresident defendant. Kluin, 274 Kan. at 896. General jurisdiction refers to the power of. a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose. Helicopteros, 466 U.S. at 414 n.9; see Kluin, 274 Kan. at 895.
Second, Aeroflex alleges that TIC’s conduct falls within the scope of Kansas’ long-arm statute, K.S.A. 2011 Supp. 60-308(b). Specifically, Aeroflex claims that TIC is subject to the jurisdiction of the courts in Kansas by operation of K.S.A. 2011 Supp. 60-308(b)(1)(A), (B), and (E). The statute provides; in part:
“(1) Any person, whether or not a citizen or resident of tiiis state, who in person or through an agent or instrumentality does any of the following acts, thereby submits the person and, if an individual, the individual’s representative, to the jurisdiction of the courts of this state for any claim for relief arising from the act:
(A) Transacting any business in tiiis state;
(B) committing a tortious act in this state;
(E) entering into an express or implied contract, by mail or otherwise, with a resident of tiiis state to be performed in whole or in part by either party in this state.” K.S.A. 2011 Supp. 60-308(b)(l)(A), (B), and (E).
This court has instructed that this statute is to be liberally construed to allow the exercise of jurisdiction to the outer limits allowed under due process. Kluin, 274 Kan. at 894; Schlatter v. Mo-Comm Futures, Ltd., 233 Kan. 324, 329, 662 P.2d 553 (1983). Accordingly, “ ‘[a] case should not be dismissed for want of jurisdiction as being outside the scope of the statute, unless by no reasonable construction of the language could it be said to fall within the statute's terms.’ ” J.E.M. Corp. v. McClellan, 462 F. Supp. 1246, 1250-51 (D. Kan. 1978) (quoting Casad, Long Arm and Convenient Forum, 20 Kan. L. Rev. 1, 45 [1971]).
Finally, as it must do, Aeroflex argues the exercise of jurisdiction in this particular case comports with the constitutional guarantee of due process of law. See Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 779, 740 P.2d 1089 (1987); Schlatter, 233 Kan. at 329.
Commission of Tortious Act in Kansas
In its brief to this court, Aeroflex first contends that K.S.A. 2011 Supp. 60-308(b)(l)(B) can provide the basis for personal jurisdiction on two grounds: (1) TIC (or its agent or coconspirator Filardo) allegedly committed a tortious act in Kansas or (2) TIC’s tortious act caused injury in Kansas. As to the first argument, Aeroflex asserts that TIC sought out Filardo while he was in Kansas; that Filardo acquired confidential and proprietary information, including trade secrets, from Aeroflex while he was in Kansas; and Filardo used these trade secrets while working in Kansas and in New Jersey. Aeroflex bases its second argument on its allegation of economic injury resulting at its principal place of business in Wichita.
Conspiracy to Misappropriate Trade Secrets
Aeroflex’s first argument — that TIC and its agents committed a tortious act — focuses on Aeroflex’s claim that TIC and its agents misappropriated trade secrets. To establish this tort at trial, Aero-flex will have to prove the following elements of misappropriation of trade secrets: (1) the existence of a trade secret, (2) a confidential relationship between the parties, (3) disclosures by the plaintiff to the defendant concerning the trade secret, and (4) an unauthorized use of those disclosures by the defendant. See Koch Engineering Co., Inc. v. Faulconer, 227 Kan. 813, 826, 610 P.2d 1094 (1980); Mann v. Tatge Chemical Co., Inc., 201 Kan. 326, 332, 440 P.2d 640 (1968). If the actions of a person or that person’s “agent or instrumentality” satisfy these elements and some or all of those actions occur in Kansas, the person could be subject to Kansas jurisdiction under K.S.A. 2011 Supp. 60-308(b).
The “agent or instrumentality” clause encompasses civil conspirators. A civil conspiracy claim generally requires a plaintiff to establish “ ‘concert of action or other facts and circumstances from which tire natural inference arises that the unlawful, overt acts were committed in furtherance of a common design, intention, or purpose of the alleged conspirators.’ ” Waddoups v. Amalgamated Sugar Co., 54 P.3d 1054, 1064 (Utah 2002) (quoting 16 Am. Jur. 2d, Conspiracy § 68 [1998]); see Stoldt v. City of Toronto, 234 Kan. 957, 967, 678 P.2d 153 (1984) (stating elements of civil conspiracy, which is an actionable tort). From a jurisdictional standpoint, if one conspirator commits acts in Kansas in furtherance of a conspiracy and that conspirator falls under the long-arm statute, jurisdiction can be obtained as to all conspirators. See Merriman, 282 Kan. at 464; Professional Investors Life Ins. Co. v. Roussel, 445 F. Supp. 687, 695 (D. Kan. 1978); see generally Althouse, The Use of Conspiracy Theory to Establish In Personam Jurisdiction: A Due Process Analysis, 52 Fordham L. Rev. 234 (1983).
In the amended petition filed in this case, Aeroflex pleaded these elements. In response, TIC accepts drat Aeroflex can establish some of the elements. Specifically, TIC does not dispute that (1) Aeroflex owns proprietary information, including trade secrets; (2) there were confidential relationships between Aeroflex and Filardo and Aeroflex and Allen when Filardo and Allen were employed by Aeroflex; and (3) Aeroflex disclosed trade secrets to Filardo and Allen while they were employed by Aeroflex. What TIC disputes is the fourth element; it argues Aeroflex has not demonstrated that TIC, either personally or through its agents or coconspirators, engaged in the unauthorized use of those trade secrets.
The district court agreed with TIC, concluding: “Despite conducting discoveiy the plaintiff has produced no evidence Filardo misappropriated plaintiffs confidential and proprietary business information while working in Kansas and in fact the U.S. Army’s investigative report rejected the plaintiffs claims. The evidence supports a finding Filardo worked on developing TIC’s own proprietary software for the bid.”
Aeroflex argues this conclusion was reached by a weighing of the evidence rather than by viewing the evidence in the light most favorable to Aeroflex. We agree.
To explain our conclusion, it is necessary to parse the dueling affidavits that were presented. To put those affidavits in perspective, we begin with Aeroflex’s verified petition. In it, Aeroflex alleged “upon information and belief’ that “TIC could not have modified the design of the TS-4530/UPM to meet the exact form, fit and function requirements of the Mode 5 Upgrade, and in turn successfully and cost-effectively have bid for the Mode 5 Upgrade, without access to Aeroflex Wichita proprietary and confidential information.” The next two pages of the amended petition detailed reasons for this conclusion. (Because tins portion of the pleading was based on “information and belief’ these are mere allegations and not evidence even though the petition was verified under oath.)
TIC countered this allegation with the affidavit of Jeffrey O’Hara, TIC’s president and chief operating officer, and with the Army’s report. O’Hara explained that the employment offers extended to Filardo and Allen “included specific protections with respect to any disclosure of Aeroflex proprietary technology which have been strictly observed by all parties.” To further substantiate that TIC observed the self-imposed restrictions on disclosures, O’Hara stated: “TIC technical solution proposed to the Army includes a TIC designed interface that does not utilize any proprietary Aeroflex technology.” O’Hara also indicated “the TIC technical solution entails a much more radical upgrade . . . than the approach apparently taken by Aeroflex.” Finally, O’Hara quoted at length from the report the Army submitted to tire GAO in response to Aeroflex’s protest.
The Army’s report stated, in part, that “Aeroflex’s conclusions regarding TIC’s capabilities were reached without the benefit of reviewing TIC’s proposal. After thoroughly reviewing TIC’s proposal, the Army’s evaluators found that TIC could fully meet the Army’s stated requirements using TIC’s own proprietary software currently used in another commercially available test set.” As to Aeroflex’s contention that TIC must have modified Aeroflex’s proprietary hardware, the Army’s report indicated that “TIC completely gutted the [unit] and replaced the hardware with a single printed circuit board design utilizing new hardware components.” Further, the Army report indicated that “the software TIC utilized is based on software developed internal to TIC and currently being used on similar Mode 5 equipment used elsewhere.”
In ruling on the motion to dismiss, the district court gave credence to the Army’s report. Aeroflex suggests this reliance was misplaced because the Army’s report is not conclusive or binding. In fact, according to Aeroflex, the report was essentially a legal brief submitted by Army counsel to the GAO in defense of the Army’s behavior. Further, Aeroflex disputed O’Hara’s affidavit and the Army’s conclusions with two affidavits, one from Jeffrey M. Gillum, the vice president and general manager of Aeroflex, and one from Guy Hill, the director of the avionics business unit of Aeroflex.
Gillum, in his affidavit, provided sworn statements that presented a prima facie showing of the first three elements of the tort of misappropriation of a trade secret, that is (1) the existence of a trade secret, (2) a confidential relationship between the parties, and (3) disclosures by the plaintiff to the defendant concerning the trade secret. He did so by stating that the “underlying design of the [TS-4530 project] was and is proprietary and confidential in formation owned” by Aeroflex and was “developed at great cost over at least the previous seven years,” giving Aeroflex “a competitive advantage with respect to the manufacture of the [TS-4530 project] and any upgrades.” Gillum further stated that Filardo and Allen were critical to tire development, maintenance, and use of this proprietary and confidential information. To support this statement, Gillum provided considerable detail about the job responsibilities each held at Aeroflex and identified the types of information that each had been provided. Gillum concluded: “[V] aluable trade secrets and proprietary information developed at substantial cost” were “wrongfully used by TIC.” TIC’s access to Filardo’s and Allen’s knowledge compromised the technology that had been developed by Aeroflex and its predecessor and “destroyed” Aeroflex’s competitive advantage, according to Gillum.
Hill, in his affidavit, more directly addressed the disputed fourth element regarding the alleged unauthorized use of Aeroflex’s trade secrets by TIC. Some of tire statements, like those in tire amended petition, were Hill’s own conclusions or opinions rather than facts and must be disregarded. See Ten Mile Indus. Park v. Western Plains Service, 810 F.2d 1518, 1524 (10th Cir. 1987) (providing that “only the well pled facts of plaintiff s complaint, as distinguished from mere conclusory allegations, must be accepted as true”).
But the affidavit also contained Hill’s “personal knowledge of the facts and circumstances.” For example, regarding the Army’s report, Hill explained the procedure Aeroflex followed in bringing its protest. Citing statements made during meetings as well as in Army documents, Hill reported that “[t]he Army assumed that TIC’s representations were true, in accordance with the general Army policy of assuming that representations of contractors that it believes to be responsible are true.” Further, Hill stated, the Army’s report did not substantiate the contention that TIC did not need or use Aeroflex’s proprietaiy and confidential information because the “Army had no possible means of knowing or determining whether TIC had access to [Aeroflex’s] trade secrets or proprietaiy information, [or] whether TIC misappropriated such information prior to, during or subsequent to the preparation of TIC’s technical or price proposal.” While this statement is itself conclusory, Hill supported it by looking to the circumstances surrounding the bid process, specifically stating:
“O’Hara’s contention [and the Army’s conclusion] that TIC’s Mode 5 technology was completed and demonstrated before the hiring of Allen and Filardo cannot be true because:
i. We understand that, until that time, TIC had been unable to produce or demonstrate a working prototype in a public forum;
ii. TIC was unable to undergo the Navy’s technical evaluation of TIC’s Mode 5 technology in accordance with the Navy contract schedule. . . .
iii. TIC was unable to achieve AIMS certification by the Department of Defense prior to the hiring of Allen and Filardo.”
Hill provided some technical reasons for his conclusion that TIC did not have the ability to successfully bid without appropriating some of Aeroflex’s proprietary information. Additionally, he noted that O’Hara did “not address nor deny the use by TIC of Aeroflex Wichita’s proprietary and confidential information in connection with the development of TIC’s price proposal to the Army.”
These are just a few points made in the affidavits but are sufficient to illustrate that the fourth element is highly contested. Yet, as the district court noted, Aeroflex did not present direct evidence — the metaphorical “smoking gun” — that TIC misappropriated Aeroflex’s proprietary information. Nevertheless, when viewed in the light most favorable to Aeroflex, the affidavits provided circumstantial evidence of the disputed fourth element of the tort of misappropriation of proprietary information.
Even with that, however, for jurisdictional purposes Aeroflex must also submit some evidence that the tort occurred in Kansas. That evidence was submitted in the form of Filardo’s time sheets, which showed he worked on the upgrade while in Kansas. Filardo is, of course, an alleged coconspirator with the other defendants, and Filardo, as a Kansas resident, is subject to the jurisdiction of a Kansas court. In Merriam, this court held: “[I]f one conspirator commits acts in Kansas in furtherance of the conspiracy and that conspirator falls under the act, jurisdiction can be obtained as to all conspirators. [Citation omitted.]” Merriman v. Crompton Corp., 282 Kan. 433, 464, 146 P.3d 162 (2006); see generally Althouse, The Use of Conspiracy Theory to Establish In Personam Jurisdiction: A Due Process Analysis, 52 Fordham L. Rev. 234 (1983).
Granted, once again, Aeroflex did not present the district court with direct evidence of Filardo applying an Aeroflex trade secret to a portion of his work for TIC while at his home in Kansas. Yet, there is direct evidence that Filardo worked on the project from his home in Kansas and there is circumstantial evidence from which a reasonable jury could infer that Filardo used Aeroflex’s trade secrets to TIC’s benefit when developing TIC’s TS-4530 upgrade while in Kansas.
Hence, we conclude that when the evidence is viewed in the light most favorable to Aeroflex, Aeroflex presented a prima facie case of jurisdiction by providing evidence from which it can be inferred that TIC, through its alleged coconspirator Filardo, acted in Kansas to misappropriate Aeroflex’s trade secrets. As a result, there was a prima facie case of personal jurisdiction over TIC pursuant to K.S.A. 2011 Supp. 60-308(b)(l)(B).
Having reached this conclusion, we need not address Aeroflex’s alternative arguments for jurisdiction. It is not necessaiy for a party to establish multiple prima facie grounds for jurisdiction; one is sufficient, assuming other aspects of due process are satisfied.
Due Process
Given our conclusion that Aeroflex has made a prima facie showing that TIC, through its alleged coconspirator Filardo, committed a tortious act in Kansas, we must now examine whether Aeroflex made a prima facie showing that TIC’s contacts with Kansas were strong enough to satisfy tire International Shoe due process test and, thereby, justify die exercise of personal jurisdiction. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). This court summarized the International Shoe test in Merriman by stating:
“When specific jurisdiction is asserted under the Kansas long arm statute, K.S.A. 60-308(b), due process requires that the nonresident defendant have certain minimum contacts with the forum in order for the exercise of jurisdiction to be constitutional. In considering whether the corporation’s minimum contacts meet this standard, courts should consider the quality and nature of the defendant’s activity in determining whether it is reasonable and fair to require defense in the forum, rendering jurisdiction consistent with traditional notions of fair play and substantial justice. Due process requires a demonstration that the nonresident defendant purposely established minimum contacts with the forum state, thereby invoking the benefits and protections of its laws.” Merriman, 282 Kan. 433, Syl. ¶ 15.
Minimum Contacts
First, we consider the nature and extent of the defendant’s activities in Kansas. The focus of this inquiry must be on the defendant’s activities because a plaintiff s unilateral activities in the forum state cannot be used to create jurisdiction over the defendant. Instead, it is essential there be some act by which the defendant purposely avails itself to the privilege of conducting activities within the forum state thereby invoking the benefits and protections of its laws. “The purposeful availment requirement ensures that a defendant will not be haled into a jirrisdiction solely as a result of random, fortuitous, or attenuated contacts.” Merriman, 282 Kan. 433, Syl. ¶ 18; see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980).
Aeroflex essentially argues that TIC intentionally induced Fi-lardo, a Kansas resident, to breach his nondisclosure agreement with Aeroflex, also a Kansas resident, by pursuing Filardo as a potential employee, by hiring him, and by directly competing with Aeroflex and hindering Aeroflex’s ability to compete. In addition, Aeroflex argues that Filardo’s alleged misappropriation of trade secrets was in furtherance of a conspiracy between Filardo and TIC to cause damage to Aeroflex, which means the conspiracy was directed at causing injury in Kansas.
In making these arguments, Aeroflex relies on the United States Supreme Court’s decision in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). Under Calder, “an act done outside the state that has consequences or effects within the state will suffice as a basis for jurisdiction in a suit arising from those consequences if the effects are seriously harmful and were intended or highly likely to follow from the nonresident defendant’s conduct. [Citations omitted.]” Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619, 628 (5th Cir. 1999).
Application of the test in Colder meant that a California court could exercise jurisdiction over two Florida employees of a tabloid magazine who wrote and edited an allegedly libelous article about the California plaintiff, who was an actor. The United States Supreme Court concluded that the defendants knew the article’s injurious effects would be felt by the plaintiff in California and had therefore “expressly aimed” their intentional and allegedly tortious conduct at the forum state. Calder, 465 U.S. at 789-90. The Court noted that the focal point of the article itself was also California, because it was drawn primarily from California sources and pertained to an actor whose career was centered in California. Calder, 465 U.S. at 788-89. Thus, “ ‘ “[t]he key to Colder is that the effects of an alleged intentional tort are to be assessed as part of the analysis of the defendant’s relevant contacts with the forum.” ’ [Citations omitted.]” Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001).
As aptly pointed out by TIC in its appellate brief, the “effects” test in Colder does not, however, replace the need to demonstrate minimum contacts that constitute purposeful availment, that is conduct by the nonresident defendant that invoked the benefits and protections of the state or was otherwise purposefully directed toward a state resident. See Panda Brandywine Corp., 253 F.3d at 869; see also Revell v. Lidov, 317 F.3d 467, 473 (5th Cir. 2002) (Under Colder, “die plaintiff s residence in the forum, and suffering of harm diere, will not alone support [personal] jurisdiction.”); Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1078 (10th Cir. 1995) (“[C]ourts finding personal jurisdiction based upon an intentional tort analysis have not created a per se rule that an allegation of an intentional tort creates personal jurisdiction. Instead, they have emphasized that the defendant had additional contacts witii the forum.”).
TIC argues that it did not avail itself of the protections of Kansas law. At most, it argues, its only contact witii Kansas was its recruitment of a Kansas resident, Filardo. Certainly, it “did not direct tortious activity at Kansas,” according to TIC’s argument. To sup port its contention that merely hiring a Kansas resident from a competitor is not enough to establish jurisdiction, TIC cites Arch Aluminum & Glass Co., Inc. v. Haney, 964 So. 2d 228 (Fla. Dist. App. 2007).
The Arch Aluminum case arose from a claim of misappropriation of confidential information by Matthew Hale, the former national sales manager for Arch Aluminum, a Florida corporation. During his employment with Arch Aluminum, Hale gained access to confidential information, including client lists, sales projections, prior sales data, business plans, and financial statements. Hale had been informed, through the employee handbook, that such information was the property of Arch Aluminum. Soon after beginning new employment with a Nevada competitor, however, Hale released some of Arch Aluminum’s confidential information to his new employer. Arch Aluminum brought suit against Hale and the new employer, asserting claims for, among other things, misappropriation of trade secrets.
The Florida appellate court held that the distribution of the confidential information occurred in Nevada and Arizona and, therefore, the acts of the defendants did not result in a tortious act in Florida. As found by the Florida court: “Even if Arch suffered damage, it would have been a loss of western clients and the reduction of revenues from its Phoenix operation,” not from Florida. Arch Aluminum, 964 So. 2d at 234. Consequently, the court concluded that neither tire long-arm statute nor due process considerations were satisfied; therefore, there was no personal jurisdiction. Arch Aluminum, 964 So. 2d at 233-35.
Relying on this analysis, TIC suggests the situs of Aeroflex’s injury, if any, is New Jersey where TIC developed its product. Aero-flex, on the other hand, argues the situs of the injury is in Kansas where the economic impact of the misappropriation was felt. Aero-flex’s position is supported by the holdings of many courts that explain the situs of injury is the place where the plaintiff suffers injury via loss of business. American Eutec. Weld. Alloys S. Co. v. Dytron Alloys Corp., 439 F.2d 428, 432-35 (2d Cir. 1971) (holding that Michigan corporation did not commit tortious act causing injury in New York where the Michigan corporation induced the New York plaintiffs’ experienced sales employees to leave plaintiffs and use confidential information to woo away plaintiffs’ customers in Kentucky and Pennsylvania; the situs of injury was where plaintiffs lost business); Spectacular Promotions, Inc. v. Radio Station WING, 272 F. Supp. 734, 737 (E.D.N.Y. 1967) (stating that the place where plaintiff lost business would normally be a forum reasonably foreseeable by a tortfeasor); cf. Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 204-06, 385 N.E.2d 1055 (1978) (finding injuiy to be felt in New York where defendant’s out-of-state act of misappropriation of trade secrets threatened significant loss of New York sales).
Again, however, this economic effect is not sufficient if there are not other purposeful contacts, and TIC makes another argument as to why its contact with Filardo is not sufficient to meet the test. This argument responds to Aeroflex’s position that the fact Filardo worked for TIC from his home in Kansas is sufficient for due process purposes. TIC counters this argument by suggesting that this was a personal choice of Filardo and not something TIC planned or proposed; in other words, TIC did not purposefully avail itself of the Kansas location. The district court agreed with this analysis, citing two cases — Lucachick v. NDS Americas, Inc., 169 F. Supp. 2d 1103 (D. Minn. 2001), and Adams v. Riverview Healthcare Assn., No. A3-02-135, 2003 WL 1456442 (D.N.D. 2003) (unpublished opinion).
Both of these cases stand for die proposition that the decision of the agent or employee to work from home in the forum state does not generally bind the nonresident entity to personal jurisdiction in that state, where the purpose of the arrangement is merely for the agent’s personal convenience. As the Adams court stated, because the employer did not require the employee to live in the forum state of North Dakota and did not gain anything from allowing the employee to work in North Dakota, the employer’s contact with the state was only the result of the employee’s “unilateral activity of choosing to live in North Dakota, and it cannot be said that [the employer] purposefully directed its activities toward North Dakota by allowing Adams to work out of his home.” Adams, 2003 WL 1456442, at *3. Likewise, TIC did not, it argues, purposefully invoke the privileges and benefits of Kansas law by acceding to Filardo’s request to work from home for his own personal reasons.
What TIC ignores is Aeroflex’s allegation that TIC conspired with Filardo to misappropriate Aeroflex’s proprietary interests and continued that conspiracy even while Filardo continued to work on the project from Kansas. In other words, even if TIC did not purposefully avail itself of the protection of Kansas laws by requiring Filardo to work in Kansas, it purposefully availed itself by joining in and acting in furtherance of a conspiracy even after it knew that one actor had chosen to act in Kansas in furtherance of the conspiracy. This purposeful action directed at Kansas and partially performed in Kansas distinguishes Lucachick, Adams, and Arch Aluminum.
The principal point of distinction arises because courts, including those in Kansas, have concluded that knowledge of and voluntary participation in a conspiracy with other individuals who have a physical, in-state presence does not offend due process and allows the court to extend personal jurisdiction over a nonresident who may otherwise lack specific, individualized contacts with the forum state. See Merriman, 282 Kan. 433, Syl. ¶ 19 (“Because the conspiracy theory gives one subject to personal jurisdiction in a forum the ability to avoid in advance being subject to suit in the forum, it satisfies the fundamental due process requirement that a defendant can be involuntarily subjected to the personal jurisdiction of a forum only if the defendant purposefully avails itself of the privilege of conducting activities in the forum state.”); see also Istituto Bancario Italiano v. Hunter Eng. Co., 449 A.2d 210, 225 (Del. 1982) (“[A] defendant who has so voluntarily participated in a conspiracy with knowledge of its acts in or effects in the forum state can be said to have purposefully availed himself of the privilege of conducting activities in the forum state, thereby fairly invoking the benefits and burdens of its laws.”); Rudo v. Stubbs, 221 Ga. App. 702, 703-04, 472 S.E.2d 515 (1996) (recognizing that coconspirators are agents of each other for purposes of personal jurisdiction when acting in furtherance of conspiracy but requiring specific facts of activity purposefully directed toward Georgia residents).
Because TIC’s tortious contacts were through an agent and alleged coconspirator who performed tortious acts in Kansas, a more analogous case is Thermal Components Company v. Griffith, 98 F. Supp. 2d 1224 (D. Kan. 2000). There, after resigning from their positions at Thermal Components, the defendants became affiliated in various professional capacities with codefendant Thermo-tech, a Missouri corporation. Thermal Components, a Kansas corporation, sued its former employees and Thermotech in Kansas state court, alleging misappropriation of trade secrets, interference with business expectancies, breach of fiduciary duty owed to the employer, and conversion.
The defendants removed the case to Kansas federal district court and moved to dismiss, in part for lack of personal jurisdiction. With respect to the corporate defendant, Thermal Components argued that personal jurisdiction could be exercised under the “agent or instrumentality” language of the Kansas long-arm statute. The federal district court found that the defendants’ tortious activities, including misappropriation of trade secrets, subjected them to the statute and further found that “the injuries for which plaintiff seeks redress, allegedly caused by the defendants’ conduct, occurred in Kansas for purposes of the ‘tortious act’ provision of the long-arm statute.” Thermal Components, 98 F. Supp. 2d at 1228.
With regard to due process requirements, the federal district court concluded that, taking the facts as alleged by the plaintiff as true, Thermal Components made the required prima facie showing that the defendants’ contacts with Kansas were sufficient to subject them to personal jurisdiction in this state:
“By misappropriating the trade secrets to which tire individual defendants became privy only as a result of their employment by the plaintiff, and by using that information to interfere with Thermal Components’ pre-existing and future contractual relations, defendants’ purposeful tortious conduct toward, as well as the individual defendants’ previous employment relationship with, a Kansas resident establishes the requisite contacts with the forum state. [Citations omitted.] . . .
“Moreover, if the facts are as represented by plaintiff, the defendants’ use of confidential information gained as a result of the defendants’ employment with the plaintiff to divert clients from Thermal Components constitutes a breach of the duty of loyalty, a duty arising from the individual defendants’ previous agency relationship with the plaintiff. As former employees of plaintiff, the individual defendants were surely aware that any deleterious effects resulting from the acts complained of here would certainly be realized by the plaintiff in its home state. As an entity capitalizing on the knowledge held by plaintiff s former employees, defendant Thermotech should have been aware that its role in benefitting from the individual defendants’ tortious activities would harm plaintiff, a Kansas resident, and that the derivation of such benefits at plaintiff s expense would require it to defend itself in the plaintiffs forum state. Thus, the court concludes that the defendants’ contacts with this state are sufficient to subject them to the jurisdiction of this court.” Thermal Components, 98 F. Supp. 2d at 1229-30.
See Equifax Services, Inc. v. Hitz, 905 F.2d 1355, 1358-60 (10th Cir. 1990) (former branch manager had sufficient minimum contacts with forum state by virtue of employment relationship with Kansas employer; action to enforce covenant not to compete); Sprint Corp. v. DeAngelo, 12 F. Supp. 2d 1184, 1186-88 (D. Kan. 1998) (assertion of jurisdiction in Kansas over Virginia former employee did not violate due process).
Many of the points noted by the Thermal Components court apply to TIC’s and Filardo’s actions as well. Aeroflex’s trade secrets were allegedly revealed to TIC in both Kansas and New Jersey. See Union Carbide Corp. v. UGI Corp., 731 F.2d 1186, 1189-90 (5th Cir. 1984) (personal jurisdiction existed over defendant for claim of misappropriation of trade secrets because part of tort was committed in forum). And, if Aeroflex’s allegations are true, TIC sought out Aeroflex’s employees to interfere with TIC’s Kansas competition knowing one of them, Filardo, was a Kansas resident and remained a Kansas resident. It was foreseeable that this alleged purposeful contact by TIC with a Kansas resident and the alleged agreement to use Aeroflex’s trade secrets would cause harm to Aeroflex in Kansas and give rise to TIC being forced to defend itself in a Kansas forum. Under these circumstances, TIC purposefully established minimum contacts with Kansas and invoked the benefits and protections of Kansas law.
Reasonableness — Traditional Notions of Fair Flay and Substantial Justice
Finally, we must consider the second prong of the International Shoe due process requirement and determine whether the exercise of personal jurisdiction is reasonable or whether the exercise of jurisdiction offends “ ‘traditional notions of fair play and substantial justice.” ’ [Citations omitted.]” Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 113, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987). Factors to consider in making this evaluation include: “the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. [Citations omitted.]” White v. Goldthwaite, 204 Kan. 83, 88, 460 P.2d 578 (1969); see OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1095 (10th Cir. 1998) (citing Asahi, 480 U.S. at 113, and factors such as burden on defendant, forum state’s interest in resolving the dispute, plaintiff s interest in receiving convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies). This reasonableness inquiry is conducted on a sliding scale: “ ‘[T]he weaker tire plaintiff s showing on [minimum contacts], the less a defendant need show in terms of unreasonableness to defeat jurisdiction.’ [Citation omitted.]” Pro Axess, Inc. v. Orlux Distribution, Inc., 428 F.3d 1270, 1280 (10th Cir. 2005).
In the present case, TIC argues that the exercise of personal jurisdiction would be unreasonable, that requiring TIC to defend this case in Kansas would create a great burden, and that Kansas has only a “nominal interest” in this dispute. TIC contends that New Jersey is the most efficient forum in which to litigate the parties’ disputes, especially because Aeroflex has corporate counsel out of New York who has been admitted pro hac vice in this case.
The district court agreed with TIC’s position and found:
“The burden on the Defendant TIC would be considerable in that virtually none of its witnesses (employees and government) and exhibits is in Kansas and it has no office or presence in Kansas. Lead counsels for both parties are from the east coast, not Kansas. While the forum state (Kansas) has an interest in resolving this dispute, that interest is no greater tiran the defendant’s home state (New Jersey) or the state in which the bid was submitted (Alabama). The plaintiff has not shown it cannot receive convenient and effectual relief in New Jersey or Alabama. The interstate judicial system’s interest in obtaining the most efficient resolution of this controversy favors the forum in New Jersey, the location of most of the witnesses and exhibits of the alleged tortious acts (misappropriation of trade secrets), tire location or close location of lead counsel, and the location of the alleged illegal acts. Furthermore, neither Kansas, New Jersey nor any other state have a greater interest in furthering social policies against the alleged wrongs committed by TIC; the states appear to share equally in that interest. Given the weak showing of minimal contacts (if any) by Aeroflex, the less TIC must show in terms of unreasonableness to defeat due process.”
Aeroflex urges this court not to follow such a “misguided notion” of unfairness, arguing that Kansas courts must not close their doors to its residents on the premise that it is “ ‘unfair to force an interstate pirate to answer in Kansas for the injuries he intentionally inflicts on Kansans.”
As we evaluate these positions, we agree with many of the points made by the district court, primarily those relating to the lack of TIC’s presence in Kansas means most of its witnesses will be from out-of-state. Yet, we disagree with other points.
Most significantly, the district court’s starting point for its sliding scale rested on the court’s view of the weak or nonexistent nature of TIC’s contacts. In contrast, we apply this sliding scale with the view that, if Aeroflex is able to prove the case for which it has made a prima facie showing, it will have established significant contacts. It will have shown that TIC purposefully sought out a Kansas resident with the purpose of stealing proprietary information from a Kansas business; formed a conspiracy with Filardo, a Kansas resident, and Allen, who had a contract with a Kansas business and breached duties related to the contract; and continued a conspiracy with a person it knew to be residing in Kansas and committing tortious acts in Kansas. These are strong contacts and significant examples of TIC’s purposeful availment of the privilege of conducting activities in Kansas. See Chem-Trol, Inc. v. Christensen, No. 09-2024-EFM, 2009 WL 1044613, at *2 (D. Kan. 2009) (unpublished opinion) (finding Iowa corporation started by Kansas corporation’s former employee, who was subject to noncompete agreement, was subject to jurisdiction under tortious act provision of Kansas long-arm statute; tortious interference with customer contracts); Guang Dong Light Headgear Factory Co., Ltd. v. ACI International, Inc., No. 03-4165-JAR, 2007 WL 1341699, at *5 (D. Kan. 2007) (unpublished opinion) (former employee of a Kansas business incorporated in Texas with the purpose of competing with Kansas business; held that even though Texas corporation itself did not act in the state of Kansas, its agent’s and coconspirator’s activities were attributable to corporation, and corporation reasonably should have foreseen that it would be required to defend itself in a Kansas court).
Weighing the burden on TIC against the backdrop Aeroflex may eventually prove regarding TIC’s relationship with Filardo, its conspiracy to steal proprietary information, and the actions in Kansas to further that conspiracy, we conclude that the burden imposed on TIC is not unduly onerous.
Another significant factor is the recognition that “ ‘[s]tates have an important interest in providing a forum in which their residents can seek redress for injuries caused by out-of-state actors.’ ” Pro Axess, 428 F.3d at 1280 (quoting OMI Holdings, 149 F.3d at 1096). Further, each state has an interest in resolving disputes that involve its own laws. Because Aeroflex is located in Kansas, and the case involves the application of Kansas law, the state of Kansas has an interest in providing Aeroflex with a forum to litigate.
The factors concerning Aeroflex’s interest in convenient and effective relief also weigh in favor of exercising jurisdiction. Further, there is no obvious reason why Kansas’ exercise of jurisdiction would affect the substantive policy interests of any other state. Accordingly, we conclude Kansas courts may reasonably exercise personal jurisdiction over TIC; traditional notions of fair play and substantial justice will not be offended.
In sum, when the evidence presented on the motion to dismiss is viewed in the light most favorable to Aeroflex, Aeroflex has presented a prima facie case that TIC, through its agents and instru-mentalities, committed a tortious act in Kansas and is therefore subject to jurisdiction under K.S.A. 2011 Supp. 60-308(b)(l)(B). Exercise of that jurisdiction does not offend due process.
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The opinion of the court was delivered by
Biles, J.:
Drags were discovered during a warrantless search inside a vehicle that Bernard Eugene Preston was driving. The only passenger was the car’s owner. Preston claimed the drugs were not his. He seeks review of a Court of Appeals decision affirming his convictions. State v. Preston, 41 Kan. App. 2d 981, 207 P.3d 1081 (2009).
Preston alleges numerous trial errors, including his claim that the vehicle search was illegal, his prior drug conviction was improperly admitted, and his constitutional rights were violated when the State used his refusal to consent to a warrantless vehicle search to establish his guilt. We hold that evidence of Preston’s prior drug conviction was admitted in violation of K.S.A. 60-455 and State v. Boggs, 287 Kan. 298, 197 P.3d 441 (2008) (prior drug use inadmissible when defendant asserts that he or she does not know there are drugs in die vehicle). We reverse and remand for a new trial on that issue, making it unnecessary to reach the remaining claims of error.
Factual and Procedural Background
Just before 1:30 a.m. on September 3, 2005, police dispatch notified patrolling officers someone had been stabbed. Dispatch advised that the suspect drove the victim to the Overland Park Regional Medical Center and left the hospital on foot. Someone driving a Cadillac, Suburban, or an Oldsmobile was expected to pick up the suspect near tire hospital.
A Lenexa police sergeant, who was patrolling the area alone, immediately drove to a parking lot less than a mile from the hospital and waited. He testified there was very little traffic on the road and within 5 minutes Preston and a female passenger drove past him in a Cadillac. Preston was driving away from the hospital. The sergeant testified that Preston and the passenger both looked at him as they passed, raising the officer’s suspicion.
The sergeant followed the vehicle because he was concerned Preston was either the aggravated battery suspect or picking up the suspect. Shortly thereafter, Preston made a left turn without activating his turn signal within 100 feet from the expected turn, in violation of K.S.A. 8-1548(b), which caused the sergeant to stop the vehicle. But the sergeant conceded the traffic stop, although lawfully based, was a pretext for the aggravated battery investigation because there were very few cars on the road at that time, Preston was driving a Cadillac, and the sergeant noticed the Cadillac had tags from a different county.
Once the vehicle was stopped, the sergeant approached the driver’s side window, took Preston’s driver’s license, and questioned the occupants about what they were doing in the area. Preston said they were picking up a relative but refused to tell the officer the relative’s name or where they were meeting. The officer testified he “felt certain . . . they were involved in maybe picking up the suspect who was in the area.” He then asked Preston to get out of the car and stand by the trunk but did not immediately administer a weapons pat-down. Instead, the sergeant walked around to speak with the passenger, Demicka Johnson, who said she did not know why they were driving around. She also said she owned the car but insisted that Preston’s permission was needed to search it. The officer then returned to the rear of the car to speak with Preston.
At this point, the sergeant conducted a pat-down search for weapons and discovered in Preston’s pocket $2,500 in cash folded into $100 increments. The sergeant testified that in his experience drug dealers often keep money in $100 increments, and he thought it was a suspicious amount of money because Preston had said he was unemployed. The sergeant then searched the vehicle’s passenger compartment, which he justified at the suppression hearing on officer safety concerns.
The record does not firmly establish the exact sequence of the following events, but it is clear each happened before die initial car search: (1) The sergeant asked Johnson to get out of the car and stand next to it with another officer who had arrived for backup; (2) dispatch notified the sergeant that Preston was under federal supervision for a narcotics charge; (3) the sergeant observed a box of Swisher Sweets cigarillos in the back seat with loose tobacco inside the box, which suggested marijuana use based on his experience; and (4) the sergeant learned another officer had reported observing the aggravated battery suspect on foot nearby, but the sergeant could not remember whether that suspect was in custody before the car was searched. The sergeant claimed his initial protective search of the car for weapons was based on several factors that contributed to his safety concern, including his belief that Preston was picking up the aggravated batteiy suspect; the officer’s experience that aggravated batteries are frequently related to narcotics sales; and the $2,500 found on Preston.
The sergeant testified that while checking the vehicle for weapons he detected a faint odor of burnt marijuana, so he contacted a K-9 unit to investigate further. After it arrived, the dog showed a strong interest along the front passenger seat but did not alert that it had located any drugs. Following the dog sniff, the sergeant personally conducted the second and more detailed search of the car. And it was at this time that cocaine and marijuana were found in an ashtray in the vehicle’s right rear passenger side.
The State charged Preston with possession of cocaine with intent to sell, possession of marijuana, and possession of cocaine without a tax stamp. Preston filed a motion to suppress the drugs and money, challenging tire pretextual traffic stop, the pat-down search, and tire two warrantless car searches. The district court upheld the constitutionality of tire stop and subsequent searches and denied Preston’s motion to suppress.
Before trial, the State filed a K.S.A. 60-455 motion seeking to admit evidence that Preston had a prior conviction for conspiracy to possess cocaine with intent to distribute. The State argued it was admissible to prove Preston’s knowledge and intent to sell. Preston objected, arguing that the prior conviction was inadmissible because it was immaterial to guilt and overly prejudicial. The district court held the conviction was admissible because this was a constructive possession case and Preston’s intent to possess was disputed.
At trial, the prior conviction was noted to tire jury several times. The prosecutor referenced Preston’s prior conviction during opening statements, the State introduced an affidavit establishing Preston’s conviction for conspiracy to possess cocaine with intent to distribute, and the sergeant testified that Preston’s prior conviction was one reason he suspected the drugs found in the car belonged to Preston and not Johnson. And while testifying in his own defense, Preston admitted he had pled guilty to tire charge, served time in federal prison, and was later released from supervision. Preston also testified he was very young when he committed the drug offense and regretted it.
Also at trial, the sergeant testified that Preston refused to consent to tire car search. And during closing arguments, the prosecutor advised the jury that Preston’s refusal to consent to the search was evidence Preston possessed the drugs. A jury convicted Pres ton of possession of cocaine with intent to sell, possession of marijuana, and possession of cocaine with no tax stamp.
Preston appealed and raised the following issues: (1) The drug evidence and money should have been suppressed because the traffic stop, the pat-down search, and the car searches were unconstitutional; (2) his right to a fair trial was violated because the State admitted evidence Preston refused to consent to the car search and argued this could be considered evidence of his guilt during closing argument; (3) his prior conviction was inadmissible under K.S.A. 60-455; and (4) his sentence was illegal because the State did not prove aggravating factors to the jury.
The Court of Appeals affirmed. Preston, 41 Kan. App. 2d 981. Preston petitioned for review with this court, which was granted under K.S.A. 20-3018(b) (review of Court of Appeals decision).
Evidence of Preston’s Prior Drug Conviction Was Inadmissible
Preston argues evidence of his prior possession of cocaine conviction was admitted in violation of K.S.A. 60-455, citing Boggs. He argues the district court improperly held that the prior conviction was admissible to prove intent to sell, even though his intent was not disputed because he claimed the drugs were not his. Preston argues tire only purpose for admitting the evidence was to establish a propensity for possessing drugs, which is improper under Boggs, 287 Kan. at 317 (“If a person asserts that he or she does not know that there are drugs in a residence [or vehicle], prior use of drugs neither proves nor disproves the validity of that assertion.”).
The State argues Preston’s intent was disputed because this is a constructive possession case. In the alternative, the State argues admission of the prior conviction evidence was harmless. We hold that the prior conviction was inadmissible under K.S.A. 60-455 because Preston’s intent was not in dispute, and we reverse his convictions because the error affected his substantial rights. See K.S.A. 60-261.
Standard of Review
The version of K.S.A. 60-455 in effect at the time of the alleged crime and Preston’s trial stated:
“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.” K.S.A. 60-455.
Parenthetically, we note this statute was amended, effective April 30, 2009. See L. 2009, ch. 103, sec. 12; K.S.A. 2010 Supp. 60-455. But we will not discuss the amendments because the parties do not argue they are relevant.
Under K.S.A. 60-455, evidence a defendant committed a crime or civil wrong is inadmissible to prove the defendant’s propensity to commit the crime charged, but it is admissible if relevant to prove some other material fact. State v. Inkelaar, 293 Kan. 414, 423, 264 P.3d 81 (2011) (quoting K.S.A. 60-455). Determining whether evidence was properly admitted under K.S.A. 60-455 requires several tests. State v. Wells, 289 Kan. 1219, 1226-27, 221 P.3d 561 (2009); State v. Gunby, 282 Kan. 39, Syl. ¶ 3, 144 P.3d 647 (2006).
The court must decide whether the evidence is relevant or has “any tendency in reason to prove a material fact.” K.S.A. 60-401(b); State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). Relevant evidence must be material and probative. Material evidence is evidence that “ ‘has a legitimate and effective bearing on the decision of the case and is in dispute.’ ” State v. Garcia, 285 Kan. 1, 14, 169 P.3d 1069 (2007). This court reviews de novo whether evidence is material. Reid, 286 Kan. at 505. Probative evidence is evidence that furnishes, establishes, or contributes toward proof. State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010). This court reviews the probative element of relevancy under an abuse of discretion standard. Preston bears the burden of proving the court’s discretion is abused. See Reid, 286 Kan. at 507, 512. Finally, this court must determine whether the evidence’s probative value out weighs its prejudicial effect. 286 Kan. at 503. This step is also reviewed for an abuse of discretion. 286 Kan. at 512.
If these tests are met and the evidence is admitted, tire trial court still must give a limiting instruction to ensure the jury considers the evidence only for the reasons admitted. Garcia, 285 Kan. at 12. This process provides safeguards against the danger that this evidence will be considered to prove a defendant’s mere propensity to commit the crime charged. Gunby, 282 Kan. at 48.
Is the evidence relevant to prove intent?
The arguments in this case are nearly identical to those raised in Boggs, 287 Kan. 298. And although we note that Preston was convicted of possession with intent to sell while Boggs was convicted of simple possession, the State does not argue this makes any difference in our analysis and argues Preston’s case as if it were another nonexclusive constructive drug possession case like Boggs. Accordingly, we will address Preston’s case based on the State’s arguments as presented. The question then is whether Boggs is analogous and whether the Court of Appeals erred by following State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976) (when defendant’s intent to possess drugs was substantially in dispute, evidence of defendant’s prior conviction for possession of controlled substances was properly admitted).
Admittedly, this court decided Boggs after Preston’s trial concluded so the district court could not benefit from its analysis. But Boggs was issued before Preston’s appeal was briefed and argued to the Court of Appeals, and yet the parties failed to cite the decision in their Court of Appeals briefs, and that court did not address it either. We therefore do not have the benefit of the Court of Appeals’ analysis on this first critical issue in the case. We begin by summarizing Boggs and Faulkner.
In Boggs, the defendant was the only passenger in a truck stopped on suspicion that the driver was under tire influence of alcohol. Neither the driver nor Boggs owned the truck. A pipe containing burnt marijuana residue was discovered underneath the truck’s passenger seat. Boggs admitted during the traffic stop that he had smoked marijuana the previous month. He was charged with possession of marijuana and misdemeanor possession of drug paraphernalia. At trial, Boggs claimed the pipe and drugs were not his, so the issue was whether his statement that he used marijuana a month earlier was admissible under K.S.A. 60-455 to prove his intent, knowledge, or absence of mistake or accident to possess the drugs and paraphernalia. We focus on the allegation that it was relevant to prove Preston’s intent in this case because the State contends it was relevant to prove that element of its charge against him.
The State argued in Boggs that the defendant’s intent is always a disputed, material fact in constructive possession cases — the same assertion the State makes in Preston’s case. The Boggs court agreed that intent is an element of possession of marijuana and drug paraphernalia, but that alone did not necessarily render it material in every case because intent is not always disputed. See 287 Kan. at 311, 315. This court then drew what amounts to a bright-line rule that intent is not disputed if a defendant claims he or she is innocent and did not possess the drugs. The Boggs court held that the defendant’s admission of prior drug use was not admissible when the defendant denied ever having possessed the drugs. 287 Kan. at 315-16. We explained that under those circumstances, the only purpose for admitting Boggs’s statement about prior use was to improperly establish his alleged propensity for using marijuana. We found:
“The only conceivable connection between the two events [prior use and possession] is an assumption that because [the defendant] used marijuana in the past, it was probable that he would use it again in the future and thus possess the pipe. This is propensity evidence and is precisely what K.S.A. 60-455 was designed to prevent.” (Emphasis added.) 287 Kan. at 317 (citing Gunby, 282 Kan. at 47-48).
The arguments and facts in Preston’s case seem to dovetail with the holding in Boggs because the district court held Preston’s prior conviction was admissible to establish his intent — even though Preston claimed the drugs were not his. Under Boggs, tire prior conviction evidence was not admissible. But we must also examine Faulkner since the Court of Appeals relied upon it.
In that case, Faulkner was a passenger in a car containing a hypodermic needle, a small bag of pills on the passenger side floor board, and another bag of amobarbital in the glove box. Faulkner was charged with possession with intent to sell. At trial, the State admitted evidence that Faulkner had a prior conviction for possession of a controlled substance. On appeal, Faulkner argued the prior conviction was inadmissible under K.S.A. 60-455, but this court held it was admissible because it was offered to prove the specific intent for possession when the intent to exercise control over the drugs was disputed. 220 Kan at 157; see Boggs, 287 Kan. at 312. The Boggs court distinguished Faulkner, holding that the critical difference was that prior crime or bad act evidence is only admissible if the defendant disputes the material fact in issue. See 287 Kan. at 311, 315. A comparison of the facts and defense theory raised in Preston’s case leads us to conclude that this court’s analysis in Boggs controls and the Court of Appeals erred by following Faulkner.
In summary, this court has adopted a rule that distinguishes between cases in which the defendant acknowledges but attempts to provide an innocent explanation for his or her actions and those in which the defendant disputes the allegations outright. As we stated in Boggs: “[T]he defendant’s use of a controlled substance is not a factor that is automatically admissible as an exception to the specific mandates of K.S.A. 60-455.” 287 Kan. at 318; see also Wells, 289 Kan. at 1231-32 (applying Boggs in an aggravated criminal sodomy case to hold prior bad acts were inadmissible since the defendant denied touching the victim); State v. Cook, 45 Kan. App. 2d 468, 474, 249 P.3d 454 (2011) (following Boggs); State v. Diaz, No. 100,735, 2010 WL 481258 (Kan. App. 2010) (unpublished opinion) (following Boggs), rev. granted 293 Kan. _ (January 20, 2012) (pending).
Applying that same analysis here, we hold that Preston’s prior conviction was not admissible under K.S.A. 60-455 and Boggs because he disputed the drugs were his. The remaining issue is whether the admission of the prior conviction was harmless error.
The error was not harmless
The improper admission of evidence under K.S.A. 60-455 is not automatically reversible. Boggs, 287 Kan. at 318. Under K.S.A. 60- 261, an evidentiary error is only reversible if the party’s substantial rights were violated. See State v. Ward, 292 Kan. 541, Syl. ¶¶ 5-6, 8, 256 P.3d 801 (2011). K.S.A. 60-261 states:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to die court inconsistent with substantial justice.”
See K.S.A. 2010 Supp. 60-261 (amended in 2010; substantially same language).
Preston argues the error was not harmless. He notes that any evidence of his guilt was not direct or overwhelming because the drugs were in the back seat on tire passenger’s side and there was evidence other people were in the car that night. The State carries the burden to demonstrate there is no reasonable probability that the error affected the trial’s outcome in light of the entire record because it was the beneficiary of this nonconstitutional error. See State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012). The State presents two arguments for why tire K.S.A. 60-455 error was harmless.
First, the State argues Preston testified about the conviction during trial, but this claim is immediately suspect and lacks merit. Preston lodged a continuing objection to admitting evidence of his prior conviction. And it was only after his objection was overruled and the evidence admitted that Preston was forced to adopt a trial strategy in which he acknowledged the prior offense and attempted to persuade the jury it was an isolated occurrence. The defendant’s action can only be seen as an act of mitigation from the trial error caused by the State’s earlier effort to admit the prior conviction. The sequence of trial events preceding the defendant’s testimony makes the State’ argument illogical and cannot provide grounds to render the trial error harmless.
Second, the State argues it was harmless error because the evidence of Preston’s guilt was direct and overwhelming, citing the $2,500 in his pocket despite being unemployed, the fact he was in a car that contained the drugs, his refusal to tell tire officer where he was going, and his proximity to the drugs. But most of that evidence could just as easily establish that the drugs belonged to Johnson, not Preston. Both were in the car, both provided evasive responses to the officer s questions, and both were in close proximity to the drugs. And since Preston’s prior conviction was inadmissible, the strongest evidence of Preston’s guilt was the cash, and that detail alone does not establish the necessary elements for the crime charged.
Under these circumstances, we find there is less evidence of Preston’s guilt than was presented in Boggs, in which this court held the error was prejudicial. 287 Kan. at 319. The Boggs court, after excluding the prior conviction evidence, noted that the only remaining evidentiary link between the defendant and the pipe was the officer’s testimony the defendant smelled of marijuana and the driver’s extensive trial testimony that the pipe belonged to the defendant. But tire court discounted the driver’s testimony as lacking credibility because he was the only other person in .the truck, which belonged to his father. From this, the court held it was impossible to conclude the jury did not base its verdict on the prior drug use, stating:
“We cannot discount the very real possibility that the jury was swayed by this prior drug experience and concluded on the basis of the improperly admitted evidence that the defendant was guilty of the crime charged solely based on his previous behavior. In short, we do not believe that the erroneous admission of defendant’s prior drug use was harmless.” Boggs, 287 Kan. at 319.
We hold the error here was not harmless. We reverse the Court of Appeals and remand for a new trial. We need not address Preston’s remaining claims given our disposition on the first issue.
Judgment of the Court of Appeals affirming the district court is reversed in part. Judgment of the district court is reversed and remanded.
Moritz, J., not participating.
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The opinion of the court was delivered by
Luckert, J.:
Defendant Kenneth D. Adams was convicted by a jury of six counts relating to a conspiracy to manufacture methamphetamine and possession of methamphetamine. In his direct appeal, Adams claimed error at various stages of the trial, but the Court of Appeals affirmed. See State v. Adams, 43 Kan. App. 2d 842, 232 P.3d 347 (2010). Now on petition for review, Adams argues: (1) The trial court erred in denying his motion to suppress evidence obtained after execution of a search warrant; (2) the jury was given an improper instruction with regard to testimony about prior drug use; (3) the court erred in using his criminal history to enhance his sentence; and (4) under the identical offense sentencing doctrine, the court erred in classifying his offense of possession of lithium metal with the intent to manufacture a controlled substance (K.S.A. 2007 Supp. 65-7006[a]) as a severity level 2 drug felony.
We reject Adams’ arguments on the first three issues but grant relief on the last issue, vacating his sentence for possession of lithium metal with intent to manufacture a controlled substance and remanding for resentencing as a severity level 4 drug felony.
Facts and Procedural Background
Adams was arrested following an investigation that began with a routine traffic stop of Adams’ housemate, Rachel Nelson. Nelson was stopped in Protection, Kansas, after Police Chief Darren Kon-rade saw her run a stop sign. Nelson appeared to be intoxicated, so Konrade conducted field sobriety tests. Nelson failed the tests and admitted to drinking alcohol and smoking methamphetamine. Konrade arrested Nelson and advised her of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966).
Konrade searched the pickup truck Nelson was driving and Nelson’s purse. In the purse, he found a handwritten list of several items that he recognized were commonly used in the manufacture of methamphetamine: toluene, D batteries, lithium, starting fluid, and distilled water. Nelson admitted she had purchased some of these items with the purpose of manufacturing methamphetamine. She claimed the manufacturing process was done in Oklahoma, although she indicated that she lived in Protection with “Kenny Adams.” After further questioning, Nelson admitted some of the items had been purchased the previous day and were at her home in Protection. Nelson was taken to the police station where she completed a written statement. In that statement, she provided additional details regarding her involvement in methamphetamine manufacturing and implicated George Pitcherello as the person responsible for manufacturing the methamphetamine.
Less than 3 hours after the initial traffic stop, law enforcement officers executed a search warrant on Nelson’s home in Protection. On arrival at the home, officers saw three individuals standing by a parked car and a woman and a small child sitting inside the car. Adams was one of the three individuals standing by the car.
While outside the home, officers could smell odors they associated with methamphetamine manufacturing, and, upon entering the home, the officers observed a haze throughout the kitchen area and traced the strong chemical odor to a bottle sitting in a skillet. Officers found a bedroom they suspected was being used for a methamphetamine lab and noticed several items commonly used in the manufacture of methamphetamine. The officers then called in agents for the Kansas Bureau of Investigation (KBI) to process a possible methamphetamine lab.
At that point, the officers detained several suspects, including Adams. Adams was given a recitation of his Miranda rights, after which Adams made several statements that indicated he was familiar with tire pieces of paraphernalia being used in his house to manufacture methamphetamine and with the manufacturing process.
The KBI agents performed a complete search of the home and processed a large number of items used in the manufacture of mediamphetamine. After these items were tested, methamphetamine was detected in at least eight different samples of liquids, powders, and other substances taken from the scene. Methamphetamine only was detected in at least four samples, while other samples contained a mix of methamphetamine and one or more of the following products: pseudoephedrine, toluene, and ethyl ether. Other samples did not test positive for methamphetamine but contained various chemicals either used during methamphetamine manufacturing or produced naturally by the process, including lithium metal, ammonia, ethanol, methanol, ethyl ether, hydrochloric acid, toluene, sodium chloride, and sulfuric acid.
The State charged Adams with six counts: (1) manufacture of methamphetamine in violation of K.S.A. 2007 Supp. 65-4159(a), a severity level 1 drug felony, or alternatively, attempted manufacture of methamphetamine, see K.S.A. 21-3301; (2) conspiracy to manufacture methamphetamine in violation of K.S.A. 21-3302(a) and K.S.A. 2007 Supp. 65-4159(a), a severity level 1 drug felony; (3) possession of lithium metal with the intent to manufacture methamphetamine in violation of K.S.A. 2007 Supp. 65-7006(a), a severity level 2 drug felony; (4) possession of drug paraphernalia with intent to manufacture a controlled substance in violation of K.S.A. 2007 Supp. 65-4152(a)(3), a severity level 4 drug felony; (5) possession of methamphetamine in violation of K.S.A. 2007 Supp. 65-4160(a), a severity level 4 drug felony; and (6) possession of drug paraphernalia in violation of K.S.A. 2007 Supp. 65-4152(a)(2), a class A nonperson misdemeanor.
After his preliminary hearing but before trial, Adams filed a motion to suppress the evidence obtained when officers executed the search warrant. The trial court denied the motion.
At trial, Nelson testified for the State and indicated she and Adams had used methamphetamine the day of the traffic stop. Nelson also testified she and Adams had used various forms of paraphernalia to ingest the methamphetamine. Nelson then testified that Adams and Pitcherello had been partners in manufacturing methamphetamine. She also testified to some of the specific methamphetamine manufacturing processes they used.
In addition to Nelson’s testimony, two other individuals who were present when the search warrant was executed, Tina Stein-barger and Charles Townsend, testified. Steinbarger testified that she, Townsend, and Pitcherello had driven together from Oklahoma to Adams’ home in Kansas. When the group arrived at Adams’ home, Pitcherello went inside. Townsend and Steinbarger went into the home about 30 minutes later. Steinbarger testified that once inside, she, Townsend, and Pitcherello all injected methamphetamine. According to her, she did not possess any methamphetamine when she arrived in Protection.
Townsend testified that he had provided Pitcherello and Adams with pseudoephedrine pills in exchange for the two manufacturing methamphetamine for him. Townsend testified that while he and Steinbarger waited outside, he saw shadows in a room where Stein-barger had told him Pitcherello and Adams were cooking methamphetamine. Townsend entered the home, and the people inside, including Adams, were using methamphetamine. Townsend testified that after using the methamphetamine, Adams walked back toward the room where Townsend had seen the shadows. Adams entered the room, and an ammonia-like odor got much stronger. Pitcherello left the room holding a small, brown container with methamphetamine. Townsend identified that small, brown conr tainer as one of the containers police seized in the bust and explained that Pitcherello did not have that or any other methamphetamine when he arrived at Adams’ house.
The jury returned verdicts of guilty to all charges. (The alternative charge of attempted manufacture of methamphetamine was dismissed as multiplicitous.) At sentencing, the court imposed a controlling sentence of 148 months’ imprisonment for the manufacture of methamphetamine. Regarding Adams’ other convictions, the court imposed concurrent terms of 148'months for conspiracy, 51 months for possession of lithium metal, 12 months for possession of drug paraphernalia, 12 months for possession of methamphetamine, and 12 months in the county jail for misdemeanor possession of drug paraphernalia. Additionally, the court ordered these sentences to be served consecutive to another sentence in Oklahoma.
On direct appeal, the Court of Appeals affirmed. Adams, 43 Kan. App. 2d 842. Adams filed a petition seeking this court’s discretionary review of the same four issues he presented to the Court of Appeals. This court granted Adams’ petition for review and has jurisdiction under K.S.A. 22-3602(e) (petition for review) and K.S.A. 20-3018(b) (same).
Motion to Suppress
First, Adams contends the trial court erred in denying his motion to suppress the evidence obtained when officers executed the search warrant. In the motion submitted to the trial court, Adams attacked the affidavit submitted with the application for the warrant, arguing it contained material statements of deliberate falsehood or material statements made in reckless disregard for the truth.
The affidavit was prepared by Deputy Trent Allen. In the opening portion of the affidavit, Deputy Allen listed his qualifications, which included in-service training sessions regarding narcotics investigations, and experience gained from actual narcotics investigations. After a paragraph describing these qualifications, there was a section heading, which read: “Production of Controlled Substances.” Following this heading, Allen stated: “Based on my training and experience, I am familiar with how controlled substances are manufactured, obtained, diluted, packaged, distributed, sold and used.” Allen then described various processes for manufacturing methamphetamine, including processes that were unrelated to the method Nelson had described. The detailed descriptions identified the chemicals used as precursors, reagents, solvents, and catalysts and the steps of production for the various methods.
In his motion to suppress, Adams attacked this portion of the affidavit. Specifically, he alleged that Allen misrepresented his training, experience, and knowledge regarding the production of controlled substances. To support this assertion, Adams pointed to Deputy Alleris testimony at the preliminary hearing, which Adams argued revealed Allen’s lack of in-depth knowledge about all of the various manufacturing methods detailed in his affidavit. As an example, Adams pointed to Alleris testimony regarding a conversation in which Allen explained to Adams that the “KBI’s meth lab response team” had been called and that the processing of the scene would be left to the KBI because Allen “wasn’t trained in meth labs and how they’re set up. That’s what the KBI was there for.” As another example, Adams noted that on cross-examination, Allen stated he was not familiar with the red phosphorous method of methamphetamine manufacturing even though he had stated in the affidavit that he was. Allen explained that he had used a template found on his computer for the affidavit. On redirect, Allen clarified diat he had some training on methamphetamine labs but the training was not extensive.
Adams asserted this lack of personal knowledge meant the entire “Production of Controlled Substances” section of the affidavit, which was approximately two and a half pages of description regarding various manufacturing processes, had to be set aside. He further argued these descriptions were material and without them diere was not sufficient information to establish probable cause to justify the search warrant.
In ruling on the motion, the trial court focused on another portion of the affidavit, which was labeled: “Probable Cause.” In this section, Allen wrote, in part:
“Nelson failed standard field sobriety testing and was questioned about drug use[.] Nelson stated that she had purchased several methamphetamine precursors in Woodward[,] Oklahoma yesterday January 28,2008. She stated that the precursors that she had purchased were located at 107 W. Main in Protection, Kansas. Also Mrs. Nelson provided a voluntary written statement about these activities. Mrs. Nelson also stated that George Pitcherello was at her residence at 107 W[.] Main in Protection and that he was the person responsible for the manufacture of the methamphetamine.”
The trial court noted this portion of the affidavit summarized information gained from Nelson and that Chief Konrade’s testimony at the preliminary hearing confirmed tire affidavit accurately reported Nelson’s statements. This information, according to the trial court, was sufficient to support probable cause.
Also, the court found the affidavit contained no material misrepresentations or statements made in reckless disregard for the truth. Consequently, the court denied Adams’ motion to quash the warrant and suppress the evidence.
Franks v. Delaware Procedure
The trial court’s analysis applied the principles outlined by the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). In Franks, the Supreme Court explained that an affidavit in support of a search warrant is presumed valid, and in most cases, the facts contained therein may not be disputed by the party against whom the warrant is directed. See Franks, 438 U.S. at 171; State v. Jacques, 225 Kan. 38, 43, 587 P.2d 861 (1978). The Court then outlined a limited exception.
Under the Franks exception, an evidentiary hearing is required if a defendant shows by a sworn allegation that an affidavit in support of a search warrant is unreliable in that it: (1) contains statements that are material to the issuance of the search warrant because the statements were necessary to find probable cause and (2) the material statements (a) were a deliberate falsehood, (b) were made in reckless disregard for the truth, or (c) deliberately omitted a material fact. State v. Francis, 282 Kan. 120, 129, 145 P.3d 48 (2006); State v. Schoonover, 281 Kan. 453, 513, 133 P.3d 48 (2006). In attacking the affidavit, the defendant must “point out specifically the portion of the warrant affidavit that is claimed to be false[,] and a statement of supporting reasons should accompany the motion to suppress.” Jacques, 225 Kan. at 44 (citing Franks, 438 U.S. at 171).
In other words, the Franks Court explained, if a defendant makes a prima facie showing that the affidavit is questionable, the trial court should set aside or excise the challenged portions of the affidavit and consider whether the remaining portions of the affidavit provide sufficient evidence of probable cause. If probable cause can be found without the excised statements, no evidentiary hearing is required. On the other hand, if there is not sufficient content in the remaining portion of the affidavit to support a finding of probable cause, the defendant is entitled to an evidentiary hearing to establish the affiant deliberately omitted a material fact, deliberately made a false statement, or made a statement with reckless disregard for the truth. Franks, 438 U.S. at 171-72.
Standard of Review
According to Adams, when an appellate court reviews these Franks determinations, the appellate court applies the same standard of review as would be applied to any other ruling on a motion to suppress. Generally, an appellate court reviews the trial court’s decision on a motion to suppress using a bifurcated standard: With out reweighing the evidence, the trial court’s findings are reviewed to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011). If the material facts in a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. Johnson, 293 Kan. at 4.
It is not clear that this standard applies in this case, however, because the trial court did not conduct an evidentiary hearing or malee the factual findings that would be necessary if the trial court completed the last step of a Franks proceeding. Instead, the trial court in this case determined the portions of the affidavit that were not challenged established probable cause. As a result, there was no need for a Franks-style evidentiary hearing.
Without evidentiary findings to review, the Court of Appeals correctly determined the standard of review in this case is the same as any case in which we review a trial court’s determination regarding whether undisputed facts establish probable cause for a search warrant. See Adams, 43 Kan. App. 2d at 850. We have explained that standard by stating:
“When an affidavit in support of an application for search warrant is challenged, the task of the reviewing court is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. This standard is inherently deferential. It does not demand that the reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided a substantial basis for the magistrate’s determination that there is a fair probability that evidence will be found in tire place to be searched. Because the reviewing court is able to evaluate tire necessarily undisputed content of an affidavit as well as the issuing magistrate, the reviewing court may perform its own evaluation of the affidavit’s sufficiency under this deferential standard.” State v. Hicks, 282 Kan. 599, Syl. ¶ 2, 147 P.3d 1076 (2006).
See Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996).
Hence, our standard of review is whether the trial court, using only the section of the affidavit labeled “Probable Cause,” had a substantial basis to conclude there was a high probability that ev idence of methamphetamine use or methamphetamine manufacturing would be found in the home Nelson shared with Adams.
Analysis
The “Probable Cause” section of the affidavit included statements that Nelson appeared to be under the influence “of some type of drug,” had failed standard field sobriety testing, and had indicated there was a possibility others at her house were under the influence of “dangerous drugs.” In addition, the affidavit recounted Nelson’s statements that she had purchased materials for die purpose of manufacturing methamphetamine, these materials were at her home, and “Pitcherello was at her residence . . . and that he was the person responsible for the manufacture of the methamphetamine.” Without further inspection, these admissions created probable cause that there was evidence of the crime of manufacturing methamphetamine located in Nelson’s residence.
Adams argues further inspection is warranted, however, because the affidavit contained the mere beliefs of the law enforcement officer without any corroborating evidence and the statements made by Nelson were unreliable because Nelson was not a disinterested citizen. To support these arguments, Adams relies on State v. Landis, 37 Kan. App. 2d 409, 156 P.3d 675, rev. denied 284 Kan. 969 (2007).
In Landis, a person arrested for having marijuana in her car became an informant and told law enforcement officers she had just purchased the marijuana from the defendant. Based on this information, officers obtained a search warrant for the defendant’s residence. The defendant argued these statements were insufficient to establish probable cause because there was no information establishing the informant’s veracity. The trial court rejected the argument, but on appeal the Landis court ruled the search warrant was issued without probable cause. The Landis court reasoned that in absence of any other information concerning the informant’s reliability, police corroboration of only the location of the defendant’s residence was insufficient to establish the informant’s credibility or reliability. Landis, 37 Kan. App. 2d at 419-20.
Similarly, Adams points out that in tire present case there was little evidence presented concerning Nelson’s veracity and reliability and she clearly had motivation to place blame on others. Yet this case is distinguishable from Landis in that the search warrant was for Nelson’s residence. Nelson was not merely pointing a finger in the direction of a tenuous third party; she was leading the officers to evidence that had the potential of fortifying or adding to charges the State could bring against her. This circumstance suggests veracity and reliability. Under these circumstances, additional information regarding Nelson’s veracity and reliability was not necessary. See State v. Slater, 267 Kan. 694, 700, 986 P.2d 1038 (1999) (“[T]he most favored of the tips are those which are in fact not really anonymous at all. These tips occur when the person giving the tip gives the police his or her name and address or identifies himself or herself in such a way that he or she can be held accountable for the tip.”).
Consequently, we affirm the conclusion of the Court of Appeals: Given only the information provided by Nelson, the magistrate clearly had a “substantial basis to determine there was probable cause that methamphetamine was being manufactured in Nelson’s residence.” Adams, 43 Kan. App. 2d at 851. The trial court did not err in denying Adams’ motion to suppress.
Jury Instruction Regarding Prior Drug Use
Next, Adams argues that the trial court gave an improper jury instruction regarding testimony about prior drug use. This contention has no merit.
The instruction with which Adams takes issue is the third part of Instruction 13, which was patterned on PIK Crim. 3d 67.13-D. The relevant portions of the instruction provided the following:
“When a Defendant is in nonexclusive possession of the premises upon which a controlled substance is found, it cannot be inferred that the Defendant knowingly possessed the controlled substance unless there are other circumstances linking the Defendant to the controlled substance. Factors you may consider in determining whether the Defendant knowingly possessed the controlled substance include:
1. Defendant’s use of controlled substances . . . .”
Because Adams did not object to this jury instruction, the standard of review is whether the instruction is clearly erroneous. See K.S.A. 22-3414(3). “Jury instructions are clearly erroneous only if the reviewing court is firmly convinced that the jury would have reached a different verdict had the error not occurred.” State v. Tully, 293 Kan. 176, 196, 262 P.3d 314 (2011).
The first question under this standard is whether the trial court erred by giving the instruction. See Tully, 293 Kan. at 196. In asserting there was error, Adams cites State v. Boggs, 287 Kan. 298, 317-18, 197 P.3d 441 (2008).
In Boggs, the defendant was arrested after a marijuana pipe was found under the passenger seat of the car in which he was riding. Boggs argued the pipe was not his and he was not aware it was in the car. In an attempt to link Boggs to the pipe, the State introduced evidence that Boggs had used drugs a month before his arrest. The Boggs court considered K.S.A. 60-455 to determine if the evidence of prior drug use was admissible. The version of the statute in effect at the time provided:
“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.” K.S.A. 60-455.
Applying 60-455, the Boggs court concluded that because the only issue was whether the driver or the passenger possessed the pipe, intent, knowledge, or absence of mistake were not disputed issues and, therefore, the introduction of Boggs’ prior convictions did not fall within the exceptions of K.S.A. 60-455. Boggs, 287 Kan. at 308-09. The Boggs court explained that “[i]f a person asserts that he or she does not know that there are drugs in a residence . . ., prior use of drugs neither proves nor disproves the validity of that assertion.” Boggs, 287 Kan. at 317. Specifically, the Boggs court held:
“While a defendant’s use of a controlled substance may be admitted — subject to the requirements of K.S.A. 60-455 — when such evidence is relevant to prove a disputed material fact, the defendant’s use of a controlled substance is not a factor that is automatically admissible as an exception to the specific mandates of K.S.A. 60-455. To the extent that PIK Crim. 3d 67.13-D suggests otherwise, the instruction is disapproved.” (Emphasis added.) Boggs, 287 Kan. at 318.
This limitation on the use of the prior crimes evidence arose in the context of showing that Boggs had used drugs a month prior to his arrest. Similarly, in the recent decision of State v. Preston, 294 Kan. 27, 272 P.3d 1275 (2012), where we applied Boggs, we held evidence of a prior drug conviction was inadmissible to prove constructive possession.
In contrast, the evidence of Adams’ drug use was use at the time he was committing the crimes for which he was charged. Both the version of K.S.A. 60-455 at issue in Boggs and the current version found at K.S.A. 2010 Supp. 60-455, apply to evidence “the person committed another crime or civil wrong on another specified occasion.” (Emphasis added.) Hence, by its plain language, K.S.A. 60-455 does not apply to a circumstance involving the same occurrence. Further, admission of evidence of drug use is not contrary to the purpose of K.S.A. 60-455 — the evidence is not admitted as propensity evidence but as circumstantial evidence showing a defendant had possession and control over tire drugs. Consequently, many courts allow the admission of evidence establishing that a defendant had just used drugs or was under the influence of drugs at the time of an arrest because that evidence links the defendant with any drugs that are found in an area. See Annot., 56 A.L.R.3d 948, § 8[a], pp. 962-65, and p. 103 (2011 Supp.).
We conclude it is not error to use PIK Crim. 3d 67.13-D to inform a jury that a defendant’s use of drugs is a factor the jury may consider in determining whether the defendant knowingly possessed a controlled substance when die evidence at trial is limited to the defendant’s use of controlled substances on the same occasion as the one when the drugs were allegedly possessed by the defendant. In light of that conclusion, we need not consider whether the jury would have reached a different verdict had the instruction not been given.
Appkendi/Ivory Issue
Adams also argues the trial court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it considered his prior convictions in determining his sentence without requiring those convictions to be included in the criminal complaint or proved to a juiy beyond a reasonable doubt.
Adams acknowledges that this court has consistently rejected this argument. See, e.g., State v. Bennington, 293 Kan. 503, Syl. ¶ 9, 264 P.3d 440 (2011); State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Fewell, 286 Kan. 370, 394-96, 184 P.3d 903 (2008); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). This court continues to hold that the use of prior convictions for sentencing enhancement is constitutional; thus, the Court of Appeals correctly found no merit to Adams’ contention. See Adams, 43 Kan. App. 2d at 856.
Identical Offense Sentencing Doctrine
Finally, we consider Adams’ argument he should have been sentenced to the lesser penalty under K.S.A. 2007 Supp. 65-4152(a)(3) (possession of drug paraphernalia with intent to manufacture a controlled substance), a drug severity level 4 penalty, and not to a drug severity level 2 penalty under K.S.A. 2007 Supp. 65-7006(a) (possession of lithium metal with intent to manufacture a controlled substance). Even though Adams received a presumptive sentence, he may challenge the trial court’s ranking of the severity level of a crime of conviction. See K.S.A. 21-4721(e)(3); State v. Thomas, 283 Kan. 796, 805-06, 156 P.3d 1261 (2007). In making this challenge, Adams relies on the identical offense sentencing doctrine. See State v. Campbell, 279 Kan. 1, Syl. ¶ 5, 106 P.3d 1129 (2005).
We have considered this same issue in State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012). In Snellings, the defendant was convicted of possessing ephedrine or pseudoephedrine with intent to manufacture methamphetamine in violation of K.S.A. 2007 Supp. 65-7006(a). Adams was convicted under the same statute— K.S.A. 2007 Supp. 65-7006(a) — but was alleged to have possessed lithium metal with the intent to manufacture methamphetamine, rather than ephedrine or pseudoephedrine.
The statute under which Adams was charged, K.S.A. 2007 Supp. 65-7006(a) states it is unlawful for any person to “possess ephedrine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phen-ylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product to manufacture a controlled substance.” A violation of this law is a severity level 2 drug felony. K.S.A. 2007 Supp. 65-7006(f). Methamphetamine is classified as a controlled substance under K.S.A. 2007 Supp. 65-4101(e) and K.S.A. 65-4107(d)(3).
The statute representing the lesser penalty, K.S.A. 2007 Supp. 65-4152(a)(3), which Adams contends overlaps with K.S.A. 2007 Supp. 65-7006(a), states it is unlawful for any person to “use or possess with intent to use: . . . any drug paraphernalia to . . . manufacture ... a controlled substance.” A violation of this law is a severity level 4 drug felony. K.S.A. 2007 Supp. 65-4152(c). Drug paraphernalia is defined as “equipment and materials of any land” that are intended for use in manufacturing a controlled substance. K.S.A. 2007 Supp. 65-4150(c). Adams argues that lithium metal qualifies as “materials of any kind” used to manufacture methamphetamine.
In Snellings, after discussion of the identical offense sentencing doctrine, we concluded that the elements of K.S.A. 2007 Supp. 65-7006(a) overlap with K.S.A. 2007 Supp. 65-4152(a)(3) and, to the extent of the overlap, are identical. Snellings, 294 Kan. at 158. Citing a dictionary definition of “material” is defined in part as “the substance or substances out of which a thing is or can be made; [c]omposed of or relating to . . . substances,” Webster’s II New Collegiate Dictionary 675 (1995), we concluded ephedrine and pseudoephedrine are “materials” because they are chemicals of which methamphetamine is made. Snellings, 294 Kan. at 158. Hence, both statutes prohibit possession of ephedrine or pseudoe-phedrine with the intent to manufacture methamphetamine. Given that identity of elements, we held the defendant had to be sentenced under the lower severity level. Consequently, we vacated die defendant’s sentence for a severity level 2 drug felony and remanded the case with directions to resentence the defendant to a severity level 4 drug felony. Snellings, 294 Kan. at 158-59.
Malang a nearly identical argument to that made by Snellings, Adams argues that lithium metal, rather than ephedrine or pseu-doephedrine, also falls into the definition of drug paraphernalia as “materials of any kind” because it is a material used to manufacture a controlled substance, such as methamphetamine.
We see no basis to distinguish the holding in Snellings from this case. Consequently, we hold that the elements of the offense of possession of lithium metal with intent to manufacture methamphetamine under K.S.A. 2007 Supp. 65-7006(a) are identical to the elements of the offense of possession of drug paraphernalia with intent to manufacture methamphetamine under K.S.A. 2007 Supp. 65-4152(a)(3). This means tire trial court erred in sentencing Adams under K.S.A. 2007 Supp. 65-7006(a) as a severity level 2 drug felony. We vacate his sentence for possession of lithium metal with intent to manufacture a controlled substance and remand this case for resentencing on that count as a severity level 4 drug felony under K.S.A. 2007 Supp. 65-4152(c).
The Court of Appeals is affirmed in part and reversed in part. The judgment of the district court is affirmed in part and vacated in part, and the case is remanded to tire district court. Adams’ convictions are affirmed, and his sentences are affirmed in part and vacated in part. Specifically, Adams’ sentence for violation of K.S.A. 2007 Supp. 65-7006(a) is vacated and remanded with directions to resentence Adams to a severity level 4 drug felony as provided for a violation of K.S.A. 2007 Supp. 65-4152(a)(3).
Moritz, J., not participating.
Paula B. Martin, District Judge, assigned. | [
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On April 22, 2011, this court suspended the respondent, James M. Roswold, from the practice of law in Kansas for a period of 1 year. See In re Roswold, 292 Kan. 136, 249 P.3d 1199 (2011). Refore reinstatement, the respondent was required to pay tire costs of the disciplinary action, comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379), and comply with Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380).
On March 23, 2012, the respondent filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219. The Disciplinary Administrator affirmed that the respondent met all requirements set forth by the court.
The court, after carefully considering the record, accepts the findings and recommendations that the respondent be reinstated to the practice of law in Kansas.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas conditioned upon his compliance with the annual continuing legal education requirements and upon his payment of all fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. When the respondent has complied with the annual continuing legal education requirements and has paid the fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission, the Clerk is directed to enter respondent’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered this this order of reinstatement for James M. Roswold shall be published in the Kansas Reports and the costs of the reinstatement proceedings are assessed to the respondent.
Dated this 10th day of May, 2012. | [
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The opinion of the court was delivered by
Luckert, J.:
This appeal raises the single issue of whether the district court abused its discretion in denying Aaron Isreal Salinas’ motion to depart from the hard 25 life sentence provided for in Jessica’s Law, K.S.A. 21-4643, for his conviction of aggravated criminal sodomy with a child less than 14 years of age. We conclude the district court did not abuse its discretion because reasonable people would agree with the district court’s determination that the mitigating factors presented by Salinas were not substantial and compelling in light of the circumstances of the case, which included the fact the victim was a 6-year-old autistic child who had been in the defendant’s care at the time of the crime, expert testimony supported the conclusion that the defendant was likely to reoffend, and there was evidence of factors that supported the conclusion that the defendant was not amenable to rehabilitation.
Facts and Procedural Background
After Salmas pleaded guilty to one count of aggravated criminal sodomy involving oral contact with a child less than 14 years of age, K.S.A. 21-3506(a)(l), Salinas filed a motion to depart from the life sentence provided for in Jessica’s Law, K.S.A. 21-4643(a)(l)(D). In support of his motion, Salinas stated five reasons for departure:
“(1) That a non-prison or shorter sanction will serve community safety interests by promoting offender reformation more than incarceration.
“(2) That the offender, because of his mental impairment, lacked substantial capacity for judgment when the offense was committed.. . .
“(3) Since this crime was committed on September 20, 2008, the defendant has had no arrests or police contact and his Criminal History reflects that he has no convictions or adjudications and is a criminal history I.
“(4) That the defendant had just turned 18 years old on August 2, when this offense was committed [on September 20, 2008].
“(5) That Mr. Satinas has admitted to the crime charged, acknowledges that his behavior was wrong and is amenable to sex offender treatment and can enter in a treatment program.”
At the sentencing hearing, Salinas called two witnesses — Salinas’ mother and psychologist Dr. Jarrod Steffan — to present evidence in support of these mitigating factors.
Salinas’ mother testified that Salinas had been physically and emotionally abused by his stepfather and sexually abused by his male cousins when he was 5 to 8 years of age. She also testified that Salinas had been diagnosed as having attention deficit hyperactivity disorder (ADHD) and depression when he was 12 years old. After Salinas dropped out of school in the eighth grade, he moved to Oklahoma at age 16; at that point he stopped taking medications for ADHD and depression because he no longer had medical insurance. During this time, Salinas became addicted to illegal drugs. Salinas’ mother testified that he sold drugs to finance his drug habit.
The second witness, Dr. Steffan, testified to the results of a psychological evaluation he had performed at the request of defense counsel. Steffan opined that Salinas’ intellectual function was in “a range that’s above what would be seen in persons with mental retardation, but certainly below the majority of the general population.” He reached this opinion, in part, because Salinas displayed “rather concrete and simplistic thinking about the world and himself.” In addition, Steffan determined that Salinas had limited reasoning abilities, judgment, and vocabulaiy. Further, Salinas lacked emotional maturity and had a limited ability “to look at possible consequences of his behaviors and behaviors of other persons and foresee or appreciate those consequences.” Steffan also testified that Salinas still had symptoms of ADHD.
When asked to express an opinion regarding whether Salinas was a pedophile, Steffan noted that tire acts that led to Salinas’ conviction presented the only evidence of behavior, fantasies, or urges that would meet the diagnostic criteria for pedophilia. Nevertheless, Steffan reported that Salinas was at a medium to high risk of reoffending or recidivism. Steffan listed several factors that led him to this conclusion, including: Salinas’ scores on the Static 99 actuarial instrument for predicting recidivism, Salinas’ young age, Salinas’ lack of a long-term cohabitating romantic relationship, the fact that the victim was unrelated to Salinas, the fact that Salinas did not know the victim prior to the incident, and the fact the victim was male. Finally, Steffan opined that Salinas would be amenable to treatment because he had indicated a willingness to be treated, had admitted responsibility for the crime, was young, was a first-time offender, and had never had sexual offender treatment or substance rehabilitation.
Relying on this evidence, defense counsel summarized the mitigating circumstances that supported granting the request for departure, noting: Salinas had just turned 18 years of age when he committed the offense; he had a history of being sexually abused; he had not had a steady male figure in his childhood; he had not completed eighth grade; he had limited mental and emotional maturity; and he had no prior convictions, adjudications, arrests, or problems with the law. Additionally, defense counsel noted there were treatment options and, according to the psychologist, Salinas was amenable to treatment.
The State countered that Salinas only admitted to the oral offense and not the anal offense, despite strong evidence against him. Further, the State pointed to Steffan’s testimony regarding the me dium to high risk of reoffending. This meant, the State argued, Salinas posed a danger to the public.
The district court denied Salinas’ motion for departure, stating:
“On the departure issue the court is required to find the reasons are legally sufficient and there are substantial and compelling reasons to support that finding. Certainly the reasons given were legally sufficient as per tire statute. The court cannot find there is evidence rising to a substantial and compelling reason to depart. The court certainly recognizes it is a harsh sentence.”
The district court then considered Salinas’ argument that a life sentence would be cruel or unusual punishment. Even though that issue is not raised on appeal, some discussion of the court’s findings is relevant because the district court addressed factual issues that overlapped with the motion for departure. Looking at the facts— Salinas committed aggravated criminal sodomy with a 6-year-old autistic child who was unrelated to him and with whom Salinas had had very minimal prior contact — the court determined that the offense was “severe.” The court also considered the psychological findings — that Salinas has limited judgment, does not foresee consequences, and has an extensive prior history of drug use — and determined that these factors were not conducive towards rehabilitation. Further, the court acknowledged the classification of Salinas’ risk of reoffending as moderate to high.
After denying Salinas’ motions, the district court sentenced Salinas to a term of life imprisonment without possibility of parole for 25 years under Jessica’s Law, K.S.A. 21-4643(a)(l).
Salinas appeals the district court’s denial of his departure motion. This court has jurisdiction under K.S.A. 22-3601(b)(l) (maximum sentence of life imprisonment imposed; appeal docketed prior to July 1, 2011).
Analysis
Under Jessica’s Law, a first-time offender who is over the age of 18 and convicted of aggravated criminal sodomy “shall” be sentenced to life imprisonment with a minimum imprisonment of not less than 25 years “unless tire judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 21-4643(a)(l)(D), (d). If the judge de parts, “the judge shall state on the record at the time of the sentencing the substantial and compelling reasons for the departure.” K.S.A. 21-4643(d). The statute provides a nonexclusive list of six mitigating circumstances the judge may consider when determining whether substantial and compelling reasons for departure exist. K.S.A. 21-4643(d)(l)-(6). Four of these circumstances potentially apply to Salinas’ arguments: (1) the defendant has no significant criminal history; (2) the crime was committed while die defendant was under the influence of extreme mental or emotional disturbances; (3) the defendant’s capacity to appreciate the criminality of his or her conduct or conform such conduct to tire requirements of the law was substantially impaired; and (4) the defendant’s age at the time of the crime. K.S.A. 21-4643(d)(l), (2), (5), (6).
When applying these or other factors to determine whether a departure motion should be granted, “[a] district court judge first reviews the mitigating circumstances, and tiren determines whether substantial and compelling reasons warrant a departure.” State v. Plotner, 290 Kan. 774, 780, 235 P.3d 417 (2010); accord State v. Harsh, 293 Kan. 585, 586, 265 P.3d 1161 (2011); see State v. Spotts, 288 Kan. 650, 655, 206 P.3d 510 (2009). This court has defined the term “ ‘substantial’ as ‘something that is real, not imagined; something with substance and not ephemeral,’ while 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.’ ” State v. Seward, 289 Kan. 715, 722, 217 P.3d 443 (2009) (quoting State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 [2001]).
The review of factors is not a mathematical exercise; “sentencing courts do not simply add together the total number of mitigating circumstances and then contrast them with the total number of aggravating circumstances.” State v. Ballard, 289 Kan. 1000, 1009, 218 P.3d 432 (2009). “Nor is each mitigating factor required to sufficiently justify a departure by itself, so long as the collective factors constitute a substantial and compelling basis for departure.” Harsh, 293 Kan. at 587 (citing State v. Spencer, 291 Kan. 796, 815, 248 P.3d 256 [2011]).
On appeal, an appellate court applies an abuse of discretion standard to determine if a district court erred in denying a motion for departure. State v. Mondragon, 289 Kan. 1158, 1160, 220 P.3d 369 (2009) (citing Spotts, 288 Kan. at 654-55); see Harsh, 293 Kan. at 585-86; Spencer, 291 Kan. at 807.
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or dre exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]).
The second and third prongs of this abuse of discretion standard do not apply to our review of the district court’s decision in this case. This is true even though the district court did not engage in a weighing of the mitigating and aggravating circumstances on the record. The Jessica’s Law statute does not require a district court to state the reasons a departure motion is denied; the statute only requires a court to state on the record the substantial and compelling reasons for departure. See K.S.A. 21-4643(d); see also Harsh, 293 Kan. at 587 (“ ‘Specificity by the district court judge when making his or her determination is not statutorily required,’ unless the court decides a departure is warranted.”); State v. Mendoza, 292 Kan. 933, 935-36, 258 P.3d 383 (2011) (upholding denial of departure where district court did not expressly consider mitigating factors on the record, because it was difficult for appellate court to conclude that no reasonable person would take view adopted by district court).
Without the second or third prongs of the abuse of discretion standard at issue, Salinas argues on appeal that the district court abused its discretion because no reasonable person would have sentenced him to life in prison given that (1) he had just turned 18 years old at the time of the offense; (2) he had suffered emotional, physical, and sexual abuse as a young boy; (3) he had been diagnosed with depression and ADHD; (4) he had limited emo tional and intellectual abilities; and (5) Steffan believed he was amenable to treatment.
Salinas’ assertion that no reasonable person would have agreed with the district court is belied by several recent cases in which this court has upheld a district court’s denial of a departure motion based on grounds similar to those asserted by Salinas. See, e.g., State v. Roberts, 293 Kan. 1093, 1098, 272 P.3d 24 (2012) (upholding denial of departure motion despite defendant’s lack of criminal histoiy and diminished mental capacity and maturity); Harsh, 293 Kan. at 587-88 (holding district court did not abuse its discretion in denying departure when defendant accepted responsibility for his actions and pleaded guilty); State v. Whorton, 292 Kan. 472, 475-76, 254 P.3d 1268 (2011) (finding district court considered mitigating factor of defendant’s criminal history score of I and upholding departure denial); Plotner, 290 Kan. at 780-81 (upholding district court’s decision to deny departure motion despite defendant’s claims he took responsibility for his actions, showed deep remorse, had no significant criminal record, and was relatively young at time crimes were committed); State v. Reyna, 290 Kan. 666, 689-90, 234 P.3d 761, cert. denied 131 S. Ct. 532 (2010) (upholding district court’s determination that even though there was no evidence of pedophilia and a lack of criminal history, none of mitigating factors justified departure); Seward, 289 Kan. at 721-22 (affirming district court’s denial of departure despite defendant’s lack of prior felony convictions, his own sexual victimization as a child, his low intelligence, and his status as a high school dropout); Spotts, 288 Kan. at 655-56 (finding district court did not abuse its discretion in denying departure where defendant had no prior sexually motivated convictions, took responsibility for his actions and showed remorse, and was taking antidepressants and sleep aids when the offenses occurred).
Likewise, in this case reasonable people would agree with the district court’s decision to deny the departure. Even though there were mitigating factors to be weighed, there were significant offsetting aggravating factors. As the district court noted, this was a severe offense involving a 6-year-old autistic child with whom Salinas had had minimal prior contact and who, at the time of the offense, was in Salinas’ care. Second, Steffan graded Salinas’ risk of recidivism as moderate to high. Consequently, as the State noted, he presents a risk to the public. Further, even though Stef-fan opined that Salinas was amenable to rehabilitation, there was substantial competent evidence of factors that, in the district court’s judgment, were not conducive to rehabilitation. These included Salinas’ limited judgment, inability to foresee consequences, and prior drug use. Reasonable people could agree with the district court’s resolution of the conflicting evidence regarding Salinas’ amenability to treatment and with the district court’s overall determination that the mitigating circumstances cited by Salinas were not substantial and compelling reasons to depart from the hard 25 sentence under Jessica’s Law. Therefore, the district court did not abuse its discretion in denying Salinas’ departure motion.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, David K. Link, of Wichita, an attorney admitted to the practice of law in Kansas in 1999.
On January 3, 2011, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on January 25, 2011. On February 24, 2011, the respondent filed a proposed plan of probation. A hearing based on stipulated facts was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on December 6, 2011, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.3 (2011 Kan. Ct. R. Annot. 433) (diligence); 1.4(a) (2011 Kan. Ct. R. Annot. 452) (communication); and 8.4(c) (2011 Kan. Ct. R. Annot. 618) (engaging in conduct involving misrepresentation and reflecting on lawyer s fitness to practice law).
Upon conclusion of tire hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“11. The written stipulation included the following:
‘Comes now the Respondent, David K. Link, with counsel, Laura B. Sha-neyfelt and the Disciplinary Administrator’s office by Kate F. Baird, Deputy Disciplinary Administrator and jointly offer the following as true and material statements of fact.
T. David K. Link (hereinafter “the Respondent”) is an attorney licensed in the state of Kansas, Attorney Registration No. 19213. . . . The Respondent was admitted to the practice of law in Kansas on September 27, 1999.
‘2. From 2003 through the present, the Respondent’s law practice has included providing legal counsel to individuals seeking immigration benefits or involved in immigration removal proceedings.
‘3. Three separate disciplinary complaints were docketed between March and November of 2009 against the Respondent. Each of the complaints was filed by, or on behalf of, a client of the Respondent who had been seeking immigration benefits or involved in immigration removal proceedings.
‘DA10,738 Complaint of [E.T.]
‘4. [E.T.] was in immigration removal proceedings in 2005. On September 14, 2005, the Respondent represented [E.T.] at a bond hearing where an Immigration Judge (IJ) in Kansas City, Missouri granted a $10,000.00 bond. [E.T.] was released from custody pending further hearing. [E.T.] returned to his home in Atlanta, Georgia.
‘5. A Master Hearing was set by the Court for July 18, 2006. The Respondent was retained by [E.T.] to represent him in seeking relief from deportation from the IJ.
‘6. The Respondent appeared with his client at the July 18, 2006 Master Hearing. At the hearing, the Immigration Judge accepted [E.T.’s] stipulation that he was deportable. The Court preliminarily acknowledged that [E.T.] was eligible to seek discretionary relief from deportation. A hearing on the merits of his request to seek relief from removal was set for October 19, 2007. The Court directed that [E.T.’s] application for relief be filed on or before September 18, 2006.
‘7. In 2005, Federal regulations required the submission of biometrics prior to consideration of certain applications for relief from deportation. At the July 18, 2006, hearing the Court orally directed that the requisite biometrics be provided by [E.T.] no later than 60 days prior to the scheduled hearing date of October 19, 2007.
‘8. [E.T.] tried to contact the respondent by phone after the July 18, 2006, hearing regarding his efforts. In his complaint, he alleged that the respondent did not return his calls. The Respondent admits that he did not return every phone call received from [E.T.]. [E.T.] had returned to Georgia after tire July, 2006 hearing. Respondent reports that the move made communication more difficult.
‘9. The Respondent did not file [E.T.’s] application for cancellation of the removal order before the September 18, 2006 deadline.
TO. The Respondent did not file a request for an extension of time within which [E.T.’s] application for cancellation of removal could be filed.
Tl. The biometrics in support of [E.T.’s] application was ordered to have been supplied no later than August 19, 2007. Respondent did not submit the paperwork necessary to obtain an appointment to secure his client’s fingerprints until September 22, 2007. Notice was sent by the Service to [E.T.] on October 5, 2007, with a copy to the Respondent. The notice to [E.T.] was returned to the Service as undeliverable. Biometrics were not obtained within the time period proscribed by the Court.
‘12. [E.T.’s] fingerprints were obtained on October 18, 2007, one day before the scheduled hearing on [E.T.’s] application for relief.
‘13. The Respondent filed [E.T.’s] application for relief from deportation on October 19, 2007, die day of the scheduled hearing.
‘14. At the October 19, 2007, hearing on [E.T.’s] application for relief, the Immigration Court procedurally defaulted die application after ruling diat it had been abandoned. The court determined that the required fingerprints had not been provided as directed and that the application was not timely filed. The relief was denied.
‘15. Respondent advised his client to pursue an appeal to the Board of Immigration Appeals (BIA). Respondent related that the IJ may have abused his discretion in pre-terminating his client’s application based on the procedural default. Respondent’s experience suggested that the immigration courts did not always strictly adhere to the imposed procedural deadlines by imposing default.
‘16. The Respondent represented [E.T.] in an unsuccessful appeal to the Board of Immigration Appeals.
‘17. After the BIA dismissal of [E.T.’s] appeal, the Respondent referred his client to another attorney for the purpose of pursuing relief based upon ineffective assistance of counsel. Respondent reports that he knew the referral would result in the filing of a disciplinary complaint.
‘18. [E.T.] filed a disciplinary complaint on March 2, 2009, against the Respondent. The Respondent admits that his conduct in representing [E.T.] was in violation of KRPC 1.3 (Diligence) and KRPC 1.4 (Communication).
‘DA10,935 Complaint of [A.A.]
T9. In September, 2007, [A. A. and J.M.] retained the Respondent to assist them in their efforts to obtain lawful residency for [J.M.]. They delivered $1,885.00 to the Respondent. The Respondent’s fee was $1,500.00. The balance was provided to satisfy tire $385.00 filing fee.
‘20. Respondent discussed with tire couple the merits of the alternatives available to them as they sought lawful residency for [J.M.], as well as the difficulties presented with each. [A.A.] was a U.S. citizen. One of the alternatives discussed was a marriage-based application for permanent residence by [J.M.], to be based upon Visa Petition for Alien Relative with U.S. Citizenship and Immigration Services.
‘21. The Respondent recommended that [A.A.] file the visa petition based on a common law marriage. The Respondent discussed with them the need to secure certain documents in support of the effort.
‘22. After September, 2007, [A.A.] would regularly call the Respondent’s office to inquire about the progress of the matter. When she called, the complainant would be referred to a legal assistant of the Respondent. In February, 2008, the complainant was informed that the assistant was no longer with the office. At or near the same time, [A.A.] was advised that the couple needed to provide the Respondent with a copy of [J.M.’s] previous divorce decree and that tiiey needed to come to the office to complete or sign additional paperwork. The couple complied with the direction and proceeded to tire Respondent’s office.
‘23. Respondent had accumulated all of the documents diat he had requested by May, 2008.
‘24. Respondent admits that the [A.A./J.M.] client file languished from May, 2008 into 2009. During this period of time, the Respondent learned that [J.M.] left the countiy, despite Respondent’s legal advice to the contrary.
‘25. [A.A.] telephoned the Respondent in the months following May, 2008. The Respondent did not always return her telephone calls. [A.A.] undertook efforts to investigate the status of [J.M.’s] petition on her own. She learned that she would need to provide an access code associated with [J.M.’s] petition to gain information about the petition from a government website. [A. A.] called the Respondent over a period of three weeks in an effort to get the code number that had been assigned to the petition. Her calls were not immediately returned.
‘26. [A.A.] was finally able to reach the Respondent by phone; she understood from him that the petition had been filed. She asked him for the number associated with [J.M.’s] petition and he provided her with a receipt number. At tire time the Respondent provided [A.A.] with the number, the Respondent had not filed the petition. [A.A.] learned from U.S. Immigration and Citizenship Services that the number that she was relying on to gain information was unrelated to a petition filed on behalf of [J.M.].
‘27. Respondent admits that the petition had not been filed when he provided [A.A.] with the receipt number. The number provided to [A.A.] by the Respondent was associated with another client’s immigration matter.
‘28. No Visa Petition was ever filed by the respondent on behalf of [J.M.].
‘29. [A.A.] filed a disciplinary complaint on October 27, 2009, against the Respondent. Respondent admits that his conduct in the [A.A./J.M.] matter violates KRPC 1.3 (Diligence); KRPC 1.4 (Communication); and KRPC 8.4(c) (Misconduct).
‘DA10.937 Complaint of [M.R.]
‘30. In January, 2007, the Respondent was retained to assist three mem bers of the [M.R.] family as they faced immigration removal proceedings. The family had applied for asylum about ten years prior to consulting the Respondent. Their claims were denied by the USCS Asylum office and their cases referred to immigration for removal proceedings. Respondent was paid a $5,000.00 retainer.
‘31. The Respondent appeared with the [M.R.] family at a February 26, 2007, Master Hearing in the Immigration Court. The Court set a March 3, 2008, date to further consider their request for relief from removal.
‘32. At the February, 2007, hearing, the Court orally imposed a deadline of February 20, 2008, for the [M.R.] family to submit their application for relief. The court directed that all supporting documentation be submitted with the application. The family was directed to be fingerprinted at the Application Service Center before die next court date.
‘33. The Respondent did not file an application for relief on behalf of the [M.R. family] before the February 20, 2008, deadline. The application was filed on February 21, 2008.
‘34. Communication between the Respondent and his clients proved difficult. One of the children was relied upon to translate conversations between tlie Respondent and tlie [M.R.] parents.
‘35. The Respondent did not complete tlie paperwork necessary for his clients to be fingerprinted before the March 3, 2008, hearing. In his response to the [M.R.] complaint, the Respondent admits that he regretted that the fingerprinting had not been accomplished before the Hearing but denies that tlie fact impacted his clients’ position.
‘36. On March 3, 2008, tlie Court denied tlie relief sought by the [M.R. family], finding that tlie application had been abandoned. The Court granted the [M.R. family] until April 2, 2008 to appeal the decision. No appeal was taken by tlie Respondent. Respondent believed that his client’s chances at success were optimized by pursuing temporary protected status.
‘37. Respondent reports that he discussed the merits of appeal with his clients and consulted with tlie [M.R. family] regarding their alternatives. The Respondent filed applications for Temporary Protected Status on behalf of the [M.R.] family. On May 19, 2008, the Respondent provided the [M.R. family] with copies of the applications for Temporary Protected Status that had been filed. As of September, 2010, the family remained in the United States on temporary protected status.
‘38. [M.R.] filed a disciplinary complaint on November 9, 2009, against tlie Respondent. Respondent admits that his conduct in tlie [M.R.] matter violated KRPC 1.3 (Diligence).’
“12. At the hearing on the formal complaint, the Respondent testified about how he implemented his proposed plan of probation. Additionally, tlie Respondent’s proposed practice supervisor also testified about the implementation of the Respondent’s proposed plan of probation.
“CONCLUSIONS OF LAW
“13. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that tire Respondent violated KRPC 1.3, KRPC 1.4, and KRPC 8.4(c), as detailed below.
“14. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent his clients in this case. The Respondent failed to provide diligent representation to [E.T.] when he failed to timely file [E.T.’s] application for relief and when he failed to assist [E.T.] with timely providing his fingerprints. The Respondent failed to provide diligent representation to [A.A.] and [J.M.] when he failed to file [J.M.’s] petition for permanent residence or take any other action on behalf of [J.M.] from May, 2008, forward. Finally, the Respondent failed to diligently represent the [M.R. family] when he failed to timely file their application for relief and when he failed to assist the [M.R. family] with timely providing their fingerprints. Because the Respondent failed to act with reasonable diligence and promptness in representing his clients, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.3.
“15. 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 calls to [E.T.], [A.A.], and [J.M.]. Accordingly, the Hearing Panel concludes that tire Respondent violated KRPC 1.4(a).
“16. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he told [A.A.] that he had filed a petition on behalf of [J.M.] and when he provided [A.A.] with a false access code number. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c),
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“17. 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.
“18. Duty 'Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication. Additionally, the Respondent violated his duty to the public and to the legal profession to maintain his personal integrity.
“19. Mental State. The Respondent knowingly violated his duties.
“20. Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to his clients.
“21. 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:
“22. Dishonest or Selfish Motive. The Respondent provided false information to [A.A.]. As such, the Hearing Panel concludes that this misconduct was motivated by dishonesty.
“23. A Pattern of Misconduct. Three separate immigration clients filed complaints against the Respondent. Each of the three complaints included a complaint regarding the Respondent’s lack of diligence. Accordingly, the Hearing Panel concludes that tire Respondent engaged in a pattern of misconduct.
“24. Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, and KRPC 8.4(c). Thus, the Respondent committed multiple offenses.
“25. 'Vulnerability of Victim. Based upon the immigration difficulties facing the Respondent’s clients, the Hearing Panel concludes that [E.T.], [A.A.], [J.M.], and the [M.R.] family were vulnerable to the Respondent’s misconduct.
“26. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in 1999. Additionally, the Respondent previously practiced law in Guam. The Hearing Panel concludes that the Respondent has substantial experience in tire practice of law.
“27. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found tire following mitigating circumstances present:
“28. Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. The Respondent’s disciplinary record is a mitigating factor.
“29. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent suffers from depression. Further, it appears to the Hearing Panel that tire Respondent’s depression contributed to his misconduct.
“30. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent entered into an extensive stipulation in this case. In tire stipulation, the Respondent admitted to many of tire facts alleged in the formal complaint. Additionally, the Respondent stipulated that he violated KRPC 1.3, KRPC 1.4, and KRPC 8.4(c).
“31. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Wichita, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the Plearing Panel.
“32. Remorse. At the formal hearing, the Respondent expressed genuine remorse and shame for violating the Kansas Rules of Professional Conduct.
“33. In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
‘4.62 Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“RECOMMENDATION
“34. The Deputy Disciplinary Administrator recommended that the Hearing Panel recommend that the Respondent be suspended for a period of six months. Additionally, the Deputy Disciplinary Administrator recommended that the imposition of the suspension be suspended and that the Respondent be placed on probation for a period of 18 months. Alternatively, the Deputy Disciplinary Administrator argued that should the proposed plan of probation not be accepted by the Hearing Panel or the Court and the Respondent is suspended from the practice of law, that the Respondent undergo a reinstatement hearing at the conclusion of the period of suspension, pursuant to Kan. Sup. Ct. R. 219.
“35. Counsel for the Respondent recommended that the Respondent’s proposed plan of probation be adopted and that the Respondent be ¿lowed to continue to practice law.
“36. Kan. Sup. Ct. R. 211(g) provides:
‘(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, tire Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of die Supreme Court.
‘(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put die plan of probation into effect by complying with each of the terms and conditions of the probation plan.
‘(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of tire terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing dre Respondent on probation is in the best interests, of the legal profession and dre citizens of tire State of Kansas.’
“37. In this case, the Respondent developed a workable, substantial, and detailed plan of probation. The Respondent provided a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel mondrs in advance of the hearing on the formal complaint. Further, the Respondent put the proposed plan of probation into effect prior to the formal hearing by complying with each of tire terms and conditions of tire probation plan. The misconduct committed by the Respondent in this case can be corrected by probation. Finally, placing tire Respondent on probation is in the best interests of the legal profession and tire citizens of the State of Kansas. Accordingly, it is appropriate for the Hearing Panel to consider probation in this case.
“38. Despite the conclusion that the Respondent violated KRPC 8.4(c) (misconduct), the Plearing Panel was struck by the Respondent’s integrity as observed by the Hearing Panel during the hearing on tire formal complaint. And, as a result, based upon tire findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that tire Respondent be suspended from tire practice of law for a period of six months. The Hearing Panel further recommends that the imposition of the suspension be suspended and that tire Respondent be placed on probation for a period of 18 months, subject to the following terms and conditions;
T. Inventory of Cases and Clients. The Respondent shall maintain an inventory of all open cases and clients. The Respondent shall update the inventory on a daily basis. The inventory shall include the client’s name, the client’s contact information, tire client’s immigration-related goal, the tasks that remain to be completed, all pending deadlines, and the forum (if any) in which the matter is pending.
‘2. Client Communication. The Respondent shall contact each client by letter at least once every three months regarding tire status of the matter.
‘3. Nature of Cases. The Respondent shall not accept cases that have a low probability of success and are without a clearly established means of attempting to reach tire client’s goal.
‘4. Development of New Communication Tools. The-Respondent shall develop and implement a new written communication tool to be provided to new clients at the outset of a new engagement, that will assist them in understanding the reasonable timetable of the case; any target dates for completion of specific legal tasks; and all procedural and filing deadlines. If an anticipated deadline or filing date as set out in the initial written communication to a new client cannot be met, the Respondent shall notify the client by letter of the reason and the new time frame for completion.
‘5. Practice Supervision. David Hiebert shall serve as the Respondent’s practice supervisor. The Respondent shall provide Mr. Hiebert with an updated copy of the inventory of cases and clients on a monthly basis. The Respondent shall allow Mr. Hiebert access to his client files, calendar, and trust account records. The Respondent shall comply with any requests made by Mr. Hiebert. Mr. Hiebert shall prepare a quarterly report to the Disciplinary Administrator regarding the Respondent’s status on probation. Mr. Hiebert will be acting as an officer and an agent of the court while supervising the probation and monitoring the Respondent’s legal practice. As supervising attorney, Mr. Hiebert shall be afforded all immunities granted by Kan. Sup. Ct. R. 223 during the course of his supervising activities.
‘6. Client Billing. The Respondent shall implement and maintain a system to track all time spent on each case. The system shall allow the Respondent to determine the amount of unearned fees to be refunded in the event the Respondent’s representation is terminated prior to the completion of the representation. The Respondent shall discuss the implementation of the system with Mr. Hiebert and adopt recommendations made by Mr. Hiebert in tracking his time.
7. Restitution. The Respondent shall refund $1,885 to [A.A.] within 30 days of the date of this report. The Respondent shall work with the [M.R] family in an attempt to reach an agreement as to restitution. The Respondent shall pay the agreed amount of restitution within 30 days of the agreement. In the event they are unable to reach an agreement, the Respondent shall fully cooperate with die Wichita fee dispute committee in resolving the matter.
‘8. Office Assistance. The Respondent shall continue to employ a legal assistant.
‘9. Office Procedures. Within ten days of this report, the Respondent shall provide Mr. Hiebert and the Disciplinary Administrator with written office procedures designed to monitor the status, deadlines, and court appearances of all matters in which he has undertaken representation. The Respondent shall modify that procedure if directed to do so by Mr. Hiebert or the Disciplinary Administrator. The Respondent shall follow the written office procedures.
TO. Audits. Within thirty (30) days of the date of this report, Mr. Hiebert shall conduct an initial audit of the Respondent’s files. Thereafter, every six months, Mr. Hiebert shall conduct additional audits. If Mr. Hiebert discovers any violations of the Kansas Rules of Professional Conduct, Mr. Hiebert shall include such information in his report. Mr. Hiebert shall provide the Disciplinary Administrator and the Respondent with a copy of each audit report. The Respondent shall follow all recommendations and correct all deficiencies noted in Mr. Hiebert’s periodic audit reports.
Tl. Psychological Treatment. The Respondent shall continue his treatment for depression throughout the period of supervised probation, unless the counselor determines that continued treatment is no longer necessary. The counselor shall notify Mr. Hiebert and tire Disdplinaiy Administrator in the event that the Respondent discontinues treatment against the recommendation of the counselor during the probationary period. The Respondent shall provide the counselor with an appropriate release of information to allow the counselor to provide such information to Mr. Hiebert and the Disciplinary Administrator.
T2. Continued Cooperation. The Respondent shall continue to cooperate with the Disciplinary Administrator. If the Disciplinary Administrator requests any additional information, the Respondent shall timely provide such information.
T3. Professional Liability Insurance. The Respondent shall continue to maintain professional liability insurance.
T4. Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the Respondent to show cause why the probation should not be revoked.’
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
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 clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of both the hear ing before the panel and the hearing before this court. The respondent filed no exceptions to the hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2011 Kan. Ct. R. Annot. 352). We conclude the hearing panel’s findings are supported by clear and convincing evidence and that the hearing panel’s conclusions of law regarding aggravating and mitigating factors are supported by the facts. Thus, the only issue before us is the appropriate discipline.
At the hearing before this court, the office of the Disciplinary Administrator recommended that the respondent be suspended for a period of 6 months, that the imposition of the suspension be suspended, and that the respondent be placed on probation for a period of 18 months; some changes to the probation plan proposed by the respondent and adopted by the hearing panel were requested, however. The respondent requested that the hearing panel adopt the probation plan as he filed it with the office of the Disciplinary Administrator, which he has implemented.
The hearing panel unanimously recommended that the respondent be suspended from the practice of law for a period of 6 months, that the imposition of the suspension be suspended, and that the respondent be placed on probation for a period of 18 months, subject to specified terms and conditions. The court accepts the hearing panel’s recommendation of probation with the modification to the probation plan requested by the office of the Disciplinary Administrator.
Conclusion and Discipline
It Is Therefore Ordered that David K. Link be suspended from the practice of law for a period of 6 months in accordance with Supreme Court Rule 203 (2011 Kan. Ct. R. Annot. 280). His suspension is stayed, and he is placed on probation for 18 months on the following terms and conditions:
1. Inventory of Cases and Clients. The respondent shall maintain an inventory of all open cases and clients. The respondent shall update the inventory on a daily basis. The inventory shall include the client’s name, the client’s contact information, the client’s immigration-related goal, the tasks that remain to be completed, all pending deadlines, and the forum (if any) in which the matter is pending.
2. Client Communication. The respondent shall contact each client by letter at least once every 3 months regarding the status of the matter.
3. Nature of Cases. The respondent shall not accept cases that have a low probability of success and are without a clearly established means of attempting to reach the client’s goal.
4. Development of New Communication Tools. The respondent shall develop and implement a new written communication tool to be provided to a new client at the outset of a new engagement. The tool should assist the client in understanding the reasonable timetable of the case, any target dates for completion of specific legal tasks, and all procedural and filing deadlines. If an anticipated deadline or filing date as set out in the initial written communication to a new client cannot be met, the respondent shall notify the client by letter of the reason and the new time frame for completion.
5. Practice Supervision. David Hiebert shall serve as the respondent’s practice supervisor. The respondent shall provide Mr. Hiebert with an updated copy of the inventory of cases and clients on a monthly basis. The respondent shall allow Mr. Hiebert access to his client files, calendar, and trust account records. The respondent shall comply with any requests made by Mr. Hiebert. Mr. Hiebert shall prepare a monthly report regarding the respondent’s status on probation and provide the report to the Disciplinary Administrator during the first 6 months of the respondent’s probation and shall prepare and provide the Disciplinary Administrator with a quarterly report for the remaining year of respondent’s probation. Mr. Hiebert will be acting as an officer and an agent of the court while supervising the probation and monitoring the respondent’s legal practice. As supervising attorney, Mr. Hiebert shall be afforded all immunities granted by Supreme Court Rule 223 (2011 Kan. Ct. R. Annot. 395) during the course of his supervising activities.
6. Client Billing. The respondent shall implement and maintain a system to track all time spent on each case. The system shall allow the respondent to determine tire amount of unearned fees to be refunded in the event the respondent’s representation is terminated prior to the completion of the representation. The respondent shall discuss the implementation of the system with Mr. Hiebert and adopt recommendations made by Mr. Hiebert in tracking his time.
7. Restitution. The respondent reports he has refunded $1,885 to A. A. If that has not been done, respondent shall accomplish this task within 30 days of the filing of this opinion. The respondent shall continue to attempt to reach an agreement with the M.R. family regarding restitution. The respondent shall pay the agreed amount of restitution within 30 days of the agreement. In the event they are unable to reach an agreement, the respondent shall fully cooperate with the Wichita fee dispute committee in resolving the matter.
8. Office Assistance. The respondent shall continue to employ a legal assistant.
9. Office Procedures. The respondent has provided Mr. Hie-bert and the Disciplinary Administrator with written office procedures designed to monitor the status, deadlines, and court appearances of all matters in which he has undertaken representation. The respondent shall modify that procedure if directed to do so by Mr. Hiebert or the Disciplinary Administrator. The respondent shall follow the written office procedures.
10. Audits. Mr. Hiebert has conducted an initial audit of the respondent’s files. Beginning 6 months after tire first audit and continuing every 6 months, Mr. Hiebert shall conduct additional audits. If Mr. Hiebert discovers any violations of the KRPC, Mr. Hiebert shall include such information in his report. Mr. Hiebert shall provide the Disciplinary Administrator and the respondent with a.copy of each audit report. The respondent shall follow all recommendations and correct all deficiencies noted in Mr. Hie-bert’s periodic audit reports.
11. Psychological Treatment. The respondent shall continue his treatment for depression throughout the period of supervised probation, unless the counselor determines that continued treatment is no longer necessary. The counselor shall notify Mr. Hiebert and the Disciplinary Administrator in the event that the respondent discontinues treatment against the recommendation of the counselor during the probationary period. The respondent shall provide the counselor with an appropriate release of information to allow the counselor to provide such information to Mr. Hiebert and the Disciplinary Administrator.
12. Continued Cooperation. The respondent shall continue to cooperate with the Disciplinary Administrator. If the Disciplinary Administrator requests any additional information, the respondent shall timely provide such information.
13. Professional Liability Insurance. The respondent shall continue to maintain professional liability insurance.
14. Additional Violations. The respondent shall not violate the terms of his probation or the provisions of the KRPC. In the event that the respondent violates any of the terms of probation or any of the provisions of the KRPC at any time during the probationary period, the respondent shall immediately report such violation to the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the respondent to show cause why the probation should not be revoked.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
Beier, J., not participating.
Rebecca W. Crotty, District Judge, assigned. | [
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The opinion of the court was delivered by
Luckert, J.:
James A. Mossman appeals from the imposition of lifetime postrelease supervision following his conviction of aggravated indecent liberties with a child. He contends lifetime post-release supervision constitutes cruel and/or unusual punishment and violates § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. We reject Mossman’s arguments, concluding the sentence is not disproportionate to the seriousness of his crime, is not grossly disproportionate to the sentences imposed for other crimes in Kansas or similar crimes in other states, and is not categorically unconstitutional. Consequently, we affirm his sentence.
Facts and Procedural Background
Mossman entered a no contest plea to one count of aggravated indecent liberties with a child, in violation of K.S.A. 21-3504(a)(l), a severity level 3 person felony, and one count of possession of cocaine, in violation of K.S.A. 65-4160(a), a drug severity level 4 felony. At the plea hearing, the State offered the following factual basis for the count of aggravated indecent liberties. In the fall of 2008, Mossman, who was 25 years of age, moved in with the family of the 15-year-old victim. The victim’s stepfather was Mossman’s friend and coworker and “allowed” Mossman to stay with the family. The victim disclosed in a SafeTalk interview that, “beginning on December 10th of 2008 and for sometime thereafter, she had a sexual relationship with the defendant, including penile/vaginal intercourse.” Based on this factual proffer and after determining Mossman’s plea was knowingly and voluntarily made, the district court accepted Mossman’s plea and found him guilty.
Prior to sentencing, Mossman filed two motions. In one, he requested a dispositional departure. In the second, he argued that the imposition of lifetime postrelease supervision, which is statutorily mandated for a conviction of aggravated indecent liberties under K.S.A. 22-3717(d)(l)(G), is disproportionate and, therefore, cruel and/or unusual punishment prohibited by § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution.
Mossman’s constitutional argument was based on the statutory scheme that governs lifetime postrelease supervision and its corresponding conditions. He contended the mandatory nature of tire sentence, the restrictions that accompany the supervision, and the potential for being reimprisoned for life if conditions are violated make the sentence unconstitutional. To support these arguments, Mossman noted that K.S.A. 22-3717(d)(l)(G) provides that an individual convicted of a sexually violent crime committed on or after July 1, 2006, who is released from prison “shall be released to a mandatory period of postrelease supervision for the duration of the person’s natural life.” An individual sentenced to lifetime imprisonment under K.S.A. 21-4643 is excepted from this requirement. Included in the definition of sexually violent crimes is the crime of aggravated indecent liberties with a child, one of Mossman’s crimes of conviction in this case. See K.S.A. 22-3717(d)(2)(C).
Mandatory lifetime postrelease supervision includes a general requirement that the person cannot commit a new criminal offense and may include several other specific “conditions targeted toward facilitating rehabilitation, restitution, and safe reintegration into society. [Citation omitted.]” State v. Gaudina, 284 Kan. 354, 359, 160 P.3d 854 (2007). These conditions may include payment of costs, fines, and restitution; completing educational requirements; performing community service; reporting to a supervising officer; and abiding by other special conditions allowed by administrative regulations and orders. K.S.A. 21-4703(p) (defining “postrelease supervision”); K.S.A. 22-3717(m) (listing possible conditions). In addition to discussing these general conditions, Mossman, in his motion, stressed tire potential of life in prison if he violates his postrelease conditions by committing a new felony. See K.S.A. 75-5217(c) (“upon revocation [of postrelease supervision], the inmate shall serve the entire remaining balance of the period of postrelease supervision”). Both the restrictions that accompany lifetime post-release supervision and the potential for life in prison, Mossman argued in his motion, make the sentence disproportionate.
The district court conducted an evidentiary hearing on Moss-man’s motions at which Mossman presented the expert testimony of Dr. Mitchell Flesher, who was both a psychologist with the Kansas Department of Corrections and a private practitioner. Dr. Flesher testified he routinely performs “risk assessment evaluations for inmates who are being considered under the Sexually Violent Predator Act or those inmates who are being considered for parole” and had performed an assessment of Mossman. Although Dr. Flesher found some assessment factors were in Moss-man’s favor, he recommended Mossman participate in sexual offender and drug abuse treatment programs. After considering the evidence and the arguments of counsel, the district court applied the three-part test established in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), and concluded the lifetime postrelease supervision requirement “is constitutional as it applies in this case.”
At sentencing, the district court denied Mossman’s motion for a dispositional departure and imposed concurrent presumptive prison terms. The court also imposed lifetime postrelease supervision on Mossman’s aggravated indecent liberties conviction as required by K.S.A. 22-3717(d)(l)(G).
On appeal, Mossman renews his argument that lifetime post-release supervision constitutes cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. This court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c) (transfer on court’s own motion). At the time of the transfer and in light of Mossman’s challenge under the Eighth Amendment’s ban on cruel and unusual punishment, this court directed the parties to file “supplemental briefs addressing whether the categorical analysis set out in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), which was decided after [Mossman’s] briefs were submitted, should apply.”
Perhaps because of the timing and nature of the request for additional briefing, the parties have addressed the analysis under the Kansas Constitution separately from the analysis under the United States Constitution. As a result, we will follow the same approach.
§ 9 of the Kansas Constitution Bill of Rights
We first turn to Mossman’s argument that his lifetime post-release supervision sentence, mandatoiy under K.S.A. 22-3717(d)(1)(G), violates § 9 of the Kansas Constitution Bill of Rights because the sentence is disproportionate. As we have discussed, Mossman raised this issue before the district court and the district court made findings related to the issue. Thus, we are able to decide the issue in this appeal, as opposed to past cases where the issue was raised on appeal but was not determined because the record was inadequate or the issue had been waived. See, e.g., State v. Naputi, 293 Kan. 55, 67-68, 260 P.3d 86 (2011).
Standard of Review
“Ordinarily, constitutional challenges to a statute raise questions of law subject to unlimited appellate review. [Citation omitted.]” State v. Seward, 289 Kan. 715, 718, 217 P.3d 443 (2009). However, in deciding whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights, a district court must make both legal and factual determinations. See, e.g., State v. Ortega-Cadelan, 287 Kan. 157, 160, 194 P.3d 1195 (2008). When a district court’s decision is appealed, an appellate court applies a bifurcated standard of review: All of the evidence is reviewed, but not reweighed, to determine if there is sufficient support for the district court’s factual findings, and the district court’s legal conclusions drawn from those facts are reviewed de novo. State v. Gant, 288 Kan. 76, 80, 201 P.3d 673 (2009); State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
Here, K.S.A. 22-3717(d)(l)(G) mandates lifetime postrelease supervision for a conviction of aggravated indecent liberties with a child, and thus an attack on the sentence is an indirect attack on the constitutionality of the statute as applied. Both a district court making the initial determination regarding whether a statute is constitutional and an appellate court conducting a review of that determination are required by the separation of powers doctrine to presume the statute is constitutional. Consistent with this presumption, if there is any reasonable way to construe a statute as constitutional, courts have the duty to do so by resolving all doubts in favor of constitutionality. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009); see State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008) (“It is not the duty of this court to criticize the legislature or to substitute its view on economic or social policy; it is the duty of this court to safeguard the constitution.”).
Another consideration under the separation of powers doctrine is the justiciability doctrine that constrains the exercise of judicial power. Among other things, this doctrine requires that issues be ripe before they can be considered by a court. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 891-92, 179 P.3d 366 (2008). In this case, die State raises a question of ripeness and, in doing so, focuses on whether we can consider the potential that Mossman could violate his postrelease supervision conditions and be punished for those violations, perhaps by being sent to prison for life. The State points out that it is not known what conditions will be imposed when Mossman is released from prison and we cannot know if Mossman will ever violate postrelease supervision conditions or, if he does, what the laws in effect at that time will say about the potential punishment. While we will discuss the specifics of that argument in more detail, we conclude Mossman’s general arguments regarding lifetime postrelease supervision are ripe for decision in this direct appeal from his sentencing.
We base this decision on two considerations. First, lifetime post-release supervision is undeniably part of a defendant’s sentence. K.S.A. 21-4704(e)(2) (“In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include . . . the period of postrelease supervision.”); see Martin v. Kansas Parole Board, 292 Kan. 336, Syl. ¶ 1, 255 P.3d 9 (2011). Second, even if the exact conditions of Mossman’s post-release supervision are unknown and even if it is not known whether Mossman will be reimprisoned after being released on postrelease supervision, it is known that he will not enjoy all of the rights and privileges of an individual who is not supervised and will have to comply with some restrictions on his freedom. In other words, he will still be under a sentence when he is on postrelease supervision. Consequently, Mossman’s argument that his sentence is unconstitutional is ripe, at least for purposes of raising an argument that being subject to supervision for life is cruel or unusual punishment.
Consequently, we will address the specifics of Mossmaifs arguments under § 9 of the Kansas Constitution Bill of Rights.
Freeman Factors
In Freeman, this court recognized: “Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks tire conscience and offends fundamental notions of human dignity.” Freeman, 223 Kan. at 367. This court set out a three-part test to aid in administering this principle, stating:
“(1) The nature of the offense and tire character of die offender should be examined with particular regard to tire degree of danger present to society; relevant to this inquiry are die facts of the crime, die violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and die penological purposes of the prescribed punishment;
“(2) A comparison of die punishment widi punishments imposed in diis jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question die challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” Freeman, 223 Kan. at 367.
Accord State v. Levy, 292 Kan. 379, 384-85, 253 P.3d 341 (2011); State v. Reyna, 290 Kan. 666, 689, 234 P.3d 761, cert. denied 131 S. Ct. 532 (2010); State v. Mondragon, 289 Kan. 1158, 1162-63, 220 P.3d 369 (2009).
No one factor controls. “Ultimately, one consideration may weigh so heavily that it directs the final conclusion,” but “consideration should be given to each prong of the test.” Ortega-Cadelan, 287 Kan. at 161. Particularly where the focus of an argument is proportionality, “tire factual aspects ... are a necessaiy part of the overall analysis.” Ortega-Cadelan, 287 Kan. at 161; cf. Graham, 130 S. Ct. at 2022 (only if a threshold comparison of the gravity of the offense and the severity of the sentence leads to an inference that the sentence is grossly disproportionate does a court engage in comparative analysis). Further, this court has stated that the Freeman test will not apply “ where the method of punishment, rather than the length of a sentence, is challenged as cruel or unusual.' ” State v. Kleypas, 272 Kan. 894, 1032-33, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), overruled in part on other grounds by State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev’d on other grounds Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006) (quoting State v. Scott, 265 Kan. 1, 9, 961 P.2d 667 [1998]).
• First Freeman Factor
Considering the first Freeman factor — nature of the offense and the character of the offender — the district judge in this case found Mossman had committed “a serious offense.” The judge then stated: “I have examined, [Mossman’s] overall character, he is impulsive and can’t control those impulses. He has been — I think Dr. Flesher points out some of the school issues and some of the rebelliousness, the drug use, the consistent acting out.” Based on these individual characteristics, the judge concluded Mossman’s sentence was not disproportionate.
The judge’s conclusion regarding the seriousness of the crime is consistent with statements made by other courts that have rejected tire argument that a lengthy sentence for a sex crime against a minor is cruel and unusual punishment. These courts recognize that sex offenses against minors are “considered particularly heinous crimes.” People v. Dash, 104 P.3d 286, 293 (Colo. App. 2004). Further, it is generally recognized that society has a penological interest in punishing those who commit sex offenses against minors because they “present a special problem and danger to society” and their actions produce “ ‘particularly devastating effects’ ” on victims, including physical and psychological harm. State v. Wade, 757 N.W.2d 618, 626 (Iowa 2008) (quoting In re Morrow, 616 N.W.2d 544 [Iowa 2000]). The State’s vital interest in protecting minors from sex activities explains the legislative decision to treat sex crimes against minors as a forcible or violent felony even if no physical force is involved. Wade, 757 N.W.2d at 626. Additionally, there are “grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is ‘frightening and high.' ” Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (quoting McKune v. Lile, 536 U.S. 24, 34, 122 S. Ct. 2017, 153 L. Ed. 2d 47 [2002]); see Wade, 757 N.W.2d at 626. These views are consistent with the Kansas Legislature’s decision to treat sex crimes against minors, including the crime committed by Mossman, as “sexually violent” and deserving of lifetime post-release supervision.
To counter these general views and in an attempt to minimize the serious nature of this crime, Mossman makes two arguments. In one he suggests, as he did in his motion before the district court, that he engaged in “consensual sexual acts” with the 15-year-old victim and that he did not “force” the victim to participate or “harm her in any violent way.” He points to the victim’s statement that she encouraged Mossman’s behavior.
These arguments are not convincing. Sexual intercourse with a minor, even one who is 15 years of age, is a serious crime. While Mossman’s victim may have believed she was mature enough to be a willing participant in the sexual acts and may have been less vulnerable than a very young child, Kansas law treats 15-year-old children as minors and recognizes them as deserving of the State’s protection and legally incapable of consenting to sexual intercourse. See K.S.A. 21-3502(a); K.S.A. 21-3520(a); K.S.A. 21-3522(a); see also State v. Limon, 280 Kan. 275, 297, 122 P.3d 22 (2005) (“Certainly, the State has a significant interest in prohibiting sex between adults and minors, not only because of the potentially coercive effect of an adult’s influence but also because of concern regarding the minor’s ability to arrive at an informed consent.”). An adult, such as Mossman, who comes in contact with a minor, even a seemingly mature minor, is expected to protect the child from the child’s poor judgment, not take advantage of that poor judgment. Mossman, however, despite being aware of the victim’s age and despite acknowledging that he knew he should not be having sex with her, took advantage of being a guest in his friend’s home and knowingly engaged in illegal sexual activities for “some time.” Accordingly, we reject Mossman’s attempt to minimize the seriousness of the crime.
In his other argument, Mossman points out the assessment factors that Dr. Flesher noted weighed in Mossman’s favor: his lack of a prior criminal history; his low risk of recidivism score, less than 3 percent risk of recidivism in 10 years; the fact that he had accepted responsibility for his actions; and his display of an “appropriate level of remorse” for this crime. Despite these mitigating factors, Dr. Flesher recommended Mossman participate in a sex offender treatment program and noted concerns about Mossman’s inability to control his behavior because of his lack of impulse control, his rebellious character, and his history of drug use, all of which put him at some risk of reoffending.
Further, Mossman’s arguments are unpersuasive because they focus solely on proportionality from the perspective of punishment or retribution while ignoring other legitimate penological goals such as deterrence, incapacitation, and rehabilitation. See Graham, 130 S. Ct. at 2028 (discussing recognized goals of sentencing). Post-releas e supervision is largely designed to act as a deterrent to future crime, a goal that is particularly legitimate given sex offenders’ higher rate of recidivism. See Doe, 538 U.S. at 93. While Mossman scored low on an assessment test designed to predict the risk of recidivism, this score was countered to some extent by Dr. Flesher’s concerns regarding Mossman’s lack of impulse control and rebellious character. In addition, “[supervised release can further the end of rehabilitating sex offenders. . . . Relatedly, supervised release helps incapacitate sex offenders by keeping them under the watchful eye of probation officers who may be able to detect problems before they result in irreparable harm to innocent children.” United States v. Williams, 636 F.3d 1229, 1234 (9th Cir.), cert. denied 132 S. Ct. 188 (2011); see also Doe, 538 U.S. at 99 (registration as a sexual offender does not constitute punishment, as the puipose of providing notice to the public about one who has committed a crime requiring registration is “to inform the public for its own safety, not to humiliate the offender”); Dash, 104 P.3d at 289, 293 (10 years-to-life period of parole for sex offense was not cruel and unusual punishment where legislature “has determined that sex offenders present a continuing danger to the public and that a program providing for lifetime treatment and supervision of sex offenders is necessary for the safety, health, and welfare of the state”).
Mossman attempts to minimize these goals by arguing that K.S.A. 22-3717(d)(l)(G) sweeps large numbers into the postrelease supervision system and thereby dilutes the ability to effectively rehabilitate or supervise offenders. As this argument suggests, post-release supervision is not a guarantee against recidivism; nevertheless, it is undoubtedly more effective than failing to take any precaution or attempting long-term rehabilitation.
In summary, substantial competent evidence supports the district court’s findings relating to the first Freeman factor and we will not reweigh that evidence. In turn, the district court’s factual findings support its legal conclusion that the first Freeman factor does not weigh in Mossman’s favor because Mossman’s offense was a serious crime; historically a sex offense against a minor has been treated as a forcible or violent felony without regard to whether there is physical force; Mossman knowingly ignored his victim’s status as a minor; Mossman acted in a manner consistent with his character, which was described as lacking in impulse control and reflecting a rebellious nature; and the penological purposes for lifetime postrelease supervision include retribution, deterrence, incapacitation, and rehabilitation.
Nevertheless, because no one factor is controlling, we must further consider the other two Freeman factors.
• Second Freeman Factor
Mossman focused most of his arguments on the second Freeman factor — comparison of his punishment with punishments imposed in this jurisdiction for more serious offenses. Mossman argued before the district court, as he does on appeal, that his lifetime post-release supervision sentence is disproportionate to other sentences in Kansas. He provides the example of second-degree murder, which carries a longer prison sentence but carries a shorter post-release supervision term of only 36 months. See K.S.A. 21-3402 (intentional second-degree murder is a severity level 1 person fel ony); K.S.A. 21-4704(a) (for a severity level 1 person felony, presumptive prison sentence with criminal history score of “I” is 165-155-147 months’ incarceration; the maximum sentence in the grid block translates to 13.75 years); K.S.A. 22-3717(d)(l)(A) (36 months’ postrelease supervision).
In response, the State acknowledges that a conviction for intentional second-degree murder does not require lifetime postrelease supervision but argues that “murderers do not necessarily have the same high rate of recidivism as sex offenders.” The State further questions whether the punishment for intentional second-degree murder can be characterized as less severe than Mossman’s punishment given the fact that intentional second-degree murder carries a longer prison sentence.
The district court agreed with the State’s argument that proportionality of the sentence could not be based solely on a comparison of the postrelease supervision periods. The court noted that Moss-man would serve only 59 months in prison, which is a more restrictive environment than postrelease supervision. In other words, while Mossman’s overall sentence may be longer than that of someone convicted of second-degree murder, Mossman has the opportunity to serve most of that time in a less restrictive environment. Hence, a comparison of proportionality cannot be based solely on the length of postrelease supervision. See Williams, 636 F.3d at 1232 (“[Although supervised release limits a criminal’s liberty and privacy, it is a punishment far less severe than prison.”). The district court’s reasoning is further supported by the Oregon Court of Appeals’ decision in State v. Shaw, 233 Or. App. 427, 225 P.3d 855, rev. denied 348 Or. 415 (2010).
The Shaw court rejected the defendant’s contention that his mandatory sentence of 25 years’ imprisonment and lifetime post-release (called “post-prison”) supervision was disproportionate to his crime of committing first-degree rape involving a victim under the age of 12. The defendant had based his argument on both the Oregon Constitution and the Eighth Amendment to the United States Constitution, and he focused on the fact his sentence was “ ‘greater even than the presumptive sentence that he would have received had he committed a murder.’ ” Shaw, 233 Or. App. at 430. The defendant also made note of his circumstances — he had no prior criminal record and was amenable to treatment.
The Shaw court found that, despite the defendant’s lack of criminal history or likelihood of reoffending, the sentence did not present one of the “ Tare circumstances’ in which a disproportionate punishment requires reversal. [Citations omitted.]” Shaw, 233 Or. App. at 430. Although most of the court’s discussion focused on the length of incarceration, the court also stated: “In our view, the term of post-prison supervision is a constitutionally permissible, proportionate response by the legislature to the seriousness of the offense and the vulnerability of the victim involved in this case.” Shaw, 233 Or. App. at 438. Further, “the lack of prior convictions alone has never been sufficient to render an otherwise constitutional penalty disproportionate” under the Oregon Constitution. Shaw, 233 Or. App. at 439.
To counter this view and the district court’s conclusions, Moss-man focuses on the potential conditions of his lifetime postrelease supervision sentence. He argues that “[u]nder postrelease supervision, he will be subject to many restrictions on his liberties” and endure the risk of lifetime incarceration if he commits another felony. See K.S.A. 75-5217(c). He specifically observes that he will be required to register as a sex offender under K.S.A. 22-4906, and the failure to register is classified as a felony. See K.S.A. 22-4903(a) (“Any person who is required to register as provided in the Kansas offender registration act who violates any of the provisions of such act, including all duties set out in K.S.A. 22-4904 through K.S.A. 22-4907, and amendments thereto, is guilty of a severity level 5, person felony.”). Mossman argues it would be cruel or unusual punishment to require him to return to prison for the rest of his life if he fails to meet the sex offender registration requirement.
In support of this contention, Mossman cites Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008). There, the defendant was released after serving a sentence for statutory rape and subsequently committed two violations of the Georgia sex offender registration laws. Under Georgia law, a second registration violation mandated the imposition of life imprisonment. The defendant argued to the district court that mandatory life imprisonment con stituted cruel and unusual punishment under the Georgia Constitution and the Eighth Amendment to the United States Constitution.
The Georgia Supreme Court noted that the defendant’s failure to update information on the sexual offender registry, by itself, involved “ ‘neither violence nor threat of violence to any person’ ” and was a “ ‘passive felony’ that neither caused nor threatened to cause harm to society.” Bradshaw, 284 Ga. at 679 (quoting Solem v. Helm, 463 U.S. 277, 296, 103 S. Ct. 3001, 77 L. Ed. 2d 637 [1983]). The Bradshaw court found the facts of the case accentuated the passivity of the defendant’s failure to register his current address, observing, in part, that the defendant voluntarily appeared at the jail within 24 hours of an investigator informing the defendant’s sister that he needed to contact the defendant. Bradshaw, 284 Ga. at 679.
The Bradshaw court further noted that “a sentence of life imprisonment is the third most severe penalty permitted by law, exceeded in severity only by capital punishment and life imprisonment without the possibility of parole.” Bradshaw, 284 Ga. at 679. “Life imprisonment,” stated the Bradshaw court, “is the most severe sentence drat can be imposed for a crime that does not involve murder or recidivist punishment for a serious violent felony. [Citations omitted.]” Bradshaw, 284 Ga. at 679. In Georgia, a “serious violent felony” was statutorily defined as “malice and felony murder, armed robbery, kidnapping, rape, aggravated child molestation . . . , aggravated sodomy and aggravated sexual battery. [Citation omitted.]” Bradshaw, 284 Ga. at 679 n.7. After comparing tire defendant’s sentence of life imprisonment with the sentences imposed for these other crimes, and for sex offender registration violations in other jurisdictions, the Bradshaw court concluded that “the imposition of a sentence of life imprisonment is so harsh in comparison to the crime for which it was imposed that it is unconstitutional. [Citations omitted.]” Bradshaw, 284 Ga. at 683.
Mossman urges this court to adopt the rationale in Bradshaw and reach the conclusion that his lifetime postrelease supervision is unconstitutional. But Bradshaw did not address postrelease supervision and consequently does not suggest that lifetime post- release supervision itself is overly harsh or disproportionate. Rather, as aptly observed by the State, the crux of Mossman’s complaint is that the Kansas Legislature has chosen to classify a sex offender registration violation as a felony, which creates the potential for Mossman to be reimprisoned for life for violating the conditions of his postrelease supervision. K.S.A. 75-5217(c) (“If the [postrelease supervision] violation results from a conviction for a new felony, upon revocation, the inmate shall serve the entire remaining balance of the period of postrelease supervision even if the new conviction did not result in the imposition of a new term of imprisonment.”). The classification of sex offender registration crimes and the proportionality of sentences for those crimes are not at issue in this case. We are considering the sentence for a sexually violent crime, as opposed to the passive offense at issue in Bradshaw. Hence, the rationale of Bradshaw is distinguishable.
The distinction is perhaps best illustrated by the fact that the Georgia Supreme Court in Wiggins v. State, 288 Ga. 169, 172, 702 S.E.2d 865 (2010), and Rainer v. State of Georgia, 286 Ga. 675, 675-76, 690 S.E.2d 827 (2010), without citing to its earlier decision in Bradshaw, x-ejected arguments that a sentence was cruel and unusual punishment because it included a requirement of lifetime registration as a sex offender. The requirement as a part of the sentence was deemed to be regulatory, not punitive, and a separate issue from possible future punishment for failing to register. Rainer, 286 Ga. at 676 (quoting Frazier v. State, 284 Ga. 638, 639, 668 S.E.2d 646 [2008], for proposition that “ ‘the fact that a violation of the registration requirements leads to a harsh penalty is not pertinent to whether tire registration requirements are additional punishment for the previously-committed [crime]’ ”). Iowa courts have reached the same conclusion. See, e.g., Wade, 757 N.W.2d at 623-24 (imposing a requirement of parole as part of a misdemeanor sentence for indecent exposure was not cruel and unusual punishment even though a violation of parole could lead to prison because any additional imprisonment would be imposed only if defendant violated the terms of parole); State v. Harkins, 786 N.W.2d 498, 507 (Iowa App. 2009) (mandatory special lifetime sentence imposed for third-degree sexual abuse, which defendant would begin serving as if on parole following completion of 10-year prison sentence, was not grossly disproportionate to offense, and thus, was not cruel and unusual, where additional term of imprisonment would occur only if defendant violated terms of supervision).
Even so, Mossman will be subject to a lifetime restriction on his freedom. And, Mossman makes a valid point that his postrelease freedom will be constrained for a longer period than if he had committed second-degree murder, even if that restriction would end up being somewhat minimal (as opposed to some of the more significant restrictions that Mossman argues are likely). Nevertheless, Mossman’s sentence to lifetime postrelease supervision is not grossly disproportionate in relation to the sentence applicable to second-degree murder in Kansas when we consider the penological purposes, the seriousness of the crime, and the other concerns discussed in relation to the first Freeman factor. In other words, the difference in proportionality between Mossmaris sentence and one for second-degree murder is not so significant that the second Freeman factor outweighs the first Freeman factor.
But, we still must evaluate this conclusion in light of the third Freeman factor.
• Third Freeman Factor
Under the third Freeman factor — comparison of the penalty with punishments in other jurisdictions for the same offense — the district court noted the laws of several other states provide for lifetime postrelease supervision for sex offenses, although there are variations in the offenses covered and in whether the lifetime period of supervision is mandatory.
As the district court commented, a comparison of statutes between states is difficult because of the variety of ways states categorize a crime committed by an adult having sexual intercourse with a 15-year-old child. Nevertheless, Mossman concedes, and our research confirms, that at least three states — Colorado, Nebraska, and Oklahoma — mandate lifetime postrelease supervision for classes of offenses similar to Mossman’s Kansas offense. See Colo. Rev. Stat. § 18-1.3-1001 (2011) (“a program under which sex offenders may receive treatment and supervision for the rest of their lives, if necessaiy, is necessary for the safety, health, and welfare of the state”); Neb. Rev. Stat. §§ 83-174.03, 28-319.01 (2008) (lifetime supervision upon completion of incarceration for “registrable” sex offenses, which includes sexual assault of a child in the first degree); Okla. Stat. Ann. tit. 22, § 991a (A)(13) (2011) (supervision for period correlating with obligation to register as a sex offender); Okla. Stat. Ann. tit 57, § 584 (N)(2) (2011) (registration for certain crimes required for lifetime).
At least one other state — Arizona—permits but does not mandate lifetime postrelease supervision for a similar offense. Ariz. Rev. Stat. Ann. § 13-902(E) (2006) (permitting lifetime probation for sexual offenses). And at least two states have lifetime parole or other postrelease supervision for rape of certain minors but restrict that punishment to crimes involving children younger than the victim in this case. E.g., Or. Rev. Stat. §§ 144.103(2), 137.765(2), 163.375(l)(b) (2011) (mandatory lifetime “post-prison” supervision for enumerated sex offenses if defendant was over 18 at time of the offense; also mandatory if defendant was over 18 and a sexually violent dangerous offender; mandatory for rape in first degree which includes offense committed against a child under age of 12); Utah Code Ann. §§ 76-3-202(3)(a), (b); 75-5-402.1(1); 76-5-404.1 (2008) (offenses against child under 14). In addition, Congress has granted federal courts the discretion to impose lifetime postrelease supervision for child pornography and child trafficking offenses. 18 U.S.C. § 3583(k) (2006); U.S. Sentencing Guidelines Manual § 5D1.2(b) (2011).
Still other states, as noted by the district court in this case, provide for lifetime postrelease supervision for various sex offenses but allow the possibility of release or discharge. See, e.g., Iowa Code Ann. §§ 903B.1 (mandatory lifetime supervision for offenders committing certain offenses, such as sexual exploitation of a minor), 906.15 (2003) (certain sex offenders on lifetime supervision “shall not be discharged from parole until the person’s term of parole equals the period of imprisonment specified in the person’s sentence”); Mo. Stat. Ann. § 217.735 (2004) (mandatoiy lifetime supervision for certain sex offenses and classes of offenders; su pervision may be terminated after offender turns 65 years old); Nev. Rev. Stat. § 176.0931 (2011) (special sentence of lifetime supervision for sex offenders but may petition for release); N.J. Stat. Ann. § 2C:43-6.4(a), (c) (2009) (mandatory parole supervision for life for enumerated sex offenses; possibility of release if shows “by clear and convincing evidence that the person has not committed a crime for 15 years since the last conviction or release from incarceration, whichever is later, and that the person is not likely to pose a threat to the safety of others if released from parole supervision”); Tenn. Code Ann. §§ 39-13-524 (mandatory supervision for life for enumerated sex offenses), 39-13-525(a) (2010) (offender on life supervision may petition the court for release after 15 years); Wis. Stat. Ann. § 939.615(2), (6) (2005) (providing that a sex offender may be sentenced to lifetime supervision; offender may petition the court for termination after 15 years).
Several other states provide for lifetime postrelease supervision of repeat offenders, those convicted of aggravated sex offenses, or where there is some other aggravating factor. Mossman lists at least four states in this category. E.g., Ind. Code Ann. § 35-50-6-l(e) (2009) (sexually violent predator); Md. Criminal Procedure Code Ann. § ll-723(a) (2008) (sexually violent predator; enumerated sex crimes); Minn. Stat. Ann. § 609.3455(7) (2009) (certain “engrained offenders” and repeat sex offenders); Mont. Code Ann. §§ 46-23-509(2)(c), (3)(c) (offender found level 3 offender after evaluation), 45-5-503(4) (b) (sexual intercourse without consent, victim 12 or younger), 45-5-507(5) (incest, victim 12 or younger), 45-5-601(3) (prostitution, victim 12 or younger), 45-5-602(3) (promoting prostitution, victim 12 or younger), 45-5-625(4) (2011) (sexual abuse of children, victim 12 or younger).
Several courts have held these or similar provisions are not cruel and unusual punishment. See, e.g., Williams, 636 F.3d at 1233-35 (life term of supervised release for those convicted of federal child pornography crimes is not cruel and unusual punishment); United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir. 2005) (same); People v. Dash, 104 P.3d 289, 293 (Colo. App. 2004) (Colorado’s 10 years-to-life period of parole for sex offense was not cruel and unusual punishment); Harkins, 786 N.W.2d at 507 (Iowa’s man datory special lifetime sentence imposed for third-degree sexual abuse, which defendant would begin serving as if on parole following completion of 10-year prison sentence, was not grossly disproportionate to offense); Walls v. State, No. 58,895, 2011 WL 5865073 (Nev. 2011) (unpublished opinion) (summarily rejecting defendant’s argument that lifetime supervision for attempted lewdness with a minor under the age of 14 was cruel and unusual punishment); Shaw, 233 Or. App. at 437-39 (lengthy prison sentence followed by lifetime “post-prison” supervision not cruel and unusual punishment).
Although our categorization varies somewhat from Mossman’s and we found states not included in his listing, it seems fair to say that less than half of states provide for lifetime postrelease supervision of some or all sex offenders and, because several states have a mechanism for termination of the postrelease supervision under certain conditions, only a handful of states impose punishment as absolute as Kansas’ requirement. Nevertheless, Kansas is not alone in imposing mandatoiy lifetime postrelease supervision for crimes such as Mossman’s, and we are not aware of any court that has found lifetime postrelease supervision of a violent sex offender to be cruel and unusual punishment. Perhaps because of that, Moss-man’s primary argument regarding the third Freeman factor is that the first two Freeman factors alone require this court’s conclusion that his lifetime postrelease supervision sentence is unconstitutional.
As we have already discussed, we do not find that Mossman’s lifetime postrelease supervision sentence is cruel or unusual punishment under the first two Freeman factors. Moreover, even when adding the third Freeman factor into the equation and considering that Kansas’ provision is more severe than most other jurisdictions, we do not find the sentence to be cruel or unusual. Mossman’s offense is serious and is a sex crime against a minor that historically has been treated as a forcible or violent felony regardless of whether there is physical force. Mossman exhibited characteristics of poor impulse control, rebelliousness, and a history of drug abuse. And legitimate penological goals — retribution, deterrence, incapacitation, and rehabilitation — are furthered by lifetime post- release supervision. These factors outweigh the lack of strict proportionality with other sentences in Kansas and other jurisdictions, especially given that the sentence is not grossly disproportionate.
Consequently, Mossman’s lifetime postrelease supervision sentence does not constitute cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights.
Eighth Amendment to the United States Constitution
Mossman also argues his lifetime postrelease supervision sentence violates the prohibition against cruel and unusual punishment under the Eighth Amendment to the United States Constitution. As previously noted, after the original briefs were filed in this case, the United States Supreme Court decided Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 2021, 176 L. Ed 2d 825 (2010), and held: “The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ [Citation omitted.]” We subsequently asked the parties to supplement their briefs in this appeal in light of the Graham decision.
In Graham, tire United States Supreme Court considered whether a life sentence without possibility of parole imposed on a juvenile offender was cruel and unusual punishment under the Eighth Amendment. Graham committed armed burglary and another crime when he was 16 but was placed on probation without an adjudication of guilt. When he violated his probation, in part, by committing a new crime, he was found guilty of the armed burglary, his probation was revoked, and he was sentenced to life imprisonment, which under Florida law left him with no hope of leaving prison unless he received executive clemency. The Court concluded this sentence was disproportionate. Graham, 130 S. Ct. at 2029-30.
In reaching this holding, the Court recognized the availability of a proportionality challenge pursuant to the Eighth Amendment in cases other than those where the punishment is death. The Court discussed two general classifications for an attack on a term-of-years sentence. “The first [category] involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.” Graham, 130 S. Ct. at 2021; see State v. Gomez, 290 Kan. 858, 863-66, 235 P.3d 1203 (2010) (discussing Graham). The Court made it clear that the first category is available for any term-of-years sentence. As we will discuss, the Court did not clarify whether the second category is available in cases other than those where the death penalty was imposed or a juvenile was sentenced to life imprisonment for a nonhomicide crime.
• Case-Specific Proportionality Challenge
In this case, the district judge, in his pre-Graham analysis, mentioned the Eighth Amendment and prior decisions of the United States Supreme Court when making his findings and, although in the context of state constitutional issues, made factual findings that coincide with Graham’s case-specific proportionality factors. We are, therefore, able to consider the issue.
The applicable factors relevant to the first federal classification were explained in a general manner by the Graham majority, which stated:
“The controlling opinion in [Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)] explained its approach for determining whether a sentence for a term of years is grossly disproportionate for a particular defendant’s crime. A court must begin by comparing the gravity of die offense and die severity of the sentence. 501 U.S., at 1005 (opinion of Kennedy, J.). ‘[I]n the rare case in which [this] threshold comparison . . . leads to an inference of gross dispropor-tionality’ the court should then compare the defendant’s sentence with die sentences received by other offenders in the same jurisdiction and with the sentences imposed for die same crime in other jurisdictions. [Citation omitted.] If tiiis comparative analysis Validate^] an initial judgment that [the] sentence is grossly disproportionate,’ the sentence is cruel and unusual. [Citation omitted.]” Graham, 130 S. Ct. at 2022.
Chief Justice Roberts, in his concurring opinion, expanded on the factors discussed in past cases, noting:
“Our cases indicate that courts conducting ‘narrow proportionality’ review should begin with a threshold inquiry diat compares ‘the gravity of the offense and the harshness of the penalty.’ [Solem v. Helm, 463 U.S. 277, 290-91, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)]. This analysis can consider a particular offender’s mental state and motive in committing the crime, the actual harm caused to his victim or to society by his conduct, and any prior criminal history. Id., at 292-294, 296-297, and n.22, (considering motive, past criminal conduct, alcoholism, and propensity for violence of the particular defendant); see also [Ewing v. California, 538 U.S. 11, 28-30, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003)] (plurality opinion) (examining defendant’s criminal history); Harmelin, 501 U.S., at 1001-1004, (opinion of Kennedy, J.) (noting specific details of the particular crime of conviction).” Graham, 130 S. Ct. at 2037-38 (Roberts, C.J., concurring).
Both the Graham majority opinion and Chief Justice Roberts’ concurring opinion emphasize that it is only the rare case where the Eighth Amendment threshold comparison of the gravity of the offense and the harshness of the penalty will lead to an inference of gross disproportionality. This point is illustrated by a series of cases in which the Court held a life sentence for a nonviolent theft or drug crime was not cruel and unusual punishment. E. g., Lockyer v. Andrade, 538 U.S. 63, 70, 77, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003) (sentence of two consecutive prison terms of 25 years-to-life for third-strike conviction for stealing approximately $150 in videotapes); Ewing, 538 U.S. at 28-31 (25 years-to-life sentence under three-strike provision for stealing approximately $1,200 of merchandise); Harmelin, 501 U.S. at 961, 996 (life sentence without possibility of parole for first felony offense, which was possession of more than 650 grams of cocaine); Rummel v. Estelle, 445 U.S. 263, 266, 285, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980) (life sentence with possibility of parole, imposed under a Texas recidivist statute, for a defendant convicted of obtaining $120.75 by false pretenses [his third felony conviction], an offense normally punishable by imprisonment for 2 to 10 years); but see Solem, 463 U.S. at 296-97, 303 (life sentence without possibility of parole imposed on adult offender was “significantly disproportionate” to the defendant’s crime, which was predicated on a current offense of “uttering a ‘no account’ check” for $100 and the defendant’s lengthy criminal history that included seven nonviolent felonies).
These cases indicate the Supreme Court allows considerable latitude to a legislature’s policy decision regarding the severity of a sentence. A statement made by Justice Kennedy in his concurring opinion in Harmelin provides insight into the Court’s view of the policy judgment inherent in a proportionality decision. He noted: “[A] rational basis exists for Michigan to conclude the petitioner’s crime [of possessing a large quantity of cocaine] is as serious and violent as the crime of felony murder without specific intent to kill, a crime for which ‘no sentence of imprisonment would be disproportionate.’ [Citation omitted.]” Harmelin, 501 U.S. at 1004 (Kennedy, J., concurring). For purposes of our analysis, it is reasonable to substitute aggravated indecent liberties with a child as the crime referred to in that statement because the Supreme Court has observed that sex offenders represent a particularly serious threat in this country given that they are more likely than any other criminals to commit violent crimes following their release from prison. McKune v. Lile, 536 U.S. 24, 32-33, 122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002).
In addition, we note that Mossman suggests, although he does not elaborate on the suggestion, that we should interpret the Kansas Constitution broader than the Eighth Amendment. In contrast, he does not suggest any basis for finding case-specific dispropor-tionality under the Eighth Amendment to the United States Constitution if we have rejected such an argument under § 9 of the Kansas Constitution Bill of Rights. As we discussed in the context of the first Freeman factor, Mossman admitted he knew he should not have sex with a 15-year-old girl, yet he chose to do so. And, although he scored low for a potential of reoffending, Dr. Fisher and the district court were concerned about his lack of impulse control, his rebellious character, and his long histoiy of drug abuse. Again, we will not reweigh the district court’s findings, which were supported by substantial competent evidence. Because we hold Mossman’s sentence is not grossly disproportionate — tire threshold Eighth Amendment inquiry — we do not reach the secondary Eighth Amendment inquiry of comparing Mossman’s sentence to other Kansas sentences or the sentences in other states for similar offenses. In this way, an Eighth Amendment analysis differs from a Freeman analysis (under the Kansas Constitution) that requires consideration of all factors. See State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978); State v. Ortega-Cadelan, 287 Kan. 157, 160-61, 194 P.3d 1195 (2008).
For these reasons, Mossman’s Eighth Amendment case-specific proportionality challenge fails.
• Categorical Proportionality Challenge
In response to this court’s order for supplemental briefing and in addition to a case-specific proportionality challenge under the Eighth Amendment to tire United States Constitution, Mossman also takes a broader approach by asserting that the second federal classification — a categorical proportionality challenge — leads to the conclusion that lifetime postrelease supervision imposed for a certain class of offenders is cruel and unusual punishment under the Eighth Amendment. Mossman describes this class of offenders as those who have committed “first offenses involving sex with persons 14 or older, without any element of force, coercion, prostitution, or pornography.”
There are several threshold considerations: (1) the appropriate standard of review; (2) whether we reach the constitutional question; and (3) the categoiynature of the offense or class of offend-ersto which the determination of proportionality applies.
A. Threshold Considerations
(1) Standard of Review
As to our standard of review, in contrast to issues involving a claim of cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights or a case-specific proportionality claim of cruel and unusual punishment under the Eighth Amendment to the United States Constitution, a categorical proportionality analysis under the Eighth Amendment does not require a review of the district court’s factual findings. Instead, only questions of law are implicated. This court has unlimited review over legal questions. See State v. King, 288 Kan. 333, 355, 204 P.3d 585 (2009); State v. Martinez, 288 Kan. 443, 449, 204 P.3d 601 (2009).
(2) Do we address the constitutional question?
As we have noted, in Graham the United States Supreme Court did not clarify whether a categorical proportionality challenge is available to all criminal defendants. Nevertheless, after noting that such a challenge had been historically limited to death penally cases, the Graham majority applied the categorical analysis to a juvenile offender who was sentenced to Ufe imprisonment without possibility of parole for a nonhomicide crime. Graham, 130 S. Ct. at 2022, 2034.
Soon after the Graham decision, in Gomez we observed it was not clear whether the Supreme Court would apply Graham’s categorical analysis in contexts other than death penalty cases and cases involving juvenile offenders sentenced to life imprisonment without possibility of parole for nonhomicide crimes. Gomez, 290 Kan. at 865-66. To date, neither the United States Supreme Court nor this court has addressed whether the analysis would be extended to other categorical proportionality challenges.
Other courts have reached the question, and many have indicated that Graham is not to be extended beyond cases involving juveniles convicted of nonhomicide offenses. E.g., Loggins v. Thomas, 654 F.3d 1204, 1223 (11th Cir. 2011) (“The Court’s opinion in [Graham] expressly states that the decision is limited to life without parole sentences imposed on juveniles for nonhomicide offenses.”); United States v. Scott, 610 F.3d 1009, 1018 (8th Cir. 2010), cert. denied 131 S. Ct. 964 (2011) (noting “the Court’s analysis in Graham was limited to defendants sentenced to life in prison without parole for crimes committed as juveniles”); Miller v. State, 63 So. 3d 676, 685-91 (Ala. Grim. App. 2010), cert. granted 132 S. Ct. 548 (2011) (refusing to extend the holding in Graham to juveniles who committed murder); Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103, 106, 2011 WL 478600 (Ark.), cert. granted 132 S. Ct. 548 (2011) (“The Court’s holdings in Roper [v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)] and Graham are veiy narrowly tailored to death-penalty cases involving a juvenile and life-imprisonment-without-parole cases for nonhomicide offenses involving a juvenile.”); People v. Murray, 136 Cal. Rptr. 3d 820, 825-26, 203 Cal. App. 4th 277 (2012) (declining to apply Graham to no-parole life sentences for juvenile offenders who commit murder); Gonzalez v. State, 50 So. 3d 633, 635 (Fla. Dist. App. 2010), rev. denied 60 So. 3d 387 (Fla.), cert. denied 132 S. Ct. 387 (2011) (refusing to extend the holding in Graham to juveniles who committed murder).
Nevertheless, the Ninth Circuit Court of Appeals in United States v. Williams, 636 F.3d 1229, 1234 (9th Cir.), cert. denied 132 S. Ct. 188 (2011), applied Graham to a categorical proportionality challenge to lifetime supervised release. And, veiy recently, the Iowa Supreme Court applied Graham to a defendant’s challenge that his life sentence for a second sexual offense was cruel and unusual. State v. Oliver, 812 N.W.2d 636, No. 10-1751, 2012 WL 1058249 (Iowa 2012). Other courts have also applied Graham outside of death penalty cases or cases dealing with a life sentence for a juvenile convicted of a crime other than homicide. E.g., McCullum v. State, 60 So. 3d 502, 503-04 (Fla. Dist. App.), rev. denied 67 So. 3d 1050 (2011) (defendant’s sentences of life imprisonment without possibility of parole, imposed after defendant pleaded guilty to attempted second-degree murder and robbery with a firearm committed while defendant was a juvenile, violated the Eighth Amendment prohibition against cruel and unusual punishment); Angel v. Commonwealth, 281 Va. 248, 273-75, 704 S.E.2d 386, cert. denied 132 S. Ct. 344 (2011) (imposition of life sentences without parole on defendant, who was a juvenile at time of charged offenses, was not cruel and unusual punishment; conditional release statute, while containing an age qualifier, provided a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation).
Given the split of authority, including a split between federal circuits, until further clarification is received we choose to address the issue rather than foreclose an argument based on what may turn out to be an unintended, overly strict reading of the Graham decision.
(3) Applicable Category — Nature of the Offense or Class of Offenders
Next, we consider the category to which our analysis should apply. In Graham, the Court indicated its earlier decisions had considered two categorical subsets in the context of its death penalty cases: one related to the nature of the offense, the other to the characteristics of the offender. Graham, 130 S. Ct. at 2022. In framing the issue in Graham, the Court noted the “case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.” (Emphasis added.) Graham, 130 S. Ct. at 2022-23. In contrast to those broad categories, in this case Mossman suggests we refine the legislative definition of the “range of crimes”- — which encompasses sexually violent crimes, including aggravated indecent liberties with a child — and the legislative class of offenders — -which includes all those committing a sexually violent crime. Mossman would limit the range of crimes to those involving sex with a child who is 14 or 15 where the crime is committed without any element of force, coercion, prostitution, or pornography and the class of offenders to those sex offenders who have committed a first offense.
Regarding the nature or classification of the crime, Mossman cites no authority for and no example of such a specifically carved classification. Indeed, his categorization is so case-specific it seems to obliterate the distinction between the two categories of analysis: (1) a case-specific analysis that “would allow courts to account for factual differences between cases” and (2) a categorical analysis. Graham, 130 S. Ct. at 2031-33. While the Supreme Court has discussed categories somewhat more narrow than the elements of a crime, such as the rape of an adult where the age of the victim was not an element, it has never refined the categoiy — nature of the offense — to the extent proposed by Mossman. See Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). We conclude the nature of the offense that applies to our analysis is tire category reflecting Mossman’s offense — aggravated indecent liberties with a child.
As to the class of offenders, the Supreme Court has categorized defendants by broad characteristics such as those who committed their crimes before the age of 18 or whose intellectual functioning is in a low range. See Roper, 543 U.S. at 578; Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Mossman’s category of first-time sex offenders seems consistent with the manner in which the Supreme Court has categorized clas ses of offenders in these past cases, and therefore we will consider that category in our analysis.
B. Categorical Analysis
The Graham Court outlined the steps of a categorical analysis, stating:
“The Court first considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. [Citation omitted.] Next, guided by ‘the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose,’ [citation omitted], the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. [Citation omitted.]” Graham, 130 S. Ct. at 2022.
Explaining the application of these factors, the Court stated:
“Community consensus, while ‘entitled to great weight,’ is not itself determinative of whether a punishment is cruel and unusual. [Citation omitted.] In accordance with the constitutional design, ‘the task of interpreting the Eighth Amendment remains our responsibility.’ [Citation omitted.] The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. [Citations omitted.] In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. [Citations omitted.]” Graham, 130 S. Ct. at 2026.
Finally, the Graham Court noted its past cases recognized retribution, deterrence, incapacitation, and rehabilitation as “legitimate” goals of penal sanctions. Graham, 130 S. Ct. at 2028.
The Ninth Circuit Court of Appeals applied this analysis in Williams, 636 F.3d 1229, to a claim that lifetime supervised release for child pornography was cruel and unusual punishment. In rejecting the constitutional challenge, the court stated:
“Here, ‘objective indicia’ suggest that society is comfortable with lifetime sentences of supervised release for sex offenders, as such sentences are common. According to the United States Sentencing Commission, in the last five years, federal courts have sentenced 1875 defendants convicted of child pornography and child prostitution crimes to lifetime supervised release. See U.S. Sentencing Comm’n, Federal Offenders Sentenced to Supervised Release 58-59 (July 2010), www. ussc. gov/ general/ 20100722_ Supervised_ Release, pdf. By way of comparison, in banning the sentence of life without parole for juvenile nonhomicide offenders, the Supreme Court noted that there were then just 123 people in the county serving such sentences. See Graham, 130 S. Ct. at 2024. Further, the percentage of federal sex offenders receiving life terms of supervised release is increasing, climbing from 9.3 percent in 2005, to 20.5 percent in 2009. [Citation omitted.]” Williams, 636 F.3d at 1233-34.
In addition, as we have previously discussed, several other states have adopted lifetime postrelease supervision for many, if not all, sexually violent crimes. Hence., the numbers cited in Williams do not reflect the total number of sex offenders subject to lifetime postrelease supervision.
The Williams court next exercised its “ ‘independent judgment’ ” by considering “ whether the challenged sentencing practice serves legitimate penological goals.’ ” Williams, 636 F.3d at 1234 (quoting Graham, 130 S. Ct. at 2026). As quoted earlier, the Williams court noted that the goals of rehabilitation and incapacitation “are central purposes of the criminal justice system, and they are particularly critical here given the propensity of sex offenders to strike again.” Williams, 636 F.3d at 1234.
The Ninth Circuit’s conclusion applies equally to those sentenced in Kansas to postrelease supervision for the crime of aggravated indecent liberties with a child. Further, although Williams was a repeat sex offender rather than a first-time sex offender like Mossman, some of the penological objectives for lifetime post-release supervision — particularly deterrence, incapacitation, and rehabilitation — are the same whether the offender has committed one or many offenses. Accordingly, we conclude the analysis is persuasive as to both the classification of the crime and its application to the class of first-time sex offenders, especially when we factor in other states’ acceptance of lifetime postrelease supervision when an offender has committed a similar crime.
As a result, we hold that Mossman’s sentence to lifetime post-release supervision under K.S.A. 22-3717(d)(l)(G) for his conviction of aggravated indecent liberties with a child is not categorically disproportionate and, therefore, is not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
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The opinion of the court was delivered by
Beier, J.:
This is an appeal by defendant Christopher Hughes after a jury verdict against him in this negligence action. Hughes was the driver in a one-car accident that killed passenger Jeffery Wade Scott and injured passengers Jeffrey Wagner and Adam Stein. At the time of the accident, the four were traveling together to work on a drilling crew for employer Duke Drilling, Inc. (Duke Drilling). Hughes challenges the district judge’s decision that Hughes was not immune from suit as a fellow servant under workers compensation law, as well as rulings on the admission of evidence and jury instructions. Because we resolve this case in favor of Hughes on the first issue, we do not reach the second and third issues.
Factual and Procedural Background
This appeal is the second involving Hughes and plaintiff Bonnie Jean Brungardt Scott, Scott’s surviving common law wife. The first was interlocutory; Hughes appealed a denial of summary judgment in his favor and a grant of partial summary judgment in favor of Brungardt Scott. We reversed and remanded. Scott v. Hughes, 281 Kan. 642, 132 P.3d 889 (2006). The following review of the entire factual and procedural background of this appeal puts our earlier decision and the issues now before us in appropriate context.
The accident giving rise to this action occurred in July 2003 in Stafford County. Criminal charges were filed against Hughes as a result, leading ultimately to his no contest plea to possession of methamphetamine and vehicular homicide.
Brungardt Scott filed a workers compensation claim and reached a settlement of that claim, as did Wagner and Stein. Hughes also filed a workers compensation claim. Duke Drilling challenged Hughes’ right to recover because it alleged that he was intoxicated at the time of the accident.
In addition to the workers compensation proceedings, Brungardt Scott, Wagner, and Stein each filed a civil lawsuit against Hughes.
Hughes sought summary judgment in Brungardt Scott’s action, arguing that it was barred by his fellow servant immunity under the Kansas Workers Compensation Act. Brungardt Scott responded and filed a cross motion. She argued that Hughes was ineligible for workers compensation because of his intoxication at the time of the accident and thus unprotected from civil suit by fellow servant immunity.
The district judge denied Hughes’ motion and granted Brun-gardt Scott partial summary judgment, ruling that Hughes was “not entitled to workmen’s compensation benefits because his injury was contributed to by [his] use or consumption of alcohol.” On Hughes’ request, the judge amended his journal entry to enable interlocutory review, certifying this question: “[W]hether an individual allegedly unable to obtain workers compensation benefits by reason of intoxication thereby loses his or her statutory fellow servant immunity and is subject to civil liability in a suit brought by a co-worker.” Permission to docket the interlocutory appeal was granted, and the case was transferred to this court.
In our opinion issued April 28, 2006, we set forth the central questions posed by the denial of Hughes’ motion for summary judgment: “If alcohol or drug use by Hughes would eliminate Duke Drilling’s liability to him for workers compensation benefits, would it also eliminate the coemployee or fellow servant immunity he would normally enjoy under K.S.A. 44-501(b)? Would it place him instead in the position of a third-party tortfeasor subject to this civil suit for damages under K.S.A. 44-504?” Scott, 281 Kan. at 647.
We concluded:
“Neither entitlement to receive nor actual receipt of workers compensation benefits by a coemployee tortfeasor is required for fellow servant immunity to attach and bar a civil suit. What matters is whether that coemployee was acting within the scope and course of employment when he or she caused injury to another.” Scott, 281 Kan. at 652.
In other words, the district judge erred by yoking together two unrelated legal concepts. The first — whether the accident arose out of and in the course of Hughes’ employment, or, in the parties’ equivalent formulation, whether Hughes was acting in the course and scope of his employment at the time of the accident — posed a threshold question. It must be answered affirmatively for the Act to apply and for Hughes to be protected by fellow servant immunity. The second concept — whether Hughes was eligible to recover workers compensation benefits for his own injuries, given Duke Drilling’s intoxication defense to liability — was separate and independent. Its answer would not drive the answer to the first question. This meant that the denial of Hughes’ summary judgment motion required reversal and remand for consideration under the correct legal framework. We wrote:
“If the district judge concludes that there is no genuine issue of material fact, i.e., that there is no evidence to controvert defendant Hughes’ claim that he was acting within the scope and course of his employment at the time of the accident, tiren he is entitled to fellow servant immunity and this wrongful death and survival suit is barred.” Scott, 281 Kan. at 652-53.
This court also reversed “the district court’s additional ruling granting partial summary judgment to Brungardt Scott on the fac tual issue of Hughes’ consumption of alcohol or drugs and its effect on his ability to recover workers compensation benefits.” Scott, 281 Kan. at 653. The record before us at that point contained only allegations rather than evidence about Hughes’ intoxication. In the case’s procedural posture on the anticipated remand, it was possible die civil case against Hughes would continue and his intoxication or lack thereof would be further litigated. We also did not address the issue of whedier Scott was in the course and scope of his employment at the time of the accident, having assumed he was for purposes of a brief review of statutory provisions on workers compensation. Scott, 281 Kan. at 653.
On remand, the district court ordered additional discovery, and counsel for Brungardt Scott and Stein and counsel for Wagner took Hughes’ deposition. A few months later, Hughes and Duke Drilling settled Hughes’ workers compensation claim.
Hughes again moved for summary judgment, this time against all three plaintiffs. He argued that the material uncontroverted facts demonstrated that plaintiffs’ lawsuits were barred by fellow servant immunity under the Act. Plaintiffs responded and filed cross-motions for summaiy judgment on the issue of whether Hughes was in the course and scope of his employment at the time of the accident.
The uncontroverted facts before the district judge, beyond those already recited above, included the following:
Hughes was the driller and crew chief, while Scott, Wagner, and Stein were members of the crew that Hughes assembled and supervised. On the date of the accident, the crew was required to be at the drilling site near Greensburg by 6:45 a.m. The drilling site was approximately 90 miles from the Great Bend area where each of the four lived. Duke Drilling did not provide the crew with lodging in Greensburg or a food stipend. The crew would work from 7 a.m. to 3 p.m. at the Greensburg site and then would return to Great Bend each day.
Consistent with the practice of oil drilling crews, crew members with valid licenses would take turns driving the crew to the job site. Duke Drilling paid the mileage expenses for one driver. Duke Drilling also paid each crew member $15 “ride time” if the drilling site was more than 100 miles away one way. Duke Drilling did not have control or input over how the crew got to the job site. Crew members could choose to ride with Hughes or drive themselves to the site. Hourly pay did not begin until arrival at the job site.
On the day of the accident, Hughes awoke about 4 a.m. to find Scott already at his home and sleeping in Hughes’ car. Hughes and Scott picked up Wagner and Stein and then traveled south on Highway 281 toward Greensburg until the accident occurred.
The district judge issued an initial order via email denying both Hughes’ and plaintiffs’ motions for summary judgment. He stated in part:
“The court finds under the specific instructions on the remand that there is a genuine issue of a material fact, namely [that] there is evidence to controvert defendant Hughes’ claim that he was acting within the scope and course of his employment at the time of the accident. There is evidence from which a fact finder could make the determination that he was not. This is an issue that cuts both ways and there is enough evidence to persuade a fact finder that he was acting within the scope of his employment.”
The judge’s official filed journal entry set forth no additional factual findings or legal conclusions, and Hughes sought reconsideration for that reason. The district judge denied the motion for reconsideration without setting forth any additional factual findings or legal conclusions.
In the pretrial order, the three lawsuits brought by Brungardt Scott, Wagner, and Stein were consolidated for trial. The order also specified the following as issues of fact for trial:
“1. Whether Defendant Christopher Hughes was acting in the scope and course of his employment with Duke Drilling, Inc., at the time of the wreck[.]
“2. Whether Jeffrey Scott, Jeffrey Wagner and Adam Stein were acting in the scope and course of his employment with Duke Drilling, Inc., at the time of the wreck[.]”
The order included the following among the issues of law:
“2. Whether defendant was in the course and scope of employment when the accident occurred. (Defendant asserts that this is a question of law. Plaintiffs assert that this is a question of fact.)
“3. Whether Plaintiffs’ claims are barred by tire ‘exclusive remedy of workers compensation.”
At trial, plaintiffs put on no witnesses. Wagner, Stein, and Hughes were called by the defense. In addition to the uncontrov-erted facts supporting the summary judgment motions, they gave the following additional evidence relevant to the course and scope questions on Hughes and his passengers.
Wagner testified that most work days Hughes drove to the job site. On the day of the accident, the crew was taking the most direct and shortest route to the job site. It was common practice to go from home, to the drilling site, and back again each day, although employees were also permitted to stay at the well site rather than travel to and from home. Wagner said it was not a condition of his employment that he ride with the driller or another coworker to the job site; the four had what was, in essence, a carpooling arrangement. Wagner nevertheless acknowledged that it was common in the drilling industry for a crew to ride with the driller so that everyone would arrive at the site at the same time. At the time of the accident, Wagner was asleep.
Stein agreed that a driller typically takes a crew with him to a drilling site and that this was the way it worked with Hughes and Duke Drilling. Hughes was paid for his mileage on the day of the accident. Stein’s hourly wages would not begin to accrue until he arrived at the job site and began his shift. Stein testified that he could have driven himself to the work site and that it was not one of his job duties to ride with Hughes. Yet Stein would usually ride home at the end of a shift with the driller. He made other arrangements on days that he worked a double shift. At the time of the accident, Hughes was driving, and Scott was sleeping. Wagner was riding in the back, asleep, and Stein was also asleep.
Hughes testified that he was second in command at the work site, and his job included organizing the crews. The site would move to a new location every 12 to 16 days. Hughes testified that the site at the time of the accident was the first time in about 3 months in which the distance was less than 100 miles away from home. As the driller, he was told to pick up three hands and be on location on time. The crew rode together to ensure arrival at the site at the same time, which was the custom in the oil field. The driver was always paid mileage for the most direct route to the site, and crew members were not paid for a hotel or for meals. It was not the company’s practice to let workers live at the site. On the day of the accident, Hughes was paid mileage. The accident occurred on a public highway, not on Duke Drilling’s property. Hughes was driving his own vehicle at the time of the accident.
On cross-examination of Hughes, plaintiffs’ counsel focused on disparities between Hughes’ deposition and his trial testimony. Hughes said that he did not remember his deposition testimony well because he had suffered a brain injury in the accident.
Plaintiffs’ counsel pointed out that during his deposition Hughes had not listed getting the crew to the site as one of his job duties. Hughes also acknowledged that he had not been paid additional mileage for picking up crew members who were off of the direct route to the work site, and he admitted that workers could have driven themselves to the site at their own expense. Even though Hughes maintained at trial that his job as driller started at 4 a.m. when he went to pick up the crew, plaintiffs’ counsel pointed out that Hughes had testified at his deposition that he had not yet started his work day and was not being paid his hourly wage at the time of the accident. Hughes testified at trial that he believed he went to the Duke Drilling yard to pick up equipment on the day of the accident, but during his deposition he had testified that he did not. Hughes admitted that he had agreed during his deposition that the foursome riding to the drilling site together was a carpool arrangement. He also admitted that it was not a part of his job description to drive to and from work. Hughes’ deposition testimony and trial testimony were inconsistent on the question of whether Hughes was required to have a driver’s license. His deposition testimony and trial testimony were also inconsistent on the question of whether he instructed the crew members to ride with him.
At the close of evidence, both the plaintiffs and Hughes moved for judgment as a matter of law.
On the question of whether the passengers were in the course and scope of their employment, plaintiffs argued that there was “no evidence that the plaintiffs were in the course and scope of their employment at the time of the wreck” because “[tjhey were not paid mileage”; they “were not paid for their time”; “[t]hey were not carrying out any job duties”; and “[t]hey were asleep.” Plaintiffs argued that there was “scant evidence” Hughes was in the course and scope of his employment, but they “concede[d]” that there was “some evidence on that issue.” Hughes argued that he was entitled to judgment as a matter of law as an immune fellow servant because he and plaintiffs “were going to a remote long-distance drilling location for die benefit of their employer” at the time of the accident, and case precedent dictated that such travel qualified as within the course and scope of their employment.
The district judge rejected both sides’ motions for judgment as a matter of law without explanation.
After deliberations, the jury decided that neither Hughes nor the plaintiffs were in the course and scope of their employment at the time of the accident. Because Hughes was not in the course and scope, he was not covered by fellow servant immunity under the Act, and judgment was entered for plaintiffs in a previously agreed-upon amount of $500,000.
This appeal was transferred from the Court of Appeals.
Discussion
Several of our standards of review are relevant to resolution of this case.
First, our standard of review on summary judgment is often recited and well known:
“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 tire 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. [Citations omitted.]” Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P. 3d 333 (2009).
When evaluating a district judge’s ruling on a motion for judgment as a matter of law, an appellate court applies the same standard as the district court:
“When ruling on a motion for [judgment as a matter of law], the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied.” National Bank of Andover v. Kansas Bankers Sur. Co., 290 Kan. 247, 267, 225 P.3d 707 (2010).
Thus “ ‘a motion for judgment as a matter of law must be denied when evidence exists upon which a juiy could properly find a verdict for the nonmoving party.’ ” National Bank of Andover, 290 Kan. at 267 (quoting Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 [2007]). Moreover, “even where facts are undisputed, it may be possible to draw conflicting inferences from the facts, which would also require the issue to be submitted to the jury,” and, therefore, “[t]he matter becomes a question of law for the court’s determination where no evidence is presented on a particular issue or where the evidence presented is undisputed and is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice.” Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 126, 815 P.2d 72 (1991) (citing Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 [1983]; Pilcher v. Board of Wyandotte County Commr's, 14 Kan. App. 2d 206, 208, 787 P.2d 1204 [1990]).
This case also involves statutory interpretation and construction, which is reviewed on appeal de novo. See State v. Roberts, 293 Kan. 29, 33, 259 P.3d 691 (2011).
To the extent resolution of this case requires interpretation of our caselaw precedents, it also raises questions of law reviewable de novo. See State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012) (citing NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 386, 996 P.2d 821 [2000]).
A preliminary discussion of the basics of pertinent workers compensation provisions is helpful at this point.
The Kansas Workers Compensation Act nullifies employee common-law rights to sue in tort in exchange for guaranteed but limited recovery in an administrative system with judicial review. Covered workers no longer may exercise their common-law rights to sue employers for work-related injuries, but they can count on certain, limited compensation. The Act also makes a trade for covered employers: They need no longer fear unlimited liability on employee claims, but they must purchase insurance or otherwise provide for guaranteed payment of the compensation amounts dictated. See K.S.A. 44-501 et seq. The Act underwent substantial statutory revisions in 2011. See L. 2011, ch. 55, sec. 3, effective May 15, 2011. All statutory provisions cited herein reference the version of the statutes in effect at the time of this lawsuit.
The Act provides that a covered worker s remedy under the Act is exclusive. K.S.A. 44-501(b). If the worker experiences a “personal injury by accident arising out of and in the course of employment,” K.S.A. 44-501(a), then the Act applies, and no separate civil suit in tort against the employer is permitted, K.S.A. 44-501(b). Under the exclusive remedy provision, “it is well established that a worker who recovers benefits for an on-the-job injury from an employer under the Act cannot maintain a civil action for damages against the employer or against a fellow employee.” Scott, 281 Kan. at 645.
K.S.A. 44-508(1) contains what is known as the “going and coming rule” of workers compensation law. See, e.g., Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2006) (citing Chapman v. Beech Aircraft Corp., 258 Kan. 653, 907 P.2d 828 [1995]). It provides in pertinent part:
“The words ‘arising out of and in the course of employment’ as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence. An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises of the employer or on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer.”
In other words, a worker who is traveling to and from work is not generally covered by the Act because mere travel to and from work does not, by definition, arise out of and in the course of employment. A worker injured during such travel is not foreclosed by the Act from suing his or her employer in tort.
Caselaw precedent has recognized an exception to the going and coming rule when travel is an intrinsic part of the worker’s job. See, e.g., Sumner v. Meiers Ready Mix, Inc., 282 Kan. 283, 289, 144 P.3d 668 (2006) (semi-truck/flatbed trailer driver) (citing Estate of Soupene v. Lignitz, 265 Kan. 217, 223, 960 P.2d 205 [1998] [volunteer firefighter]); Kindel v. Ferco Rental, Inc., 258 Kan. 272, 277, 899 P.2d 1058 (1995) (construction worker). Although plaintiffs argue on appeal that the plain language of the statute does not allow this exception, they did not take issue with the legal underpinnings of the exception in the district court and did not file a prophylactic cross-appeal of the district judge’s denial of their motion for judgment as a matter of law. We therefore do not address this argument. See Cooke v. Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008) (appellee who wants to preserve challenge to adverse ruling must file cross-appeal). Cf. Craig v. Val Energy, Inc., 2012 WL 892194, at *4 (Kan. App. 2012) (suggesting exception actually method of analysis).
Examples of workers who would come under the Act because of application of this exception in previous cases have included an oil well driller who customarily drove to assemble his crew, an auto mechanic who traveled annually to an examination, and a salesman who traveled to call on customers. See Bell v. A.D. Allison Drilling Co., 175 Kan. 441, 264 P.2d 1069 (1953) (driller); Blair v. Shaw, 171 Kan. 524, 233 P.2d 731 (1951) (auto mechanic); Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 P. 536 (1930) (traveling salesman). If travel to and from work arose out of and in the course of employment, a worker injured during such travel is foreclosed by the Act’s exclusive remedy provision from suing his or her employer in tort.
The fellow servant doctrine of workers compensation law adds another layer to the intersection of workers compensation and tort law. It is that intersection about which we are concerned in this case.
If an employee is injured by a coworker while the coworker is acting in the course and scope of his or her employment, then fellow servant immunity under K.S.A. 44-501(b) applies. The relevant portion of the statute states: “Except as provided in the workers compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workers compensation act.” (Emphasis added.) This language plainly extends the immunity from a separate civil suit in tort that the employer enjoys under the Act to any coworker tortfeasor who is merely doing his or her job at the time of the injury-causing event. The injured employee is eligible to recover workers compensation but cannot bring a separate civil suit in tort against the coworker.
If, on the other hand, an employee is injured by the tort of a coworker while the coworker is not acting in the course and scope of his or her employment, then fellow servant immunity under K.S.A. 44-501(b) does not apply. As we discussed in our opinion on Hughes’ interlocutoiy appeal, the injured employee is free to sue the coworker tortfeasor as a third party under K.S.A. 44-504(a). Scott, 281 Kan. at 646. “What matters is whether [the tortfeasor coworker] was acting within the scope and course of employment when he or she caused injuiy to [the injured worker].” 281 Kan. at 652.
The question before the district judge on remand was into which of these analytical buckets this case should fall. If Hughes was entitled to fellow servant immunity, then plaintiffs’ lawsuits were barred. If he was not entitled to fellow servant immunity, then plaintiffs could pursue their civil actions.
Although the interpretation or construction of the Act’s language raises a question of law, once that interpretation or construction has occurred, the ultimate question of whether an accident arises out of and in the course of employment is a question of fact. See Rinke, 282 Kan. at 751; see also Sumner, 282 Kan. at 293 (court has recognized “[r]epeatedly . . . that resolution of the question of whether an injury arises out of and in the course of employment is a question of fact”) (citing Foos v. Terminix, 277 Kan. 687, 691, 89 P.3d 546 [2004]; Newman v. Bennett, 212 Kan. 562, Syl. ¶ 3, 512 P.2d 497 [1973]). It is not, as Hughes has consistently maintained, a question of law. However, it may be determined as a matter of law if the evidence can lead to only one factual finding. This is the reason we said in our opinion on the interlocutory appeal that the district judge might yet determine that there was no genuine issue of material fact for trial, i.e., that there was “no evidence to controvert defendant Hughes’ claim that he was acting within the scope and course of his employment at the time of the accident.” Scott, 281 Kan. at 653.
Our decision in Rinke v. Bank of America elaborated on the meaning of “arising out of and in the course of employment”:
“The term ‘arising out of and in the course of employment’ was previously discussed by this court:
‘The two phrases arising “out of’ and “in die course of’ employment, as used in our Workers Compensation Act, K.S.A. 44-501 et seq., have separate and distinct meanings; they are conjunctive, and each condition must exist before compensation is allowable. The phrase “out of employment points to the cause or origin of the worker’s accident and requires some causal connection between the accidental injury and die employment. An injury arises “out of’ employment when there is apparent to die rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Thus, an injury arises “out of’ employment if it arises out of the nature, conditions, obligations, and incidents of the employment. The phrase “in the course of employment relates to the time, place, and circumstances under which die accident occurred and means the injury happened while the worker was at work in the employer’s service. [Citations omitted.]’ Kindel v. Ferco Rental, Inc., 258 Kan. 272, 278, 899 P.2d 1058 (1995).” 282 Kan. at 752.
Not surprisingly, most of our previous Kansas cases applying the going and coming rule and the exception for travel intrinsic to employment have arisen in workers compensation appeals dealing with the course and scope of the employment of the injured worker rather than in civil suits brought by the injured worker against a potentially immune tortfeasor coworker. This distinction in procedural posture does not lessen the persuasive power of these cases on the contours of the legal concepts of “arising out of and in the course of employment.” But it does mean that our appellate review has generally focused on whether there was substantial competent evidence to support a district judge’s factual finding rather than on whether there was a conflict in evidence such that a genuine issue of material fact demanded a trial or prevented judgment as a matter of law at the conclusion of trial.
The primary case relied upon by Hughes is the Court of Appeals decision in Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984). In Messenger, Sage Drilling Company and its insurance carrier appealed from the district court’s finding that the death of Gary Edward Messenger in a truck accident on the way home from a drilling site arose out of and within the scope of his employment. Both the administrative law judge and the district court “found commuting long distances [to and from the drilling site] was an incident of the job itself.” Messenger, 9 Kan. App. 2d at 438. And the Court of Appeals concluded that substantial competent evidence supported the finding “that travel was an intrinsic part of Messenger’s job.” 9 Kan. App. 2d at 439; see also Soupine, 265 Kan. at 224 (workers compensation appeal of volunteer firefighter injured in collision with another emergency responder; court cites Messenger approvingly as example of case involving travel to work as “integral and necessary part of the employment which benefitted the employer”).
The Court of Appeals stated:
“The trial court herein found that the employee had no permanent work site, but was required to travel to often distant locations to perform his job. The court found drat the common and accepted practice in the oil well drilling business was that workers would live at some distance from their work sites, and would have to travel daily to reach there. It was also found that the employees had to provide their own transportation, though the employer would reimburse them at the rate of 20 per mile. Finally, the trial court found that the employee would not have been hired if he had refused to undertake the traveling that the job required. Based on all these findings, the court concluded that in his travels the deceased was performing a benefit for his employer, and therefore, his death arose out of and in the course of his employment. In this manner, this case was brought within the exception to K.S.A. 1983 Supp. 44-508(f), and compensation was allowed.” Messenger, 9 Kan. App. 2d at 440.
Defendant also relies upon this court’s decision in Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 114 P.2d 841 (1941). William Mitchell was a tool pusher and president of an oil company who was killed while driving to supervise a new drilling site. This court’s opinion makes it evident that we concluded there was substantial competent evidence supporting the district court’s finding that Mitchell was in the course and scope of his employment at the time of the accident, stating:
“There was direct evidence the workman intended to go to the Zenith well. It was logical and proper that, as superintendent of drilling activities, he should be there. The evidence disclosed diere were several reasons, involving the interests of the drilling company, which it was reasonable to infer prompted his decision to go by way of Great Bend. He had authority to determine his course of travel and the business he desired to transact for his employer. He was using the company’s car. It had machinery on it which is employed in drilling operations. At the time of his unfortunate accident he had progressed sufficiently far to bring him to die Zenith well in tíme for the commencement of that well. In view of all the circumstances we diink it was reasonable to infer the Zenith well was his destination and that he was killed in the course of his employment.
“The accident also arose out of his employment. A necessary part of his employment consisted in traveling from well to well and to any other place at which he might desire to transact business pertaining to drilling activities. Manifestly, part of his business consisted of traveling the highways. The hazards and risks of highway travel were incidents of his employment. It was in connection with those hazards of employment that his death occurred and it cannot be said the accident did not arise out of his employment.” 154 Kan. at 121-22.
Defendant further relies upon this court’s decision in Bell, 175 Kan. 441, where the district court affirmed a workers compensation award in favor of Harvey T. Bell. Bell was an oil field worker and driller who was killed while traveling to assemble a crew for a drilling site. This court held that there was ample evidence to support the district court’s finding that Bell was in the course and scope of his employment at the time of his death. 175 Kan. at 445-46.
The last case dealing with an oil field worker upon which Hughes relies is Newman v. Bennett, 212 Kan. 562, 512 P.2d 497 (1973). In Newman, the district court affirmed a workers compensation award in favor of David W. Newman, who was employed as a pumper on six separately owned sites. Newman died in a car accident when traveling between sites. Upholding the district court’s decision, this court stated:
“Here the circumstances revealed, and the fact-finders so declared, the nature of the decedent’s work was such that he was expected to use a pickup truck as a part of his employment with all of his employers. He was required to haul heavy tools, equipment and supplies in servicing the leases and keeping the wells in operation. Use of the truck was vital in making repairs as promptly as possible. His duties were not confined to particular premises nor was his pay dependent solely on services to be performed on the premises’ of each particular lease. Driving a pickup truck, as distinguished from an ordinary passenger automobile, and having it available for immediate use when needed, was definitely a part of the service for which the decedent was being compensated by each employer. It cannot be said that such travel was of a type purely personal to him — he was required to have certain equipment and supplies with him and available while on duty and also to have a mode of rapid transportation. Clearly travel on the public highway was regarded by all as a part of his work.” 212 Kan. at 568.
Plaintiffs attempt to distinguish all of these cases from Hughes’ situation. And they point to this court’s decision in LaRue v. Sierra Petroleum Co., 183 Kan. 153, 325 P.2d 59 (1958), another workers compensation case involving an oil field worker. In LaRue, the widow and guardian of minor dependents for Arthur LaRue received a workers compensation award, which was then reversed by the district court. LaRue was a derrick man on a drilling crew who was killed in a car accident when he and other crew members decided to leave the area near the well site where they had been staying in order to go to their homes. This court held that the following findings of the district court were supported by substantial competent evidence:
“ T. That the decedent was not furnished transportation by the respondent as a part of or as an incident of the employment.
“ ‘2. That the driller, Delaney, was not authorized by the respondent to furnish or provide transportation to the decedent as a part or as an incident of the employment.
“ ‘3. That the driller, Delaney, did not furnish and provide decedent transportation as a part of or as an incident of the employment, but rather the transportation was furnished purely as a personal matter between them and had nothing to do with respondent. Delaney merely intended the arrangement for transportation to be one of sharing rides with each other as they had done in the past when they worked together.
“ ‘4. The decedent was not under the direction and subject to the control of the respondent or of tire driller, Delaney, or any one else after he left work at the well location, while on the trip home and at the time of his death.
“ ‘5. The trip home by the decedent, which was more than 100 miles from his place of work, was purely a personal mission having no connection with his employment and no work was being performed for die respondent and no benefit was received by it by reason of the trip home.
“ ‘6. That at the time of the accident the decedent was not moving to another location at the request of Iris employer, but rather he was going home after leaving the duties of his employment.
“ ‘7. That the proximate cause of the decedent’s death was not the negligence of the respondent.
“ ‘8. That the driller, Delaney, was not acting as the agent of respondent and was not within the scope of his employment or under the control of tire respondent at the time of the accident.’ ” 183 Kan. at 156-57.
And this court affirmed the district court’s reversal of the workers compensation award. 183 Kan. at 157-58.
The cases involving oil field workers have not led to a hard and fast rule about application of the going and coming rule. We have not made a categorical determination that travel is intrinsic to their type of employment, despite some encouragement along that path from our Court of Appeals. See Halford v. Nowak Construction Co., 39 Kan. App. 2d 935, 939, 186 P.3d 206, rev. denied 287 Kan. 765 (2008) (“clearest applications” of exception to going and coming rule for travel intrinsic to job involve traveling salesman, oil driller); see also Ostmeyer v. Amedistaff, L.L.C., No. 101,909, 2009 WL 4931359, at *3 (Kan. App. 2009) (unpublished opinion) (“Kansas does recognize that some professions require the employee to travel as a part of the job,” including traveling salespersons, oil drillers.).
We decline to enunciate such a hard and fast rule today. Instead, we rely on our past oil field worker cases for pertinent factors guiding consideration of the proof necessary to demonstrate intrinsic travel meriting exception to the going and coming rule.
Payment of mileage was critical to the outcome in Messenger, for example, and so was the absence of a permanent work site and the practical necessity of daily travel from home to perform job duties. The benefit of the worker s travel to the employer was mentioned explicitly in Messenger and repeatedly alluded to in Mitchell. In Bell, the travel inherent in the responsibility for assembly of a crew for a drilling site was persuasive. Our Newman case relied on the nature of tire vehicle — a pickup truck loaded with tools, equipment, and supplies — as well as recognition that the pumpers duties were not confined to a single work site. In contrast, in LaRue, the subject derrick man was on a “ ‘personal mission having no connection with his employment’ ” at the time he suffered his fatal injury. 183 Kan. at 157. He was not “ ‘moving to another location at the request of his employer, but rather was going home after leaving the duties of his employment.’ ” 183 Kan. at 157. In other words, the travel in which the derrick man was engaged at the time of the accident offered no benefit to his employer.
In short, even though the fact question of whether a particular oil field worker is in the course and scope of his employment when an injury-causing accident occurs must still be decided on a case-by-case basis, consistent patterns have emerged from our prior cases. It was these patterns that should have been relied upon by the district judge on remand from the interlocutory appeal when he evaluated Hughes’ motions for summary judgment and for judgment as a matter of law.
Further, and critically important, it was essential for the parties and the district judge to understand that the only person whose course and scope of employment mattered for determination of the existence of fellow servant immunity was Hughes. If travel to the job site on the morning of the accident was an intrinsic aspect of Hughes’ job, then the going and coming rule did not apply to remove him from the Act; he was within the course and scope of his employment and was entitled to fellow servant immunity from plaintiffs’ civil suits. It mattered not — on this particular, narrow, threshold legal issue — whether his passengers were or were not also within the course and scope of their employment at the time of the accident. Hughes’ status alone would tell the tale.
It may be that this final point eluded the district judge. We cannot be certain because of the lack of explanation in the record for his ruling on Hughes’ motions for summary judgment and for judgment as a matter of law. In any event, we regard the underlying facts of any moment as undisputed. Although plaintiffs were certainly able to point to some evidence that the passengers in Hughes’ vehicle were not in the course and scope of their em ployment at the time of the accident — they were, after all, uniformly asleep and were not being paid for their ride time — they could not do likewise for Hughes himself.
However Hughes may have characterized the “caipool” in his deposition, at the time of the accident, he had gathered the crew he was responsible for having assembled and ready to work 90 miles from home by 6:45 a.m. He was getting paid for his mileage, Duke Drilling’s explicit recognition that his driving was of benefit to its enterprise. Hughes’ work site was changeable, and Hughes’ ability to adapt and appear with his crew as ordered was part of what Duke Drilling was paying his wages for. Hughes was not on a personal mission at the time of the accident. Indeed, according to all of the witnesses, he was performing an informal but custom-aiy duty in his and Duke Drilling’s industry.
On this record there was no genuine issue of material fact for trial in these consolidated cases. Plaintiffs came forward with no relevant contrary evidence on remand, and the district judge erred in denying Hughes’ summary judgment motion. No testimony admitted at trial changed this. Thus the district judge also erred by rejecting Hughes’ motion for judgment as a matter of law made at the close of the evidence.
Conclusion
The evidence in this case could only show that the travel in which Christopher Hughes was engaged on the morning of the accident that killed Jeffery Wade Scott and injured Jeffrey Wagner and Adam Stein was an intrinsic part of Hughes’ job. The going and coming rale under K.S.A. 44-508(f) thus did not apply, and Hughes was within the course and scope of his employment. This means he was entitled to fellow servant immunity under K.S.A. 44-501(b), and plaintiffs’ civil lawsuits against him were barred. The district court’s decision is reversed and the $500,000 judgment against Hughes is therefore vacated, and this case is remanded for entiy of appropriate orders dismissing all of the plaintiffs’ claims.
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The opinion of the court was delivered by
Luckert, J.:
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established a two-prong test for determining if a criminal defendant’s right to effective assistance of counsel under the Sixth Amendment to the United States Constitution has been violated by the deficient performance of counsel. Under this test, a defendant must demonstrate that (1) counsel’s performance was deficient and (2) counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. To establish the second prong, the defendant must establish a reasonable probability that, but for counsel’s errors, the outcome of the proceeding would have been different. This court recognized this standard in Chamberlain v. State, 236 Kan. 650, 657-58, 694 P.2d 468 (1985). Applying this Strickland/Chamberlain test in the present case, the district judge concluded Neil Edgar, Sr., failed to satisfy either prong of the test. On appeal from that ruling, the Court of Appeals reversed the district court’s summary denial of Edgar’s K.S.A. 60-1507 motion and remanded for a hearing on the first prong, but it failed to address the second prong. Edgar v. State, No. 100,477, 2009 WL 5206231 (Kan. App. 2009) (unpublished opinion) (Edgar II). Subsequently, the State sought this court’s review of that decision, arguing the Court of Appeals erred in remanding the case for a hearing rather than holding that Edgar ' failed to satisfy the second prong of the Strickland/Chamberlain test.
We accepted the State’s cross-petition for review and now reverse the Court of Appeals’ decision on this issue. In Strickland, the United States Supreme Court held that a court does not have to determine whether counsel’s performance was deficient before examining the prejudice that resulted from the alleged deficiencies and, in fact, should resolve the issue on the second prong, if possible, rather than insist on a first-prong determination. Consequently, the Court of Appeals could and should have reviewed the district judge’s ruling on the second prong of the Strickland/Chamberlain test. Conducting our own review, we conclude the district judge correctly concluded that Edgar had failed to establish prejudice.
Facts and Procedural Background
Edgar’s claims of ineffective assistance of counsel relate to a criminal case that was filed following the death of Edgar’s 9-year-old son Brian. In that criminal case, Edgar was charged in count I with felony murder, in violation of K.S.A. 21-3401(b), occurring during the commission of abuse of a child by inflicting cruel and inhuman corporal punishment upon Brian on December 30, 2002. Edgar was also charged in counts II and III with child abuse, in violation of K.S.A. 21-3609, involving two of Edgar’s other children: 12-year-old Martez and 9-year-old Christina. The allegations were that the abuse of Martez and Christina occurred during the time period from May 9, 2002, to December 30, 2002.
Edgar’s wife, Christy Edgar (Christy), and Chasity Boyd (Boyd), described by the Edgars as their “granddaughter” and by the Edgar children as their “babysitter,” were also charged with the same crimes. Edgar, Christy, and Boyd were tried jointly. After opening statements in the trial, Christy pleaded guilty to all of the charges. Edgar and Boyd agreed the jury could be told of her plea, and Edgar defended against his charges by arguing Christy was the one who committed the abuse, he did not aid and abet in any of her acts of abuse, and he had no knowledge of the incident that led to Brian’s death.
Rejecting this defense, a jury convicted Edgar of the felony murder of Brian and of the child abuse of Martez and Christina. The district judge then sentenced Edgar to a term of life imprisonment for the felony-murder conviction and to 32 months’ imprisonment on each of the child abuse convictions, with the sentences for the child abuse convictions to run concurrent with each other and consecutive to the sentence for felony murder.
On direct appeal, this court affirmed Edgar’s convictions and sentences in State v. Edgar, 281 Kan. 47, 127 P.3d 1016 (2006) (Edgar I). An extensive discussion of the facts can be found in that decision, but a summary is necessary because our review requires a discussion of the prejudice prong of the Strickland/Chamberlain test, a discussion that is necessarily factual.
As to the evidence regarding the felony-murder offense charged in count I, an autopsy revealed Brian died of asphyxiation when he aspirated his own vomit. At the time of his death, Brian was wrapped “like a mummy” in duct tape with only his nose left open for breathing. A sock had been stuffed in Brian’s mouth and taped down to keep him from “hollering” and gnawing on the tape.
There was evidence that Edgar was the one who restrained Brian on the night of his death. In fact, Edgar initially confessed to police that he “did it.” He told the police he had restrained Brian by wrapping his arms, torso, and ankles with belts and that he had used duct tape to cover a sock he stuffed in Brian’s mouth so that Brian could not “holler.” In addition, Martez told detectives Edgar tied up Brian on the night of Brian’s death. Martez also stated that Edgar was the one who usually punished the boys.
Most of the evidence at trial, however, indicated Christy and Boyd had taped Brian on the night of his death and were the ones who most often punished the children. Some evidence suggested that Christy would tell Boyd to punish the children and that Boyd would be the one who physically restrained the children. Consistent with this evidence, the State argued to the jury that Edgar aided and abetted Christy and Boyd in the acts of child abuse. In fact, during closing argument, the prosecutor said, “Sure, Chasity Boyd does most of the tying but this guy is up to his ears in this.” Later, the prosecutor said, “Did he aid and abet? Yes. We know that in a thousand different ways.”
The evidence of aiding and abetting came from tire testimony of Brian’s siblings — Martez, Christina, and 16-year-old Christon. For example, Martez specifically told detectives that Martez and Brian were punished on the night of Brian’s death because they had angered Edgar. Martez also told the detectives he was thankful he had good parents who simply bound him up instead of cutting off his hands, as in biblical times, when he stole something. He told detectives that his father told them, “What happens in this house stays in this house.” Similarly, Christina testified that she and the boys were in trouble on the night of Brian’s death. More generally, during a taped interview that was shown to the jury, Christina stated, “My dad, he tied me up. My mommy did, Chasity tied me.”
Christon provided direct evidence of Edgar’s aiding and abetting. In Christon’s testimony, he explained that Brian had been taped 2 nights in a row because he had “stolen” food by eating without permission or, on the day of his death, by taking cookies while the family was at the church where Edgar was the pastor and Christy was the prophet. On the first night, Brian was wrapped in duct tape from his ankles to his shoulders. The next night, Christy and Boyd began taping Brian in a similar manner but ran out of duct tape before they got above his waist. Edgar had not been present when the taping started but came in as Christy was leaving to go to a store for more duct tape. According to Christon, Edgar saw Brian taped to the waist and, upon learning Christy was going to the store, offered to drive her. When Edgar and Christy returned from the store with duct tape, the women taped Brian so that the duct tape went above his shoulders, covering all of his face except his nostrils. Christon explained that Brian, who was so adept at escaping from his restraints that he was known in the family as “Houdini,” had attempted to gnaw through the tape on the previous night. Apparently, the women did not want this to happen again; as they finished the taping, one of the women said, “Now tiy to get out of this one.” Christon testified that Edgar did not actually do the taping and had not seen Brian with his face taped.
Edgar testified, denying any knowledge of Christy’s decision to tape Brian’s face. Further, Edgar denied knowing the reason for Christy’s trip to the store, insisting he was merely an uninformed driver. Nevertheless, there was circumstantial evidence that Edgar intentionally promoted and assisted in the crime — the punishment resulted because Brian had angered and defied Edgar and Edgar had walked in during the taping, suggesting he would have known Christy was going to the store to get more duct tape.
Regarding the alleged child abuse against Martez and Christina over a several-month period, both children made statements to police and testified at trial regarding repeated abuse. Martez testified that although Edgar usually punished the boys, Boyd had wrapped him with plastic ties on the night of Brian’s death. Martez described in great detail the plastic ties that were used to bind him and explained to the police that he figured out how to get out of them with a bobby pin. Christon testified that when he awoke on the morning before Brian’s death, he found Martez in bed restrained by plastic ties. Similarly, Christina reported multiple occasions of being bound or tied up with socks, duct tape, or plastic ties and having had a stocking or tape put over her mouth. On the night Brian died, Christina was tied up and made to sleep on the floor in the basement. Christina testified that Boyd usually tied her up but did so at the direction of Christy.
Expert testimony was presented establishing that both Martez and Christina had scars on their wrists consistent with having an injury caused by the use of a ligature to tie or bind them and that some scars were older than others. Finally, a fellow church member of the Edgars testified that Christy had told her about a new way of disciplining the children by tying them up. The church member testified that she had seen Brian, Martez, and Christina tied by their hands and feet with plastic ties.
In Edgar I, based on this and the other evidence discussed in that decision, we rejected Edgar’s argument that the evidence was insufficient to support his conviction for the felony murder of Brian. This court concluded: “[Tjhere was overwhelming evidence of child abuse in this case and of Edgar’s involvement.” Edgar I, 281 Kan. at 69. In addition, we noted that Edgar did not contest the sufficiency of the evidence in support of his convictions for the child abuse of Martez and Christina. Edgar I, 281 Kan. at 68-69.
Approximately 1 year after this court affirmed Edgar’s convictions, Edgar filed a K.S.A. 60-1507 motion, raising five main issues and multiple sub-issues. Of tírese multiple issues, only one is subject to our review: a claim of ineffective assistance of defense counsel during closing argument. Specifically, in presenting that issue in his motion, Edgar asserted his defense counsel was “ineffective for conceding movant’s guilt to the jury during closing argument. When counsel told them that he wasn’t worried about the abuse of a child charges and that they could go ahead and find him guilty on those he made their conviction for felony murder mandatory under the law.”
Edgar’s complaint focused on the following portion of defense counsel’s closing argument:
“Neil Edgar is not guilty of Count No. 1. And I really don’t care about Counts II and III.
“Something went on. And if you want to find my client guilty of Counts II and III, go right ahead. I’m not going to argue that. . . .
. . Your job is to say to Mr. [Prosecutor], hell of a job, but you know what, you’ve already got the lady that did it. We don’t need to compound the tragedy. We don’t need to foist upon him a murder and first-degree conviction, the other two counts are enough. We’re going to do what is right and what is right is not guilty on murder in the first-degree.”
Edgar’s claim that the statements in closing argument were the result of unreasonable performance by defense counsel was summarily rejected by the district judge who had presided over Edgar’s trial. In doing so, the judge stated the two-prong Strickland/Chamberlain test and noted: “There is a strong presumption of effective assistance of counsel. The burden is on the defendant to present sufficient facts that suggest otherwise justifying a hearing on the motion.” As to the first prong of the Strickland/Chamberlain test— requiring the defendant to show that counsel’s performance fell below an objective standard of reasonableness under the circumstances and as judged at the time of counsel’s conduct — the judge stated, “In [Edgar I], the Kansas Supreme Court specifically quoted defense counsel’s remarks concerning counts II and III and noted that this was a trial strategy.” Next, addressing the second prong of the Strickland/Chamberlain test — a defendant must prove that there is a reasonable probability that, but for counsel’s errors, the outcome of the decision would have been different— the judge stated, “Given the overwhelming evidence in this case and the nature of the crimes, the Court cannot conclude that trial counsel was ineffective for making these statements or concessions or that a different approach would have changed the outcome as required by Chamberlain. [Movant’s] claim is without merit.”
Edgar appealed. In his brief on appeal, Edgar argued, in part:
“If the [movant] had nothing to do with the discipline of the children, then it was nonsensical for counsel to argue that he should be found guilty of the two counts that did not result in death, but not guilty of the count that resulted in death. Counsel’s conduct appears to have been deficient, and, but for that deficient conduct, a not guilty verdict may have resulted.”
Without much discussion, the Court of Appeals stated that due to the district judge’s summary denial of Edgar’s motion, there was no evidence from which the panel could determine whether defense counsel’s statements constituted a concession of guilt and, if so, whether this was an objectively reasonable trial strategy. Edgar II, 2009 WL 5206231, at *3. But, as previously noted, the panel did not discuss the second prong of the ineffective assistance of counsel test, that is, whether the district judge erred in determining that Edgar failed to establish that there is a reasonable probability that, but for counsel’s errors, the outcome of the decision would have been different. Instead, the panel reversed the district judge’s summary denial of this issue and remanded for “an evidentiary hearing to determine whether trial counsel’s comment was a concession of guilt during [trial] and, if so, whether it was an objectively reasonable trial strategy. [Citation omitted.]” Edgar II, 2009 WL 5206231, at *3. The panel affirmed the district judge’s decision on all other issues. Edgar II, 2009 WL 5206231, at *4-6.
Edgar filed a petition for review, challenging the Court of Appeals’ rulings on the issues it affirmed. The State filed a cross-petition for review, arguing the Court of Appeals erred in not considering the prejudice prong of the ineffective assistance of counsel test prior to reversing the district judge’s denial of Edgar’s K.S.A. 60-1507 motion. This court denied Edgar’s petition for review but granted the State’s cross-petition. This court has jurisdiction under K.S.A. 20-3018(b) and K.S.A. 22-3602(e).
To analyze the State’s argument that the Court of Appeals erred when it did not consider the prejudice prong of the Strickland/Chamberlain test, it is necessary to examine the standards that apply to (1) consideration of Edgar’s K.S.A. 60-1507 motion and (2) the specific issue of ineffective assistance of counsel. Those standards can then be applied to the specific circumstances of this appeal.
District Court and Appellate Standards for a K.S.A. 60-1507 Motion
Generally, when presented with a K.S.A. 60-1507 motion, a district judge has three procedural options for handling the motion. One option is to summarily deny the motion without appointing counsel or conducting an evidentiary hearing. A summary denial is appropriate only if the motion, files, and records of the case conclusively show that the movant is not entitled to relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009); Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007). To avoid summary denial of the motion, “ ‘[a] movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.’ ’’ Trotter, 288 Kan. at 131-32 (quoting Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 [2007]). In this case, the district judge found Edgar failed to meet this burden and, without appointing counsel or conducting a hearing, concluded Edgar was not entitled to relief or, in other words, summarily denied the motion.
When a district judge summarily denies a K.S.A. 60-1507 motion, an appellate court reviews that decision using a de novo standard of review. Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 (2010) (citing State v. Howard, 287 Kan. 686, 690-91, 198 P.3d 146 [2008]). This standard requires an appellate court to determine whether the motion, files, and records of the case conclusively show the movant is not entitled to any relief. Wimbley v. State, 292 Kan. 796, 804-05, 275 P.3d 35 (2011).
Edgar must meet this standard in the context of establishing that he was denied his right to effective assistance of counsel because of defense counsel’s remarks during closing argument.
Ineffective Assistance of Counsel Claims
The right to effective assistance of counsel arises from the Sixth Amendment to the United States Constitution, which guarantees in “all criminal prosecutions” that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” See Chamberlain, 236 Kan. at 656-57 (adopting the standards established in Strickland, 466 U.S. at 687); see also State v. Gonzales, 289 Kan. 351, 357-58, 212 P.3d 215 (2009); Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).
To support a claim of ineffective assistance of counsel based on counsel’s performance, a defendant must demonstrate that (1) counsel’s performance was deficient and (2) counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. Strickland, 466 U.S. at 687; Chamberlain, 236 Kan. at 656-57; see, e.g., Holmes v. State, 292 Kan. 271, 274-75, 252 P.3d 573 (2011); State v. Davis, 277 Kan. 309, 314-15, 85 P.3d 1164 (2004); State v. Orr, 262 Kan. 312, 317, 940 P.2d 42 (1997); State v. Rice, 261 Kan. 567, 598-603, 932 P.2d 981 (1997); see also State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004) (discussing difference between Strickland test that applies to deficient performance of counsel and claims of ineffective assistance of counsel based upon conflict of interest that are analyzed somewhat differently under Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). Thus, the “ ‘benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined tire proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citations omitted.]’ ” Gonzales, 289 Kan. at 357 (quoting Bledsoe, 283 Kan. at 90).
In Bledsoe, this court explained in detail the two steps in the ineffective assistance of counsel analysis, stating:
“The first prong of the test for ineffective assistance of counsel requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness, considering all tire circumstances. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. We must indulge a strong presumption that counsel’s conduct falls within die wide range of reasonable professional assistance. [Citation omitted.]
“[Under the second prong of the test for ineffective assistance of counsel], the defendant also must establish prejudice by showing that there is a reasonable probability drat, but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in die outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. [Citation omitted.]” Bledsoe, 283 Kan. at 90-91.
See Cullen v. Pinholster, 563 U.S. 170, 189, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011); see also Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) (less onerous nonconstitutional error standard applies in determining whether collateral relief must be granted because of constitutional error rather than the Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967], harmless-beyond-a-reasonable-doubt standard).
In recognizing the presumption that counsel’s conduct is reasonable, the Bledsoe court noted the distinction between decisions that are to be made by a criminal defendant and the areas of trial strategy that are left to tire professional judgment of defense counsel, stating:
“[C]ertain decisions relating to the conduct of a criminal case are ultimately for tire accused: (1) what plea to enter; (2) whether to waive a jury trial; and (3) whether to testify. Others are ultimately for defense counsel. The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his or her client. [Citation omitted.]” Bledsoe, 283 Kan. at 92.
See Moncla v. State, 285 Kan. 826, 837-38, 176 P.3d 954 (2008) (courts will defer to counsel on matters of trial strategy).
Despite this recognition that most trial decisions are left to defense counsel’s professional judgment regarding strategy, “ ‘[m]ere invocation of the word “strategy” does not insulate the performance of a criminal defendant’s lawyer from constitutional criticism,’ especially ‘ “when counsel lacks the information to make an informed decision due to inadequacies of his or her investigation.” Gonzales, 289 Kan. at 358 (quoting Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 [2008]). In addition, “[a]n attorney undoubtedly has a duty to consult with the client regarding Important decisions,’ including questions of overarching defense strategy.” Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (quoting Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).
Edgar’s allegations place this last qualification into issue; he suggests defense counsel’s closing argument was contrary to agreed-upon defense strategy. Hence, in this case, the first prong of the Strickland/Chamberlain test could not be determined based merely on a conclusion that defense counsel’s closing argument was “trial strategy.” Rather, as the Court of Appeals concluded, factual questions exist that cannot be determined without an evi-dentiary hearing.
Nevertheless, as tire State argues, a hearing is not necessary if a defendant fails to satisfy the second prong of the Strickland/Chamberlain test. It is the rare case where a defendant does not have to meet the second prong of proving that, but for counsel’s deficient performance, the result of the proceeding would have been different. The United States Supreme Court has explained that a “narrow exception” to the requirement applies “infrequently [when] die ‘surrounding circumstances [will] justify a presumption of ineffectiveness.’ ” Nixon, 543 U.S. at 190 (quoting United States v. Cronic, 466 U.S. 648, 662, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]); see State v. Carter, 270 Kan. 426, 440-41, 14 P.3d 1138 (2000) (presuming prejudice where defense counsel ignored defendant’s repeated objection to counsel’s strategy of admitting guilt and counsel’s conduct deliberately overrode defendant’s plea of not guilty). This narrow exception, referred to as the Cronic exception, is “reserved for situations in which counsel has entirely failed to function as the client’s advocate.” Nixon, 543 U.S. at 189. The Supreme Court has stressed this last point, emphasizing “the attorney’s failure must be complete," that is, the Cronic-type presumption applies only “ ‘if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ [Citation omitted.]” Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002).
In this case, Edgar does not argue for the application of this narrow exception, and the district judge did not apply it. Nor did the Court of Appeals cite to the exception or any case applying it. Instead, although not citing to Chamberlain or Strickland, the Court of Appeals reiterated the two-prong test set out in those decisions before discussing Edgar’s various complaints of ineffective assistance of counsel. Edgar v. State, No. 100,477, 2009 WL 5206231, at *1 (Kan. App. 2009) (unpublished opinion) (Edgar II) (citing Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 [2009]). Then, in discussing the issue before us, the Court of Appeals cited three cases: United States v. Pledger, 887 F. Supp. 1400, 1406-07 (D. Kan. 1995); Bledsoe, 283 Kan. at 93-95; and LaPointe v. State, 42 Kan. App. 2d 522, 555, 214 P.3d 684 (2009). Edgar II, 2009 WL 5206231, at *3, *6. Each of those cases used the two-part Strickland test.
Of the three decisions, Pledger is the most factually similar to the present case. In that case, defense counsel conceded guilt on one count but asserted innocence on other counts. In doing so, according to the Pledger court, defense counsel exercised “professional judgment [and] made a tactical decision to concede defendant’s guilt on count 2, in the face of the overwhelming evidence presented by the government at trial, in order to establish credibility with die juiy concerning defendant’s arguments regarding the other counts of the indictment.” Pledger, 887 F. Supp. at 1406. The Pledger court specifically cited Strickland and applied its two prong test; the court gave no indication that Cronic applied. Pledger, 887 F. Supp. at 1406-07.
Neither did the Court of Appeals in this case. Further, Edgar did not discuss or request application of the Cronic exception. Nevertheless, the dissent in this case suggests we should apply the exception because Carter, 270 Kan. 426, which applied Cronic, controls. We decline to do so for two reasons. First, it can be argued that Carter is distinguishable and, second, there is uncertainty regarding whether Carters rationale and perhaps its holding remain valid in light of two United States Supreme Court decisions filed after Carter.
Regarding the first point, other courts have found Carter distinguishable from cases such as Edgar’s. Specifically, among other factors, these courts distinguish between (1) a situation where counsel concedes guilt on alternative charges, all charges, or the only charge from (2) a situation where counsel concedes guilt on a lesser charge in an effort to gain credibility and win acquittal on the more severe charge. See, e.g., State v. Gordon, 262 Wis. 2d 380, 394-96 & n.6, 663 N.W.2d 765 (2003) (cataloguing decisions, including Carter and Pledger). Pledger, the decision relied on by the Court of Appeals in the present case, is an example of a case in the second category. The present case is more like Pledger than Carter.
In Carter, Jerome Carter was convicted of first-degree murder, aggravated robbery, and criminal possession of a firearm. The first-degree murder count had been charged in the alternative of either premeditated murder or felony murder. At trial, defense counsel’s strategy was to concede Carter’s involvement in the shooting of the victim and the robbery but deny any premeditation, thus directing the jury toward a felony-murder conviction rather than the alternative premeditated first-degree murder conviction charged in the same count. In contrast, in this case Edgar’s counsel asserted Edgar’s innocence as to the murder charge; defense counsel argued Edgar had no knowledge and no involvement in the acts that led to Brian’s death. The arguments of counsel that Edgar challenges related to separate charges in which Martez and Christina were the victims. Counsel’s arguments were not a complete concession of guilt as to all counts, and in particular as to count I, even if we interpret them as a concession of guilt on counts II and III. Ar guably, the situations are distinguishable because the concessions involve separate counts.
The other reason Carter’s application is called into question is the uncertainty regarding the potential impact of two decisions of the United States Supreme Court on Carters rationale. In tire 2002 decision of Bell, 535 U.S. 685, the Court clarified that an “attorneys failure must be complete” in order for Cronic’s presumption of ineffectiveness to apply. Bell, 535 U.S. at 697. Then, in the 2004 decision of Nixon, 543 U.S. 175, the Court held the Strickland test and not the Cronic test applied even though defense counsel had conceded guilt during the penalty phase of a capital murder trial, a concession the Florida Supreme Court had labeled a “ ‘functional equivalent of a guilty plea’ ” that made counsel’s performance presumptively inadequate. Nixon, 543 U.S. at 185. In rejecting the Florida Supreme Court’s holding, the Nixon Court determined counsel’s concession of Nixon’s guilt did not rank as a “ Tail[ure] to function in any meaningful sense as the Government’s adversary.’ ” Nixon, 543 U.S. at 190 (quoting Cronic, 466 U.S. at 666). The Court stated that Nixon retained tire rights accorded a defendant in a criminal trial despite defense counsel’s concessions to the jury because the State was required during the guilt phase to present evidence establishing the essential elements of the charged crimes, the defense maintained the right to cross-examine witnesses, and the concession of guilt did not hinder Nixon’s right to appeal. Nixon, 543 U.S. at 188.
The Court was, however, careful to limit its holding to capital cases and noted that “such a concession in a run-of-the-mine trial might present a closer question, [as] the gravity of the potential sentence in a capital trial and the proceeding’s two-phase structure vitally affect counsel’s strategic calculus.” Nixon, 543 U.S. at 190-91. Thus, Nixon is not controlling, but several courts have applied is rationale in noncapital trials. See, e.g., United States v. Thomas, 417 F.3d 1053, 1057-59 (9th Cir. 2005), cert. denied 546 U.S. 1121 (2006) (applying Nixon and holding Strickland, not Cronic, controlled even though counsel conceded guilt to one of two robbery counts because concession did not abandon all meaningful adversarial testing of the prosecution’s case); Com. v. Cousin, 585 Pa. 287, 301-08, 888 A.2d 710 (2005) (although defense counsel conceded guilt to criminal homicide, counsel argued against more severe murder charge; there was not a complete failure to subject the prosecution’s case to adversarial testing as required by Nixon). These decisions and their application of Nixon and Bell raise questions about the continued viability of the rationale in Carter.
Ultimately, when faced with arguments urging us to follow Carter we may reaffirm its holding, we may modify it, or we may distinguish it. But this is not the case to make any such decision because no one has asked us to apply Carter, much less cited to it or Cronic. Consequently, we will review the Court of Appeals’ decision on the basis on which it was decided — the two-part Strickland test. Given that, we next discuss tire Court of Appeals’ failure to discuss the second prong — the prejudice prong — of the Strickland test.
In Strickland, the Supreme Court emphasized the importance of the prejudice prong of its ineffective assistance of counsel test by providing that a claim of ineffective assistance of counsel could be disposed of solely on that ground if the defendant failed to establish that he or she suffered prejudice.
“Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.” Strickland, 466 U.S. at 697.
Hence, in applying Strickland/Chamberlain, before remanding the case for an evidentiary hearing on the first prong of the test, the Court of Appeals could have and should have assumed defense counsel’s performance was deficient and then examined whether the district judge erred in concluding that “[gjiven the overwhelming evidence in this case and the nature of the crimes, the Court cannot conclude that trial counsel was ineffective for making these statements or concessions or that a different approach would have changed the outcome as required by Chamberlain.”
Had the Court of Appeals conducted that review, it would have undertaken a de novo review to determine if the motion, files, and records of the case conclusively showed that Edgar failed to establish a reasonable probability that, but for defense counsel’s errors, the outcome of his trial would have been different. This court applies the same standard of review.
There Is Not a Reasonable Probability of a Different Outcome
Thus, the ultimate issue in this appeal is: Has Edgar established a reasonable probability that the jury would have returned a “not guilty” verdict on count I, felony murder, if defense counsel had not made the concessions or proposed the compromise regarding counts II and III? We limit this question to the felony-murder count because that is tire way Edgar poses the issue. And in posing the issue he makes only a very limited argument, stating:
“All the charges involved the same type of conduct, i.e. use of physical restraint as [a] form of discipline. The defendant testified that he did not tie or restrain the children — that the women of the church, namely his wife and the other cod-efendant, were the disciplinarians. ...
“Because the conduct underlying the felony murder charge and the abuse of a child was the same, counsel’s argument that the jury should find tire [movant] guilty of the abuse of a child charges directly undermined his claim that the [movant] was not guilty of the felony murder for similar conduct. Counsel’s argument contradicted his own defense in the case. If die [movant] had nodiing to do with die discipline of the children, tíren it was nonsensical for counsel to argue that he should be found guilty of die two counts drat did not result in deadi, but not guilty of the count that resulted in deadi. Counsel’s conduct appears to have been deficient, and, but for that deficient conduct, a not guilty verdict may have resulted.”
These arguments fail to even attempt to satisfy Edgar’s burden of persuasion, ignore the nature of the State’s aiding and abetting case, and remove defense counsel’s statements from the context of closing argument.
Regarding Edgar’s burden, Edgar argues simply that “but for [defense counsel’s] deficient conduct, a not guilty verdict may have resulted.” (Emphasis added.) This argument does not acknowledge Edgar’s burden to establish a reasonable probability that a “not guilty” verdict would have resulted. Furthermore, Edgar presents no factual argument to rebut the district judge’s conclusion that the evidence was overwhelming or its conclusion that a different approach would not have changed the outcome. Indeed, the con-clusoiy nature of Edgar’s arguments is reason enough to reject his motion. See Trotter, 288 Kan. 112, Syl. ¶ 12; Swenson, 284 Kan. at 938.
In addition, a review of the record provides additional reasons to conclude the district judge did not err in ruling that Edgar failed to meet his burden. The record reveals that while there was evidence that Edgar tied and restrained Martez and Brian on occasion, the State’s closing argument focused on Edgar’s aiding and abetting the women in their role as disciplinarians. As we noted, the prosecutor even stated, “Sure, Chasity Boyd does most of the tying but this guy is up to his ears in this.” Then, in presenting the closing argument for Edgar, defense counsel built on this theme. Edgar’s counsel, echoed by Boyd’s counsel, vilified Christy as the leader, the manipulator, the one who “brain washed” the others, and the one whose “reign of terror” ended the night Brian died.
Edgar’s counsel also attempted to distance Edgar from the type of abuse that led to Brian’s death. Witnesses were questioned about the one-of-a-kind nature of taping Brian “like a mummy” above the shoulders. Christon was asked whether his father saw how Brian was taped the night of Brian’s death — he did not, according to Christon — and about whether his father was nearby when the women taped Brian’s upper body — he was not. During closing argument, defense counsel repeatedly emphasized Edgar’s lack of participation in or knowledge of the type of abuse that occurred that night. “Find one scintilla of evidence that my client intended that poor child’s head to be wrapped with duct tape,” defense counsel argued.
In other words, defense counsel’s concessions or proposed compromises regarding counts II and III did not contradict tire defense theory that Edgar did not actively participate in the discipline of the children. Further, it continued the theme of the defense that the discipline of Brian was of a different character than previous discipline or the type of discipline applied to Martez and Christina on the night of Brian’s death and that Edgar had not done anything to aid and abet that type of punishment, on that night or ever.
A reasonable jury could have found Edgar guilty of aiding and abetting abuse by restraint of the children’s hands or feet — the type of abuse aimed at Martez and Christina — but still could have found Edgar not guilty of aiding and abetting the child abuse — the gagging — that led to Brian’s asphyxiation. Moreover, Martez and Christina stated that although Edgar had tied them up in the past, he did not do so on the night of Brian’s death. Defense counsel’s argument preserved the defense that Edgar did not intentionally aid or abet Christy on the night of Brian’s death.
Finally, as this court held in Edgar 1 and the district judge who presided over Edgar’s trial held in summarily denying Edgar’s K.S.A. 60-1507 motion, the evidence against Edgar was overwhelming, particularly in light of Martez’ and Christina’s testimony that the children were being punished because they had angered Edgar and in light of Christon’s testimony that Edgar saw Brian wrapped in duct tape to his waist, Edgar then drove Christy to the store, and Christy returned from the store with duct tape that was used to complete the taping of Brian like a mummy. In light of the nature of closing arguments, the nature of the defense, and the overwhelming evidence against Edgar, our de novo review of the motion, files, and records of the case lead us to conclude Edgar failed to establish a reasonable probability that, but for defense counsel’s errors, he would have been found not guilty of felony murder.
As such, the district judge did not err in summarily denying Edgar’s requested relief on this claim in his K.S.A. 60-1507 motion.
The decision of tire Court of Appeals reversing the district judge’s summary denial of Edgar’s K.S.A. 60-1507 motion and remanding for an evidentiary hearing is reversed on the issue subject to our order of review. The district judge’s denial of Edgar’s K.S.A. 60-1507 motion is affirmed. | [
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The opinion of the court was delivered by
Luckert, J.:
John Steven Marshall was convicted by a juiy of burglary of a nonresidence, criminal damage to property, and obstruction of a legal duty. The strongest evidence against Marshall was an eyewitness’ identification of Marshall as the burglar. On appeal Marshall raises two issues related to the eyewitness’ identification.
First, Marshall argues the prosecutor committed misconduct during closing argument by vouching for the eyewitness’ credibility. In response, the State argues the prosecutor’s comments were in response to defense counsel’s comments about the eyewitness’ credibility and cannot be considered prejudicial because the defense opened the door to the prosecutor’s comments. We reject the State’s argument and, clarifying inconsistent statements in our past decisions, hold that a prosecutor can commit prejudicial misconduct when responding to comments — even improper comments — by defense counsel. Under tire facts of this case, however, we conclude any misconduct committed by the prosecutor was harmless.
Second, Marshall argues the trial court erred in instructing the jury on eyewitness identification using PIK Crim. 3d 52.20 because the instruction allowed the jury to consider the certainty with which the eyewitness identified the defendant. We recently held it is error for a trial court to give this portion of the eyewitness identification instruction. Nevertheless, because Marshall did not object to the instruction in this case, he must establish that the instruction was clearly erroneous, and we conclude he has failed to meet this burden.
Consequently, we affirm Marshall’s convictions.
Facts and Procedural Background
On December 22,2007, around 6 p.m., Ralph Mosher; Mosher’s son-in-law, John Huckabee; and their spouses were in Mosher’s residence when an alarm on Mosher’s security system was triggered; sensors showed a door on a backyard shed had been opened.
Mosher and Huckabee went outside to check out the situation. Mosher walked toward the shed, and Huckabee stood closer to tire house. Huckabee saw a man come out of the shed and walk toward him. Huckabee yelled, and the man turned away and went down the alleyway. Huckabee testified he could see the man’s face before he turned away; Huckabee described the individual as an “African-American male” who was wearing dark jeans, a long-sleeve shirt or jacket of some kind, and some sort of hat. He also stated that the man came out of the shed carrying two cases, which Huckabee described by saying, “[I]t appeared to be, if anybody knows what the Walt drill casing looks like when it comes, that’s what it looked like.” There was no writing on the cases and they were “solid black” according to Huckabee. At trial, Huckabee identified Marshall as the man who exited the shed; the prosecutor asked Huckabee if he was certain Marshall was the man who walked out of the shed, and Huckabee replied that he was.
After the man took off down the alleyway, Huckabee went through the house and got into his vehicle to follow the man. Huck-abee also called law enforcement dispatch to report the man’s lo cation. When the man walked between buildings, Huckabee lost sight of him. Huckabee thought he spotted the man again at a nearby convenience store. He reported the new location to the dispatcher and, while on the telephone, realized the person at the convenience store was a woman. Driving on, he soon spotted the man, who was about to enter a liquor store. Huckabee noticed the man no longer had the black cases.
According to Huckabee, the man was in the liquor store for less than a minute. When the man came out of the store, Huckabee thought the man was empty handed. Huckabee told the dispatcher that the suspect was heading down the street. Soon after, Hucka-bee saw a law enforcement officer confront the man. Dispatch told Huckabee to park somewhere so an officer could find him and take his statement. Huckabee pulled his car into a nearby parking lot and lost sight of tire officer and the man.
Sergeant Kristen Hren of the Topeka Police Department was the officer who confronted the man — who turned out to be Marshall — as he left the liquor store. She asked Marshall to step behind her patrol car and to place his hands, in which there was a paper sack, behind his back. She attempted to handcuff Marshall but had difficulty getting the cuffs on over his coat. Marshall escaped, and Hren notified the dispatcher that she was in foot pursuit of the suspect.
Huckabee saw Marshall running towards him and recognized him as the same man who had come out of Mosher s shed, although the man was no longer wearing a jacket. Marshall came up to the passenger s side of Huckabee’s car and asked for a ride. Huckabee refused and told Marshall that he was waiting for someone. Marshall took off running.
Officer John Whitehead was at Mosher’s residence when he was notified that Hren was chasing Marshall. Whitehead left to assist Hren. Whitehead saw a man fitting the suspect’s description, got out of his patrol car, and identified himself as a law enforcement officer. The suspect continued to run away, and Whitehead followed on foot. The chase continued until Marshall slipped. Marshall later explained that he ran because he did not want to spend Christmas, which was just a few days away, in jail.
After Marshall was detained, Hren went to Mosher s residence to take witness statements and photographs. Hren observed a footprint on the shed door where it had been lacked in and damaged. This led to the collection of Marshall’s boots as evidence. According to Hren, the pattern of tire footprint on the door appeared to match the pattern of Marshall’s boots. However, photographs of the footprint and the boots were not sent for forensic comparison.
At trial, defense counsel cross-examined Huckabee extensively about details he observed or did not observe and, in closing argument, methodically pointed out the various reasons Huckabee’s testimony was not credible. For example, defense counsel pointed out inconsistencies and vagueness in Huckabee’s description of Marshall’s clothing, Huckabee’s misidentification of a woman as Marshall, and the fact that Huckabee did not maintain sight of Marshall continuously during the events. Defense counsel argued Huckabee missed important details such as the fact that Marshall was cariying a sack when he left the liquor store. Huckabee, according to defense counsel, “was not a very observant person,” “[h]e misses a lot of facts,” “[h]e’s extremely definite about his testimony, but he’s also very wrong,” and “[h]e makes a lot of mistakes.” Additionally, defense counsel warned the jury that misi-dentification was a frequent cause of wrongful convictions. Obviously, all of tírese arguments were defense counsel’s attempt to undermine the credibility of Huckabee’s identification of Marshall.
In response, the prosecutor argued:
“Use your common sense, ladies and gentlemen. Mr. Huckabee, to listen to [the] defense, you’d think Mr. Huckabee was the one on trial here and he’s the one that’s tiying to trick everybody, he’s full of miss-identification [sic], he’s not honest. Well, I would submit to you that he is an honest person. That’s the reason you have these small variations. You know, ‘Maybe he was wearing black, maybe he was wearing blue jeans, 1 can’t tell.’ That’s what a person does when they’re trying to tell you exactly what happened.
“It’s not unusual for anyone to forget small, what I would consider irrelevant or minor factors from day-to-day. I would bet you, if I brought all thirteen of you back here tomorrow and make you describe the suit I had on and my tie and shoes, I would probably get thirteen slightly different answers. That does not mean a person is not accurate. That does not mean there’s miss-identification [sic]. He came — he saw — he got looks at Mr. Marshall several times on that evening. He’s very honest. He said, ‘Yeah, I lost contact with him, but I kept seeing the same guy.’ If I look at you and I go down to my office and come back seven minutes later, I see you again, I can still identify you. That doesn’t mean anything that I lost contact with you. For identification to be good, you don’t have to have your eye on them every minute.” (Emphasis added to highlight the statements Marshall challenges in his appeal.).
After the jury convicted Marshall of burglary of a nonresidence, criminal damage to property, and obstruction of legal duty, Marshall appealed to the Court of Appeals. He argued the prosecutor’s two statements regarding Huckabee’s honesty were improper bolstering of Huckabee’s credibility, constituted prosecutorial misconduct, and thus violated his right to a fair trial. In addition, for the first time on appeal, Marshall claimed the trial court erred when it instructed the jury that an eyewitness’ certainty in identifying the defendant was a factor that could be considered in evaluating the credibility of the identification. The Court of Appeals rejected both of Marshall’s arguments. State v. Marshall, No. 101,641, 2010 WL 481276 (Kan. App. 2010) (unpublished opinion).
Marshall sought this court’s review of the Court of Appeals’ decision, arguing in part that tire Court of Appeals failed to recognize clear prosecutorial misconduct and that this court had accepted review in at least one other case where the certainty factor of the eyewitness identification instruction was being challenged. He asked for the same review of his case. This court accepted review and has jurisdiction under K.S.A. 20-3018(b) and K.S.A. 22-3602(e).
Prosecutorial Misconduct
We first consider Marshall’s argument that his convictions should be reversed because of the prosecutor’s misconduct in vouching for Huckabee’s honesty. 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 a prosecutor is allowed in discussing the evidence. Second, if misconduct is found, an appellate court must determine whether the improper comments prejudiced the juiy against the defendant and denied the defendant a fair trial. State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011); State v. Inkelaar, 293 Kan. 414, 428, 264 P.3d 81 (2011); State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004); see State v. Pabst, 268 Kan. 501, 505, 996 P.2d 321 (2000).
Step One: Misconduct
“ ‘In general, prosecutors may not offer juries their personal opinions as to the credibility of witnesses.' ” State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010) (quoting State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 [2009]). A prosecutor is not allowed to offer a personal opinion because such a comment is “un-sworn, unchecked testimony, not commentary on the evidence of the case.” Pabst, 268 Kan. at 510; see Kansas Rules of Professional Conduct (KRPC) 3.4 (2011 Kan. Ct. R. Annot. 566) (“A lawyer shall not: . . . [e] in trial, . . . state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.”); KRPC 3.8 (2011 Kan. Ct. R. Annot. 578) (special duties of .a prosecutor).
We need not discuss whether the prosecutor committed misconduct because at oral argument the State conceded the comments should not have been phrased as they were. Because the State does not dispute the issue, we will not analyze whether the comments — “I would submit to you that he is an honest person” and “[h]e’s very honest” — were improper and will proceed to a harmlessness inquiry.
Step Two: Harmlessness Inquiry
When a prosecutor makes an improper comment during closing arguments, an appellate court conducts a harmlessness inquiry, determining whether the misconduct was so prejudicial that it denied the defendant a fair trial. Three factors are considered in making this determination. First, was the misconduct gross and flagrant? Second, was the misconduct motivated by ill will? Third, was the evidence of such a direct and overwhelming nature that the misconduct would likely have had little weight in the mind of a juror. None of these three factors is individually controlling. Inkelaar, 293 Kan. at 427 (quoting State v. Adams, 292 Kan. 60, 66, 253 P.3d 5 [2011]); see McReynolds, 288 Kan. at 323; Tosh, 278 Kan. at 85.
The State, at least in part, lumps together the gross and flagrant and ill will prongs in arguing the misconduct was not prejudicial. In doing so, the State emphasizes that there is no indication the prosecutor’s comments were preplanned or calculated; instead, the comments were spur-of-the-moment responses to defense counsel’s argument. Further, the State suggests we should consider that the prosecutor’s comments were in response to defense counsel’s “opening of the door” by saying Huckabee was “wrong” and “mistaken.” The State at least implies that these statements amounted to defense counsel testifying by giving a personal opinion regarding the witness’ credibility. See Pabst, 268 Kan. at 506 (“Our rules of conduct clearly and unequivocally say that it is improper for a lawyer to comment on a witness’ credibility.”); KRPC 3.4(e) (prohibiting attorney from commenting on credibility).
We note that it is not clear that defense counsel’s statements, when read in context, were an expression of personal opinion regarding Huckabee’s credibility or merely a suggestion that the juiy could conclude that Huckabee’s observations were contrary to other evidence. Nevertheless, just as we are not analyzing the prosecutor’s comments to determine if there was misconduct, we will assume defense counsel opened the door by stating a personal opinion regarding Huckabee’s credibility.
With that assumption, we consider tire State’s suggestion drat the prosecutor’s misconduct cannot be considered prejudicial because defense counsel opened die door. In making this argument, the State does not go so far as to suggest defense counsel’s opening of the door means there was no prosecutorial misconduct. In fact, the State clearly acknowledges in its brief “that the Kansas Supreme Court has held that the fact that the defense may have opened the door to the issue of whether the State’s witnesses were lying does not insulate the State from claims of misconduct.” The State then cites State v. Manning, 270 Kan. 674, 701, 19 P.3d 84 (2001). Nevertheless, the State argues the defense’s opening of the door means the misconduct cannot be prejudicial — in other words, it cannot be considered gross and flagrant or motivated by ill will. This distinction has some support in our prior cases but is contrary to other cases.
In discussing the two disparate lines of cases, Manning provides a starting point. In that case, the focus was not on whether a prosecutor had vouched for tire credibility of a witness but on whether a prosecutor committed misconduct by repeatedly asking a defendant to comment on the truthfulness of other witnesses. After holding it was improper to ask a witness to comment on the credibility of another witness, we discussed whether the conduct could be excused because the defendant had stated during his direct testimony that the witnesses were not telling the truth. We held the open-the-door rule did not permit a prosecutor to ask a clearly improper question and explained that “[ajlthough the prosecution may present evidence in an area that is normally forbidden after a defendant has opened the door, the ‘open door’ rule does not apply to misconduct of counsel. The ‘open door’ rule only applies to evidence.” Manning, 270 Kan. at 701.
Soon after the decision in Manning, however, this court stated: “We have held that there is no prejudicial error when questionable remarks made by a prosecuting attorney are provoked and made in response to previous arguments or statements of defense counsel.” (Emphasis added.) State v. McKinney, 272 Kan. 331, 347, 33 P.3d 234 (2001). The McKinney court cited several cases supporting this view. Manning was not cited, leaving it unclear whether the McKinney court was rejecting the Manning holding or was drawing a distinction between conduct that was not excused from being misconduct by the open-the-door rule and conduct that might be misconduct but was automatically deemed nonprejudicial because of the open-the-door rule.
After the decision in McKinney, this court modified the test to be applied when analyzing whether prosecutorial misconduct was harmless, articulating the three-part test that includes the gross and flagrant and ill wall factors. Tosh, 278 Kan. at 93. After Tosh, in at least one case, State v. Murray, 285 Kan. 503, 517, 174 P.3d 407 (2008), we carried forward the McKinney holding, stating 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.” For support, the Murray court cited another post -Tosh case that had also cited McKinney, State v. Elnicki, 279 Kan. 47, 64, 105 P.3d 1222 (2005). The Murray court failed to note, however, that the analysis in Elnicki departed from McKinney. Although the Elnicki court did not explicitly overrule McKinney, it did so implicitly.
In Elnicki, during the rebuttal portion of the State’s closing argument the prosecutor commented on the credibility of the victim, telling the jury, “ ‘[Y]ou know she was telling you the truth.’ ” Noting that this statement was in response to defense counsel’s argument that the victim was lying, the Elnicki court quoted McKinney and then stated: “While the prosecutor’s comments here about [the witness’ credibility] are not necessarily prejudicial, they are nevertheless error.” Elnicki, 279 Kan. at 64.
To the extent the Elnicki court held the improper comments regarding the witness’ credibility were erroneous, even though they were in response to defense counsel’s arguments, the holding is consistent with Manning. Because there may be confusion about this in light of the statement in Murray or similar statements in past cases, today, we reaffirm that a prosecutor commits misconduct by making an improper argument, even if the improper argument is made in response to arguments or statements by defense counsel. The open-the-door rule does not insulate a prosecutor from a finding of misconduct.
Regarding the prejudicial nature of the misconduct, the statement in Elnicki was equivocal in that the court noted the prosecutor’s misconduct was not necessarily prejudicial. Further, in applying the Tosh three-part harmlessness test, the Elnicki court considered the prosecutor’s statements regarding the victim’s truthfulness along with the prosecutor’s statements that Elnicki’s version of events was a “fabrication” and “yarn.” Ultimately, the Elnicki court concluded the prosecutor’s positive comments about the victim’s credibility — the statements that might have been excused as nonprejudicial under the McKinney open-the-door rule— and the prosecutor’s negative statements about Elnicki’s credibility were prejudicial and required reversal of the conviction. Elnicki, 279 Kan. at 67. Hence, the Elnicki court’s treatment of the prosecutor’s misconduct was inconsistent with the statement in Murray that “no prejudicial error occurs” if misconduct is committed in response to defense counsel opening the door. See Murray, 285 Kan. at 517.
We conclude the absolute statement in Murray is not supported by Elnicki, the case on which it is based. Also, we conclude that the statement in Murray is overly broad. Instead of applying the broad and absolute statement found in Murray, we hold that a prosecutor’s improper comment or argument can be prejudicial, even if the misconduct was extemporaneous and made under the stress of rebutting arguments made by defense counsel. The extemporaneous, rebuttal nature of a prosecutor’s argument is merely a factor to be considered by an appellate court.
In considering the first prejudice prong regarding whether a prosecutor’s misconduct was gross and flagrant, there are several other factors to be considered. In many cases we have stressed that “appellate courts should look to whether the prosecutor 'repeated or emphasized the conduct.’ ” Inkelaar, 293 Kan. at 430; see, e.g., State v. Simmons, 292 Kan. 406, 417-18, 254 P.3d 97 (2011) (finding the prosecution’s multiple references to Stockholm Syndrome [not in evidence] and providing the jury with cases illustrating the syndrome was gross and flagrant conduct). Other factors include those discussed in State v. Kemble, 291 Kan. 109, 121-25, 238 P.3d 251 (2010). In that case, we considered that the prosecutor commented on the defendant’s post-Miranda silence during closing argument and did so in a calculated manner as evidenced by the fact the comment was included on a PowerPoint slide shown to the jury; we noted it was significant that the statements were not a “spur-of-the-moment comment delivered extemporaneously under the stress of countering a defense argument.” In addition, we noted that the prosecutor violated a long-established, unequivocal rule that was designed to protect a constitutional right. Kemble, 291 Kan. at 124.
Here, as stressed by Marshall, three of these factors apply to the prosecutor’s statements about Huckabee’s honest nature. First, the prosecutor made two references to Huckabee’s honesty. Second, the comments violated a long-standing rule prohibiting a prosecutor from vouching for a witness. Third, our caselaw has been clear in stating this rule. On the other hand, as we have noted, the comments do not appear to be calculated as they were spur-of-the moment rebuttal comments. Furthermore, we hesitate to label the comments as gross and flagrant when we have not analyzed whether the statements were outside the wide latitude allowed a prosecutor but have conducted our analysis based on the State’s concession. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 400, 266 P.3d 516 (2011) (generally questions of law must be determined by the court, unlimited by agreement of the litigants; their stipulations as to the law are ineffective to bind the court). We would engage in a more rigorous analysis of both the misconduct and the gross and flagrant prong of the test if we found either of the other factors- — ill will or prejudice — weighed in Marshall’s favor. But we do not.
In determining if a prosecutor acted with ill will, an appellate court typically examines several factors, including whether the conduct was deliberate, repeated, or in apparent indifference to a court’s ruling. Inkelaar, 293 Kan. at 430; see, e.g., State v. Simmons, 292 Kan. 406, 418, 254 P.3d 97 (2011). In evaluating whether a prosecutor’s conduct was deliberate and demonstrated an indifference to prior rulings, it is appropriate to consider the balance between the reality of a trial and the special duties imposed on a prosecutor.
As a trial unfolds and a prosecutor extemporaneously responds to testimony or opposing counsel’s arguments, the reality of trial means a prosecutor’s statements and questions are not always precisely phrased. Often, if time allowed reflection, a prosecutor could assure that any argument regarding a point affecting a witness’ credibility would be phrased appropriately. See Pabst, 268 Kan. at 507 (“When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable.”). Hence, the spur-of-the-moment nature of a prosecutor’s comment delivered extemporaneously under the stress of rebutting a defense argument is a mitigating factor countering a conclusion that a prosecutor acted with ill will.
Yet, any leniency allowed because of the rebuttal nature of the argument must be limited by a prosecutor’s duties. These duties were explained by the United States Supreme Court:
“The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935).
See KRPC 3.8 (special duties of a prosecutor).
In light of these special duties, a prosecutor needs to proceed with caution when making an argument that touches on a topic governed by a clear and long-standing rule.
In this case, the prosecutor’s comments regarding Huckabee’s honesty appear to be imprecise, spur-of-the-moment comments delivered extemporaneously under the stress of countering a defense argument rather than ones that were deliberately intended. Even though there were two such comments in a short span, there were no other similar comments in either the prosecutor’s first argument or other parts of the rebuttal argument.
Moreover, the two comments on which Marshall focuses were embedded in a lengthy argument regarding the evidentiary and common-sense reasons the juiy could view the eyewitness identification as credible. To this extent, the overall argument was not unlike those in several cases in which this court has determined a prosecutor did not commit misconduct when arguing a witness was “credible” or that a witness should be “believed” because those arguments were based on a reasonable inference from the evidence presented at trial. See, e.g., State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011) (finding prosecutor’s statements about the witness’ credibility were accompanied by a discussion of evidence presented at trial, thus the prosecutor was merely asking the jury to draw permissible inferences from the evidence); State v. Duong, 292 Kan. 824, 830-32, 257 P.3d 309 (2011) (held prosecutor’s statements about the victim’s credibility were not prose-cutorial misconduct because the prosecutor drew reasonable in ferences based on the evidence and was merely directing the jury to specific testimony); State v. Scott, 286 Kan. 54, 83, 183 P.3d 801 (2008) (“It is improper for a prosecutor to ‘vouch’ for the credibility of a witness,” but “it is not improper for a prosecutor to argue that of two conflicting versions of an event, one version is more likely to be credible based on the evidence.”); State v. Davis, 275 Kan. 107, 121-23, 61 P.3d 701 (2003) (holding prosecutor’s statement that the victim “should be believed” was based on evidence and was not vouching for the witness, thus the prosecutor was within the latitude afforded).
Given the entire context of the closing argument and the prosecutor’s apparent purpose of asking the jury to consider the evi-dentiary and common-sense reasons to consider the identification credible, we conclude the prosecutor’s comments were not motivated by ill will.
Next, we turn to the third factor: Was the evidence of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors? In answering this question, the State, as the party benefitting “from the prosecutorial misconduct, bears the burden to establish beyond a reasonable doubt that tire error did not affect the defendant’s substantial rights, i.e., there is no reasonable possibility the error affected the verdict.” Inkelaar, 293 Kan. at 431; see, e.g., State v. Raskie, 293 Kan. 906, 918, 269 P.3d 1268 (2012) (finding prosecutor’s misstatement did not affect the outcome of the trial in light of the entire record).
Here, Huckabee’s identification of Marshall was crucial to the State’s case. Defense counsel presented the jury with an argument that cast doubt on the credibility of Huckabee’s testimony. The State responded with an argument pointing out several reasonable inferences that were drawn from the evidence, as well as ways in which common sense suggested the eyewitness’ identification could be believed. Consequently, a reasonable juror could have independently found Huckabee credible. In addition, some physical evidence linked Marshall to the crime; specifically, the pattern on the soles of Marshall’s boots appeared to match the footprint on the shed door. Finally, we have recognized flight as a circum stance from which guilt can be inferred. See State v. Walker, 226 Kan. 20, 21-22, 595 P.2d 1098 (1979). Considering the prosecutor’s statements in light of the circumstances and the entire record, we conclude there is no reasonable possibility the prosecutor’s statements affected the verdict in this case.
Thus, the prosecutor’s statements did not deny Marshall a fair trial.
Eyewitness Degree of Certainty Instruction
Marshall’s second argument on appeal is that the trial court erred in instructing tire jury on eyewitness identification using a pattern instruction, PIK Crim. 3d 52.20. Marshall contends this pattern instruction includes a factor that is no longer relevant in light of State v. Hunt, 275 Kan. 811, 69 P.3d 571 (2003). The instruction reads:
“The law places tire burden upon the State to identify the defendant. The law does not require the defendant to prove he has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
“1. The opportunity a witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting;
“2. The emotional state of the witness at the time, including that which might be caused by the use of a weapon or a threat of violence;
“3. Whether the witness had observed the defendant on earlier occasions;
“4. Whether a significant amount of time elapsed between the crime charged and any later identification;
“5. Whether the witness ever failed to identify the defendant or made any inconsistent identification;
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused; and
“7. Whether there are any other circumstances that may have affected the accuracy of tire eyewitness identification.”
It is the sixth factor — the witness’ degree of certainty — that is the focus of Marshall’s argument.
As of the time of the Court of Appeals’ decision in this case, this court had noted, but left unanswered, the question of whether the degree of certainty factor should be included in the eyewitness instruction. In State v. Reid, 286 Kan. 494, 514-18, 186 P.3d 713 (2008), we had noted the tension between State v. Trammell, 278 Kan. 265, 92 P.3d 1101 (2004), which the Reid prosecutor argued approved using certainty as a factor, and Hunt, 275 Kan. 811, which Reid argued disapproved using certainty as a factor. The Court of Appeals, in its decision in this case, noted this uncertainty and observed that the question might be answered in “State v. Mitchell, No. 99,163, unpublished opinion filed February 6, 2009, in which our Supreme Court has granted a petition for review of the same issue advanced by the defendant in this case.” State v. Marshall, No. 101,641, 2010 WL 481276, at *9 (Kan. App. 2010) (unpublished opinion).
As the Court of Appeals predicted, we did answer the question in our recent decision in State v. Mitchell, 294 Kan. 469, 275 P.3d 905 (2012), and another decision filed the same day, State v. Anderson, 294 Kan. 450, 276 P.3d 200 (2012).
In Mitchell, the leading case, we synthesized prior caselaw concerning both suppression of eyewitness testimony and the eyewitness identification juiy instruction. Mitchell, 294 Kan. at 474-75, 476-78. In addition, we considered scientific studies regarding the degree of certainty and its correlation to accuracy. Mitchell, 294 Kan. at 479-81. Based on these cases and studies, we reaffirmed that a trial court is required to issue a cautionary instruction when an eyewitness’ identification testimony is critical to the prosecution’s case, but we disapproved of including the degree of certainty factor in the juiy instruction. See Mitchell, 294 Kan. at 474-81.
Regarding the degree of certainty factor, the Mitchell court held:
“[T]he current language in PIK Crim. 3d 52.20 encourages jurors to give more weight to identifications by a certain witness than an uncertain one and does nothing to inform the juiy that certainty evidence may be unreliable. The instruction directs jurors to consider whether a witness has expressed a degree of certainty about the identification and, if so, the extent to which that factor would affect accuracy of the identification. As worded, this factor prompts the jury to conclude that an eyewitness identification is more rehable when the witness expresses greater certainty, which places undue weight on eyewitness certainty evidence. Therefore, we hold it is error to instruct the jury on the degree of certainty factor, and we discourage its further use.” Mitchell, 294 Kan. at 481.
Under this holding, a trial court errs by instructing the juiy on the reliability of eyewitness identification by using PIK Grim. 3d 52.20 without omitting the degree of certainty factor. Although this point was not settled at the time of Marshall’s trial, the same reasons that existed for finding error in Mitchell and Anderson apply in this case. Hence, we conclude the trial court erred in including the degree of certainty factor when instructing Marshall’s juiy on eyewitness identification.
Next, we turn to whether this error requires us to reverse Marshall’s convictions. In this regard, Marshall has a steeper hill to climb than did either Mitchell or Anderson, both of whom had objected at trial to their jury being told that degree of certainty could be considered. Therefore, in those cases, this court reviewed the instruction on appeal to determine “whether it properly and fairly stated the law as applied to the facts and could not have reasonably misled the jury.” (Emphasis added.) Mitchell, 294 Kan. at 476; Anderson, 294 Kan. at 457. We concluded neither Mitchell’s nor Anderson’s juiy could have been reasonably misled by the error.
Marshall, because he did not object, must establish that the juiy instruction was clearly erroneous before this court can reverse his conviction. See K.S.A. 22-3414(3) (“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the juiy retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.”). “An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.” (Emphasis added.) State v. Washington, 293 Kan. 732, 740, 268 P.3d 475 (2012).
Even though Marshall faces a higher burden of persuasion than did Mitchell and Anderson, the same considerations apply to a determination of whether the eyewitness instruction affected the verdict. In Mitchell and Anderson, we began the analysis with two initial inquiries: (1) Was the identification crucial to the State’s case? and (2) Was there an opinion of certainty stated? Under the standard that applied in Mitchell and Anderson, if the answer to either of these questions had been “no,” no further analysis would have been necessary because a jury could not have been misled by the instruction that included a degree of certainty factor. Likewise, applying the clearly erroneous standard in this case, if the answer to either question is “no,” then the inclusion of the degree of certainty factor would not have actually affected the verdict.
In this case, however, the answer to both questions is “yes.” As to the first question, the State’s case on the burglary and criminal damage to property charges rested almost entirely on Huckabee’s identification of Marshall. As to the second question, although Huckabee never volunteered an actual degree of certainty in his identification, he was asked, “Are you certain it’s the same person you had seen coming out of the garage?” He answered, “Yes.” He was also asked if “there [is] any doubt in your mind that Mr. Marshall was the same person you saw every time.” He answered, “No.” These and similar questions and answers communicated a level of certainty.
Because the answers to the two initial questions are “yes,” we must consider the impact of the jury instruction in light of the entire record and additional considerations. See Anderson, 294 Kan. at 458 (citing Mitchell, 294 Kan. 469, Syl. ¶ 5). Marshall argues the test for this analysis was stated in State v. Corbett, 281 Kan. 294, 305, 130 P.3d 1179 (2006). In Corbett, this court analyzed whether an impermissibly suggestive eyewitness identification procedure led to a substantial likelihood of misidentification. That analysis considered the same factors as were given to the jury in this case as part of the eyewitness identification instruction.
In Mitchell, however, we concluded the Corbett factors are more appropriately applicable to a juiy’s consideration of reliability than to an appellate court’s analysis of whether the error resulted in prejudice. Instead, we held the appropriate appellate consideration is whether “other procedural safeguards mitigated” the deficiency in the eyewitness instruction. Mitchell, 294 Kan. at 482-83. In Mitchell, we cited to the United States Supreme Court’s recent discussion of these safeguards in Perry v. New Hampshire, 565 U.S. _, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012).
In Perry, the defendant sought to suppress an out-of-court identification on the grounds it was so unreliable and suggestive it violated due process. The Supreme Court refused to recognize a due process violation, concluding, in part, that there are
“safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability. These protections include the defendant’s Sixth Amendment right to confront the eyewitness. [Citation omitted.] Another is the defendant’s right to the effective assistance of an attorney, who can expose the flaws in the eyewitness’ testimony during cross-examination and focus the jury’s attention on the fallibility of such testimony during opening and closing arguments. Eyewitness-specific jury instructions, which many federal and state courts have adopted, likewise warn the jury to take care in appraising identification evidence. [Citations omitted.] The constitutional requirement that the government prove the defendant’s guilt beyond a reasonable doubt also impedes convictions based on dubious identification evidence.” Perry, 132 S. Ct. at 728-29.
In considering the Perry safeguards as they apply to the facts of this case, we conclude the safeguards counteracted the error of allowing the jury to consider the degree of certainty as a factor in determining the reliability of Huckabee’s eyewitness identification of Marshall. Marshall confronted Huckabee, and defense counsel rigorously cross-examined Huckabee about inconsistencies in his descriptions and identifications. Moreover, in closing argument, defense counsel methodically reminded the jury of all the inconsistencies and warned the jury of the risk of a wrongful conviction based on misidentification. Defense counsel also hammered the point that the jury could not convict Marshall unless it was convinced beyond a reasonable doubt that Marshall was guilty. And, defense counsel walked the jury through the factors identified in the eyewitness identification instruction, pointing out reasons the factors suggested Huckabee’s identification of Marshall was not rehable.
In doing so, defense counsel suggested Huckabee’s assertion that he was certain of the identification belied his credibility. A credible witness, according to defense counsel, would not suggest certainty when the witness failed to observe details and testified contrary to the facts established by other evidence. How could Huckabee assert certainty when he did not keep constant sight of Marshall and mistakenly identified a woman as Marshall? Defense counsel also asked the jury to consider the mysterious black cases that Huckabee claimed he saw Marshall cariying out of the shed. Defense counsel pointed out that Mosher found nothing missing from the shed and the black cases were never found. In other words, defense counsel used Huckabee’s certainty as a sword to show his lack of willingness to recognize discrepancies and suggested a juror could infer from that a lack of credibility.
Finally, we note that although Huckabee’s identification of Marshall was the strongest evidence linking Marshall to the crime, it was not the only evidence. As previously discussed, evidence was presented of a footprint on the shed door that appeared to match the pattern of Marshall’s boots, and the jury could infer his flight from officers was motivated by a consciousness of guilt.
Thus, the jury was exposed to the facts and circumstances both in favor and against the accuracy of Huckabee’s identification. We conclude there is no real possibility the jury would have rendered a different verdict even if the degree of certainty factor had been omitted from the eyewitness jury instruction.
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Atcheson, J.;
A jury in Finney County District Court convicted defendant Christopher Franco of aggravated criminal sodomy. He appeals on multiple grounds, including instructional error, insufficiency of the evidence, and prosecutorial misconduct in closing argument. We find no error and affirm.
Factual Background and Procedural History
Given the issues, we do not linger over the facts. T.W.K., the victim, is a man in his mid-20s and has some mental disability. In April 2011, when the incident occurred, T.W.K. was living inde pendently with his girlfriend in an apartment in Garden City. T.W.K.’s girlfriend had been in a relationship with Franco and bore their child. T.W.K. and Franco became acquainted when Franco visited his son. During those visits, Franco sometimes demonstrated boxing techniques and wrestling moves with T.W.K. The record evidence clearly indicates Franco was larger, stronger, and physically more adept than T.W.K. and easily dominated him during those demonstrations.
On April 20, Franco called and asked to come over to the apartment. T.W.K. agreed even though his girlfriend and her son were out of town. Franco arrived with his current girlfriend. After awhile, Franco whispered something to the woman, and she left the apartment. According to T.W.K.’s account, Franco walked into the bedroom. He told T.W.K. to follow along because he had a surprise. Franco then forcibly performed anal intercourse on T.W.K., who repeatedly implored him to stop. Franco did not. Franco remained at the apartment until his girlfriend returned. The couple tiren left.
T.W.K. immediately contacted representatives of a social service agency that provided assistance to him because of his disability. He explained what happened. The agency representatives called the Garden City police. The police department began an investigation. Franco met with Detective Tanya Bradley and initially denied any sexual encounter with T.W.K. Later in the interrogation, Franco admitted having consensual anal intercourse with T.W.K. The county attorney charged Franco with one count of aggravated criminal sodomy, a severity level 1 felony offense under K.S.A. 21-3506, and with one count of misdemeanor battery under K.S.A. 21-3412. The battery charge apparently stemmed from a particularly forceful wrestling demonstration between Franco and T.W.K. The aggravated criminal sodomy count required the State to prove that T.W.K. was overcome by force or fear and, therefore, did not consent to the sex act.
At trial, T.W.K. described how Franco forcibly sodomized him. Testifying in his own defense, Franco told the jury that T.W.K. had suggested several times that they have sex and continued to pester him about it. So Franco said he finally agreed. During the sex act, T.W.K. complained that it hurt. Franco testified he immediately stopped. The jury essentially had to resolve directly conflicting testimony from the participants as to whether T.W.K. willingly took part in the sex act.
The jury convicted Franco of aggravated criminal sodomy and acquitted him of battery. Based on Franco’s criminal history and the severity of the offense, the district court imposed a standard guidelines sentence of 620 months in prison for the conviction. Franco has timely appealed.
Legal Analysis
Jury Instructions
On appeal, Franco argues two errors in the jury instructions. First, he contends the district court should have given an instruction to the effect that no crime is committed when a willing participant in a sex act withdraws consent during the encounter and the other participant—the defendant in the criminal case—stops within a reasonable time. See State v. Bunyard, 281 Kan. 392, 414-15, 133 P.3d 14 (2006) (recognizing use of instruction in rape case). Second, Franco contends the district court should have instructed on criminal sodomy—anal intercourse between consenting adults of the same sex—as a lesser included offense. See K.S.A. 21-3505 (criminal sodomy). At trial, Franco neither requested the instructions nor objected to the district court’s failure to give them.
The Kansas Supreme Court recently outlined the analytical steps in assessing a challenge to jury instructions in a criminal case. State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). The appellate court determines: (1) reviewability considering preservation of the issue at trial and jurisdiction; (2) legal appropriateness of the instruction; (3) factual support in the evidence for the instruction; and (4) harmlessness of any actual error. The determination of harmlessness under Plummer borrows the standards set forth in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012), for assessing errors that compromise a criminal defendant’s constitutional rights and those that do not. Plummer, 295 Kan. at 162-63. The Plummer analysis governs all challenges to jury instructions, even those raised initially on appeal. But when a criminal defendant challenges juiy instructions for the first time on appeal, the court must find any defect caused clear error to reverse. See K.S.A. 2013 Supp. 22-3414(3); State v. Haberlein, 296 Kan. 195, 203-04, 290 P.3d 640 (2012). The Kansas Supreme Court has recently restated the test for clearly erroneous juiy instructions. See State v. Mireles, 297 Kan. 339, Syl. ¶¶ 5-7, 301 P.3d 677 (2013); State v. Trujillo, 296 Kan. 625, 630-31, 294 P.3d 281 (2013); State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012). In Williams, the court phrased tire test as “whether [the appellate court] is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. 506, Syl. ¶ 5. The party disputing the jury instructions bears tire burden of so persuading the appellate court. 295 Kan. 506, Syl. ¶ 5.
Turning to the first alleged error, we look to Bunyard, as do the parties. The Bunyard court recognized that under Kansas law, rape occurs when the victim has initially consented to sexual intercourse with the perpetrator and tiren clearly withdraws that consent during the act, so long as tire perpetrator then fails to stop within a reasonable time. Bunyard, 281 Kan. at 414-15. What amounts to a reasonable time must be measured against tire facts of a given case and presents an issue for tire jury’s determination. 281 Kan. at 414-15. In appropriate cases, tíre juiy should be informed of that aspect of the law. 281 Kan. at 415-16; see State v. Flynn, 45 Kan. App. 2d 1113, 1115-16, 257 P.3d 1259 (2011) (noting requirement for Bunyard instruction and reversing conviction for failure to give one on the facts of that case), rev. granted January 20, 2012.
Because lack of consent is an element common to the crimes of rape and aggravated criminal sodomy, Franco argues the rule in Bunyard applies in this case and, therefore, the juiy should have been instructed on the legal effect of a victim’s withdrawal of consent. For purposes of evaluating the point, we assume jurisdiction and preservation consistent with the Plummer analysis. We find that Bunyard would govern in a prosecution for aggravated criminal sodomy, so an instruction would be legally appropriate. Our finding seems a safe one in that lack of consent is treated identically in tire statutes criminalizing rape and aggravated criminal sodomy. K.S.A. 21-3502(a)(l) (lack of consent, rape); K.S.A. 21-3506(a)(3) (lack of consent, aggravated criminal sodomy).
Franco’s argument founders, however, on the third Plummer consideration—factual appropriateness in the particular case. In measuring factual propriety, we look at the trial evidence in a light favoring Franco’s version of events and, in doing so, resolve any credibility disputes his way. See Plummer, 295 Kan. at 161-62. But a district court commits no error in failing to give an instruction unsupported in the record evidence. See 295 Kan. at 161 (no error in omitting instruction on lesser included offense without eviden-tiaiy support).
The purpose of a Bunyard instruction is to apprise jurors of the governing law in the uncommon rape prosecution: The victim initially agrees to have sex with the defendant and withdraws that consent during the act; and despite the victim’s communicated unwillingness to continue, the defendant doesn’t stop for some measurable time. The instruction basically informs the jurors that a defendant has a “reasonable time” to stop after consent has been withdrawn before continuation of the sex act will be considered criminal. In short, a Bunyard instruction assists jurors in assessing the legal implications when a defendant continues a sex act after the other participant no longer consents.
The instruction was factually inapposite and, thus, unnecessary here. In Franco’s version, T.W.K. initially consented to the sex act; and as soon as he indicated he no longer wished to participate, they stopped. According to Franco, then, there was no measurable time the act continued after T.W.K. withdrew consent. So the jurors needed no guidance on how to determine the legal culpability of a defendant who chose to continue engaging in a sex act after the other participant had withdrawn consent. On that basis, the district court did not err in omitting a Bunyard instruction.
In filis case, die district court instructed the jury on the elements of aggravated criminal sodomy using an appropriately tailored version of PIK Crim. 3d 57.08-B, which is identical to PIK Crim. 4th 55.070. With respect to consent, the instruction informed the jury the State had to prove “[t]he act of sodomy was committed without die consent of [T.W.K.] under circumstances when [T.W.K.] was overcome by force or fear.” The instruction adequately informed the jurors of the law to be applied to the factual scenario Franco described in his testimony. The instruction the district court gave effectively advised the jurors that the sex act and the lack of consent had to exist simultaneously to establish the crime of aggravated criminal sodomy. The jurors, thus, understood that if—as Franco contended—the act ceased as soon as T.W.K. protested, then the charged crime had not been committed. Simply put, in Franco’s version, the act of sodomy was committed only with and during the time of T.W.K.’s consent. So if the jurors believed Franco’s account, the jury instruction accurately stated the law and required them to acquit. A Bunyard instruction would not have added anything useful, since it addresses the legal implications of a discernible lapse of time between the withdrawal of consent and the cessation of the sex act—something that didn’t happen here under any version of the events.
Even if a Bunyard instruction might have been appropriate under a peculiar stretch of the evidence, we cannot say that its omission was clearly erroneous as outlined in Williams, 295 Kan. 506, Syl. ¶ 5. As we have already explained, that instruction would not have been obviously applicable to the version of events Franco offered, and it certainly had no pertinence to T.W.K.’s account that he protested from the start. The jurors would have had to fashion a sequence of events matching neither version. And while jurors may choose to believe parts of a given witness’ account of relevant events and disbelieve other parts, see Ater v. Culbertson, 190 Kan. 68, 73-74, 372 P.2d 580 (1962) (In assessing the credibility of a witness, jurors may accept part of his or her testimony and reject the balance as “they feel warranted in so doing.”); State v. Seward, 163 Kan. 136, 145, 181 P.2d 478 (1947) (A jury has the prerogative to believe in part and disbelieve in part a witness’ testimony or confession.), aff'd on reh. 164 Kan. 608, 191 P.2d 743 (1948), nothing suggests they did so here to come up with a scenario implicating tire Bunyard rule on withdrawn consent. Unlike the Bunyard jurors, they did not pose a question about the instructions to the district court or otherwise request additional legal guidance during their deliberations. See Bunyard, 281 Kan. at 408-09. Absent a tangible reason to believe the jurors realistically were contemplating a Bunyard scenario, we are not firmly convinced an instruction on that scenario would have led to a different outcome.
For his second instructional error, Franco contends the district court should have informed the jury it could have considered criminal sodomy, a misdemeanor, as a lesser included offense of aggravated criminal sodomy. At trial, Franco did not request an instruction on criminal sodomy, and the district court did not give the jury one.
Pertinent here, criminal sodomy, as set out in K.S.A. 21-3505(a)(1) and recodified in K.S.A. 2013 Supp. 21-5504(a)(l), prohibits consensual anal intercourse and oral-genital contact between persons of the same sex who are 16 years of age or older. See also K.S.A. 21-3501(2) (identifying those acts within the definition of sodomy); K.S.A. 2013 Supp. 21-5501(b) (recodification of definition of sodomy). Those acts are not crimes if they are performed by consenting individuals of the opposite sex who are at least 16 years old.
Under the Plummer analysis, Franco’s challenge based on the omission of an instruction on criminal sodomy as a lesser included offense of aggravated criminal sodomy should be reviewed on appeal for clear error. See K.S.A. 22-3414(3). In light of the statutoiy language criminalizing each, all of the elements of criminal sodomy are also elements of aggravated criminal sodomy. Aggravated criminal sodomy materially differs from criminal sodomy insofar as it requires proof of lack of consent. That makes criminal sodomy a lesser included offense of aggravated criminal sodomy. See K.S.A. 21-3107(2)(b) (a crime is a lesser included offense if all its elements are some of the elements of the greater offense).
Commonly, an instruction on a lesser included offense is not only legally appropriate but statutorily required if the facts of the case support it. K.S.A. 22-3414(3). And the facts viewed favorably to Franco would warrant the instruction, since he cast the encounter with T.W.K. as consensual. All of that suggests the district court should have given the jury an instruction on criminal sodomy as a lesser included offense.
But this is an uncommon issue, as both sides acknowledge in debating it on appeal. As the parties have framed the debate, we must decide whether the criminal sodomy statute may be constitutionally enforced to proscribe and punish anal intercourse between consenting adults of the same sex. The State relies on Lawrence v. Texas, 539 U.S. 558, 578-79, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), to argue that Franco could not have been charged with or convicted of criminal sodomy and, therefore, was not entitled to a lesser included offense instruction. The State, in effect, submits that a criminal sodomy instruction was legally inappropriate under the Plummer analysis. Franco counters that no Kansas appellate court has found the criminal sodomy statute unconstitutional and tire Kansas Legislature effectively readopted the statute after Lawrence as part of the recodification of the criminal code enacted in 2010. So Franco contends the criminal sodomy statute remains presumptively valid, thereby warranting a lesser included offense instruction in this case. The State, in our view, has the better of the argument.
In Lawrence, the Court considered the constitutionality of a Texas statute criminalizing consensual anal intercourse and oral-genital contact between persons of the same sex. 539 U.S. at 563. Although the Texas statute characterized that conduct as “deviate sexual intercourse,” its challenged proscriptions are legally indistinguishable from prohibitions in K.S.A. 21-3505(a)(l). The Court specifically noted that Kansas’was one of nine states, including Texas, that had “singled out same-sex relations for criminal prosecution.” 539 U.S. at 570 (citing L. 1983, ch. 109, sec. 5, amending criminal sodomy statute to limit its application to members of the same sex engaging in prohibited acts). A majority of the Court held that enforcing the Texas statute against consenting adults privately engaging in that proscribed activity violated a substantive liberty interest protected in the Fourteenth Amendment to the United States Constitution. 539 U.S. at 578. The Court reversed the convictions of Petitioners John Lawrence and Tyron Garner, who were prosecuted and convicted of violating the Texas statute by engaging in consensual anal intercourse in Lawrence’s apartment.
The United States Supreme Court is the final arbiter when it comes to interpreting and applying the United States Constitution. Other courts—state and federal alike—are bound by stare decisis to abide by that precedent. See State v. Ruggles, 297 Kan. 675, 685, 304 P.3d 338 (2013) (recognizing United States Supreme Court decisions to be controlling as to Eighth Amendment challenge to sentence in criminal case); State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010) (Kansas Supreme Court bound by United States Supreme Court authority applying Fourth Amendment). Based on Lawrence, we, therefore, hold K.S.A. 21-3505 and its recodification in K.S.A. 2013 Supp. 21-5504(a) to be unconstitutional and, thus, unenforceable with respect to the conduct Franco contended he and T.W.K. engaged in—anal intercourse between consenting adults of the same sex conducted in private. The Lawrence decision also precludes criminalizing oral-genital contact between consenting adults of the same sex. 539 U.S. at 578-59. So K.S.A. 2013 Supp. 21-5504(a) would be unconstitutional if it were enforced that way, as well.
Because Franco could not have been successfully prosecuted for criminal sodomy—the prosecution would have been constitution ally impermissible under Lawrence—we do not see how that could be a lesser included offense of aggravated criminal sodomy. Anal intercourse between consenting adults is no offense at all. And that was true when Franco went to trial.
Franco’s rejoinders are unavailing. The United States Supreme Court’s decision in Lawrence struck down as unconstitutional (and, thus, unenforceable) provisions of a Texas criminal statute that are legally indistinguishable from relevant portions of the Kansas criminal sodomy statute, K.S.A. 21-3505(a)(l), and its recodification, K.S.A. 2013 Supp. 21-5504(a)(l). There can be no reasonable doubt that Lawrence compels the conclusion that the Kansas criminal sodomy statute is unconstitutional and unenforceable to the same extent, and there can be no colorable argument otherwise. Contrary to Franco’s suggestion, that conclusion need not be formally pronounced in a precedential decision from a Kansas appellate court to be valid. Neither Franco nor other criminal defendants would have been entitled to lesser included offense instructions on criminal sodomy during the decade-long lag between Lawrence and this case. Decisions of the United States Supreme Court construing federal constitutional rights don’t need some endorsement from an intermediate state appellate court to ldck-start them.
The Kansas Legislature’s decision, made as part of the 2010 re-codification of the criminal code, to readopt those portions of the criminal sodomy statute that violate the Due Process Clause doesn’t resuscitate them. They still violate tire federal Constitution. So that could not have been a valid basis to afford Franco a lesser included offense instruction.
Franco’s argument runs counter to the purpose and effect of the Supremacy Clause, art. VI, cl. 2, of the United States Constitution. In pertinent part, the Supremacy Clause states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” U. S. Const., art. VI, cl. 2. The Supremacy Clause renders state statutes and common law ineffective to the extent they materially conflict with or impede federal law. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992); Hillsborough County v. Automated Medical Labs., Inc., 471 U.S. 707, 712-13, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985) (“It is a familiar and well-established principle that the Supremacy Clause, U.S. Const., Art. VI, cl. 2, invalidates state laws that ‘interfere with, or. are contraiy to/ federal law.”) (quoting Gibbons v. Ogden, 22 U.S. [9 Wheat.] 1, 6 L. Ed. 23 [1824]). To the extent the Kansas criminal sodomy statute contravenes liberty interests protected in the Due Process Clause of the Fourteenth Amendment, it cannot be enforced without violating the Supremacy Clause. And that is true no matter how often or by how wide a margin the Kansas Legislature readopts those provisions.
Franco has presented no viable argument for reversing his conviction based on the jury instructions.
Sufficiency of the Evidence
Franco argues the evidence presented at trial was legally insufficient to support his conviction. In reviewing a criminal defendant’s challenge to the sufficiency of the evidence, an appellate court examines the record in a light most favorable to the State, as the party prevailing at trial, and in support of the jury’s verdict. State v. Hargrove, 48 Kan. App. 2d 522, 558, 293 P.3d 787 (2013). The court will neither reweigh the evidence generally nor make credibility determinations specifically. State v. Raskie, 293 Kan. 906, 919-20, 269 P.3d 1268 (2012); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is simply whether rational jurors could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
At trial, T.W.K. testified to a version of the sexual encounter with Franco that, if believed, would establish the elements of aggravated criminal sodomy. Franco contends inconsistencies in -T.W.K.’s testimony render his version of the encounter incredible, thereby negating evidence supporting the conviction—specifically the lack of consent. Franco compares testimony of T.W.K. that he physically resisted the sex act to the results of a medical examina tion of T.W.K. showing no substantial injuries. Similarly, T.W.K. testified at trial that Franco ejaculated, but a forensic examination of T.W.K. found no substantial biological evidence of ejaculation. In pretrial accounts of the offense, T.W.K. made conflicting and equivocal statements on that point. T.W.K. also gave widely varying estimates of the duration of the sex act. By the same token, T.W.K. consistently reported he did not consent to Franco’s actions and protested as Franco violated him. T.W.K. said as much from the very first and did not waiver in that assertion. T.W.K. displayed obvious signs of emotional upset and trauma in the immediate aftermath of the encounter with Franco. All of that was for the jurors to consider.
And Franco’s credibility in front of the jurors wasn’t free of blemishes. Most notably, perhaps, he gave inconsistent renditions to law enforcement officers investigating the matter. Franco initially denied anything happened between him and T.W.K. He then admitted they had sex but claimed it was consensual. That is not an inconsistency likely born of an honest if faulty recollection. The jurors reasonably could take Franco to be a prevaricator. And they equally reasonably could conclude that had he been deliberately false in one claim, he may have been false in others. See State v. Moreno, 996 A.2d 673, 681 (R.I. 2010) (noting appropriateness of defense counsel’s jury argument that a witness false in one thing may be considered false in all things); State v. Corbett, 158 Wash. App. 576, 589, 242 P.3d 52 (2010) (argument based on witness’ inconsistent statements bears on credibility and reflects matter for juiy to resolve).
Sorting out testimonial inconsistencies and evaluating credibility is a function uniquely entrusted to jurors. And “[t]he judicial process treats an appearance on the witness stand, with the talcing of an oath and the rigor of cross-examination, as perhaps tire most discerning crucible for separating honesty and accuracy from mendacity and misstatement.” State v. Bellinger, 47 Kan. App. 2d 776, 787, 278 P.3d 975 (2012), rev. denied 298 Kan. 1204 (2013) (Atcheson, J., dissenting). The ability of the jurors to observe witnesses as they testify is integral to that evaluation. State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008). Appellate courts have no compa- rabie vantage point when they read a trial transcript, and that is precisely why they do not make credibility determinations.
In arguing insufficiency of the evidence, Franco basically submits drat the questions about T.W.K.’s version of the sexual encounter were sufficiently pronounced that the jurors should have entertained a reasonable doubt about guilt. The argument, however, asks us to do precisely what we cannot—to weigh the evidence and to credit witnesses to reach a result at odds widr the jurors’ collective determination of the facts. We would impermis-sibly invade the province of die jurors as fact-finders to hold for Franco on this point.
States Closing Argument
Franco contends the prosecutor’s closing argument to the jury misstated tire law by impermissibly diluting die State’s burden to prove guilt beyond a reasonable doubt. He points to the prosecutor’s rebuttal argument. After Franco’s lawyer hammered at T.W.K.’s credibility in her argument, the prosecutor went over die evidence supporting T.W.K.’s version and undermining Franco’s. The prosecutor told the jurors diat they had to decide who was more credible based on the evidence and invited them to conclude T.W.K. to be so.
On appeal, Franco specifically cites two portions of die prosecutor’s rebuttal argument. First, the prosecutor told the jurors:
“The instructions tell you that you can use your common sense and experience, and you have to resolve the credibility of the witnesses. The credibility is an important issue here. We do have two versions of the events. The question is, Who do you believe more? Do you believe [T.W.K.] or do you believe Chris Franco?”
Later in die argument, the prosecutor said:
“[T.W.K.] has nothing to gain from Chris Franco’s testimony. He does have something to gain from it. It’s totally self-serving and it is totally in his own interest. The question comes down to credibility. We have two versions of the events. Who is more believable? Who do you believe?”
Although not directly mentioned in Franco’s brief, the prosecutor also concluded the rebuttal this way: “[T.W.K.] is simply more credible. That is what the evidence shows. And I ask you to convict the defendant of both offenses.”
Franco submits the prosecutor’s suggestion that the jurors find T.W.K. more credible than he diminishes the requirement that the State prove the elements of the offense beyond a reasonable doubt. We disagree.
The appellate courts use a well-established framework to assess allegations of improper closing argument in criminal cases. This court recapitulated the standard of review to be applied on this issue:
“Appellate review of alleged prosecutorial error in argument to a jury entails a two-step analysis. First, the appellate court must decide whether the comments fall outside die wide latitude afforded a prosecutor in discussing the evidence and the law. Second, if the prosecutor has exceeded those bounds, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury to the extent the defendant was denied a fair trial. State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009) (outlining mode of analysis); see State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009) (noting considerable range permitted advocates, including prosecutor, in arguing their causes in juiy summations).” State v. Schreiner, 46 Kan. App. 2d 778, 793-94, 264 P.3d 1033 (2011), rev. denied 296 Kan. 1135 (2013).
An appellate court also must review “counsels’ remarks injury summations in light of the overall thrust of the point being made rather than as isolated snippets removed from the surrounding commentary-—commentary that often lends material shading and depth to what might otherwise appear to be of questionable propriety standing alone.” Schreiner, 46 Kan. App. 2d at 793; see State v. Naputi, 293 Kan. 55, 59-60, 260 P.3d 86 (2011). If the prosecutor makes an improper argument, an appellate court then deploys a three-part test to assess the magnitude of the harm and possible relief for the defendant:
“ '(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A.'60-261 [refusal to grant new trial is inconsistent with substantial justice] 'and Chapman v. California, 386 U.S. 18, [22,] 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial], have been met.’ [Citations omitted.]” McReynolds, 288 Kan. at 323.
The Kansas Supreme Court recently reiterated the test in State v. Ochs, 297 Kan. 1094, Syl. ¶¶ 1, 2, 306 P.3d 294 (2013).
In this case, the jurors faced a central task in determining whether T.W.K. consented to engaging in anal intercourse with Franco. As a step in that process, they had to decide which version of the encounter was more credible. If the jurors found Franco more believable, they necessarily would acquit. That conclusion would establish reasonable doubt. The prosecutor spent considerable time during argument parsing the evidence to demonstrate why the jurors should not come to that conclusion and should, rather, find T.W.K. to be more believable.
The prosecutor’s argument was fair comment on how the jurors should examine the evidence in assessing either T.W.K. or Franco more credible. The prosecutor did not inappropriately argue that point, as by injecting a personal opinion on who was more believable. See State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 (2012). But the prosecutor never told the jurors that simply finding T.W.K. more credible than Franco was sufficient to convict.
Rather, as the district court properly instructed the jurors, they had to find each defined element of the offense of aggravated criminal sodomy proven beyond a reasonable doubt. Nothing suggests the jurors abdicated that responsibility. See State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010) (“Appellate courts presume that a jury follow[s] the jury instructions.”). Twice during closing argument, the prosecutor specifically told the jurors the State bore the burden of proving beyond a reasonable doubt the specific elements enumerated in the instruction on aggravated criminal sodomy.
In making their ultimate decision on a verdict, the jurors, of course, presumably considered the testimony and other evidence they found credible. The jurors, however, were not required to give the same weight or credit to each piece of physical evidence or each portion of any witness’ testimony. They were to assess all of the record evidence to reach an ultimate conclusion on whether the State had proven the elements of the offense beyond a reasonable doubt. See Hargrove, 48 Kan. App. 2d at 561-62.
The disputed argument from die prosecutor focused on how best to evaluate some of that evidence and why diat evidence favored T.W.K.’s version of the material circumstances. The Kansas Supreme Court has found that sort of argument to be an unobjectionable means of addressing witness credibility. See State v. Duong, 292 Kan. 824, 830-31, 257 P.3d 309 (2011). The argument did not dilute the ultimate burden of proof placed on the State or mislead die jurors about it. The jurors were fully and properly instructed on die burden. And the prosecutor correctly stated that burden in his argument. We find no error in the prosecutor’s challenged remarks and need not undertake the second step of the process for gauging the prejudicial effect of an improper argument.
Sentencing Considerations
Finally, Franco contends the district court improperly considered his criminal history in imposing sentence. Franco argues that the district court’s use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by the jury. He principally relies on the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), to support that proposition. Franco also acknowledges the Kansas Supreme Court has rejected that argument and has found the State’s current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution with respect to the use of a defendant’s past convictions in determining a presumptive statutory punishment. See State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). We, therefore, decline his invitation to rule otherwise, especially in light of the Supreme Court’s recent reaffirmation of Ivory. State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013).
Affirmed.
Justice O’Connor joined in the judgment in Lawrence, but she relied on an equal protection analysis to find the Texas statute unconstitutional because it treated gays and lesbians, as a class, disparately—the crime of deviant sexual intercourse, by definition, applied only to same-sex participants. 539 U.S. at 585 (O’Connor, J., concurring). Justice O’Connor applied rational-basis review to the Texas statute—the test most deferential to the constitutionality of legislative enactments—and found the measure wanting. 539 U.S. at 583 (“Moral disapproval of this group ... is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”); at 585 (“A law branding one class of persons as criminal based solely on the State’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review.”). We have no need to address the equal protection rationale, since five members of the Court struck down the Texas statute as contravening a liberty interest protected in the Due Process Clause. Nor do we make any assumptions about the constitutionally proper level of review to be applied under the Equal Protection Clause to state statutes or other enactments disadvantaging gays and lesbians as a class. See United States v. Carolene Products Co., 304 U.S. 144, 153 n.4, 58 S. Ct. 778, 82 L. Ed. 1234 (1938).
Franco argues that even if the purported errors he has asserted did not individually deprive him of a fair trial, their cumulative impact did, so his conviction should be reversed on that basis. See McCaslin, 291 Kan. at 732. Where, as here, a defendant has not shown error, there is nothing to aggregate to demonstrate prejudice, let alone prejudice warranting a new trial. See State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010) (“A single error does not constitute cumulative errorf, and] . . . the doctrine is inapplicable.”). We necessarily reject any claim of cumulative error. | [
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McAnany, J.:
Dr. Albert Romkes, an assistant professor in mechanical engineering at the University of Kansas School of Engineering, challenged the University of Kansas’ (University) decision to deny him tenure. He brought this action for judicial review in the district court and asked the court to overturn the University’s decision. The district court denied relief, and Romkes brought this appeal.
As the reader will soon learn, at the focus of this case is the notion of a “principal investigator.” This principal investigator concept relates to the requirement set forth in the Faculty Senate Rules and Regulations that a tenure applicant must demonstrate “a record of accomplishment reflecting a sustainable program of scholarly activity.”
Section 6.1.1.1 of the University’s Faculty Senate Rules and Regulations emphasizes that an “award of tenure and/or promotion in rank are among the most important and far-reaching decisions made by the University.” Tenure generally provides a faculty member with a lifetime of academic independence and job security. It is the University’s position that research and research funding pressures make it important for tenure candidates to demonstrate the ability to obtain outside research funds on their own as a principal investigator and not merely by participating in a research project for which someone else is the principal investigator and the “hook” for obtaining funds for the project. The University finds it fiscally unwise in this era of ever-tightening purse strings for it to grant tenure to a faculty member who cannot attract outside funds for his or her own research projects.
The phrase principal investigator is found in tire tenure requirements approved by the faculty of the Mechanical Engineering Department in November 2009. According to the Mechanical Engineering Department’s requirement now being challenged: “Candidates must demonstrate ability to attract external funding for their research, as demonstrated by funded external grants with the candidate as principal investigator.” Dr. Romkes argues for the first time on appeal that these departmental requirements were never properly approved at'the University level and, therefore, this requirement should not have been applied to him. It appears that the review of the Mechanical Engineering Department’s tenure requirements was delayed because of the volume of such policies from the various schools and departments within the University. Nevertheless, the requirement was discussed with Dr. Romkes during his third-year tenure-track review almost a year and a half earlier in June 2008. As we shall see, tire University ultimately denied tenure based on Dr. Romkes inability to satisfy this requirement.
History
In August 2005, the University hired Dr, Romkes as an assistant professor of mechanical engineering, a tenure-track position. According to the University’s Faculty Senate Rules and Regulations, the rules that govern tenure decisions, Dr. Romkes had to apply for tenure by the end of his sixth year of employment. If tenure was denied, the following year, his seventh year, became his final year of employment.
In June 2008, the Chair of the Mechanical Engineering Departmental Promotion and Tenure Committee wrote to 'Dr. Romkes regarding his third-year review and how he was progressing towards tenure:
"Overall, the committee felt that you are making good progress toward promotion to associate professor with tenure. ... In terms of external funding, you have made several applications and serve [as] co-investigator on grants. It is vitally important that you demonstrate your ability to attract external research funding for the promotion and tenure review process. Thus, you are encouraged to increase your proposal submissions as principal investigator, to help assure that you will have a good track record of external funding at the time of your final P&T review. So that you are clear on the timeline, your completed promotion and tenure materials for that decision will be due to the Departmental P&T Committee in October of 2010. This leaves approximately two years to build your record of publications and external funding, and I encourage you to work hard to continue your efforts.”
On behalf of the School of Engineering, Professor Ronald Dough-erty made similar observations about Dr. Romkes’ third-year review. He attached to his remarks a page from the School of Engineering’s assessment which stated: “[T]his committee also believes that more effort and success in pursuit of external funding is needed to expand his research group and level of research activity to build the necessary case for his promotion with an award of continuous tenure.” Professor Dougherty noted: “[T]he main focus for you in the next three years will be on research funding and publications.”
Dr. Romkes was encouraged to ask any questions about tírese evaluations regarding his current progress toward tenure. We see no indication that Dr. Romkes responded with any challenge to the use of the principal investigator criterion.
As directed, Dr. Romkes submitted his tenure application in October 2010 to begin the multilayered review process. The initial review was conducted by Dr. Romkes’ Mechanical Engineering Department. The intermediate review was conducted by the School of Engineering. Then, there was a University-level review conducted by the University Committee on Promotion and Tenure. Once the University-level review was completed, the results were forwarded to the Chancellor, who made the final decision on tenure.
Each level of the review process is an independent evaluation of the applicant’s record of performance, and each level of review results in an independent recommendation to the Chancellor. In deed, according to the Faculty Senate Rules and Regulations, “later stages of review neither affirm nor reverse earlier recommendations, which remain part of the record for consideration by the Chancellor.” When reviewing an application for tenure, the reviewing body at each level independently examines tire applicant’s teaching, scholarship (including research), and service.
The review process for Dr. Romkes’ tenure application began with his Mechanical Engineering Department.
• Mechanical Engineering Department Review
The initial review was conducted by the Mechanical Engineering Department’s Promotion and Tenure Committee. The procedure for tire department’s review set forth the various factors to be considered: teaching, research and scholarship, and service. In discussing research, the department evaluators were instructed: “Candidates must demonstrate ability to attract external funding for their research, as demonstrated by funded external grants with the candidate as principal investigator.” It is this requirement that Dr. Romkes now challenges.
The department asked seven external engineering academics to review Dr. Romkes’ academic record. Although a majority of the evaluators recommended that Dr. Romkes receive tenure, many were concerned with his ability to conduct independent research and his ability to secure external grants to support his research. Several evaluators noted that a substantial amount of Dr. Romkes’ scholarly work had been co-written with two of his mentors who were world-renowned experts in mechanical engineering and considered “pillars in the finite element community.”
The 12 members of the department’s Promotion and Tenure Committee unanimously rated Dr. Romkes excellent in teaching and advising. But members of the committee had differing opinions regarding the quality of Romkes’ research record. Four members assessed Romkes’ research record as “very good,” four assessed his record as “good,” and four assessed his record as “marginal.” The committee rated Dr. Romkes’ research overall as good.
The Chair of the Mechanical Engineering Department, Professor Dougherty, also reviewed Dr. Romkes’ tenure application in October 2010 and recommended against tenure because of Dr. Romkes’ failure to establish a sustainable independent research program. Professor Dougherty stated:
“Dr. Romkes is an exceptional faculty member in many ways .... However, the independence of his research/scholarly program has not been clearly established. Such independence translates into he [sic] and his graduate students publishing a reasonable number of peer-reviewed journal papers [independent of his mentors] and the ability to support his graduate students through external funding sources.”
On October 25, 2010, Dr. Romkes submitted his response to Professor Dougherty’s criticism, pointing to his scholarly publications and noting that the independence of his scholarship was not questioned during his 2008 tenure-track review. He pointed out that he had secured $100,000 in external research funding as a co-investigator since joining the faculty. He acknowledged that “more funding is needed to support my graduate students and a record of successfully acquiring such funding as PI would obviously substantiate the independence of my scholarly activities. However, the current limited amount of external funding is not due to a lack of effort!” In his response, Dr. Romkes did not challenge the propriety of the department using the principal investigator standard, he merely argued that in the current economic climate it was difficult to obtain outside research funds.
• School of Engineering Review
On December 21, 2010, the School of Engineering conducted its own review of Dr. Romkes’ tenure application. The review committee, made up of five faculty members from the engineering school, recommended that Dr. Romkes receive tenure, though it acknowledged his lack of success in obtaining financial resources to support his scholarly work. In particular, the committee noted the following:
“Since coming to KU in 2005, Dr. Romkes’ research funding has been $100K as a Co-I and $8K as a PI. This level of funding was considered low by the committee but his efforts in submitting 8 external proposals as PI to federal agencies indicate that he has been making a concerted effort to obtain funding. Unfortunately, his field of expertise is computational fluid dynamics where funding is very tight.
“The committee spent a good deal of time on this case and decided unanimously that despite the low level of funded research, Dr. Romkes is someone to whom we should grant promotion to associate professor with continuous tenure.”
The Dean of the School of Engineering, Stuart Bell, disagreed with these findings and recommended against tenure. Dean Bell explained:
“Dr. Romkes is seen as a valued member of the department and school. . . .
“However, there is a lack of clear evidence in Dr. Romkes’ record for establishing a sustainable independent research program. Demonstrating sustainability and independence are paramount in the award of tenure as it speaks to long-term viability. As the school has veiy limited resources to support stipends for graduate research assistants, research equipment and other costs of conducting research and scholarly enterprise; we rely on faculty being able to generate the resources necessary to sustain their program at a high level and in an independent fashion. This expectation is common to most engineering programs at U.S. research universities. In this case, the current record of the candidate does not indicate independent sustainability.”
• University Review
At the University level, the 10-person University Committee on Promotion and Tenure considered Dr. Romkes’ application. The committee informed Dr. Romkes that following its initial review, its tentative recommendation was to deny tenure. But before a final review and vote, the committee wanted additional information regarding grants under review at the National Science Foundation and at the Army Research Office, along with a report on the status of the works in progress listed in his resume. The committee also wanted “[s]pecific information on the nature of Professor Romkes’ scientific contributions to the coauthored publications.” After receiving the requested additional information, the committee voted seven to three to deny tenure.
• Chancellor Review
On March 14, 2011, Dr. Romkes submitted a written response for the Chancellor to consider when making her final determination. He recounted his accomplishments in tire department in de veloping new courses, advising graduate students, writing and submitting grant proposals, participating in symposia, and publishing articles. In sum, he argued:
“Indeed, as my Dean asserts, my record does not demonstrate external funding with me as principal investigator (PI), but if one observes my record as a whole it should be clear from what I presented here that apart from funding as PI my research record is more than average and demonstrates sustainability.”
On April 15, 2011, University Provost Jeffrey Vitter advised Dr. Romkes: “After careful review, Chancellor Gray-Little has decided to accept tire recommendation of the University Committee on Promotion and Tenure not to award you tenure.”
• District Court Review
Dr. Romkes sought judicial review in the district court pursuant to the Kansas Judicial Review Act, K.S.A. 77-601 et seq. He argued that his tenure denial was based on a determination of fact not supported by substantial evidence and that the University’s action was unreasonable, arbitrary, or capricious.
Before the district court made its ultimate ruling, Dr. Romkes moved the court pursuant to K.S.A. 77-619(a) to permit him to admit additional evidence beyond what was contained in the administrative record. He sought to introduce into evidence two series of e-mail exchanges. The first consisted of e-mails between William Keel, Chair of the Faculty Senate Committee on Standards and Procedures for Promotion and Tenure, and Professor Ronald Barrett-Gonzalez, an aerospace engineering faculty member and Romkes supporter. Dr. Romkes contended that these e-mails showed that the University failed to follow the applicable rules and regulations when it made its tenure decision.
The second series of e-mails was between Dr. .Romkes and Dr. Glaucio Paulino of die National Science Foundation. Dr. Romkes also sought to introduce an award letter from the National Science Foundation. He contended that these e-mails, coupled with the award letter, showed that he received a $240,162 award from the National Science Foundation in June 2011.
The district court denied the motion to introduce additional evidence. The court determined that the first series of e-mails was not needed to decide a disputed fact, and the second series of emails and the award letter related to a research grant awarded after the Chancellor made the final tenure decision.
Thereafter, the district court ruled on the merits of Dr. Romkes’ claim and concluded that he was not entitled to relief because the University’s action in denying tenure was supported by substantial competent evidence and was not otherwise unreasonable, arbitrary, or capricious. Dr. Romkes’ appeal now brings the matter before us.
Review Standards on Appeal
The Kansas Judicial Review Act defines the scope of judicial review of state agency actions unless the agency is specifically exempted from application of the statute. K.S.A. 2012 Supp. 77-603(a); In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1043, 271 P.3d 732 (2012). We start with the presumption that the agency action was valid. See Jones v. Kansas State University, 279 Kan. 128, 139, 106 P.3d 10 (2005). On appeal, the burden of proving die invalidity of the agency action rests on the party asserting such invalidity. K.S.A. 2012 Supp. 77-621(a)(l). In an appeal from a decision by an administrative agency, a party is generally limited to the issues raised at the administrative hearing. K.S.A. 2012 Supp. 77-617; Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 411, 204 P.3d 562 (2009); In re Equalization Appeal of Prieb Properties, 47 Kan. App. 2d 122, 126, 275 P.3d 56 (2012). Appellate courts exercise the same statutorily limited review of the agency action as does the trial court, i.e., as though the appeal had been made directly to the appellate court. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).
Dr. Romkes’ Contentions on Appeal
Dr. Romkes argues diat the University essentially changed the rules late in the game to his disadvantage. He contends that the principal investigator element is new to die criteria for tenure. He contends that he was not provided a written copy of “the newly promulgated principal investigator rale” which was promulgated “only eight months prior to the beginning of Dr. Romkes’ tenure application process.” He also argues that it was improper for his evaluators to consider the principal investigator criterion because it had not been approved and made a part of the Faculty Senate Rules and Regulations relating to tenure applications.
Dr. Romkes also contends that there was insufficient evidence to support the University’s decision to deny him tenure. He argues that the district court used the wrong review standard in considering the sufficiency of the evidence the University relied on to deny tenure. Further, he contends that the district court erred in not finding that the University’s action was unreasonable, arbitrary, or capricious.
Finally, he argues that the district court erred in refusing to admit as additional evidence the various e-mails mentioned earlier and the documents showing his recent outside funding.
There seems to be no dispute about what the applicable Faculty Senate Rules and Regulations provide. Dr. Romkes challenges the tenure criteria applied at the School of Engineering level and at the Mechanical Engineering Department level.
The record contains two versions of foe School of Engineering’s tenure guidelines, one dated 2008 and the other dated 2010. They both set forth the same activities to be considered in evaluating a tenure application. Dr. Romkes argues in his appellate brief that the School of Engineering’s tenure guidelines had to be approved as required by § 6.3.5 of the Faculty Senate’s 2007 Rules and Regulations, but they were not. While we understand what Dr. Romkes contends were not foe appropriate School of Engineering tenure rules, he does not provide us with what he considers to be foe proper tenure rules.
With respect to the evaluation at the department level, we have one set of tenure policies approved by foe department faculty in 2009. This is foe document which includes as a research standard the following: “Candidates must demonstrate ability to attract external funding for their research, as demonstrated by funded external grants with foe candidate as principal investigator.” Dr. Ro-mkes contends that these departmental policies were never approved as required by § 6.3.5 of foe Faculty Senate Rules and Regulations adopted in 2007. While not conceding this contention, the University argues: “The so-called principal investigator rule echoed already existing criteria.” In essence, the University contends that standard enunciated in the Mechanical Engineering Department’s principal investigator rule can be found in other tenure standards, that Dr. Romlces had known about this principal investigator standard for years, and that throughout the tenure process he never challenged the standard.
Dr. Romlces also points out the requirement of § 6.4.1.1 of the Faculty Senate Rules and Regulations that within die first semester after he was hired he was supposed to be provided with a written copy of the criteria and procedures for tenure. He does not contend that he received nothing, but he does not identify what he was provided.
Issues Preserved for Appeal?
As stated in Kingsley, 288 Kan. at 411-12: “In an appeal from a decision by an administrative agency, a party may only argue the issues raised at the administrative hearing. K.S.A. 77-617; [citation omitted]. In turn, a district court may only review those issues litigated at the administrative level. [Citation omitted.]”
As we see it, Dr. Romlces raises on appeal two threshold issues before getting to the issue of whether substantial evidence supports the University’s decision to deny tenure. First, there is the issue of whether the University unfairly pulled the rug out from under him by interjecting the principal investigator criterion when it was too late for him to do anything about it. Second, there is the issue about whether the University actually adopted this principal investigator criterion prior to the Chancellor’s decision so as to allow the University to apply it to Dr. Romlces. Our first task is to determine whether Dr. Romlces preserved these two issues for appeal by raising them in the proceedings at the University.
We do not find where Dr. Romlces complained to the University that it was improper to apply tire principal investigator criterion to him at a time when it was too late for him to do anything significant to satisfy it. Nor did he ever, during the tenure review process, claim that the principal investigator criterion had never been properly approved under the Faculty Senate Rules and Regulations.
When the principal investigator criterion was raised at Dr. Ro-mkes’ third-year tenure-track review, he expressed no objection to its use or to its application to him.
In response to Professor Dougherty’s criticism at the initial Mechanical Engineering Department review, Dr. Romkes noted that he had secured $100,000 in external research funding as a coin-vestigator since joining the faculty. He acknowledged that “more funding is needed to support my graduate students and a record of successfully acquiring such funding as PI would obviously substantiate the independence of my scholarly activities. However, the current limited amount of external funding is not due to a lack of effort!” He did not challenge the propriety of the department using the principal investigator standard.
At the School of Engineering review, Dr. Romkes responded to Dean Bell’s recommendation against tenure. Dr. Romkes did not assert that the principal investigator criterion had been unfairly sprung on him. Nor did he contend that the school could not consider whether he was the principal investigator on research projects. Rather, he argued that the school’s decision should be based on a broader view of how to prove sustainable research. He stated: “In my opinion, [Dean Bell] unfairly limits the scope of possible types of evidence. I think there can be other types of evidence that demonstrate a sustainable and independent research program of a candidate.”
At the University-level tenure review, Dr. Romkes responded to the recommendation against tenure by the University Committee on Promotion and Tenure, stating:
“[A]s my dean asserts, my record does not demonstrate external funding with me as principal investigator (PI), but if one observes my record as a whole it should be clear from what I presented here that apart from funding as PI my research record is more than average and demonstrates sustainability. . . .
“. . .[S]hould the [promotion and tenure] evaluation be based on money as the decisive criterion, or money as PI if one wants to narrow the issue further? I am posing it here as such, since my Dean clearly has narrowed the field specifically to the issue of funding as PI. I personally believe that it would be detrimental to the academic and scholarly health of a university if it decided to do so.”
Citing the School of Engineering’s Rules and Regulations, Dr. Ro-mkes concluded that the School of Engineering “still recognizes that funding by itself should not be a decisive criterion but rather the evidence of an active research program, be it funded or not.”
In these communications Dr. Romkes expressed his dissatisfaction with the University’s use of the principal investigator funding criterion and his view that the use of such a criterion was an unwise policy. But he never stated that this was a new criterion unfairly sprung on him at a time in his tenure track when it was too late for him to do anything about it. Nor did he contend that this criterion had not been properly approved.
The closest expression of a criticism of the unfair application of this criterion to Dr. Romkes came not from him, but from Professor Barrett-Gonzalez, who wrote to the Chancellor on Dr. Romkes’ behalf. Professor Barrett-Gonzalez wrote:
“The administrators site [sic] poor income generation as the reason for denial of [promotion and tenure]. As you can see, this argument is directly counter to [School of Engineering] policy, which names neither dollar amount nor status as PI:
“ ‘At the time of consideration for promotion to Associate Professor, a candidate must have demonstrated sound research capability and potential for continued growth in research and/or professional development activities.’—KU SoE R&R.”
Professor Barrett-Gonzalez argued that the recommendation against tenure “is at odds with published [School of Engineering] rules, general [University promotion and tenure] practices and has never before been used for denial of tenure of any former [mechanical engineering] faculty member in known history.” With respect to the tenure standards for the Mechanical Engineering Department, he noted: “These two administrators also site [sic] a specific ME departmental policy asking a candidate to be a PI on a grant to show research proficiency. The inappropriateness of this policy was demonstrated by the ME faculty itself when a majority voted to support Dr. Romkes.” Professor Barrett-Gonzalez does not articulate the argument, now raised on appeal, that the timing of the adoption of the principal investigator criterion deprived Dr. Romkes of the opportunity to meet it. Further, his argument against the tenure criteria in the Mechanical Engineering Department is not that these requirements were never approved.
From this we conclude that Dr. Romkes failed to raise these issues in the administrative proceedings that led to his petition for review in the district court and to this appeal.
K.S.A. 2012 Supp. 77-617 provides an exception to the rule in Kingsley regarding the preservation of issues for appeal. The statute states:
“A person may obtain judicial review of an issue that was not raised before the agency, onlij to the extent that:
“(a) The agency did not have jurisdiction to grant an adequate remedy based on a determination of the issue;
“(b) the agency action subject to judicial review is a rule and regulation and the person has not been a party in adjudicative proceedings which provided an adequate opportunity to raise the issue;
“(c) the agency action subject to judicial review is an order and the person was not notified of the adjudicative proceeding; or
“(d) the interests of justice would be served by judicial resolution of an issue arisingfrom:
(1) A change in controlling law occurring after the agency action; or
(2) agency action occurring or first reasonably knowable to the person after the person exhausted the last feasible opportunity for seeking relief from the agency.” (Emphasis added.) K.S.A. 2012 Supp. 77-617.
Dr. Romkes contends that K.S.A. 2012 Supp. 77-617(d)(l) and (2) apply to this case. Exception (d)(1) to the rule in Kingsley only applies if there has been a change in controlling law since the University denied tenure. Dr. Romkes identifies no such change. Exception (d)(2) applies only if the issue arose from the University’s denial of tenure after Dr. Romlces had exhausted his opportunities for relief from tire University. (The provision in (d)(2) about belatedly finding out about the agency’s action clearly does not apply.)
The issues here for which Dr. Romkes seeks relief under K.S.A. 2012 Supp. 77-617(d)(l) and (2) involve the contention that the University unfairly sprang the principal investigator criterion on him when it was too late to do anything about it, and tire contention that the principal investigator criterion was not approved under tire Faculty Senate Rules and Regulations. Dr. Romkes provides no explanation of how K.S.A. 2012 Supp. 77-617(d)(l) or (2) apply to the issue about the University unfairly springing the principal investigator criterion on him
Dr. Romkes claims that the exceptions found in K.S.A. 2012 Supp. 77-617(d)(l) and (2) apply to the issue of the Mechanical Engineering Department’s tenure criteria not having been approved pursuant to the Faculty Senate Rules and Regulations. He argues that (d)(2) applies based upon an exchange of e-mails between Professor Barrett-Gonzalez and Professor Keel that he sought to introduce before the district court as additional evidence. (Those e-mails are the subject of a claim of error we will discuss later.) He also cites additional e-mail exchanges with Molly Mulloy and an open records request, neither of which is part of tire record, and neither of which was sought to be included as additional evidence under K.S.A. 77-619(a). He included these latter records in the appendix to his appellate brief, but that does not make them part of the record for our review. See Supreme Court Rule 6.02(b) (2013 Kan. Ct. R. Annot. 39); Edwards v. Anderson Engineering, Inc., 284 Kan. 892, Syl. ¶ 1, 166 P.3d 1047 (2007). The burden is on the party making a claim to designate facts in the record to support that claim; without such a record, the claim of error fails. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644-45, 294 P.3d 287 (2013).
The Barrett-Gonzalez/Keel e-mail exchanges at issue here began on April 14,2011, the veiy day that tire Chancellor decided to deny tenure. There was nothing about the Chancellor s decision that caused the issue about the principal investigator to arise from it. The principal investigator issue had been there from the beginning of tire tenure application process and even earlier. It was discussed when Dr. Romkes had his third-year tenure-track review. But Dr. Romkes apparently did not investigate the propriety of the departmental tenure rules until Professor Barrett-Gonzales, on Dr. Romkes’ behalf, did so on the day the Chancellor announced her decision. Dr. Romkes had known all along that the University was relying on the principal investigator criterion enunciated in detail in the Mechanical Engineering Department’s tenure policies. K.S.A. 2012 Supp. 77-617(d)(2) is not designed to provide relief to a person appealing an agency action based on an issue that had been ignored and left unexplored until the very day of tire agency’s final action.
Under these circumstances, we conclude that Dr. Romkes has not preserved these initial two issues for appellate review, and the exceptions found in K.S.A. 2012 Supp. 77-617(d)(l) and (2) do not apply. We do so with the appreciation that even if the issues had been preserved, Dr. Romkes would not have prevailed on them.
The rule of harmless error found in K.S.A. 2012 Supp. 77-621(e) applies. Dr. Romkes was not prejudiced by the timing of the assertion of the principal investigator criterion. He was given fair warning that being a principal investigator was an important consideration in determining whether he had established “a sustainable program of scholarly activity.” Faculty Senate Rules and Regulations § 6.2.3. The principal investigator language had been approved by the department faculty (of which he was a member) and had been a part of the department’s policies for years. It obviously predated Dr. Romkes’ third-year evaluation, and we have nothing in the record to establish that it was not pail of the department’s requirements when Dr. Romkes was hired. Dr. Romkes has the burden of showing agency error, and he has not done so on this issue.
Finally, even if the principal investigator language in the tenure requirements of the Mechanical Engineering Department had not been formally adopted under the Faculty Senate Rules and Regulations, the principal investigator language is not inconsistent with the University’s fundamental policy that tenure must be predicated on “a sustainable program of scholarly activity.” It appears that the review of the Mechanical Engineering Department’s tenure requirements was delayed because of die volume of such policies from the University’s various schools'and departments submitted for review. Dr. Romkes does not contend that the University used a tenure review standard which was ultimately rejected on review. When reviewing the University’s decision under K.S.A. 2012 Supp. 77-621(c), the reviewing court must take into account the rule of harmless error. K.S.A. 2012 Supp. 77-621(e); Frank v. Kansas Dept. of Agriculture, 40 Kan. App. 2d 1024, 1035, 198 P.3d 195 (2008). The clear requirements that the applicant demonstrate a sustainable program of scholarly activity, a successfully developing scholarly career, and an active and productive scholarly agenda encompass the concept that tire applicant must demonstrate the ability to attract external funding for research as the principal investigator. Thus, any reliance on the principal investigator criterion was harmless.
Substantial Competent Evidence to Support the Denial of Tenure?
Dr. Romlces contends the evidence is insufficient to support the University’s decision to deny him tenure. He raises two threshold issues before getting to the issue of the sufficiency of the evidence.
First, he contends the district court used an incorrect standard of review in reviewing die University’s decision. The University concedes that the district court used a standard of review which had been modified in 2009. But on appeal to our court we treat die issues for which Dr. Romlces sought judicial review in the district court as diough diey had been initially directed to us. See Powell, 290 Kan. 564, Syl. ¶ 1. We are capable of reviewing the evidence before the district court using the appropriate standard of review, which is found in K.S.A. 2012 Supp. 77-621.
Second, Dr. Romlces contends die one-page letter from the Chancellor does not set forth her reasoning for denying tenure. But in her letter, the Chancellor states diat she has accepted “die recommendation of the University Committee on Promotion and Tenure not to award you tenure.” That committee clearly expressed its reasoning for recommending against tenure. Dr. Ro-mlces was told diat the committee’s recommendation was “based upon a research record diat does not demonstrate the development of an independent scholarly agenda and a sustainable research program.” Dr. Romlces has not been left in die dark as to the reasoning behind the University’s decision.
Turning now to the issue of the sufficiency of the evidence to support the University’s decision, we examine the evidence “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.” K.S.A. 2012 Supp. 77- 621(c)(7). Examining the sufficiency of the evidence “in light of the record as a whole” requires us to review
“the adequacy of the evidence in tire record before tire court to support a particular finding of fact... in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence . . . that supports such finding .... In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.” K.S.A. 2012 Supp. 77-621(d).
Even if there appears to be evidence supporting the University’s decision, we still must consider “whether the evidence supporting the agency’s decision has been so undermined by cross-examination or other evidence that it is insufficient to support the agency’s conclusion.” Herrera-Gallegos v. H&H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d 239 (2009).
To uphold the University’s decision, the supporting evidence must be substantial, meaning that a reasonable person could accept such evidence as being sufficient to support the conclusion reached. See In re Protests of Oakhill Land Co., 46 Kan. App. 2d 1105, 1114, 269 P.3d 876 (2012).
Here, the University’s action did not turn on a matter of statutory construction. The issue is the sufficiency of the evidence. We are instructed to examine the record as a whole to determine whether there is sufficient evidence to support the University’s decision to deny tenure. In the context of hiring and firing decisions by academic institutions which lead to claims of discrimination, the 10th Circuit Court of Appeals stated:
“We agree with the district court that ‘[i]t is not the duty of a court nor is it within the expertise of the courts to attempt to decide whether the business judgment of tlie employer was right or wrong. The court is not a super personnel department. All that a court does is to exercise a very limited review of die employment practices of an employer to see if die practices are shown to be lawful.' ” Verniero v. Air Force Academy Sch. Dist. No. 20, 705 F.2d 388, 390 (1983).
See Simms v. Oklahoma ex rel. Dept. of Mental Health, 165 F.3d 1321, 1330 (10th Cir. 1999). In discrimination claims arising out of a university decision not to grant tenure, the court in Pyo v. Stockton State College, 603 F. Supp. 1278, 1281 (D. N.J. 1985), noted the problems associated with courts substituting their judg ments for those of universities on matters of tenure. As observed in Pyo, 603 F. Supp. at 1281-82, tenure decisions
“entail lifetime commitments in terms of salaiy and interpersonal relationships;. . . decisions are often decentralized and may involve as well many levels of decision-making; they involve an unusually large mix of factors, from the subjective qualities of the candidate to institutional priorities having nothing to do with the candidate
Similarly, in Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980), the court stated:
“A university’s prerogative ‘ “to determine for itself on academic grounds who may teach” ’ is an important part of our long tradition of academic freedom. [Citations omitted.] Although academic freedom does not include ‘the freedom to discriminate’,... this important freedom cannot be disregarded in determining the proper role of courts called upon to try allegations of discrimination by universities in teaching appointments. The Congress that brought educational institutions within the purview of Title VII could not have contemplated that the courts would sit as ‘Super-Tenure Review Committee(s) ....’”
Accord Fisher v. Vassar College, 70 F.3d 1420, 1434-35 (2d Cir. 1995).
In Blasdel v. Northwestern University, 687 F.3d 813 (7th Cir. 2012), the plaintiff claimed she was denied tenure because she is a woman. Judge Posner observed that “practical considerations make a challenge to the denial of tenure at the college or university level an uphill fight—notably the absence of fixed, objective criteria for tenure at that level.” 687 F.3d at 815. The judge noted the “ ‘subjective judgments about academic potential’ ” that go into tenure decisions, as well as the issue at tire center of Dr. Romkes’ case: “In some academic fields . . . research requires costly laboratories financed by grants from the federal government or from foundations. Proficiency in obtaining grants is a highly valued capability in such fields; and scholars differ in their ability to obtain grants.” 687 F.3d at 816.
Obviously, the issues raised in these discrimination cases are somewhat different from tire issue here. But at their heart was an institution’s decision not to award tenure. If courts are reluctant to venture too far into tenure decisions of academic institutions in cases in which the claim is made that tire decision was motivated by an improper intent to discriminate, tiren such reluctance must surely apply when there is no claim that the decision constituted some form of invidious discrimination. Here, Dr. Romkes makes no claim that the decision to deny tenure was based upon invidious discrimination by the University. We are confronted here with a straightforward business decision by the University. We find no sound basis in either K.S.A. 2012 Supp. 77-621 or in pronouncements of our Supreme Court for not extending some deference to the University in its business and academic decision on whether to grant tenure to a faculty member.
Dr. Romkes does not contend that the evaluations which led to the denial of tenure were based on information that was, in fact, false. He does not dispute the data on research funds he brought to the University. Rather, he contends that the University placed too much weight on this factor in considering his tenure application. But we are specifically instructed in K.S.A. 2012 Supp. 77-621(d): “In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence
There is substantial evidence that Dr. Romkes’ research funding came primarily from him having joined projects in which others were the principal investigators. Those other persons included renowned experts in their fields who, by virtue of their names and reputations, could attract outside research funds. By his own admission, Dr. Romkes’ success in attracting research funds on his own had been meager.
We are loathe to substitute our judgment for the University’s business judgment on whether to award academic tenure to a faculty member in a research-driven scientific discipline who has not demonstrated the ability over the long haul to attract research funds on his own. Thus, we conclude that there was substantial evidence in fight of the record as a whole to support the University’s denial of tenure.
Unreasonable, Arbitrary, or Capricious?
Dr. Romkes argues that the University’s decision was unreasonable, arbitrary, or capricious because (1) “the Chancellor’s complete acceptance of the UCPT recommendation without further comment violated the Faculty Senate Rules and Regulations which required the Chancellor to make an independent decision”; and (2) the Chancellor’s decision was not supported by substantial competent evidence because she primarily relied on the principal investigator rule.
Pursuant to K.S.A. 2012 Supp. 77-621(c)(8), a court can grant relief when “the agency action is otherwise unreasonable, arbitrary or capricious.” Under Kansas law, an agency acts arbitrarily or capriciously when its actions are overtly and patently in violation of the law or are unreasonable and without foundation in fact. Krueger v. Board of Woodson County Comm’rs, 31 Kan. App. 2d 698, 702, 71 P.3d 1167 (2003), aff'd 277 Kan. 486, 85 P.3d 686 (2004). In addition, our Supreme Court has held that an action is unreasonable when it is taken without regard to benefit or harm to all interested parties and that an action is arbitrary and capricious if it is unreasonable or lacks any factual basis. Sunflower Racing, Inc. v. Board of Wyandotte County Comm’rs, 256 Kan. 426, 431, 885 P.2d 1233 (1994). Under K.S.A. 2012 Supp. 77-621(c)(8), courts examine the reasonableness of an agency’s exercise of discretion in reaching its decision. Useful factors that may be considered include whether the agency’s explanation of its action runs counter to the evidence before it and whether the agency’s explanation is so implausible that it could not be ascribed to merely a difference in views. Wheatland Electric Cooperative v. Polansky, 46 Kan. App. 2d 746, 757, 265 P.3d 1194 (2011).
With respect to Dr. Romkes’ first contention, he argues that the Chancellor’s acceptance of the University tenure committee’s recommendation violated § 6.1.1.3 of the Faculty Senate Rules and Regulations, which provides:
“Each level of review, including the initial review, the intermediate review (if one is conducted), and die university level review, conducts an independent evaluation of a candidate’s record of performance and malees independent recommendations to the Chancellor. Later stages of review neither affirm nor reverse earlier recommendations, which remain part of the record for consideration by the Chancellor. It is the responsibility of each person involved in the review process to exercise his or her own judgment to evaluate a faulty member’s teaching (or professional performance), scholarship, and service based upon tire entirety of the data and information in the record. No single source of information, such as peer review letters, shall be considered a conclusive indicator of quality.”
We reject the notion that the Chancellor’s decision was nothing more than a rubber stamp of earlier evaluations of Dr. Romkes. Simply because the Chancellor concurred with the University Tenure Committee’s recommendation to deny tenure does not mean that she failed to conduct an independent review of his tenure application. Instead, it simply shows that after reviewing his tenure application the Chancellor believed that the University tenure committee reached the correct result. Dr. Romkes fails to meet his burden of showing unreasonable, arbitrary, or capricious conduct on the part of the Chancellor and the University.
With respect to his second contention, Dr. Romkes argues that the Chancellor’s decision was not supported by substantial competent evidence because she primarily relied on the principal investigator rule. We have fully discussed this claim in considering the sufficiency of the evidence to support the University’s decision. We need not discuss it further.
Introducing Additional Evidence Before the District Court
As we noted earlier, Dr. Romkes asked the district court to permit him to admit additional evidence beyond what was contained in the administrative record. He sought to introduce two series of e-mail exchanges. The first consisted of e-mails between Professor Ronald Barrett-Gonzalez and William Keel, Chair of the Faculty Senate Committee on Standards and Procedures for Promotion and Tenure. These e-mails began on April 14, 2011, the same day the Chancellor made her decision to deny tenure.
The second series of e-mails was between Dr. Romkes and Dr. Glaucio Paulino of the National Science Foundation. Dr. Romkes also sought to introduce an award letter from the National Science Foundation. He contended that this second series of e-mails and the award letter showed that he received a $240,162 award from the National Science Foundation in June 2011.
The district court denied the motion to introduce additional evidence. The court determined that the first series of e-mails was not needed to decide a disputed fact, and tire second series of e mails and the award letter related to a research grant awarded after the Chancellor made the final tenure decision.
Under K.S.A. 77-619(a),
“[t]he court may receive evidence, in addition to that contained in the agency record for judicial review, only if it relates to tire validity of the agency action at the time it was taken and is needed to decide disputed issues regarding:
“(1) Improper constitution as a decision-making body; or improper motive or grounds for disqualification, of those taking the agency action; or
“(2) unlawfulness of procedure or of decision-making process.”
The obvious conclusion is that Dr. Romkes’ additional evidence was not offered for either of the limited purposes allowed in K.S.A. 77-619(a)(l) or (2). Nevertheless, we will discuss this claim of error further.
The decision to admit additional evidence not found in the agency record is within the discretion of the court. Southwest Kan. Royalty Owners Ass’n v. Kansas Corporation Comm’n, 244 Kan. 157, 168, 769 P.2d 1 (1989). Judicial discretion is abused if the decision is: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Harris, 293 Kan. 798, 814, 269 P.3d 820 (2012).
The first series of e-mails related to an issue which, as we discussed earlier, had not been preserved for judicial review as required by K.S.A. 2012 Supp. 77-617. Thus, the district court’s refusal to admit these e-mails, even though apparently for a different reason, was not error.
With respect to the second series of e-mails, Dr. Romkes sought to introduce a May 9,2011, e-mail from Dr. Paulino of the National Science Foundation regarding his recommendation that Dr. Ro-mkes receive a $240,162 grant in which Dr. Romkes was identified as the principal investigator. Dr. Paulino stated: “The above proposal has been panel reviewed and ranked relatively well. Thus I am planning to recommend it for funding in the requested amount of $240,162. . . . Note that this is only a recommendation. Nothing is official until you receive an official communication from the NSF grant office.” On June 7, 2011, the NSF informed the University by letter that it had awarded Dr. Romkes’ grant request in full.
This related to research funding obtained after the Chancellor made her final tenure decision on April 14, 2011. This e-mail, and the letter that followed, could hardly be used to show that the University erred in denying tenure when the decision to provide these new research funds was not made until after the University made its final decision on tenure. The district court did not err in excluding this evidence.
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Buser, J.:
This is an appeal by Glenn C. Lake of the denial of his workers compensation claim. Lake had an accident at work and then experienced increasing symptoms of back pain and arm and leg numbness. Lake’s treating physicians, a neutral physician appointed by the administrative law judge (ALJ), and a physician retained by Lake, all testified that the work accident caused his injuries. A physician retained by Lake’s employer, Jessee Trucking, offered no opinion because he was uncertain regarding the onset of Lake’s symptoms. The ALJ heard sworn testimony from Lake describing his work accident, his symptoms, and his medical care. The ALJ determined that the work accident caused significant neurological injuries and awarded Lake compensation for his permanent total disability. Upon review, however, the Workers Compen sation Board (Board) rejected Lake’s testimony and held that he had failed to prove the work accident had caused his neurological injuries. Lake appeals from this adverse order.
We have reviewed the record on appeal, read the parties’ briefs, and listened to oral arguments. Having considered all of the evidence, including the credibility determinations made by the administrative law judge regarding Lake’s testimony and the reasons given by the Board for disagreeing with those credibility determinations, we hold the Board’s findings of fact in support of its conclusion to deny compensation are not supported by substantial evidence viewed in light of the record as a whole. Accordingly, we reverse the Board’s order and remand with directions to reinstate the ALJ’s award of compensation.
Factual and Procedural Background
The following facts were developed from the evidence presented to the ALJ at the workers compensation hearing on February 6, 2012.
Lake was a 39-year-old shop supervisor and mechanic for Jessee Trucking in Galena, Kansas. Jessee Trucking was owned by Rick Jessee, his younger brother Brent Jessee, and their mother. Lake had worked as a mechanic for about 20 years and had served in the Army and National Guard. He did not have any prior disabilities.
At about noon on May 16, 2008, a 600-pound, 12- to 14-foot fiberglass bedliner for a semi-truck dump trailer was delivered to Jessee Trucking. Lake unloaded the bedliner with the help of the delivery driver and a temporary employee, Jimmy Palmer, who is also Lake’s nephew. Palmer pulled the bedliner from the trailer with a forklift while Lake and the delivery driver assisted.
At some point during the unloading, the bedliner caught on the trailer. Lake placed his right arm in an opening of the bedliner and attempted to move it over the obstruction. Lake testified the bed-liner had “come off the forks and come down on me and put me against the back of the trailer.” Lake and Palmer testified that Lake screamed upon being struck. Lake said he “twisted, put my right leg on the ground and tried to stomp out from under” the bedliner.
It was uncontroverted that the work accident occurred. As related by Lake and Palmer, Lake was obviously hurt at the accident scene and walked with difficulty. Lake thought he had “pulled a groin” because he could not lift his leg. Palmer confirmed that Lake “was dragging his legs like he had ... I don’t know if you’ve ever played football or not. See somebody get hit between the legs . . . and they got [sic] that limp to them.”
Lake and Palmer testified the work accident was promptly reported to Brent, Shelly Downs (dispatcher), and Becky Beck (secretary and bookkeeper). According to Lake and Palmer, each person asked if Lake was all right, and Lake said he had just “pulled a groin.” This response produced some amusement. Lake did not seek immediate medical attention.
Lake did not submit a work accident report because no forms were available at Jessee Trucking. Lake completed a blank form he had from a prior employer, but he did not submit it due to his subsequent but unrelated hospitalization. It was uncontroverted that Lake continued to work, aside from this hospitalization, until October 2, 2008.
Only 5 days after the work accident, on May 21, 2008, Lake was taken by ambulance to St. John’s Regional Medical Center (St. John’s) in Joplin, Missouri. He complained of black, tarry stools and being unable to rise from the toilet without passing out. Lake remained hospitalized for 3 days for treatment of gastrointestinal bleeding and “peptic ulcer disease and erosive gastritis.” He received a blood transfusion and medication. Upon his release from the hospital, Lake did not return to work for a week.
The St. John’s medical records are not in the record on appeal. Testimony regarding them came from Dr. Paul Stein, who examined Lake at the request of Jessee Trucking, and Dr. Edward J. Prostic, who examined Lake at the request of Lake’s counsel. Both doctors reviewed the St. John’s records but did not recall seeing a reference to a work injury or to a complaint by Lake of a problem with his back or extremities.
Lake and Palmer testified that Lake’s difficulties continued after his return to work. Palmer said Lake “just . . . didn’t look right, looked real weak. Couldn’t lift nothing [sic] I had to [do all the] heavy lifting. Anytime there [were] any tires to be changed or anything that was saved over for me.”
Witnesses from Jessee Trucking gave a different account. Brent testified he did not learn of the work accident for 10 days to 2 weeks. According to him, Lake said he was not hurt. Brent confirmed, however, that 2 weeks after hearing about the work accident, Lake complained “about his neck or his legs and the back was hurting.” Brent maintained, however, that Lake was not having noticeable difficulties at work.
Beck denied hearing about the work accident on the day it occurred, saying she only learned of it some 6 months later in October 2008. Rick testified that he noticed Lake “sometimes” having problems with his neck, back, and/or legs between the date of the work accident and October 2008. Rick also testified that he noticed Lake walking “with a limp just a little bit but it wasn’t eveiy day.” Downs did not testify. Lake testified he “kept complaining” to Beck and Downs that “I still wasn’t right.” According to Lake, Downs told him to go to a chiropractor. Lake said he had to wait more than 2 weeks for an appointment with the chiropractor, Dr. Russell McDaniel.
On July 8, 2008, Lake saw Dr. McDaniel. At his deposition, Dr. McDaniel, who testified that he averages “probably 150 to 160 patient visits a week,” could not remember treating Lake, so the doctor’s medical records were the only evidence of Lake’s visits. The records were three single-sheet forms, one of which was a patient information form apparently completed by Lake. To the question, “[w]hom may we thank for referring you to us,” Lake wrote “Mike Lake.” The patient information form did not include a question regarding tire origin of the complaint or whether it was work related.
Dr. McDaniel made cursory hand-written entries on the forms based on his interview and examination of Lake. The doctor recorded: “Patient states that he has chronic low back pain. Occupation, mechanic at Jessee Trucking. States work position creates pain in low back and sacroiliac area.” The forms showed that Lake had reported the pain was made worse by work, sitting, and bending over. The pain was reported as “sharp” and occasionally radi ated “near the buttocks area.” With regard to the onset of Lake’s back pain, Dr. McDaniel wrote: “[Ujnknown, may be work related.” At his deposition, the doctor testified that Lake had not complained of numbness or symptoms in his extremities because these complaints were not reflected in his notes. Lake saw Dr. McDaniel once more, on July 15, 2008, and the notes from that visit read: “ Tain continuing low back-SI area, better after treatment, but still . . . has pain, especially getting up and at end of day.’ ”
Lake testified that at some point a neighbor referred him to Dr. Bryan Bames. On August 26, 2008, after waiting some time for the appointment, Lake saw Dr. Bames. Dr. Bames’ records are not in the record on appeal, nor was he deposed. Dr. Stein reviewed Dr. Barnes’ records and indicated that according to Dr. Barnes: “Lake was . . . complaining of bilateral arm pain and numbness as well as low back pain, right leg pain. He reported being struck by a 600 pound dump trailer liner in May with symptomatology since the accident.”
On September 3, 2008, Lake had an MRI of his lumbar spine. A report of this procedure revealed:
“Severe congenital short pedicle spinal stenosis is noted diffusely from the lower thoracic region to L5. There is a broad-based disk protrusion noted at T11-T12 causing impingement on the distal thoracic cord with a focus of abnormal signal within the thoracic cord at this level. The Ll-2 level demonstrates a broad-based disk protrusion causing mild impingement on both L2 nerve roots. The L3-4 level also demonstrates a diffusely prominent annulus resulting in mild acquired ste-nosis. The L4-5 level demonstrates a diffusely prominent central disk protrusion causing impingement on both L5 nerve roots.”
As a result of the MRI, Dr. Bames referred Lake to a board-certified neurosurgeon, Dr. Margaret Ellen Nichols, of the NeuroSpine Institute in Joplin, Missouri, for “thoracic and lumbar stenosis, leg pain, and arm numbness.”
On September 25, 2008, Lake saw Dr. Nichols and told her “his symptoms began on May 19, 2008, [sic] when he was moving a 600-pound bed liner with a forklift, the bed liner came off the forklift and pinned him between the bed liner and truck bed.” Lake said that “he had immediate numbness in his right leg, down the back of the leg to the mid lower leg, and also developed lumbar pain and numbness in both arms.” Dr. Nichols did not believe the MRI of Lake’s lumbar spine explained the symptoms in his upper body and arms. She ordered MRIs of Lake’s cervical and thoracic .spine.
On October 2, 2008, the additional MRIs were performed. The MRI of the cervical spine showed:
“There is a central and left-sided disk herniation noted at C4-5 causing impingement on tire left C5 nerve root. Large central and right-sided broad-based disk herniation is noted at C5-6 causing impingement on both C6 nerve roots and moderate cord compression. Abnormal cord signal is noted in this location.”
The MRI of the thoracic spine revealed: “The thoracic canal is diffusely narrowed most likely on a congenital basis. Multilevel degenerative disk disease is noted with a broad-based central disk herniation noted at Tll-12. This causes mild cord compression with an area of abnormal cord signal at this level.” Dr. Nichols believed Lake needed immediate surgery to relieve the pressure on his spinal cord. She testified, “[T]he sooner the pressure is taken off the spinal cord the better the chances it will have of recovering, and we worry that the neurologic deficits can worsen over time.”
On October 17, 2008, Dr. Nichols performed a cervical decompression and fusion surgery with the assistance of another physician at the NeuroSpine Institute, Dr. Laurie L. Behm, who is board-certified in physical medicine and rehabilitation. Dr. Behm, in addition to assisting Dr. Nichols in surgery, provided care to patients and also prepared impairment ratings. On November 12,2008, Dr. Nichols performed a lumbar decompressive laminectomy on Lake.
Dr. Behm saw Lake for postsurgical care, and Dr. Nichols was still seeing Lake at the time of her deposition in May 2012. Lake had only minimal improvement after the surgeries, which Dr. Nichols attributed to permanent spinal cord damage. Dr. Behm would eventually rate Lake with a 60 percent whole body impairment, especially noting his muscle weakness and spasticity.
In her report, Dr. Nichols opined: “Because [Lake] had no pain or neurologic cdmplaints prior to the injury, I believe that the injury exacerbated preexisting cervical, thoracic, and lumbar stenosis, and that his spinal cord disfunction is directly related to the injuries at those levels.” Dr. Nichols testified at her deposition that despite Lake’s “congenitally narrow spinal canal,” his spinal cord was actually compressed only at the levels where Lake had “bulging discs.” The doctor attributed this condition to the work accident, testifying it was “likely that the accident caused or exacerbated the herniated disc at C5-6.”
Dr. Nichols arrived at the same causation opinion regarding the T11-T12 level, although she believed it was “somewhat less likely” there “because that was more of a disc protrusion than a herniation.” The doctor still believed the spinal cord compression at the T11-T12 level was “either caused by” the work accident or that it had “contributed” to it. Under cross-examination, Dr. Nichols testified she would expect Lake to have had symptoms within 1 week of the work accident if it had caused the symptoms. She said more particularly that if Lake “had no neurological complaints in July [2008], then I would think it unlikely that his neurologic problems later were related to the work injuiy.”
Dr. Behm similarly testified that Lake’s work accident “caused his neurological deficits.” Dr. Behm agreed on cross-examination that Lake had congenital conditions of the spine—specifically, shortened pedicles—but she mirrored Dr. Nichols’ opinion by distinguishing Lake’s congenital conditions from the spinal cord compression:
“You can look at a cervical canal and see how patent it is above and below the narrowing. If it’s patent up here and it’s patent down here, then the congenital narrowing really isn’t that much. But his stenosis or narrowing was from tire bulge, from tire disc coming back, and that’s not congenital or pre-existing for the most part. It could be if he had an injuiy some place else, but it’s not congenital.”
On November 30, 2009, Lake saw Dr. Stein, a board-certified neurosurgeon. According to Dr. Stein’s report, Lake said he experienced “ ‘immediate’ ” numbness in his right arm and leg after the work accident. Lake said he reported the symptoms to Jessee Trucking and continued working the best he could. Lake said the situation continued to worsen over time until he started dragging his right leg. Lake also reported that “ ‘the lady in charge’ ” at Jessee Trucking told him “ ‘to go see a chiropractor.’ ”
Upon examination, Dr. Stein found Lake had “[n]umbness and tingling ... in both hands, from the waist to the knee in the left lower extremity, and throughout the right lower extremity.” Lake was now reporting “difficulty with both urine and bowel control.” He was also using “a four-point cane for walking and balance.”
Dr. Stein arrived at a diagnosis:
“Mr. Lake has a cervical myelopatlry and, likely, some element of lower thoracic myelopathy. The pathology behind his spinal cord compression is multifocal; 1. A spinal canal that is congenitally narrow in several locations due to short pedicles, predisposing to spinal cord compression. 2. Degenerative disease with osteophyte formation combined with ligamentous enlargement and disk protrusion.”
Dr. Stein rated Lake as having a 55 percent whole body impairment. With respect to causation, tire doctor opined:
“There is a question regarding causation and the relationship of the pathology to a work incident which apparently occurred on 5/16/08. Questions arise because Mr. Lake reports ... the immediate onset of numbness in the light lower extremity and pain after the incident at work. However, when he presented at St. John’s ... on 5/21/08 with substantial GI complaints, there was no history given or noted regarding spinal complaints such as neck or back pain or numbness in the extremities. lie presented to the chiropractor on 7/8/08 with complaints of low back pain which was characterized by the chiropractor as ‘chronic’ and for which the patient reported an unknown onset. There was no report of the injury which apparently occurred on 5/16/08. It was not until 8/26/08, at the office of his primary care physician, that Mr. Lake reported the work incident and related it to a variety of spinal origin symptoms. I have no mechanism based on purely medical information from which to determine whether the symptomatology was causally related to the work incident. This type of symptomatology frequently comes on without the benefit of trauma. Other information might be more beneficial in making a determination such as: 1. Documentation that this work incident actually occurred. 2. Documentation that Mr. Lake reported initial symptomatology to Iris employer on the day of injury, as he states today. 3. Documentation as to whether Mr. Lake was having difficulty performing his work activities in the month immediately following tlie work incident as he indicates today. Absent such documentation, I cannot make a statement one way or the other as to whether there is a causal relationship between the alleged work incident and the symptomatol-ogy.” (Emphasis added.)
Counsel for Jessee Trucking prepared unsworn statements for signature by Rick, Brent, and Palmer, whose depositions had yet to be taken in the workers compensation proceedings. Rick signed his statement, which stated that he was not present at the time of the work accident and that Lake had not reported an injury or exhibited signs of injury in the 30 days following the work accident. He further indicated that he learned of the work accident in October 2008 “when I noticed for the first time that [Lake] was limping.” Later, at Rick’s deposition, Lake’s counsel objected to the admission of his statement “to the extent that he testified inconsistently to portions of it in today’s deposition.” Brent also signed his statement, which was similar to his deposition testimony.
Palmer refused to sign the statement prepared by counsel for Jessee Trucking. Palmer testified he had spoken by telephone with an assistant to counsel for Jessee Trucking. Palmer said when he received a draft of the statement, however, “it was all twisted up,” so he “told her that I would not sign it.” Palmer’s unsigned statement is in the record. It says Lake “was walking fine” after the incident, Palmer did not hear Lake “tell Brent about the accident,” and:
“I worked witli [Lake] for two and a half weeks after tire incident, until I left Jessee Trucking on June 2, 2008. Until I left Jessee Trucking, I spoke witli [Lake] and had the opportunity to observe him on a daily basis, and he seemed fine. He didn’t complain of pain or numbness in his back, neck, hands or legs. He was walking fine, he could do his job, and I didn’t notice anything different about him.”
Palmer testified these representations, prepared by counsel for Jes-see Trucking, were not true.
Counsel for Jessee Trucking apparently provided the statements of both Rick and Brent to Dr. Stein. Dr. Stein produced a supplemental report stating: “Clearly, there is a disconnect between the above two statements and that which I was told by Mr. Lake.” The doctor repeated that he could not “state, within a reasonable degree of medical probability and certainty, that an incident at work on 5/16/08 was responsible for the myelopathy and treatment related thereto.”
Counsel for Lake then provided Dr. Stein with a copy of Lake’s discoveiy deposition (which is not in the record), and the doctor produced another supplemental report. The doctor believed that “[i]n the deposition, Mr. Lake provided information veiy similar to that which he gave me.” The doctor concluded: “I cannot rule out a contribution from the incident of 5/16/08 but there is no definitive indication in the records to allow a causal relationship to be determined within a reasonable degree of medical probability. The cervical stenosis was preexisting and this type of symptoma-tology frequently occurs without trauma.”
In his deposition, Dr. Stein said Lake’s short pedicles and the degenerative changes in his discs preexisted the work accident, but that he could not “make a definitive statement about the disc herniation . . . .” The doctor also said the “stenosis was likely present prior to the event as it is related to . . . the congenitally narrow canal from the short pedicles and the degenerative change.” Dr. Stein thought Lake’s work accident did not cause his injuries if he had no symptoms for a “week or two” after the incident. The doctor opined that Lake would have experienced “some of these symptoms” within that time period.
Dr. Stein agreed, however, that if Lake’s account of symptoms immediately following the work accident were credited, the accident probably caused his symptoms. Dr. Stein conceded that the test was the timing of the symptoms, not when Lake actually sought medical care. The doctor agreed he did not know whether Lake was telling the truth regarding his symptoms and did not know whether the individuals associated with Jessee Trucking were telling the truth. He stated: “I’m not saying drat Mr. Lake is not telling the truth, I don’t know what happened, all I can say is that he says one thing, but there is no documentation of it. That’s all I can do from a medical standpoint.”
When Lake continued to experience numbness and weakness in his right hand after the back surgeries, testing showed problems with the ulnar nerve in his right elbow. Dr. Nichols recommended surgery, and the ALJ referred Lake to Dr. Lynn Ketchum, a board-certified hand surgeon, for an independent medical evaluation.
On August 12, 2010, Lake recounted his medical history to Dr. Ketchum, which the doctor reported as follows:
“Mr. Lake is right-hand dominant and has problems with his right upper extremity, which he denies having prior to beginning work at Jessee Trucking .... He had a specific accident on May 16, 2008, when he was unloading a bedliner on a truck. Because of a forklift problem, the bedliner came down and pinned him between the bedliner and the back of the trailer. ... At the time of the injury his right elbow was also pinned, and when he tried to extricate himself he noticed that immediately the ulnar three digits in his right hand were numb, and that he had lost feeling in them.” ,
On October 20, 2010, Dr. Ketchum performed a right cubital tunnel release. This surgery provided some relief to Lake, although the doctor still rated Lake at a 25 percent impairment rating of his upper right extremity “based on the diagnosis of moderate compression of the ulnar nerve at the elbow, and weakness.” In his report, Dr. Ketchum opined: “[T]he prevailing factor in the cause of the right cubital tunnel syndrome was the pinning of the right elbow at the time of [Lake’s] accident, on May 16, 2008.”
Dr. Ketchum was questioned about his causation opinion at his deposition. He responded: “It was because [Lake], on repeated questioning, denied having any problems with that upper right extremity and that immediately upon extricating himself from . . . being pinned between the bedliner and the truck, he noticed numbness in the ulnar three digits of that right hand.” During cross-examination, Dr. Ketchum agreed that Dr. Barnes’ notes of August 26, 2008, appeared “to be the first reference ... in the medical records of the right upper extremity problems.” When asked whether the absence of an earlier reference would “change your opinion regarding whether the work event of May 16 was the cause of the right ulnar nerve compression,” the doctor stated: “[M]y answer to that is . . . that in many instances I see when people go to a specific doctor, they go to them for their chief complaint. And that’s the focus. And sometimes other complaints which are considered less troublesome are not brought up.”
On October 28, 2011,' Lake was examined by Dr.- Prostic, a board-certified orthopedic surgeon. Lake again recounted the work accident of May 16, 2008, saying that “he recognized injuiy immediately but did not seek medical attention at the time.” Lake made the same complaints as before but now added “absent sexual function.” In his report Dr. Prostic stated that Lake had a “preexisting congenitally small spinal canal” and had also “sustained injuries to his spine during the course of his employment.” The doctor assigned a 73 percent whole body impairment rating, which included the 25 percent impairment of tire upper right extremity, a consideration taken into account by Dr. Behm but not by Dr. Stein. Dr. Prostic also considered Lake’s bowel and bladder incontinence in his calculation, unlike Dr. Behm who simply noted the incontinence.
In his deposition, Dr. Prostic said Lake “had sprains and strains of his spine perhaps with herniation of disc superimposed upon preexisting spinal stenosis and degenerative disc disease with development of spinal cord contusions.” When asked whether Lake’s delay in seeking medical attention would “cause you any concern as to whether the injuries he sustained were a result of the bedli-ner,” the doctor said: “[V]ery commonly people with symptoms of cervical or lumbar spinal stenosis have it increase gradually rather than all of a sudden.” Dr. Prostic suggested that because Lake “did not recognize a major injury to the neck or back immediately, I drink it’s most likely that he had some preexisting disc protrusions at both levels and that he had a worsening from die work accident on May 16, 2008.” The doctor drought Lake was at “a very young age for having symptoms of spinal stenosis, and especially for having it in two separate areas,” if trauma were not, in fact, a cause.
Dr. Prostic testified he would expect symptoms by early June 2008 if the work accident had caused the symptoms. He also said that if Lake “truly ha[d] no symptoms for several weeks, then it’s rather hard to say tirat it’s the work event rather tiran being unrelated to work.” The doctor also stated that if Lake had no symptoms in his upper extremities by July 2008, “tiren I could change my opinion.”
Lake filed his workers compensation claim on October 17,2008. More than 3 years later, on February 6, 2012, Lake personally appeared for the workers compensation hearing to testify before tire ALJ. In addition to tire facts already related, Lake testified that after the work accident he could do “[sjome” of his duties, “like ordering parts and stuff like tirat.” Lake said he needed help, however, for the “physical parts” of his job.
Lake answered affirmatively when asked if he had reported his work injury while hospitalized at St. John’s. Lake agreed that he told hospital staff his “leg and back . . . [were] hurting.” Lake also said that “[t]hey gave me pain medication for my back and my arm.” Lake again answered affirmatively when asked whether he had told Dr. McDaniel about his work injury. However, Lake was not questioned on the specifics of his statements to Dr. McDaniel about his symptoms.
Describing his current condition to the ALJ, Lake testified that his right leg was numb “from tire waist down” and did not function at all. Lake said he had feeling to the knee of his left leg and that it functioned partially. He complained of continuous neck pain and testified he was unable to look up or down. Lake rated his back pain at 7 on a scale of 1-10 during the hearing, saying he could “get it down to a four if I lay on the couch all day like I usually do.” Lake said that after his arm surgery, “I’ve got three fingers back and the thumb, and the pinkie one is dead, no bend, no range of motion at all.” Lake confirmed that he was receiving Social Security disability payments.
After considering all the evidence presented, including Lake’s personal testimony, the ALJ found that Lake “was suffering ill effects from his injury at the time of the accident, per his testimony and that of Mr. Palmer.” The ALJ further found that “the medical evidence indicates a man [Lake’s] age could not have suffered injuries of the magnitude to his spine without significant trauma. The only evidence of trauma in the record is when the bed-liner [pinned] Mr. Lake against the truck trailer.”
Accordingly, the ALJ held that Lake “suffered personal injury by accident which arose out of and occurred in the course of his employment with [Jessee Trucking].” With regard to the nature and extent of the disability, the ALJ noted: “Four physicians offered opinions of functional impairment. One of those, Dr. Stein .. ., wrote in his report that he could not draw a definite conclusion about tire causation of [Lake’s] injuries within a reasonable degree of medical certainty.” Of the remaining doctors, Dr. Ketchum’s rating was incorporated into the ratings by Dr. Behm and Dr. Pros-tic, and since Dr. Prostic had included Lake’s incontinence while Dr. Behm had not, the ALJ accepted Dr. Prostic’s rating. The ALJ concluded Lake had a functional impairment of 73 percent to his body as a whole, had a permanent total disability, and should be awarded tire statutory cap of $125,000 plus medical expenses and ongoing medical care.
After tire ALJ’s ruling, Jessee Trucking applied for review by the Board. Upon its consideration of the record, the Board found the work accident had occurred, including that Lake “attempted to free the bed liner by sticking his arm in a hole in the bed liner, picking it up and telling Mr. Palmer to back up.” The Board also accepted that Lake “screamed and tried to get free by jerking his right arm out of the hole, pushing the ground with his right leg and twisting his neck and back.”
The Board concluded that Lake “had an accidental injuiy arising out of and in the course of his employment on May 16,2008, when he was momentarily pinned between tire bed liner and trailer.” The Board, however, limited this injuiy to a “groin strain,” for which it made no award of compensation.
With regard to Lake’s neurological injuries, the Board found that Lake had not told medical personnel at St. John’s of his symptoms. The Board also found Dr. McDaniel’s notes did not mention the work accident or “neck, upper extremity or lower extremity complaints.” The Board found it “difficult to grasp why [Lake] would not have voiced complaints of arm and leg numbness and tingling to medical professionals until August 2008.” The Board concluded:
“The Board finds that if [Lake] suffered a traumatic injury severe enough to cause his need for three surgeries, his diffuse complaints would have existed when he went to St. John’s and when seen by Dr. McDaniel. The Board cannot conclude [Lake] simply suffered with his various neck, arm, back and leg symptoms until finally seeing his primary care physician, Dr. Barnes, on August 26, 2008. The Board finds that [Lake] failed in his burden of proving such symptoms were due to his May 16, 2008 accident, primarily based on tire medical testimony that such symptoms should have been present by at least early-June 2008.”
The Board reversed the ALJ’s award of compensation for a permanent total disability, holding that Lake “did not meet his burden of proving any other personal injuiy arising out of or in the course of his employment.” Lake appeals.
Is the Board’s Finding that Lake’s Neurological Injuries Did Not Arise Out of His Employment Supported by Competent Evidence Viewed in Light of the Record as a Whole?
On appeal, Lake contends “the medical evidence proves [he] suffered injuries to his spinal cord and arm” from the work accident at Jessee Trucking. Lake notes the “only doctor that questions the causal connection ... is Dr. Stein who was hired by” Jessee Trucking and that “even he could not say conclusively [that the] injuries were not related to the work accident.” Jessee Trucking responds that “tire Board made an implicit assessment of [Lake’s] credibility based on the apparent severity of his allegedly ‘immediate’ onset symptoms and the substantial delay in which he opted to seek treatment for them.” Jessee Trucking maintains the Board’s “assessment of [Lake’s] credibility was supported by substantial competent evidence in the total absence of corroborating medical documentation. ”
We begin our analysis with a review of relevant workers compensation statutes and caselaw. Lake is owed compensation if he suffered “personal injuiy by accident arising out of and in the course of employment.” K.S.A. 44-501(a). The parties do not dispute that Lake was working in the course of his employment. The issue is therefore whether Lake’s injuries arose out of that employment. “ ‘[A]n injury arises “out of’ employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.’ [Citations omitted.]” Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2006). “The claimant has the burden to show that an injuiy, disease, or condition arose out of the employment.” Chriestenson v. Russell Stover Candies, 46 Kan. App. 2d 453, Syl. ¶ 4, 263 P.3d 821 (2011), rev. denied 294 Kan. 943 (2012); see K.S.A. 44-501(a).
On appeal, an appellate court’s standard of review for cases brought under the Workers Compensation Act, K.S.A. 44-501 et seq., is controlled by the Kansas Judicial Review Act (KJRA). See K.S.A. 77-601 et seq.; K.S.A. 44-556. As an appellate court, we review the Board’s factual findings to determine if those findings are supported by substantial evidence “viewed in light of the record as a whole.” K.S.A. 2012 Supp. 77-621(c)(7); L. 2009, ch. 109, sec. 28; see Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 362-63, 212 P.3d 239 (2009). Jessee Trucking agrees that we review for substantial evidence. Substantial evidence is defined as that which “a reasonable person might accept as being sufficient to support a conclusion.” Herrera-Gallegos, 42 Kan. App. 2d at 363.
“ ‘[I]n light of the record as a whole’ means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding, including anij determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency’s explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, die court shall not reweigh the evidence or engage in de novo review.” (Emphasis added.) K.S.A. 2012 Supp. 77-621(d).
Moreover, appellate courts should “examine whether the evidence supporting the Board’s decision has been so undermined by other evidence that it is insufficient to support the Board’s conclusion.” Olds-Carter v. Lakeshore Farms, Inc., 45 Kan. App. 2d 390, 395, 250 P.3d 825 (2011) (citing Herrera-Gallegos, 42 Kan. App. 2d at 363). We must “consider the credibility determination that the hearing officer made,” and “[i]f the agency head, here the Board, does not agree with those credibility determinations, the agency should give its reasons for disagreeing.” Kotnour v. City of Overland Park, 43 Kan. App. 2d 833, 837, 233 P.3d 299 (2010), rev. denied 293 Kan. 1107 (2012). We will then “consider the agency’s explanation as to why the relevant evidence in the record supports its material factual findings.” 43 Kan. App. 2d at 837.
An analytical roadmap for appellate review in an analogous workers compensation case was provided in Rausch v. Sears Roebuck & Co., 46 Kan. App. 2d 338, 341-45, 263 P.3d 194 (2011), rev. denied 293 Kan. 1107 (2012). In Rausch, the ALJ held that Kausch, a workers compensation claimant, had met her burden of proof on causation. The Board disagreed, finding that Rausch was not credible. On appeal, our court outlined the reasons the Board gave for its credibility determination and analyzed whether they constituted “legitimate reasons for the Board to question Rausch’s credibility.” 46 Kan. App. 2d at 344. We will employ a similar analysis in this case by evaluating whether the individual reasons given by the Board to discount Lake’s sworn testimony that he experienced symptoms of back and arm injuries during or shortly after the work accident were supported by the evidence. In this way, we will answer the central question posed by this appeal: Is the Board’s finding that Lake’s neurological injuries did not arise out of his employment supported by substantial evidence viewed in light of the record as a whole?
Lake’s Failure to Prompthj Obtain Medical Treatment
In its ruling, the Board emphasized that Lake’s sworn testimony about his immediate neurological symptoms was incredible because he had not sought immediate medical treatment: “The symptoms [Lake] reported having immediately or shortly after his work accident would seem to be the sort of symptoms that would compel him to seek medical treatment immediately.” Although the Board did not acknowledge it, this finding was predicated on a presumption—that Lake was the sort of person who would feel compelled by the onset of neurological symptoms to seek immediate medical treatment.
The Board did not identify any evidence in the record supporting this finding or the presumption upon which it was based. Considering the Board relied on this finding when disregarding the ALJ’s determination of Lake’s veracity, the Board’s failure to identify any supporting evidence is disconcerting. Having independently reviewed the record, however, we conclude the Board’s finding was not supported by any substantial evidence.
On the other hand, there was evidence to support the notion that Lake was not the sort of person inclined to promptly seek medical treatment when confronted with serious health issues. In particular, we note his delayed response to suffering from serious gastrointestinal disorders. Instead of seeking immediate treatment, Lake ignored the symptoms until they worsened to the extent it was necessary for him to be taken by ambulance to St. John’s. We could add that Dr. Nichols’ report showed that Lake had an abnormally elevated and untreated blood pressure of 200/106. Lake also reported consuming a six-pack of beer daily, and said he had used five cans of chewing tobacco a week for 20 years.
Because this evidence was uncontested, the Board’s finding based on a presumption leaves us with a person who disregarded his health care in other situations, yet was expected to seek immediate treatment of neurological symptoms. We do not find any evidence to support such inconsistent traits or behaviors in Lake, nor does reason or common experience suggest it. The Board’s finding that Lake’s claimed neurological symptoms were not credible because he did not seek immediate medical treatment was unsupported by the record, while evidence to the contrary was presented during the proceedings.
No Mention of Work Accident or Neurological Symptoms in Selected Medical Records
The Board also found Lake’s testimony about his immediate neurological symptoms was incredible because those symptoms were not mentioned in the medical records from St. John’s and Dr. McDaniel. The Board specifically found: “[T]here is no mention of the accident or [Lake’s] asserted immediate symptoms in the St. John’s records or in Dr. McDaniel’s records.” The Board thought it “troubling that [Lake] actually obtained medical treatment at St. John’s in May 2008 and with Dr. McDaniel in July 2008, both on his own accord, without malting mention of his accident or his diffuse symptoms.”
The importance placed by the Board on the apparent absence of Lake’s mention of neurological symptoms or the work accident in the St. John’s records is overstated. The St. John’s records were never in evidence for review. Testimony submitted to the Board regarding those records revealed next to nothing about them, including whether they typically would have included complaints unrelated to the gastrointestinal disorders for which Lake was emer- gently admitted to the medical center. The evidence showed only that two doctors who reviewed the St. John’s medical records did not recall any mention of neurological symptoms or Lake’s work accident.
We conclude this testimony was not substantial evidence supporting the Board’s disregard of the ALJ’s determination that Lake’s testimony was truthful when he stated that he noticed a range of neurological symptoms within a relatively short time after the work accident. In other words, a reasonable person would not consider the doctors’ testimony about their review of tire medical records sufficient by itself to support a conclusion that Lake was not experiencing neurological symptoms while being treated for serious gastrointestinal disorders at St. John’s.
With regard to Dr. McDaniel’s records, during Lake’s testimony he was never questioned regarding any statements that he made to the doctor about the onset of his symptoms or their cause. Moreover, Dr. McDaniel had no recollection of Lake’s statements because he did not even remember evaluating him. With this context, the Board relied on the doctor’s cursoiy handwritten notes from his clinical records for evidence of Lake’s statements about his medical complaints. The Board also relied on Dr. McDaniel’s testimony that he would have written down other symptoms if Lake had reported them. If we consider tire very high volume of Dr. McDaniel’s practice and the perfunctory nature of the three pages of medical records, this evidence was hardly sufficient for the Board’s finding that Lake never mentioned his work accident or his symptoms to Dr. McDaniel.
Contrary to the Board’s finding, however, Dr. McDaniel recorded that Lake had sharp back pain radiating near his buttocks and that the onset of Lake’s symptoms “may be work related.” These entries were at least a mention, and arguably some corroboration, of Lake’s testimony that his accident was work related.
For all these reasons, we find the Board’s inference from the limited medical records to be overstated. Dr. McDaniel’s records confirm that Lake saw the chiropractor in early July 2008. When considered together with Lake’s uncontroverted testimony that he waited more than 2 weeks for this appointment, Lake was clearly experiencing some back symptoms by June 2008-—only 1 month after his work accident. The only question would be tire specific type and degree of symptoms, and in this regard Dr. McDaniel’s perfunctory records were simply insufficient to support the Board’s disregard of the ALJ’s determination of Lake’s veracity.
Next, in questioning Lake’s truthfulness, the Board highlighted his testimony that Downs (Jessee Trucking’s dispatcher) had referred him to a chiropractor. The Board found this testimony was “not credible” because Lake “listed in [Dr. McDaniel’s] patient information sheet that he was referred by ‘Mike Lake.’ ”
Lake testified at the regular hearing:
“Q. At some point you asked to go to the doctor, correct, for your leg and arm?
“A. At some point, yes.
“Q. And it looks like from the record you first started seeing a chiropractor in July?
“A. Yes.
“Q. And that would have been—
“Q. That’s who I was told to go to by [Downs].”
“Q. . . . You told both [Downs] and [Beck] that you were still hurting?
“A. Yes.
“Q. And they suggested that you go to a chiropractor?
“A. [Downs] did.”
Unlike the Board, we do not see a contradiction between Lake’s testimony and Dr. McDaniel’s patient information sheet. Lake’s testimony was that Downs told him to see a chiropractor. While this could mean that Downs specifically referred Lake to Dr. McDaniel, Lake did not explicitly say so. Lake’s testimony also could be read fairly to mean that Downs told Lake to see an unnamed chiropractor and then Mike Lake specifically referred him to Dr. McDaniel. Of course, this is all a matter of speculation because Downs never testified in the proceedings to either confirm or contradict Lake’s testimony. There was simply scant and ambiguous evidence regarding the tangential issue of how Lake came to visit Dr. McDaniel. In summary, for all of the reasons stated, we conclude the St. John’s and Dr. McDaniel’s medical records did not provide substantial evidence to discount Lake’s sworn testimony.
Lack of a Full Range of Neurological Symptoms Shortly After the Work Accident
On several occasions in its opinion, the Board implicitly found that if the work accident was the cause of Lake’s neurological symptoms, he would have experienced the full range of these symptoms soon after his work accident.
One example is the Board’s treatment of Dr. Ketchum’s causation opinion, which the Board discussed in its findings of fact:
“Dr. Ketchum testified the cause of [Lake’s] right cubital syndrome was the May 16, 2008 accident. . . . Dr. Ketchum testified that it was his understanding that [Lake’s] right elbow problems occurred immediately as a result of the accident. He agreed the first mention of [Lake] having right upper extremity complaints was in Dr. Barnes’ August 2008 report and the St. John’s and chiropractic records made no such mention of right arm problems. Dr. Ketchum stated [Lake’s] right elbow problems could have worsened over time if [Lake] had a contusion that caused bleeding, which in turn would cause scar tissue. However, Dr. Ketchum agreed his operative report contained no mention that scarring was ever identified.”
The Board surmised that Lake’s symptoms in his right arm would have occurred earlier if the work accident had caused the symptoms:
“While it is possible [Lake’s] accidental injury could have caused swelling to develop slowly within [Lake’s] spine, causing pressure on the spinal cord and resulting in [Lake’s] arm and leg symptoms, there is no credible medical evidence to support such theory. The majority of the medical experts testified [Lake’s] arm and leg symptoms should have been identifiable within a finite period of time, within a few days or by early-June 2008, not by late-August, 2008. No doctor provided a credible reason why [Lake] would have delayed onset of symptoms if the accident caused his injuries and need for emergency surgeries in late-September and mid-October 2008.”
We disagree. Based on our independent review of the record, we do not find substantial evidence supporting the Board’s findings. Lake testified to a gradual increase in his symptoms, and even the testimony of Rick and Brent provided some corroboration of this testimony. Dr. Ketchum testified that upper extremity symptoms like those experienced by Lake could worsen over time, and contrary to the Board’s implication, he also thought his operative report was “compatible” with the existence of scar tissue. Dr. McDaniel specifically testified it was “not uncommon” for the symptoms of a disc injury or spinal cord compression to worsen over time. Dr. Nichols testified that surgery was necessary to arrest Lake’s decline, which clearly meant his symptoms were worsening over time. Dr. Stein testified that “you would certainly expect some of these symptoms to start reasonably soon after the incident.” (Emphasis added.) Finally, Dr. Prostic testified that symptoms like Lake’s “can gradually get worse and you can pick up progressively more symptoms as time goes on.” In fact, Dr. Prostic testified it was “common” for symptoms to grow worse over time.
In summary, we do not find evidentiary support for what the Board called the “majority” medical opinion that Lake’s “arm and leg symptoms should have been identifiable within a finite period of time, within a few days or by early-June 2008.” The medical testimony was more generalized and nuanced. While substantial expert medical evidence supported a conclusion that some neurological symptoms should have been experienced within a week or two—which Lake clearly testified he experienced and Palmer testified he noticed—a majority of the doctors did not specify the symptoms they would expect within that short time frame. Considering the record as a whole, we hold there was not substantial evidence to support the Board’s finding that Lake’s sworn testimony that he experienced some symptoms consistent with neurological injuries within a short time after the work accident was not credible.
Conclusion
There was considerable undisputed testimony proving many aspects of Lake’s workers compensation claim. First, the fact that Lake was involved in a work accident on May 16, -2008, was un-controverted. Second, Lake’s and Palmer’s eyewitness accounts of die manner in which the work accident occurred were also uncontested. Third, even the Board concluded that Lake had sustained an injury, albeit a minor one, during this work accident. Fourth, there was no evidence tiiat Lake had ever sustained a neck, back, or right arm-injury prior to the work accident. Fifth, on the other hand, there wasmo evidence of trauma to Lake’s neck, back, or right arm after the work accident and before the extent of his back condition was fully revealed in the fall of 2008 by the three MRI studies of his spine. Moreover, it was uncontroverted that Lake underwent three surgeries in an effort to alleviate his back and arm conditions. Finally, Lake’s permanent total disability was apparent and well-supported by medical testimony.
The critical issue presented to the ALJ was the cause of Lake’s injuries. Lake bore the burden to prove this aspect of his claim. See Chriestenson, 46 Kan. App. 2d 453, Syl. ¶ 4. The ALJ had the opportunity to evaluate Lake’s testimony when he appeared in person under oath before the ALJ. The ALJ credited Lake’s testimony, especially with regard to Lake’s assertion that he sustained the serious back and arm injuries as a result of the work accident. In particular, the ALJ found that Lake “was suffering ill effects from his injury at the time of the accident, per his testimony and that of Mr. Palmer.” (Emphasis added.)
As an appellate court, we are tasked under K.S.A. 2012 Supp. 77-621(d) with reviewing the total record, “including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness.” (Emphasis added.) This legal imperative to carefully consider a judicial officer’s personal determinations of veracity rather than formulating later credibility judgments based solely on transcripts and documentary evidence is consonant with the limited role of an appellate court generally: “One of the reasons that appellate courts do not assess witness credibility from the cold record is that the ability to observe the declarant is an important factor in determining whether he or she is being truthful.” State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008).
The Board was within its rights to discount the ALJ’s credibility determinations and provide reasons for its findings. See Kotnour, 43 Kan. App. 2d at 837. But the law requires those findings to be supported by substantial evidence in light of the record as a whole. See K.S.A. 2012 Supp. 77-612(c)(7), (d). The law does not allow the Board to discount an ALJ’s credibility determinations of a claimant based on presumptions, suppositions, and .cherry-picked record references of questionable or limited evidentiary value.
In the present case, the undisputed causation opinions of Drs. Nichols, Behm, Ketchum, and Prostic related Lake’s neurological injuries to the work accident. Dr. Stein’s uncertainty was based on a lack of documentation of Lake’s testimony that he suffered immediate symptoms—not on his medical opinion that the work accident as described could not have caused the neurological injuries. We recognize the Board “ ‘is not bound by medical evidence presented in the case and has the responsibility of making its own determination.’ ” Roskilly v. Boeing Co., 34 Kan. App. 2d 196, 199, 116 P.3d 38 (2005). We also recognize medical evidence is not necessary to prove causation generally. See Webber v. Automotive Controls Corp., 272 Kan. 700, 705, 35 P.3d 788 (2001). Yet the Board may not “disregard undisputed evidence that is not improbable, unreasonable, or untrustworthy. Such evidence must be regarded as conclusive. [Citations omitted.]” Casco v. Armour Swift-Eckrich, 283 Kan. 508, 515, 154 P.3d 494 (2007).
Because the question here is not the existence of a work accident, which tire Board found, or even of injury to Lake, which the Board found in the form of a pulled groin, but only of a link between the work accident and Lake’s neurological injuries, the causation opinions of Drs. Nichols, Behm, Ketchum, and Prostic do not seem improbable, unreasonable, or untrustworthy. We conclude that the weight of this medical evidence, coupled with the lack of substantial evidence to uphold the Board’s findings that Lake was not credible (contrary to the ALJ’s determination) and the evidence corroborating Lake’s testimony that he experienced neurological symptoms during and shortly after the accident, require reversal of the Board’s ruling. In short, we hold the Board’s findings of fact in support of its conclusion to deny compensation are not supported by substantial evidence viewed in light of the record as a whole. Accordingly, we reverse the Board’s order and remand with directions to reinstate the ALJ’s award of compensation.
Reversed and remanded with directions. | [
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Leben, J.:
Phillip Messer failed field-sobriety tests after a traffic stop and then failed an evidentiary breath test at the police station. At that point, having been told that he had the right to secure additional alcohol-concentration testing, Messer asked the officer for an independent blood test. Rather than taking Messer to a hospital to get a blood test, the officer told Messer that he could get that test on his own after he was released. Messer was able to leave within 45 minutes of his request, but he didn’t go to get a blood test after his release.
Messer asked the district court to exclude evidence of his failed breath test, citing K.S.A. 8-1004, under which that test result will be excluded if “the officer refuses to permit. . . additional testing” for the driver. The district court denied Messer’s request and convicted him based on the evidence.
Messer has appealed, again raising K.S.A. 8-1004. But that statute begins by providing that the person who takes the breath test given by an officer “shall have a reasonable opportunity to have an additional test by a physician of the person’s own choosing.” (Emphasis added.) Messer was released from custody within 45 minutes of making the request for additional testing—giving him a “reasonable opportunity” to get that testing done. Accordingly, the district court properly denied Messer’s request that the breath-test evidence be excluded; with that evidence, the district court’s conviction of Messer must- be affirmed.
Factual and Procedural Background
Messer was stopped in Overland Park for making an illegal Ilium at 1:22 a.m. on November 13, 2010. After Messer performed poorly on field-sobriety tests, the officer asked him to take a preliminary breath test. Messer refused, and the officer arrested him for a DUI offense.
After being taken to a nearby police station, Messer agreed to take tire Intoxilyzer 8000 breath test. He took that test at 2:38 a.m., registering a breath-alcohol concentration of .147—-well above the legal limit of .08.
Kansas law provides that a person must be advised of various rights as he or she goes through the process of being asked to take a preliminary breath test and, later, an evidentiary bi'eath test. Before giving Messer the evidentiary breath test, the officer gave Messer a required notice that Messer had a right to obtain additional testing:
“After completion of testing, you have the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.”
Sometime after Messer took the evidentiary breath test, he asked the officer for an additional blood test.
The officer responded that he wouldn’t take Messer to get a blood test but that Messer could get one himself once he was released or bonded out. The officer testified that his department’s policy was to take the suspect to get an additional test only if the suspect was to remain in custody. The officer also testified that Messer was released at 3:10 a.m. Video footage showed Messer leaving the police station at 3:21 a.m. Messer’s attorney told the district court that Messer didn’t get a blood test after he left the station.
Messer was charged with a third-offense DUI and with refusing to submit to a preliminar breath test. Before trial, he filed a motion to suppress the results of the evidentiary breath test, arguing that he was denied a reasonable opportunity to get additional testing. After an evidentiary hearing, the district court denied Messer’s motion.
The district court noted that the State argued that Messer was released at 3:10 a.m. (based on the officer’s testimony), while the defendant contended he was released at 3:20 a.m. The district court found that this 10-minute difference wasn’t important and that Messer was released “at most” 42 minutes after he requested additional testing. The court concluded that Messer had a reasonable opportunity to obtain additional testing and that the officer didn’t unreasonably interfere with Messer’s ability to obtain that test.
Before trial, Messer also made one other argument—that the 2011 amendments to the DUI statute should apply retroactively to offenses committed before 2011. The 2011 amendment provided that past DUI offenses that occurred before July 1, 2001, would no longer be counted for sentencing purposes. Thus, had the 2011 amendment been applied, one of Messer’s prior DUI offenses—a 2000 DUI diversion agreement—wouldn’t have been counted, and Messer’s 2010 offense would have become a second-time DUI. The district court rejected Messer’s argument, concluding that the statutes in place at the time of Messer’s 2010 offense applied.
The district court convicted Messer on both the DUI charge and the charge of refusing the preliminary breath test. Messer appealed to this court.
Analysis
I. The District Court Correctly Determined That Messer Was Given a Reasonable Opportunity to Obtain His Own Alcohol-Concentration Test.
Messer s main claim on appeal is that he wasn’t given a reasonable opportunity to get his own alcohol-concentration test. He claims that this violated his statutory rights, so we begin our analysis with the statutes that may apply. We cite to the statutes that were in effect at the time of Messer’s arrest in November 2010.
The main statutes we must consider are K.S.A. 2010 Supp. 8-1001, which gives law-enforcement officers the ability to request that a driver provide a breath, blood, or urine sample, and K.S.A. 8-1004, which provides that the driver be given a reasonable opportunity to obtain an independent test.
K.S.A. 2010 Supp. 8-1001(b) allows an officer to request testing in several circumstances, including where the officer has reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs. Messer doesn’t question the officer’s authority to request testing in this case. K.S.A. 2010 Supp. 8-1001(k) provides that the driver be given several notices both orally and in writing before the test is given. Among those is the notice Messer was given that he had a right—after the completion of die officer’s test—to “secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.” K.S.A. 2010 Supp. 8-1001(k)(10).
K.S.A. 8-1004 sets out the driver’s right to “a reasonable opportunity” to get an independent test. But the statute also provides a penalty—that the original breath test can’t be used in evidence— if the officer “refuses to permit” an independent test:
“Without limiting or affecting the provisions of K.S.A. 8-1001 and amendments thereto, the person tested shall have a reasonable opportunity to have an additional test by a physician of tire person’s own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8-1001 and amendments thereto shall not be competent in evidence.” (Emphasis added.) K.S.A. 8-1004.
From these statutes, the basic contours of a driver s right to an independent test are fairly clear, though the use of the term “reasonable opportunity” means that a bright-line test—a simple, straightforward test for making judicial decisions—isn’t possible here. Concepts of “reasonableness” always bring some element of opinion and subjective judgment into play, even though we attempt to arrive at an objective standard. But the language of K.S.A. 8-1004 helps us to determine what an officer can and can’t do when a driver wants to exercise his or her right to get an independent test:
• The officer can’t “refuse[] to permit such additional testing.” But the officer’s power over the driver lasts only as long as the driver is in custody. So this tells us that an officer can’t keep a person in custody indefinitely without—upon request—taking the person to get the independent test. But if the officer were to release the driver immediately after taking the evidentiary test, the officer couldn’t have “refuse[d] to permit such additional testing” because the driver would no longer have been under the officer’s control.
• It’s primarily the driver’s responsibility to obtain the independent test. The statute tells us that the test may be obtained from “a physician of the person’s own choosing,” and the statute simply calls for the “reasonable opportunity to have an additional test,” not for the State to provide a second test to the driver.
Let’s consider Messer’s case now within this context. Messer wasn’t released immediately after the officer’s evidentiary breath test. Rather, he first had to post a bond, promising to appear in court and perhaps agreeing to certain conditions intended to promote public safety. See K.S.A. 2010 Supp. 22-2802(1); K.S.A. 2010 Supp. 12-4213; K.S.A. 12-4301. We also presume that formal booking procedures are probably done after the evidentiary breath test has shown a result above the legal limit. But despite those steps in the release process, the time from Messer’s request of an independent test until his release on bond was fairly brief.
The district court concluded that Messer was released no more than 42 minutes after he requested additional testing. And we must accept the district court’s factual findings if they are supported by substantial evidence. State v. Johnson, 297 Kan. 210, 301 P.3d 287, 293 (2013). The officer’s breath test was done at 2:38 a.m. Messer requested the independent test sometime after that—2:39 a.m. would be a reasonable estimate in Messer’s favor. The video shows Messer leaving the police station 42 minutes later, at 3:21 a.m., and he obviously had posted his bond and been released sometime before he went out the front door of the station. So there is substantial evidence to support the district court’s factual finding on this point, which is the only factual issue on which there is any potential disagreement.
We now have substantially narrowed the question we must answer here: Messer was released from custody within 42 minutes of the request for an independent test and less than 2 hours after he had last been observed driving. In such a case, if the officer doesn’t take the driver to get the testing while he’s still in custody, has the officer refused to permit the independent test? On this ultimate legal question, we must provide our own answer, without any required deference to the district court. Johnson, 301 P.3d at 293.
We’ve already established that the officer doesn’t have an obligation to help the driver get an independent test if the driver is released from custody immediately after the officer administers the evidentiary test. But that would never happen, of course. Like Messer, the person usually has been arrested and must then post bond and go through some procedures to finish up the process.
So what of tire more typical situation—like Messer’s—in which the driver is in custody for a short time after asking for the independent test but is released without any evidence of delay designed to prevent him from getting a test? In such cases, the driver still has a reasonable opportunity to get the test, and officers haven’t prevented the driver from doing so. Thus, there is no basis to suppress evidence of the evidentiary test under K.S.A. 8-1004.
Surely that is so in Messer s case. He was released within 42 minutes after he made the request and within 2 hours of the time of the traffic stop. He still had a reasonable opportunity to obtain an independent test at the time he was released.
The result we reach is in line with two past .appellate decisions. In fact, these two opinions—City of Dodge City v. Turner, No. 89,467, 2004 WL 421969 (Kan. App. 2004) (unpublished opinion), rev. denied 278 Kan. 843 (2004), and State v. Huston, No. 90,758, 2004 WL 720126 (Kan. App. 2004) (unpublished opinion), rev. denied 278 Kan. 849 (2004)—are essentially indistinguishable from Messers case.
In Turner, the defendant was released from custody 50 minutes after he had requested an independent test and within 2 hours of the traffic stop. In Huston, the defendant was released 45 minutes after he had requested an independent test and 2 hours and 12 minutes after the traffic stop. In both cases, our court held that the driver had been given a reasonable opportunity to get the independent test. Turner, 2004 WL 421969, at *3; Huston, 2004 WL 720126, at *2. In Huston, the court added that the officer had done nothing that unreasonably interfered with the driver’s right to have an additional test. Huston, 2004 WL 720126, at *2.
Messer cites to another of our past cases, State v. George, 12 Kan. App. 2d 649, 754 P.2d 460 (1988), and it provides some support for his position. In George, the driver asked for an independent'test about an hour after he had taken the evidentiaxy breath test—but still less than 2 hours after the traffic stop. The driver was in custody, awaiting a bondsman or a family member to obtain his release. According to our court’s decision in George, an officer unreasonably “refused the request” for an independent test. 12 Kan. App. 2d at 651.
There were some other facts in the' George case to support our court’s conclusion that refusing the test was unreasonable under the circumstances presented. The court’s opinion tells us that the hospital where a blood test could have been given was only a few blocks from the police station. The defendant’s appellate brief includes testimony from the officer who administered the evidentiary breada test saying diat he would take George to the hospital for an independent test if he wanted one: “I told him after he submits to my testing that I would take him up to the hospital and he could have a blood test or any other test he wanted run, as available, at his expense.”
The State’s argument on appeal in George was a very limited one: The State simply argued that George had waited too long to request the independent test. In its brief, the State agreed that “[h]ad the Defendant asked for additional testing in [an earlier] conversation with the officer . . ., there would have been no question but that he was entitled to the independent testing.” But since George hadn’t requested the test until more than an hour after the evidentiary breath test, the State argued that “the delay in requesting additional testing rendered that request unreasonable.”
Our court disagreed, concluding that George didn’t have a reasonable opportunity to obtain the additional testing. The court emphasized that “[w]hat is a ‘reasonable opportunity’ will depend on the circumstances in each case.” 12 Kan. App. 2d at 653-54. The George court noted that “[n]othing in the record indicates that [the officer] was unable to comply widi George’s request for additional testing.” 12 Kan. App. 2d at 653.
There is one key fact from George on which we have no information—when he was released from custody. Neither the court’s opinion nor tire appellate briefs tell us.
Ultimately, since K.S.A. 8-1004 requires a reasonable opportunity to obtain an independent test, the question is one of reasonableness, which presents a judgment call. In George, where the officer said he’d take the driver to the hospital for an independent test at the driver’s request—and the hospital was only a few blocks away—our court held it was unreasonable not to take the driver to the hospital for the test when he made that request an hour later and was still in custody. In Turner and Huston, as in Messer’s case, the driver was released from custody less than 2 hours after the traffic stop and within 40 to 50 minutes after making the request for an independent test. Unlike George, no promise had been made in Turner, Huston, or here to give the defendant a ride to the hospital for independent testing.
In our judgment, Messer had a reasonable opportunity to obtain independent testing, and that’s all that the statute requires. The district court properly denied his motion to suppress evidence of his breath-test result.
II. The District Court Correctly Applied the Sentencing Statutes in Effect at the Time of Messers Offense to Sentence Him.
Messer raises one other issue on his appeal—that the 2011 amendments to the Kansas DUI statute should have been applied when he was sentenced. The 2011 amendments, which became effective July 1, 2011, provide that when determining whether a conviction is a first, second, third, or subsequent conviction, “only convictions occurring on or after July 1, 2001, shall be taken into account.” K.S.A. 2011 Supp. 8-1567(j)(3). In contrast, at the time of Messer’s offense, the statute provided that “any [DUI] convictions occurring during a person’s lifetime shall be taken into account when determining the sentence to be imposed.” (Emphasis added.) K.S.A. 2010 Supp. 8-1567(o)(3). Determining whether the 2011 amendment should be applied when sentencing for a DUI offense that occurred in 2010, like Messer’s, is a matter of statutory interpretation, a legal question that appellate courts determine independently, without any required deference to the district court. State v. Mason, 294 Kan. 675, 676, 279 P.3d 707 (2012).
Whether to apply the 2011 amendments when sentencing Messer is important because his 2000 diversion agreement for DUI would no longer be considered. That would make the 2010 offense a second-offense DUI, which is a misdemeanor, rather than a third-offense DUI, which is a felony. See K.S.A. 2010 Supp. 8-1567(f)(1); K.S.A. 2011 Supp. 8-1567(b)(l)(A). The penalties for the second-offense, misdemeanor DUI are—not surprisingly—less than those for the third-offense, felony DUI.
But the general rule in Kansas is that a defendant is sentenced based on the law in effect when the crime was committed. State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010); State v. Walker, 277 Kan. 849, 850, 89 P.3d 920 (2004). As a policy matter, “having the penalty parameters for an offense ‘fixed as of the date of the commission of the offense is fair, logical and easy to apply.’ ” Wil liams, 291 Kan. at 560 (quoting State v. Vandervort, 276 Kan. 164, 180, 72 P.3d 925 [2003]). In addition, a statute generally operates prospectively (applying only to future events) unless the language of the statute clearly makes the statute retroactive (thus applying its provisions to earlier events, such as the acts constituting a crime). The only exception to this rule is if the statutory change is procedural or remedial in nature and does not prejudicially affect the parties’ substantive rights—rights that can be enforced by law. Williams, 291 Kan. at 557.
Messer argues that the 2011 amendment regarding which past DUI offenses would count should be applied retroactively because the amendment contains plain language indicating retroactivity, the amendment is procedural in nature, interpretation of the whole act indicates that this section should be applied retroactively, and failing to apply this section retroactively would lead to unreasonable results. But several panels of this court have rejected arguments nearly identical to those raised by Messer. See State v. Reese, 48 Kan. App. 2d 87, 91, 283 P.3d 233 (2012), petition for rev. filed September 4, 2012. The Reese decision thoroughly considered retroactive application of the amendment and rejected retroactivity as inconsistent with settled Kansas authority considering changes in sentencing statutes. 48 Kan. App. 2d at 88-91. Since Reese was decided, all of the decisions of this court that we’re aware of have agreed with Reese’s analysis. See, e.g., State v. Cox, No. 107,741, 2013 WL 2321173 (Kan. App. 2013) (unpublished opinion), petition for rev. filed June 13, 2013; State v. Shafer, No. 107,988, 2013 WL 2321186, at *2 (Kan. App. 2013) (unpublished opinion), petition for rev. filed June 13, 2013; State v. Miller, No. 108,302, 2013 WL 1943153, at *6 (Kan. App. 2013) (unpublished opinion); State v. Ulrich, No. 107,785, 2012 WL 5869662, at *1-4 (Kan. App. 2012) (unpublished opinion), petition for rev. filed December 17, 2012; State v. Schmidt, No. 107,581, 2012 WL 4121132, at *1 (Kan. App. 2012) (unpublished opinion); see also State v. Thacker, No. 107,464, 2012 WL 3136812, at *1-2 (Kan. App. 2012) (unpublished opinion) (decided.before Reese; refusing to apply 2011 amendments retroactively), petition for rev. filed August 22, 2012.
We also agree with the Reese decision and adopt its analysis. In Reese, this court upheld the district court’s finding that the amendment to the “look-back” statute was a substantive change in the law that should not be applied retroactively. 48 Kan. App. 2d at 90-91. The Reese court concluded it should apply the Kansas Supreme Court’s finding from Williams, 291 Kan. at 557, that a statutory amendment modifying the severity of punishment for a conviction affects the defendant’s substantive rights, and therefore only operates prospectively. Reese, 48 Kan. App. 2d at 90.
Furthermore, the Reese court rejected an argument that under the plain language of the statute, the date of sentencing should be used to determine which version of the statute to apply. 48 Kan. App. 2d at 89-90. The Reese court based its decision on the fact that the legislature explicitly provided for retroactive application of other aspects of the act in which this amendment to the “look-back” statute was included, so the legislature’s failure to explicitly provide for retroactive application for K.S.A. 2011 Supp. 8-1567(j)(3) meant it intended this “look-back” change to be applied prospectively only. Reese, 48 Kan. App. 2d at 90-91.
Finally, the Reese court rejected an argument that the statute should be retroactively applied simply because the defendant should receive the benefit of any sentencing amendment that would lessen his sentence. 48 Kan. App. 2d at 91. The court rejected this argument because the Kansas Supreme Court has not recognized a rule that would apply a statute retroactively for this reason. 48 Kan. App. 2d at 91; see Ulrich, 2012 WL 5869662, at *9. Nor would such a rule seem sensible: a person’s sentence could depend upon how long it took for charges to be brought or for the case to move forward (increasing the chance that changes might be made in the sentencing statutes), not on the sentence applicable at the time the offense was committed. Everyone is presumed to know the criminal penalties that attach to their conduct, and uniformly applying the penalties in place on the date of each defendant’s conduct is the surest way to assure fair treatment of all defendants.
Messer cites Dorsey v. United States, 567 U.S. _, 132 S. Ct. 2321, 183 L. Ed. 2d 250 (2012), in support of his position that the amendments should be applied retroactively. The Dorsey Court interpreted the Fair Sentencing Act that reduced penalties for crimes related to crack cocaine. Based upon the language of the federal statute, the Court concluded that there was a “ ‘fair implication’ ” drat Congress intended to have the sentencing amendment applied retroactively, despite the lack of express congressional intent. 132 S. Ct. at 2335. In its analysis, the Dorsey Court relied on the Sentencing Reform Act’s express statement that the amended sentences “ ‘in effect on the date the defendant is sentenced’ ” control regardless of the date of the crime. 132 S. Ct. at 2331 (quoting 18 U.S.C. § 3553[a][4][A][ii]). Moreover, the Fair Sentencing Act contained a specific congressional finding that previous sentences for crimes involving crack cocaine, when compared to sentences involving powder cocaine, were “unfairly long.” Dorsey, 132 S. Ct. at 2333.
In contrast, the 2011 DUI amendments do not contain any similar language or legislative findings that were present in Dorsey. The federal amendments in Dorsey did not attempt to alter general practices relating to the retroactivity of sentencing statutes, but were specific changes addressing a disparity in the sentencing scheme between crimes involving two different forms of cocaine. See Ulrich, 2012 WL 5869662, at *9. So Dorsey is clearly distinguishable from the present case.
The Reese court’s reasoning is sound and persuasive. Messer does not present any compelling new arguments that were not addressed in Reese and other cases examining retroactivity of an amended statute. The amendments to K.S.A.. 8-1567 do not apply retroactively, and Messer was not entitled to be sentenced under the amended statute.
The district court’s judgment is affirmed. | [
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Leben, J.:
Matthew Rucker was convicted in a jury trial of theft and eluding a police officer. But even though he was in state custody, he wasn’t in attendance at the trial, and he has appealed on the basis that his constitutional and statutory right to be present at his own trial was violated.
Rucker sent a note to the court on the morning of his trial, claiming that he had been on a hunger strike for several days and was too weak to come to court. He also said he had complaints about his defense counsel, and he asked the court to appoint new counsel to represent him.
The district judge expressed skepticism, noting that Rucker had had two other jury trials in his court in the past few weeks and that he had appeared healthy. The judge speculated that Rucker was trying to delay the trial. The court heard testimony from jail personnel that, at breakfast that day, Rucker had taken an orange and some milk before returning the remainder of his food tray uneaten, and that Rucker had appeared to be healthy.
The court then directed that Rucker s defense attorney deliver a note to Rucker, advising him that the judge was requiring Rucker s presence at trial, didn’t believe he was too weak to come to court, and considered Rucker’s note a ploy to delay the trial— but would not force Rucker to appear. Rucker’s counsel prepared such a note, and jail personnel delivered it. Those personnel reported that Rucker took the note, appeared to read it, and then threw it down.
The district court then conducted the jury trial in Rucker’s absence. The court told the jury that Rucker had a constitutional right to appear at the trial but that he had voluntarily decided not to appear. The court instructed the jury not to use Rucker’s absence against him in deciding the case. The jury convicted Rucker on both charges.
Rucker has appealed, contending that his right to be present at his trial under both constitutional and statutory provisions was violated. A criminal defendant has a right to be present at trial under the Sixth Amendment to the United States Constitution, under Section 10 of die Kansas Constitution Bill of Rights, and under K.S.A. 22-3405.
The parties have focused their appellate briefs primarily on the language of K.S.A. 22-3405, which provides that “the defendant’s voluntary absence after the trial has been commenced in such persons presence shall not prevent continuing the trial.” (Emphasis added.) The State argues diat Rucker was voluntarily absent. Ruclcer argues that his absence occurred before the trial had been commenced in his presence, so his voluntary absence did not qualify under the statute to allow the trial to continue. But Rucker concedes that tire Kansas Supreme Court, applying K.S.A. 22-3405 in State v. Salton, 238 Kan. 835, 837-38, 715 P.2d 412 (1986), held that a defendant’s absence at the commencement of a trial could constitute a voluntary absence that would waive the defendant’s right to be present and would allow the trial to proceed in his or her absence.
There are two critical differences, however, between the procedures leading up to Salton’s waiver of his right to be present at trial and the claim here that Rucker did so. In Saltón, “[t]he judge advised the [defendant] of his continuing right to be present at the trial.” 238 Kan. at 414. In Rucker’s case, tire district court had Rucker’s attorney pass along this information—and we have an insufficient record upon which to conclude that Rucker understood his rights before he waived them. These differences are important ones.
The right to be present at one’s own criminal trial is “scarcely less important to the accused than the right of trial itself.” Diaz v. United States, 223 U.S. 442, 455, 32 S. Ct. 250, 56 L. Ed. 500 (1912). Like other constitutional rights of the criminal defendant, given its importance, the right to be present at one’s own trial can only be waived if the record demonstrates that the waiver was knowing and voluntary. See Schriro v. Landrigan, 550 U.S. 465, 484, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007) (“It is well established that a citizen’s waiver of a constitutional right must be knowing, intelligent, and voluntary.”); Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) (holding that waiver of constitutional rights may not be presumed where record does not show waiver); United States v. Berger, 473 F.3d 1080, 1095 (9th Cir. 2007) (applying knowing, intelligent, and voluntary waiver requirement to right to be present at trial); United States v. Nichols, 56 F.3d 403, 413 (2d Cir. 1995) (same).
But what does this mean the judge must actually do? With similar constitutional rights at stake, Kansas courts have required that the judge make sure that the right at issue has been clearly ex plained to the defendant and that the defendant, with sufficient understanding of the right, has voluntarily waived it. E. g., State v. Frye, 294 Kan. 364, Syl. 3, 277 P.3d 1091 (2012) (right to jury trial); State v. Youngblood, 288 Kan. 659, 664-65, 206 P.3d 518 (2009) (right to counsel). We have also emphasized in cases involving the jury-trial right that it is generally the trial judge’s obligation to explain the right to the defendant. E.g., State v. Bowers, 42 Kan. App. 2d 739, 741, 216 P.3d 715 (2009) (citing State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 [1975]); State v. Larraco, 32 Kan. App. 2d 996, Syl. ¶ 1, 93 P.3d 725 (2004).
Ordinarily, then, the trial judge should do two things before the defendant can properly waive such a right. First, the judge should clearly explain &e right to the defendant. Second, the judge should determine whether the defendant understands tire right and is voluntarily waiving it. Neither step was sufficiently accomplished here.
First, tire district judge didn’t personally and directly explain to the defendant his right to be present for his trial. Instead, the judge assigned that task to the defendant’s attorney. There may perhaps be cases in which that would suffice—such as one in which a defendant has previously injured deputies transporting him to the courtroom and the judge concludes that it isn’t safe to attempt to bring the defendant to court to explain his rights to him. See Jones v. Murphy, 694 F.3d 225, 240-42 (2d Cir. 2012) (finding that defendant’s violent and disruptive actions, including injuring a deputy who tried to restrain him in court, prevented returning him to court during trial); State v. Hartfield, 9 Kan. App. 2d 156, 162, 676 P.2d 141 (1984) (noting trial judge’s options when defendant is disruptive during trial) (citing Illinois v. Allen, 397 U.S. 337, 343-44, 90 S. Ct. 1057, 25 L. Ed. 2d 353 [1970]). But there is nothing in our record to suggest that deputies would have had any difficulty bringing Rucker to the courtroom to have a discussion with the judge about Rucker’s right to be present. The judge should ordinarily take the responsibility for explaining to the defendant his constitutional rights, and the judge here should have done so.
Second, the record here does not show that the defendant knowingly and voluntarily waived his rights. We know that a jailer said the defendant took the letter written by his attorney, seemed to read it, and then threw it down. But when important constitutional rights are at stake, we cannot assume from this evidence either that Rucker understood the rights explained to him in the letter or that, by throwing the paper to the ground, he was voluntarily giving up any specific rights. Thus, the defendant’s right to be present at trial was violated here.
Even so, we consider whether tire error was harmless; both parties agree that the error at issue here is subject to harmless-error analysis. For us to find the error harmless, the State must show beyond a reasonable doubt that the error did not affect the outcome of the trial because there is no reasonable possibility that it contributed to the verdict. See State v. Herbel, 296 Kan. 1101, Syl. ¶ 2, 299 P.3d 292 (2013).
Rucker argues here that the error wasn’t harmless because it prevented him from presenting some evidence to the jury. The charges in this case arose in part from a car chase in April 2010. In his opening statement, Rucker’s attorney mentioned that Rucker had told police right after the car chase that there were three people in the car and that Rucker was a passenger, not the driver. If true, Rucker couldn’t have been the driver who was eluding the police officer giving chase. After opening arguments, the prosecutor moved to block any further reference to Rucker’s statement to the police based on Rucker’s absence from the courtroom. The district court granted that motion, and the defense claims on appeal that the excluded evidence could have affected tire jury’s verdict.
In its appellate brief, the State does not respond with any discussion about whether the defense’s inability to present the statement Rucker made to police had any impact on the verdict. We are unable to conclude beyond a reasonable doubt that there is no reasonable possibility that Rucker’s absence from the courtroom throughout the trial contributed to the guilty verdicts against him. Accordingly, the error can’t be disregarded as harmless.
We recognize that the trial judge in this case was responding to these events in real time, not with the benefit of hindsight that appellate courts enjoy. We also recognize that the trial judge had just completed two other jury trials with the same defendant, so the judge may have been convinced that Rucker understood all of his rights. But an appellate court must be able to determine—from die record of this case—whether Rucker had been advised of his rights and whether he had, widi an understanding of his rights, voluntarily waived them. We cannot do so here, and we do not assume that constitutional rights have been properly waived in the absence of a record showing that to be the case. See Boykin, 395 U.S. at 243; Youngblood, 288 Kan. 659, Syl. ¶ 1; Irving, 216 Kan. at 589.
We also wish to comment regarding the appellate briefs filed in this case. We could potentially have ruled for the State in this case by concluding that the defendant had waived any argument other than his statutory one: that K.S.A. 22-3405, by its plain terms, doesn’t allow a waiver by failure to appear unless the defendant was present at the start of trial. The defendant argued in his brief that the Saltón case should be overruled—and overruling a Kansas Supreme Court case is something that we obviously cannot do. But see Crosby v. United States, 506 U.S. 255, 113 S. Ct. 748 (1993) (interpreting Fed. R. Crim. P. 43, which is similar to K.S.A. 22-3405, not to allow trial in absence of defendant who is not present at start of trial). Further, while the defendant cited the constitutional provisions giving him a right to be present at trial, he also introduced that section by saying that the constitutional right had “been codified by K.S.A. 22-3405” and then arguing that Saltón be overruled as to its interpretation of that statute. So the constitutional issue was not fully briefed, as Rucker’s argument focused on Saltón and the Kansas statute.
We have nonetheless chosen to address the constitutional issue directly. We do so because constitutional rights are at the heart of our criminal-justice system; we are thus unwilling to apply the rule here that the failure to properly brief an issue waives that issue on appeal. Rucker has cited to the constitutional protections to his right to be present in his brief, and he has cited to cases specifically applying the constitutional protections. It is therefore appropriate here to address on its merits whether the district court’s actions violated Rucker’s constitutional right to be present at his trial.
Rucker also raised a second issue on appeal. He contends that the district court should have appointed new counsel to represent him based on the note he had sent the morning of trial. Because the verdict of the trial is being set aside, we conclude that this issue need not be resolved in this appeal. The trial court does have a duty to inquire further when it becomes aware of a possible conflict of interest between a criminal defendant and his counsel, State v. Vann, 280 Kan. 782, 789, 127 P.3d 307 (2006), and the trial court here did make a limited inquiry into tire circumstances of Rucker s absence. In advance of any retrial, the trial court will have a further opportunity to determine whether Rucker has any justifiable dissatisfaction with his appointed counsel. See State v. Richardson, 290 Kan. 176, 184, 224 P.3d 553 (2010). That determination would best be made in a hearing at which both Rucker and his attorney are present, something that didn’t take place when this issue came up on the morning of Rucker’s trial and in his absence. Since the case must be sent back to the district court for retrial, we will simply return this issue for further proceedings in the district court.
The district court’s judgment is reversed, and this case is remanded to the district court for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Nuss, C.J.:
The trial court dismissed the claims of two trustees alleging Marion Battaglia tortiously interfered with their existing contracts and prospective business relationships. A Court of Appeals panel affirmed the dismissal but on a different ground. We granted review and now reverse because the panel inappropriately resolved factual issues on a dispositive motion. We therefore remand to the trial court for additional proceedings.
Facts
According to the trustees’ amended petition, the salient facts are as follows:
Defendant Marion Battaglia owned a 20 percent interest in Baron Development Company, LLC (BDC), a Kansas limited liability company. He also owned 2,222 shares of common stock in The Baron Automotive Group, Inc. (BAG). The balance of the BDC membership interest and the BAG common stock shares were owned by A. Baron Cass and the Barton J. Cohen Revocable Trust.
On August 30, 2005, Battaglia sold his BDC stock to Cass and the Cohen Trust. Battaglia also contemporaneously sold his BDC membership interest to BDC via a “Redemption Transaction.” Per its terms, BDC paid Battaglia $419,809 in cash and issued a promissory note for $1,259,434. Under a related “Pledge Agreement,” the note was secured for Battaglia by a first-priority security interest in his 20 percent membership interest in BDC.
Per the “Pledge Agreement,” the BDC promissory note to Bat-taglia became due and payable in full if either BDC or BAG were ever sold to an unrelated party. Per that agreement, BDC further promised not to sell any portion of Battaglia’s security interest in membership with BDC without his consent. But his consent was no longer required once all of the obligations under the note were performed and the “[termination date” of the agreement was reached.
After these transactions with Battaglia were completed, Cass transferred all of his interests in BDC and BAG to the A. Baron Cass Family Trust.
In October 2006, the Cohen and Cass trustees and BAG made an agreement with Group 1 Automotive, Inc. (Group 1). Per the agreement, (1) trustees would sell to Group 1 100 percent of the membership interests in BDC (including Battaglia’s 20 percent se curity interest) and (2) BAG would sell to Group 1 all of its assets. The trustees believed Battaglia’s consent was not required because the sale of the BDC interests would occur simultaneously with full payment of the promissory note to him.
Once Battaglia learned of the sale agreements, however, he insisted on knowing the purchase price and other details. The trustees refused the request because Battaglia was not a “seller” under the sale agreements, tire transactions with Group 1 were confidential, and disclosure of such information might jeopardize the agreements. Battaglia responded by arguing that he was entitled to copies of the sale agreements because of his presidency of BAG and his security interest in BDC. Counsel for trustees and BAG countered that Battaglia was not entitled to see the documents because Battaglia was not a shareholder of BAG, a member of BDC, or a director of either. He therefore had no interest except as the holder of a promissoiy note.
Battaglia knew that the sales transaction was supposed to close on January 16, 2007. So 4 days earlier his attorney, Louis C. Ac-curso, filed a civil action in the circuit court of Jackson County, Missouri, naming Cohen, the Cohen Trust, Cass, BAG, and BDC as defendants (the Missouri action). Among other things, the suit alleged that the trustees breached their fiduciary duties to Battaglia by engaging in self-dealing and financially manipulating BAG and BDC in order to dilute Battaglia’s ownership interest. That same day, Accurso faxed to Group 1’s general counsel a copy of the Missouri action along with the following letter: “Please find enclosed a file-stamped copy of a lawsuit filed today on behalf of Marion Battaglia. If you have any questions or comments, please do not hesitate to contact me.”
After receiving the letter and a copy of the Missouri action from Battaglia’s attorney, Group 1 refused to close the transaction without altering the agreements to include a supplemental indemnification agreement from BDC, the Cohen Trust, and the Cass Trust. Group 1 also now required that $2,500,000 be placed in escrow for its benefit. Their demands were met, with the trustees allegedly incurring substantial attorney fees as a result.
After closing, the Cohen and Cass trustees filed the instant lawsuit against Battaglia. They alleged claims for tortious interference with a contract, tortious interference with a business expectancy, and also requested specific performance of the “pledge agreement.” Included in their claims was an allegation that Accurso’s conduct in “[s] ending the letter and a copy of the petition for the Missouri action served no purpose except to interfere with the sale transactions.”
The trial court dismissed the specific performance claim for lack of subject matter jurisdiction because the claim was so intertwined with those in Battaglia’s Missouri action. That claim’s dismissal was never appealed and is no longer in issue.
Battaglia filed a motion to dismiss the two remaining tortious interference claims under K.S.A. 60-212(b), which the trial court ultimately granted. The court’s decision was based in part on § 773 of the Restatement (Second) of Torts (1979). The trustees appealed.
The Court of Appeals panel rejected the rationales of the district court. But the panel nevertheless affirmed the dismissal on a different ground, i.e., § 772 of the Restatement (Second) of Torts (1979). See Cohen v. Battaglia, 41 Kan. App. 2d 386, 387-89, 202 P.3d 87 (2009): We granted the trustees’ petition for review and obtain jurisdiction over their § 772 issue under K.S.A. 20-3018(b). But Battaglia did not file a cross-petition for review of the panel’s rejection of the trial court’s various rationales which had favored him.
Analysis
Issue: At the time the instant suit was filed, the Court of Appeals toas not in a position to decide the truth of the claims set out in the Missouri action.
Standard of Review
Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review. Campbell v. Husky Hogs, 292 Kan. 225, 227, 255 P.3d 1 (2011). Additionally, when a district court has granted a motion to dismiss for failure to state a claim, an appellate court must accept the facts alleged by the plaintiff as true, along with any inferences that can reasonably be drawn therefrom. The appellate court then decides whether those facts and inferences state a claim based on plaintiffs theory or any other possible theory. If so, tire dismissal by the district court must be reversed. Zimmerman v. Board of Wabaunsee County Comm’rs, 293 Kan. 332, 356, 264 P.3d 989 (2011).
Analysis
In the trustees’ amended petition, they allege that Battaglia committed tortious interference with a contract and tortious interference with a prospective business relationship by both filing the Missouri lawsuit and then later faxing to Group 1 a suit copy with an attached invitation to inquire. “While these torts tend to merge somewhat in the ordinary course, the former is aimed at preserving existing contracts and the latter at protecting future or potential contractual relations.” Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986).
The elements of tortious interference with a contract are: (1) the contract; (2) the wrongdoer’s knowledge thereof; (3) his intentional procurement of its breach; (4) the absence of justification; and (5) damages resulting therefrom. Burcham v. Unison Bancorp, Inc., 276 Kan. 393, 423, 77 P.3d 130 (2003).
Similarly, the elements of tortious interference with a prospective business advantage or relationship are: (1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) a reasonable certainty that, except for the conduct of the defendant, plaintiff would have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) incurrence of damages by plaintiff as a direct or proximate result of defendant’s misconduct. Burcham, 276 Kan. 393, Syl. ¶ 15.
In the trial court’s order addressing Battaglia’s motion to dismiss these particular claims, it rejected two of Battaglia’s three arguments: (1) the trustees failed to show that there was a breach of contract, and (2) Battaglia did riot have specific knowledge of the terms of the contract between Group 1 and the trustees. Despite prevailing on these arguments, the trustees asked the Court of Appeals to review them. The panel affirmed. Cohen, 41 Kan. App. 2d at 396. Because Battaglia filed no cross-petition asking us to review these panel holdings adverse to him, we do not consider them. See Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 848, 137 P.3d 486 (2006).
The trial court did adopt Battaglia’s third argument—that a lawsuit simply cannot serve as the basis for a tortious interference claim. The court first embraced Battaglia’s argument that the trustees’ lawsuit was premature because the Missouri lawsuit had not yet terminated in their favor. The trustees asked the Court of Appeals to review this point, and the panel rejected the trial court rationale. Cohen, 41 Kan. App. 2d at 396. Because Battaglia filed no cross-petition asking us to review this particular panel holding adverse to him, we do not consider it. See Lee Builders, 281 Kan. at 848.
The trial court also relied upon Restatement (Second) of Torts § 773, to dismiss the amended petition. That section states:
“One who, by asserting in good faith a legally protected interest of his oum or threatening in good faith to protect the interest by appropriate means, intentionally causes a third person not to perform an existing contract or enter into a prospective contractual relation with another does not interfere improperly with the other’s relation if the actor believes that his interest may otherwise be impaired or destroyed by the performance of the contract or transaction.” (Emphasis added.) Restatement (Second) of Torts § 773 (1979) .
The court apparently concluded that by filing the Missouri lawsuit Battaglia merely was “asserting in good faith [his] legally protected interest”—his first priority security interest in BDC.
The trustees asked the Court of Appeals to review this point, and die panel rejected the trial court rationale. Cohen, 41 Kan. App. 2d at 396. Because Battaglia filed no cross-petition asking us to review this particular panel holding adverse to him, we do not consider it. See Lee Builders, 281 Kan. at 848.
While generally rejecting the various rationales of the trial court, the panel did sua sponte conclude that a different section of Restatement (Second) of Torts § 772, applied. That section states:
“One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other s contractual relation, by giving the third person
(a) truthful information, or,
(b) honest advice within the scope of a request for the advice.” (Emphasis added.) Restatement (Second) of Torts § 772.
After surveying Kansas law and concluding that § 772 should be adopted as the law in this state, the panel then held that § 772 compelled dismissal of the trustees’ amended petition.
In the trustees’ petition for review, they inform us of the single “[ijssue decided by court of appeals of which review is sought.” They specifically state:
“[pjlaintiffs/appellants seek review of the Court of Appeals’ determination that Restatement (Second) of Torts § 772(a) (1979) should be adopted as the law in Kansas and that its application requires dismissal of Count one and two of tire amended petition.”
We begin our review of this sole issue by recognizing that not all interference in “present or future contract relationships is tor-tious” because a “person may be privileged or justified to interfere with contractual relations in certain situations.” Turner v. Halliburton Co., 240 Kan. at 12.
To determine whether a party is justified in interfering, this court has looked at factors including the (1) nature of the interferer’s conduct;- (2) the-character of the expectancy with which the conduct interfered; (.3) the relationship between the various parties; (4) the interest sought to be advanced by the interferer; and (5) the social desirability of protecting the expectancy or the interferer’s freedom of action. Turner, 240 Kan. at 13 (citing 45 Am. Jur. 2d, Interference § 27); see also Restatement (Second) of Torts § 767 (1979) (listing factors to consider-in order to determine if the defendant’s conduct was improper).
The panel held that the specifics of § 772 essentially trump consideration of the general “seven-factor balancing test found in §767.” 41 Kan. App. 2d at 404. The panel specifically held:
“Here, Trustees have attempted to impose liability on Battaglia for Accurso’s conduct in notifying Group 1 of tire existence of the Missouri action. Applying § 772(a), we find Accurso’s conduct on behalf of Battaglia conveyed, nothing but truthful information and, thus, is not actionable. For this reason, we affirm the district court’s decision to dismiss.” (Emphasis added.) 41 Kan. App. 2d at 404.
The problem is the panel’s conclusion that Accurso conveyed only “truthful information” was effectively a factual determination which is inappropriate on a dispositive motion. See Seaboard Corporation v. Marsh Inc., 295 Kan. 384, 392, 284 P.3d 314 (2012) (“[F] actual disputes cannot be resolved in ruling on a motion to dismiss; instead, the well-pleaded facts of the petition must be read in the light most favorable to the plaintiff.”); Osterhaus v. Toth, 291 Kan. 759, 785, 249 P.3d 888 (2011) (“On summary judgment, [Kansas appellate courts] generally do not resolve factual questions.”); Green Const. Co. v. Black & Veach Engineers & Architects, No. 89-2291-0, 1990 WL 58780, at *5 (D. Kan. 1990) (denying summary judgment motion because “truthfulness” under § 772[a] is a jury question).
It is true that die Missouri lawsuit was indeed on file and Accurso conveyed a true fact when communicating only that point to Group 1. But Accurso did more: he sent a full copy of the petition to Group 1, and it contained mere allegations, i.e., their truthfulness had yet to be proven.
Because this litigation was in its early stages when dismissed, we cannot ascertain the effect of this Accurso communication upon Group 1. ARY Jewelers v. Krigel, 277 Kan. 27, 38-39, 82 P.3d 460 (2003) (“[A] motion to dismiss typically is filed [early] in the case when many facts are undiscovered and the legal theories may be in flux.”). But as the trustees suggest, it can be inferred that Group 1 refused to close with them not because of mere notice of a Missouri suit—but because of Battaglia’s unsettling allegations within the suit, e.g., the trustees breached “their fiduciary duties owed to Battaglia” in order to “dilute the value of [his] net ownership interest” in BAG and BDC. Among other allegations, the Missouri petition states that the trustees financially manipulated the companies by “engaging] in self-dealing” and “siphon[ing] off profits” in order to avoid paying their business associate Battaglia his rightful compensation. And to use a more serious but analogous example, if Battaglia had filed a suit containing utterly false allegations about the trustees’ criminal histories and their complete lack of business ethics, he could not successfully claim privilege to tor-tious interference by arguing that his mere communication about his suit’s fifing was true.
On a closely related point, we note tire panel suggests that because truth is an absolute defense to defamation, truth should also be an absolute defense to tortious interference under § 772. Cohen, 41 Kan. App. 2d at 404 (“Under the law of defamation, no liability exists for true statements.”). If we borrow, purely for purposes of argument, that suggested analog, we observe that the simple act of truthfully notifying another of one’s lawsüit would be protected from a defamation claim—because the existence of the suit itself is true. But one’s knowingly untrue allegations contained within the petition would not be protected from such a claim. Otherwise, false and damaging claims ironically could be made with impunity under tire guise of a lawsuit—to the practical exclusion of other, risky forums and communication media. See Ruebke v. Globe Communications Corp., 241 Kan. 595, 598, 738 P.2d 1246 (1987) (A communications company may be liable for defamation if it publishes “a matter that is both defamatory and false.”); cf. K.S.A. 60-211(b) (“the signature of a person [on a pleading] constitutes a certificate . . . that... [3] the allegations and other factual contentions have evidentiary support.” If pleading signed in violation of this section, court shall impose appropriate sanction.).
One final point bears mention. In the trustees’ supplemental brief to this court, they ask Us to reconsider some of the arguments that they presented to tire Court of Appeals but did not raise in their petition for review. We generally do not consider issues that are not presented in the petition for review. Rucker v. DeLay, 295 Kan. 826, 289 P.3d 1166 (2012) (absent application of a permissive exception for plain error, this court will riot consider any issues not presented in the petition for review or fairly included therein).
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed. The case is remanded.
James A. Patton, District Judge, assigned. | [
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] |
The opinion of the court was delivered by
Moritz, J.:
This appeal arises from a dispute over the administration of a trust between a beneficiary of the trust, Lawrence Hamel (Lawrence), and tire trustees of that trust, Dennis Hamel (Dennis) and Leona Newell (collectively Trustees).
Lawrence sought termination of his deceased father s trust, the Arthur L. Hamel Living Trust, dated February 7, 2003, and the First Amendment to the Arthur L. Hamel Living Trust, dated February 17, 2003, (collectively Trust) and immediate distribution of Trust assets based on the Trustees’ alleged failure to properly administer tire Trust. Lawrence later moved to set aside a contract for deed executed between Dennis and his wife, as buyers, and the Trustees, as sellers, for the sale of farmland owned by the Trust. Lawrence also sought to remove the Trustees, alleging they engaged in self-dealing and breached their fiduciary duties.
Lawrence appeals from the district court’s conclusions that (1) Arthur did not intend the Trust to terminate immediately upon his death; (2) the Trust permitted the Trustees to finance the sale of the farmland to Dennis under the terms set forth in tire contract for deed; (3) Lawrence violated the Trust’s no-contest clause by challenging, without probable cause, the Trustees’ sale of the farmland to Dennis; (4) Lawrence’s violation of the no-contest clause required his disinheritance; and (5) Lawrence was not entitled to attorney fees and costs under K.S.A. 58a-1004.
The Trustees cross-appeal from the district court’s determination of the effective date of Lawrence’s disinheritance and from the court’s conclusion that they acted in bad faith by failing to provide Lawrence with an adequate accounting before being ordered to do so by the court.
We hold the district court reasonably interpreted ambiguous Trust provisions as not requiring the Trust’s immediate termination upon Arthur’s death. However, we conclude the Trustees lacked authority to sell the farm to Dennis under a contract for deed that exceeded the 3-year period expressly provided by the Trust. But for reasons discussed herein, we decline to set aside the sale. Instead, because the Trustees’ execution of the contract for deed violated the terms of the Trust, we hold that Lawrence had probable cause to challenge the Trustees’ sale of the farm to Dennis under the terms set forth in that contract. Thus, we reverse both the district court’s ruling regarding the Trustees’ authority to finance the sale of the farm as well as its enforcement of the no-contest clause against Lawrence. We remand to the district court for further proceedings necessary, if any, to effectuate our rulings and for consideration of Lawrence’s claim for attorney fees and costs.
Additionally, while the Trustees cross-appealed the district court’s determination as to the date of Lawrence’s disinheritance, our reversal of the district court’s enforcement of the no-contest clause renders that issue moot. Finally, in light of Lawrence’s abandonment of any issue regarding the district court’s denial of his motion to remove the Trustees, the Trustees’ challenge to the dis trict court’s conclusion that the Trustees breached their duty to provide an accounting also is moot.
Factual and Procedural Background
In 2003, Arthur established a revocable living trust naming himself and his son Dennis as Trustees. Arthur named as beneficiaries all of his surviving children (Dennis, Lawrence, Leona Newell, Elaine Befort, and Linda Leiker) and the children of Arthur’s deceased son (Lisa Riebel and John Hamel). Arthur included a no-contest clause in the Trust itemizing several actions that, if taken by a beneficiary, could result in that beneficiary’s disinheritance.
After preparation of the Trust documents, Arthur, Elaine, Lawrence, Dennis, Leona, and Linda met with an attorney to discuss the terms of the Trust. Arthur asked each of the siblings if they had any interest in buying the family farm. After Dennis expressed an interest, the family decided Arthur would give Dennis a first option to buy the farm. The family also discussed naming an additional person to serve as a trustee after Arthur’s death.
A few days after the meeting, Arthur amended the Trust to name Dennis and Leona as Trustees upon Arthur’s death. Additionally, Arthur amended Article Eight, Section One of the Trust, to include an option for Dennis to purchase the farm:
“It is my intention that my son, DENNIS HAMEL, have the first option to purchase any or all of the farmland (including cultivated and pasture) owned by my trust and/or by me individually. Upon my death, my Trustees shall have the farmland appraised. Based upon that appraisal, DENNIS HAMEL has the option to purchase any or all of the farmland for three years immediately following my death at the appraised price. During such time period, the trust shall continue to hold the farmland not yet purchased by DENNIS HAMEL. All net income from the farmland shall be distributed annually to the beneficiaries in accordance with the above listed beneficiary’s fractional share of the trust. If DENNIS HAMEL has not purchased tire farmland within the allotted time period, then it shall be divided in accordance with the above beneficiary’s fractional shares.”
Arthur died on June 14, 2004. Thereafter, Elaine, Lawrence, Dennis, and Leona met on several occasions to discuss funeral arrangements, the sale of Arthur’s personal property, and administration of the Trust. Lawrence obtained a copy of the Trust in July 2004. In August 2004, Elaine, Lawrence, Dennis, and Leona met to discuss the third-party appraisal of the farmland and Dennis’ intent to purchase the farm on a 6-year contract at 5 percent interest. At the meeting, Lawrence did not object to the method or terms of Dennis’ purchase, but Lawrence later told his children he did not like the concept of Dennis buying the farm on contract.
In October 2004, Dennis executed a contract for deed between himself and his wife, as buyers, and the Trustees, as sellers, to purchase the farmland for $244,000 to be paid over 6 years with 5 percent interest and a down payment of $10,000. Over the next several months, the beneficiaries, including Lawrence, received distributions based in part on Trust income from Dennis’ purchase of the farm.
In May 2005, Lawrence hired attorney Joseph Jeter to assist in acquiring information from the Trustees “regarding certain financial matters.” Jeter advised Lawrence that under the Trust’s provisions, Lawrence could request copies of die third-party appraisals of farmland and farm equipment purchased by Dennis, an inventory of Trust assets, and an accounting, including all receipts and disbursements from the Trust. Jeter explained that Lawrence’s request would not violate the Trust’s no-contest clause because the Uniform Trust Code of Kansas entitled Lawrence to this information.
Between May 2005 and March 2006, Jeter corresponded with the Trustees’ attorneys, requesting specific information about Trust activity, including bank statements, canceled checks, and copies of deeds related to Trust assets. In this correspondence, Jeter made at least three requests for an accounting or a trust report pursuant to K.S.A. 2012 Supp. 58a-813. In response, the Trustees provided an inventory and appraisement, bank statements, canceled checks, printouts of Trust account activity, a list of Trust assets including the value of the assets, copies of appraisals, and a copy of the contract for deed for the sale of the farm.
In May 2006, Jeter filed a petition in district court seeking a formal accounting, termination of the Trust and immediate distribution of Trust assets, and attorney fees; asking the court to compel the Trustees to perform their duties; and alleging Dennis breached his duty of loyalty by purchasing and selling Trust property without notice to Lawrence.
Several months later, Jeter withdrew as Lawrence’s counsel, and Lawrence retained the services of attorney Leslie Hess. After meeting with Jeter, Hess agreed with Jeter’s assessment that the Trustees had failed to provide an adequate accounting. In letters to the Trustees’ attorneys, Hess questioned whether Dennis’ purchase of the farm had generated Lawrence’s distribution checks, and Hess suggested that Dennis “should obtain a loan and pay the purchase price in full rather than over a period of years.” Hess also asked the Trustees’ attorneys to identify and provide a copy of any Trust provisions or statutory authority permitting Dennis to purchase the farm on contract.
In Januaiy and February 2007, Hess corresponded with the Trustees’ attorney and again sought a copy of the contract for deed, other information about Trust activity, and identification of the provisions of tire Trust authorizing the Trustees to sell the farm on contract. Hess specifically inquired: “How do you believe the Trustees have the authority to enter into a contact [sic] which is in violation of the trust provisions?” In response, the Trustees’ attorney provided the requested information and directed Hess to specific sections of tire Trust providing the Trustees with the same authority as an absolute owner regarding the sale of real estate owned by the Trust.
Hess filed a “Motion to Set Aside Contract for Deed,” on March 12, 2007, alleging the contract for deed violated the Trust by allowing Dennis to purchase the farm over 6 years instead of the 3 years expressly permitted by the Trust. The motion further contended the Trust did not authorize either the financing of the sale of the real estate or the 5 percent interest rate. Hess sought an order setting aside the contract and requesting the farm property revert back to the Trust beneficiaries unless Dennis paid the full contract price on or before June 14, 2007, and paid to the Trust the income derived from the real estate “until the entire purchase price is paid in full.”
On March 26, 2007, the district court ordered the Trustees to file a formal accounting within 30 days. The- Trust’s accountant prepared formal accountings for the years 2004, 2005, and 2006. After the Trustees timely filed the formal accountings in the district court and provided copies to the Trust beneficiaries, Lawrence objected to the accountings. Hess also sought to remove the Trustees, alleging several instances of self-dealing by the Trustees, particularly Dennis, and alleging the Trustees had breached their fiduciary duties.
The District Court’s Decisions
In a July 2007 memorandum decision, the district court determined the Trustees had authority to sell the farm to Dennis under the terms of the contract for deed. In support of its conclusion, the court cited specific Trust provisions giving the Trustees the powers of an individual with “absolute ownership and control' of property” and the power “to lend money to . . . any beneficiary under [the] Trust... as may be agreed upon between my Trustee and such parties, provided, however, that any such loan shall be adequately secured and shall bear a reasonable rate of interest.”
The district court further found drat although the Trust contained ambiguous provisions regarding when Arthur intended die Trust to terminate, Arthur did not intend for the Trust to terminate immediately upon his deatir.
The court subsequently appointed a Master to consider the adequacy of accountings provided by the Trustees. The Master s report concluded the Trustees had a duty to provide an accounting upon a request by a beneficiary and die Trustees failed to do so until required by die court. The Master s report further determined the court-ordered accountings were inadequate only because they failed to adhere to die promptness and reasonableness requirements of the Trust and the Uniform Trust Code of Kansas.
In February 2009, the district court conducted an evidentiary hearing on two issues: (1) removal of the Trustees, and (2) enforcement of the no-contest clause. Further, Lawrence’s counsel asked the court to consider Lawrence’s entitlement to attorney fees.
In a May 2009 memorandum decision, die district court concluded the Trustees breached their duty to provide an accounting but found no evidence to support the remaining allegations of mis conduct on the part of the Trustees. Further, the district court held Lawrence lacked standing to seek the Trustees’ removal because he lost his status as a “qualified beneficiary” when he violated the Trust’s no-contest clause.
The district court concluded Lawrence’s challenge to tire Trustees’ authority to sell the farm to Dennis on contract breached the Trust’s no-contest clause. Additionally, the court determined Lawrence lacked probable cause to challenge die Trustees’ sale of the farm, and thus he forfeited any benefits he received under the Trust as of the date he filed his motion to set aside the contract for deed. Finally, the court assessed costs against Lawrence.
Both parties timely appealed to the Court of Appeals, and this court transferred the case upon Lawrence’s motion. See K.S.A. 20-3017; Supreme Court Rule 8.02 (2012 Kan. Ct. R. Annot. 71).
On appeal, Lawrence asserts the district court erroneously concluded (1) the Trust did not terminate immediately upon Arthur’s death; (2) the Trustees had authority to sell the farm to Dennis under the terms of the contract for deed; (3) Lawrence’s actions in challenging the Trust violated the no-contest clause; (4) Lawrence lacked probable cause to challenge the Trustees’ sale of the farm to Dennis; and (5) Lawrence’s violation of the no-contest clause required forfeiture of his benefits.
The Trustees cross-appeal from both the district court’s determination as to the date of Lawrence’s disinheritance and its conclusion that the Trustees breached their duty to provide an accounting.
Termination of the Trust
Lawrence first contends the district court erroneously concluded that Arthur did not intend for the Trust to terminate immediately upon Arthur’s death. Lawrence reasons that Arthur intended the Trust to terminate immediately upon his death and therefore the sale of the farm to Dennis violated the Trust. In support, Lawrence points to Trust language which he claims reflects Arthur’s intent that the Trust terminate upon Arthur’s death. The Trustees contend the district court’s contrary interpretation is reasonable and supported by the Trust’s provisions.
When a court is called upon to interpret a trust, the court’s primary function is to ascertain the intent of the settlor by reading the trust in its entirety. If the settlor’s intent can be ascertained from the express terms of the trust, the court must give effect to those terms unless they are contrary to law or public policy. See In re Estate of Haneberg, 270 Kan. 365, 371, 14 P.3d 1088 (2000); In re Estate of Berryman, 226 Kan. 116, 118-19, 595 P.2d 1120 (1979); In re Estate of Oswald, 45 Kan. App. 2d 106, 112, 244 P.3d 698 (2010), rev. denied 292 Kan. 965 (2011); see also K.S.A. 58a-112 (providing that the same rules of construction apply to interpretation of wills and trusts); Restatement (Third) of Property; Donative Transfers § 10.1 (2001) (“The controlling'consideration in determining the meaning of a donative document is the donor’s intention. The donor’s intention is given effect to the maximum extent allowed by law.”).
The interpretation and legal effect of a written instrument is a matter of law over which we exercise unlimited review. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 263, 225 P.3d 707 (2010); see Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009) (“Regardless of the district court’s construction of a written contract, an appellate court may construe a written contract and determine its legal effect.”).
Generally, “a trust terminates to the extent the trust is revoked or expires pursuant to its terms, no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful, contrary to public policy, or impossible to achieve.” K.S.A. 58a-410(a); see In re Estate of Somers, 277 Kan. 761, 768, 89 P.3d 898 (2004) (beneficiaries cannot compel termination of a trust “ ‘[i]f the continuance of the trust is necessary to carry out a material purpose of the trust’ ”); Oswald, 45 Kan. App. 2d at 112 (concluding language of trust was sufficient to establish settlor’s intent for trust to terminate immediately or within a reasonable time after her death where, inter alia, expressed primary purpose of trust was to provide for settlor’s needs during her lifetime).
Here, in concluding Arthur did not. intend for the Trust to terminate immediately upon his death, the district court noted some ambiguity between various Trust provisions, particularly Articles Five through Eight.
Article Five of the Trust provides for payments of certain debts and taxes, upon Arthur s death but does not expressly call for the Trust’s termination. Article Six directs the distribution of a $1,000 gift to a designated beneficiary “[u]pon [Arthur’s] death” but states that “[e]xcept for the specific distributions directed” in Article Six, “all distributions of trust property shall be made in accordance with the Articles that follow.” Similarly, Article Seven prohibits the Trustees from creating a “Common Pot Trust” after Arthur’s death, instead requiring that “[a]ll of [the] Trust Estate that has not been distributed under prior provisions . . . shall be held, administered, divided and distributed according to the provisions of the Articles that follow.”
The primary article governing division and distribution of Trust property, Article Eight, contains conflicting provisions regarding termination. Article Eight, Section One expressly directs the Trustee to “divide, into separate shares, all of my Trust Estate not previously distributed under the preceding Articles of my Trust Agreement ... as follows ....” It then identifies each named beneficiary and his or her proportionate share, but does not indicate when such division is to occur. The next paragraph in Article Eight, Section One expressly provides that Dennis
“has die option to purchase any or all of the farmland for three years immediately following my death at the appraised price. During such time period, the trust shall continue to hold the farmland not yet purchased by DENNIS HAMEL. All net income from the farmland shall be distributed annually to the beneficiaries in accordance with the above listed beneficiary’s fractional share of the trust. If DENNIS HAMEL has not purchased the farmland within the allotted time period, then it shall be divided in accordance with the above beneficiary’s fractional shares.”
Immediately following this provision, Article Eight, Section One, subsections (a) through (g) provide that “[t]he trust share set aside for [named beneficiary] shall be held, administered and distributed as follows” and directs the Trustee to “immediately pay to, or apply for the benefit of, such beneficiary, all net income from such beneficiary’s trust share, free of trust” and to “immediately pay to, or apply for the benefit of, such beneficiary, all principal from such beneficiaiy’s trust share, free of trust.” (Emphasis added.)
Faced with the conflicting provisions of Article Eight, the district court reasoned that in light of Arthur’s express requirement that the Trust “shall continue to hold the farmland” during the 3-year period in which Dennis could purchase the farmland, Arthur did not intend the Trust to terminate immediately upon his death. Implicitly, the district court determined that a material purpose of the Trust was to hold the farmland for 3 years following Arthur’s death to permit Dennis an opportunity either to exercise his option to purchase the farmland or until that option expired.
Under these circumstances, we conclude the district court fairly interpreted the ambiguous Trust provisions to conclude Arthur did not intend the Trust to terminate immediately upon his death. Consequently, we reject Lawrence’s argument that tire sale of the farm to Dennis was void based on that intent.
Trustees’ Authority to Sell Farm Under Terms of Contract for Deed
Lawrence next argues the district court erroneously concluded the Trustees had authority to finance the sale of tire farm to Dennis under the terms of the contract for deed. Specifically, Lawrence argues the Trust’s terms did not permit Dennis to (1) purchase the farm over 6 years instead of 3 years, (2) pay an interest rate of 5 percent with no interest required during the last year, (3) finance the sale of the farm through the Trust, (4) make a down payment of only $10,000, or (5) receive all income and profit from the land for the term of the contract. The Trustees contend various powers granted to them under the Trust authorized the sale of the farm to Dennis under the terms of the contract for deed.
In determining the Trustees had authority to sell the farm to Dennis under tire terms of the contract for deed, the district court cited the Trust’s provisions granting tire Trustees “ ‘the power to do all acts that might legally be done by an individual in absolute ownership and control of property,’ ” and providing the Trustees with “ ‘the power to lend money to . . . any beneficiary under [tire] Trust ... as may be agreed upon between my Trustee and such parties, provided, however, that any such loan shall be adequately secured and shall bear a reasonable rate of interest.’ ”
At first blush, the district court’s ruling on this issue appears consistent with the terms of the Trust. Article Eleven, Section One grants to the Trustees “any power my Trustee needs to administer my Trust Estate, which is not hereinafter listed.” This paragraph also provides that Trustees with “the power respecting properly in [the] Trust Estate that an absolute owner of such property would have.” In addition to these broad powers, Article Eleven vests in the Trustees several specific powers.
Article Eleven, Section One, subsection “aa” provides: “Except as otherwise provided in my Trust Agreement, my Trustee shall have the power to do all acts that might legally be done by an individual in absolute ownership and control of property.” Subsection “gg” gives the Trustees “the power to lend money ... to any beneficiaiy under [the] Trust... as may be agreed upon between my Trustee and such parties, provided, however, that any such loan shall be adequately secured and shall bear a reasonable rate of interest.”
While we agree that the Trust contains several general provisions broadly authorizing the Trustees to control and administer Trust property, including the power to lend money to beneficiaries, we cannot agree that those provisions authorized the Trustees to finance the sale of the farm to Dennis over a period exceeding the 3 years anticipated by the more specific provision of the Trust that relates to the sale of the farm.
In amending the Trust, Arthur gave Dennis the first option to buy any or all of the farmland owned by the Trust and specifically directed:
“Upon my death, my Trustees shall have tire farmland appraised. Based upon that appraisal, DENNIS HAMEL has the option to purchase any or all of the farmland for three years immediately following my death at the appraised price. During such time period, the trust shall continue to hold the farmland not yet purchased by DENNIS HAMEL. All net income from the farmland shall be distributed annually to the beneficiaries in accordance with the above listed beneficiary’s fractional share of the trust. If DENNIS HAMEL has not purchased the farmland within the allotted time period, then it shall be divided in accordance with the above beneficiary’s fractional shares.” (Emphasis added.)
The Trustees argue that while Arthur provided Dennis with an “option to purchase” the farmland for the 3-year period following Arthur’s death, Arthur did not require that the purchase be completed in 3 years—only that the option be exercised. But this narrow interpretation ignores the remainder of the clause which provides for division of the farmland in accordance with the beneficiaries’ fractional shares if Dennis has not “purchased the farmland unthin the allotted time.”
The language of tire Trust conveys Arthur’s clear intent that the farmland would be disposed of within 3 years of his death—either through Dennis’ purchase of the farm or by a division of the farm property among the beneficiaries. The Trustees frustrated that intent when they entered into a contract for deed with Dennis to pay the purchase price over a 6-year period with title passing at the end of that period. See Restatement (Third) of Property: Donative Transfers § 3.4(a), comment a (1998) (explaining that in contract for deed purchaser acquires equitable title and immediate possession of real estate but legal title is not conveyed until final payment is made). Under the terms of the contract for deed at issue here, tire purchase of the farmland would not be final, if at all, for more than 6 years after Arthur’s death. Further, if for some reason Dennis’ purchase of the farm fell through beyond the 3-year period but before the end of the 6-year contract period, the property would not have been divided among the beneficiaries within 3 years in contravention of Arthur’s intent.
The dissent takes issue with our conclusion that the language of the trust conveys Arthur’s intent that the beneficiaries receive a final payout within 3 years and points out that “there is nothing in the quoted language that says anything about a final payout within 3 years.” Further, the dissent suggests our conclusion regarding Arthur’s intent “misconstrues the nature of a contract for deed.”
We agree that the language of the Trust does not specifically indicate that the Trust is to terminate in 3 years with a final payout. But the paragraph of the Trust at issue here does specify a 3-year period related to the disposition of tire farmland in three different places: (1) in identifying the period in which Dennis may exercise his option to purchase; (2) in identifying the period during which the Trust shall “continue to hold the farmland not yet purchased” and pay net income to the beneficiaries; and (3) in specifying that if Dennis has not “purchased the farmland within die allotted time period,” the farmland shall be divided in accordance with the beneficiaries’ fractional shares.
To suggest that the 3-year period pertains only to time in which Dennis has to exercise his option to purchase ignores the last provision, which reflects Arthur’s intent that the title to the farmland be transferred within 3 years or the farmland be divided among the beneficiaries. Moreover, our interpretation does not misconstrue the nature of a contract for deed, but instead acknowledges its inconsistency with Arthur’s intent as expressed in the Trust. Namely, the contract for deed itself anticipated that if Dennis defaulted on the contract, the Trustees could “declare the contract null and void,” and legal title to the farmland would remain with the Trust while equitable title would revert back to the Trust. Thus, if Dennis breached the contract after more than 3 years had passed, the farmland would neither have been purchased nor divided among the beneficiaries within the 3-year period—frustrating Arthur’s intent regarding the disposition of the farmland within 3 years of his death.
Finally, we do not hold today, as the dissent suggests, that the language of the Trust prohibits the Trustees, from entering into a contract for deed with one of the Trustees. Instead, we find that the 6-year contract for deed entered into in this case frustrates Arthur’s intent that the farmland be disposed of within 3 years.
Because the terms of the contract for deed violated the express provisions of the Trust requiring purchase or division of the farmland within 3 years, we conclude the Trustees were not authorized to sell the farm to Dennis under the terms set forth in the contract for deed, and we reverse the district court’s ruling on this issue.
Further, while Lawrence claims the Trustees lacked authority to enter into the contract for deed for other additional reasons, including that the Trustees lacked authority to finance the sale of the real estate or to agree to a 5 percent interest rate, in light of our reversal of the district court’s ruling, we decline to address those remaining assertions.
Remedy for reversal of district court’s ruling on motion to set aside contract
Although Lawrence characterized his trial court motion as a “Motion to Set Aside Contract for Deed,” he does not seek this remedy on appeal. Instead, he insisted at the district court level, and maintains on appeal, that in filing this motion he sought only an interpretation of the Trust. Although Lawrence’s brief is not entirely clear as to the remedy he seeks, it appears he contends the district court’s interpretation error is relevant to our consideration of the overarching issue of whether the court erred in enforcing the no-contest clause. We agree.
Although the district court rejected Lawrence’s characterization of his motion to set aside the contract for deed, we note that Lawrence’s motion sought to have the farm property revert back to the Trust beneficiaries, or alternatively, to have “Buyers pay said contract price in full on or before June 14, 2007 [or 3 years after the date of Arthur’s death].” Significantly, the appellate record establishes that Dennis did, in fact, pay the contract price in full on June 8, 2007, approximately 6 days before the expiration of the 3-year period for finalizing the Trust.
Thus, while our conclusion that the Trustees lacked authority to sell the farm under the terms of the contract for deed does not require that we set aside that contract as void ab initio, it provides a predicate to our analysis of the district court’s decision to enforce the no-contest clause against Lawrence, as more fully discussed below.
Enforcement of No-Contest Clause
Lawrence challenges the district court’s enforcement of the Trust’s no-contest, or in terrorem, clause, primarily arguing the district court’s ruling is contrary to public policy. The Trustees contend the court’s enforcement of the no-contest clause is consistent with Kansas law and public policy because Lawrence lacked probable cause to challenge the sale of the farm.
“An in terrorem clause is a clause in a will in which a testator imposes upon a devisee or legatee a condition that he or she shall not dispute the provisions of the will or the gift shall be void.” In re Estate of Koch, 18 Kan. App. 2d 188, 207, 849 P.2d 977, rev. denied, 253 Kan. 858 (1993); see Restatement (Third) of Property: Donative Transfers § 8.5, comment a (2001) (“A no-contest [or in terrorem] clause typically provides for the rescission of any benefit to a devisee, beneficiary, or donee who challenges the validity of the [donative] document, or of a term of the document.”).
Our appellate courts have consistently held that in terrorem clauses in wills are valid and enforceable against a beneficiary who attacks the validity of the will, or provisions therein, unless the beneficiary had probable cause to challenge the will or its provisions. See Meyer, Executor v. Benelli, 197 Kan. 98, 101, 415 P.2d 415 (1966); In re Estate of Foster, 190 Kan. 498, 500, 376 P.2d 784 (1962); Wright v. Cummings, 108 Kan. 667, 668-72, 196 P. 246 (1921); In re Estate of Wells, 26 Kan. App. 2d 282, 285, 983 P.2d 279 (1999); In re Estate of Campbell, 19 Kan. App. 2d 795, 801, 876 P.2d 212 (1994); Koch, 18 Kan. App. 2d at 207.
A no-contest clause in a trust serves the same purpose as such a clause in a will and is construed according to the same rules applied to wills. See K.S.A. 58a-112 (providing the same rules of construction apply to interpretation of wills and trusts); Restatement (Second) of Property: Donative Transfers § 9.1, comment 1 (1981) (“No-contest clauses and clauses restraining attacks on particular provisions in [revocable inter vivos trusts] serve the same purpose as do such clauses in wills, and there is no justifiable reason for applying a different test to determine the validity of those clauses in the two comparable situations.”).
Courts apply a two-part analysis to determine whether a no-contest clause should be enforced against a beneficiary. First, the court must determine whether the beneficiary’s action or actions violated the express terms of the no-contest clause. See Meyer, Executor, 197 Kan. at 101 (concluding in terrorem clause in a will did not apply where alleged contestant “was simply seeking an interpretation of the provisions of the will under which both parties claimed title”); Wright, 108 Kan. at 671-72 (determining defendant’s act of filing claim against estate did not amount to contest of validity of will and therefore did not trigger forfeiture clause); see also Annot., 3 A.L.R.5th 590, § 2, pp. 611-12 (holding that in con sidering application of forfeiture clause, court must determine whether testator intended for conduct in question to forfeit beneficiary’s interest under the will).
Second, tire court must determine whether the beneficiary had probable cause to take the action or actions that violated the no-contest clause. See Foster, 190 Kan. at 500 (adopting the rule of the Restatement of Property, § 429 [1944], holding “that a bona fide belief in the invalidity of the will” and probable cause prevents application of in terrorem clause as to beneficiary under die will, and finding in terrorem clause unenforceable when beneficiary successfully challenged will provision violating rule against perpe-tuities); see also Campbell, 19 Kan. App. 2d at 801 (concluding “an in terrorem clause will not be enforced if the person challenging the will, or a provision thereof, does so with probable cause”); Koch, 18 Kan. App. 2d at 207 (determining “that in terrorem clauses are to be given effect when a beneficiary attacks the validity of the will without probable cause to do so”); Restatement (Second) of Property: Donative Transfers § 9.1, comment d (1981) (“a restraint against a suit for the construction of a dispositive provision should not cause a forfeiture of any interest if there was probable cause for bringing the construction suit”).
Here, the no-contest 'clause in Article Twelve, Section Six of the Trust provides, in relevant part:
“If any devisee, legatee, or beneficiary under my Trust or any amendment to it, no matter how remote or contingent such beneficiaiy’s interest appears, or any of my legal heirs, or any person claiming under any of them, directly or indirectly, does any of the following, then in that event I specifically disinherit each such person, and all such legacies, bequests, devises and interests given to that person under my Trust or any amendment to it, or any other Trust document created by me at any time, shall be forfeited and shall be distributed as provided elsewhere herein as though he or she had predeceased me without issue:
“a. unsuccessfully challenges the appointment of any person named as a Trustee in said trust or any amendment to it, or unsuccessfully seeks the removal of any person acting as a Trustee;
“b. objects in any manner to any action taken or proposed to be taken in good faith by the Trustee under said trust or any amendment to it, whether the Trustee is acting under court order, notice of proposed action or otherwise, and said action or proposed action is later adjudicated by a court of competent jurisdiction to have been taken in good faith;
“c. objects to any construction or interpretation of said tiust or any amendment to it, or the provisions of either, that is adopted or proposed in good faith by the Trustee, and said objection is later adjudicated by a court of competent jurisdiction to be an invalid objection.”
The district court concluded Lawrence’s objection to the Trustees’ action of entering into a contract for deed with Dennis violated subsection “b” of the no-contest clause and Lawrence lacked probable cause to challenge that action.
On appeal, Lawrence reiterates his argument below that he did not violate the no-contest clause because he simply sought interpretation of the Trust’s provisions. See Restatement (Second) of Property§ 9.1, comment c (1981) (noting that restraints upon contests to will or its provisions generally apply to attacks that seek to invalidate will or a portion thereof, and stating that “[a] suit to construe the language of a will is not a contest of the will,” and “[a]n action commenced solely for the purpose of obtaining information concerning a donative transfer does not violate a no-contest provision”); Restatement (Second) of Property§ 9.1, comment d (1981) (defining an “ ‘attack’ ” as “an attempt to procure a judicial decision holding invalid some provision of the will or other donative transfer,” and explaining that “[a] proceeding brought by a beneficiary for the purpose of securing a construction of an ambiguous limitation, valid under all possible constructions or valid under the construction advocated by the beneficiary, is not an ‘attack’ as that term is used in this section”).
But we need not dwell on whether the district court correctly held that Lawrence’s actions violated the provisions of the no-contest clause at issue here or whether his actions are more properly characterized as an effort to seek an interpretation of the Trust, as Lawrence contends. Even if we assume for purposes of argument that the district court correctly concluded Lawrence’s actions violated the no-contest clause, as discussed below, we would find Lawrence had probable cause to challenge the Trustee’s actions in violation of the no-contest clause.
Lawrence had probable cause to challenge the Trustees’ sale of the farm.
In Campbell, our Court of Appeals adopted the definition of probable cause from Restatement (Second) of Property: Donative Transfers § 9.1, comment j (1981): “[P]robable cause [is defined as] ‘the existence, at the time of the initiation of the proceeding, of evidence which would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the contest or attack will be successful.’ ” Campbell, 19 Kan. App. 2d at 801. The Restatement further explains:
“The evidence needed to establish probable cause should be less where there is strong public policy supporting tire legal ground of the contest or attack. ... A factor which bears on the existence of probable cause is that the beneficiary relied upon tire advice of disinterested counsel sought in good faith after a full disclosure of the facts.” Restatement (Second) of Property: Donative Transfers § 9.1, comment j (1981).
Whether probable cause exists is a question of fact. Wells, 26 Kan. App. 2d at 285. Ordinarily, we review a district court’s factual findings under a substantial competent evidence standard. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). But the Trustees urge us to consider the district court’s determination that Lawrence lacked probable cause to challenge the sale of the farm as a negative finding. As the Trustees point out, in reviewing a negative factual finding, an appellate court considers whether the district court arbitrarily disregarded undisputed evidence or relied on some extrinsic consideration such as bias, passion, or prejudice to reach its determination. See Hall v. Dillon Companies, Inc., 286 Kan. 777, 781, 189 P.3d 508 (2008).
But we need not resolve which standard of review applies here because under either standard, applying the probable cause definition set out above, we conclude the district court erred in concluding Lawrence lacked probable cause to challenge the sale of the farm.
In large part, Lawrence based his challenge to tire sale of the farm on the Trustees’ decision to finance tire sale over a 6-year period. As we already have concluded, while the Trustees possessed broad authority to sell Trust real estate, they were not au thorized to enter into a contract for the sale of the farmland that extended beyond the 3-year period specifically provided under the Trust. In light of that conclusion, we necessarily hold that Lawrence had probable cause to challenge the sale of the farm. Accordingly, we reverse the district court’s probable cause determination and its enforcement of the no-contest clause against Lawrence. Because the enforcement of the no-contest clause led to Lawrence’s disinheritance, we remand for further proceedings, if any, necessary to effectuate our decision.
Attorney Fees and Costs Under K.S.A. 58a-1004
Finally, Lawrence claims he is entitled to an award of attorney fees and costs under K.S.A. 58a-1004. That section provides: “In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.” K.S.A. 58a-1004.
Here, after rejecting Lawrence’s challenges to the Trust and enforcing the no- contest clause, the district court assessed the costs of the action against Lawrence. In light of our holdings today, we reverse the district court’s award of costs and remand to the district court to fully consider Lawrence’s entitlement to attorney fees and/or costs under K.S.A. 58a-1004. In determining the award, if any, the district court should give due consideration to the factors set forth in Rule 1.5(a) (2012 Kan. Ct. R. Annot. 492) of the Kansas Rules of Professional Conduct.
Cross-Appeal
In their cross-appeal, the Trustees claim the district court erred in determining the effective date of Lawrence’s disinheritance. This issue is rendered moot by our conclusion that the district court erred in enforcing the no-contest clause against Lawrence.
The Trustees also challenge the district court’s conclusion that they acted in bad faith or breached their duty to provide Lawrence with an accounting. But the district court’s bad faith finding pertained only to Lawrence’s motion to remove the Trustees, which the district court denied. And because Lawrence does not argue for reversal of the district court’s denial of his motion to remove the Trustees, this issue also is moot. See State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004) (issues not briefed are deemed abandoned).
Conclusion
To summarize, we affirm the district court’s ruling that Arthur did not intend tire Trust to terminate immediately upon his death. We reverse the district court’s conclusion that the Trustees had authority to enter into a contract for deed for the sale of the farmland that exceeded the 3-year period specifically provided by the Trust, but we decline to set aside the contract for deed. Further, we reverse the district court’s determination that Lawrence lacked probable cause to challenge the sale of the farm. Consequently, we reverse the district court’s enforcement of the no-contest clause against Lawrence, and we remand for any further proceedings necessary to effectuate our rulings.
Further, we reverse the district court’s assessment of costs against Lawrence, and we direct the district court on remand to consider Lawrence’s entitlement to attorney fees and costs under K.S.A. 58a-1004. Finally, we find the issues raised by the Trustees’ cross-appeal to be moot.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
LüCKERT, J.:
In this appeal involving a probation revocation, Jose Galaviz argues his attorney’s position as the guardian ad litem for the victim of one of Galaviz’ crimes created a per se conflict of interest that denied Galaviz his right to effective assistance of counsel at his probation revocation proceeding. Galaviz, citing State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995), argues this conflict so offended his rights as guaranteed by the Sixth Amendment to the United States Constitution that reversal is automatic and he is not required to show that the conflict had an adverse effect on his attorney’s representation.
The Court of Appeals rejected this argument. Relying on tire United States Supreme Court’s decision of Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 (2002), the Court of Appeals held Galaviz had to show the multiple representation had an adverse effect on the attorney’s representation of Galaviz because Galaviz did not object to the multiple representation. Further, the Court of Appeals concluded Galaviz did not meet his burden and was not entitled to relief. See State v. Galaviz, Nos. 101,084 and 101,085, 2009 WL 5206238, at *3-4 (Kan. App. 2009) (unpublished opinion).
In his petition seeking this court’s review of the Court of Appeals’ decision, Galaviz argues the Court of Appeals erred in not following Jenkins. To analyze that argument, we compare Mickens and Jenkins, both of which apply the Sixth Amendment, and conclude the United States Supreme Court’s analysis controls and that Mickens effectively overrules portions of Jenkins. Under Mickens, a defendant is not entitled to automatic reversal based on the defense attorney’s conflict of interest if there was no timely objection to the attorney’s representation. Rather, as the Court of Appeals concluded, Galaviz must establish that the conflict of interest had an adverse effect on his attorney’s representation of him. Never theless, we disagree with the Court of Appeals’ conclusion that this determination can be made on the record on appeal. We conclude a remand is appropriate to determine whether Galaviz can meet his burden under Mickens.
Factual and Procedural Background
This appeal follows a district court’s decision to revoke Galaviz’ probation in two cases. In one of the cases, Galaviz had pleaded guilty to a charge of aggravated indecent liberties with a child under the age of 14. In the second case, he had pleaded guilty to possession of methamphetamine. At the time of the original sentencing, the State, consistent with its plea agreement with Galaviz, recommended a downward dispositional departure from a presumptive prison sentence to probation. The court accepted the parties’ sentencing recommendation and placed Galaviz on probation.
Fifteen months later, a probation revocation proceeding was initiated. The court appointed Mark Cowell to represent Galaviz. Initially, Galaviz denied the State’s allegations. Before the eviden-tiary hearing was held, Galaviz was found guilty of new offenses, and the State amended its motion to revoke probation by adding the new convictions as additional probation violations. Galaviz then admitted he had violated conditions of his probation, and tire court revoked probation.
At the subsequent disposition hearing, Cowell, on Galaviz’ behalf, urged the court to reinstate probation, arguing in part:
“Now, Your Honor, I was not the attorney who represented Mr. Galaviz in [the aggravated indecent liberties] case and I think that’s specifically because I was the guardian ad litem, of the child who—or the young lady who was the victim, and as it turned out, this young lady—I did notice something about her. I’m not trying to say that it is appropriate ever to have contact with a young lady, but she certainly was among the more willing young ladies.”
In addition, Cowell argued that Galaviz had attended sexual offender treatment, completed community service, completed a substance abuse program, and remained drug free. Cowell also noted that Galaviz had a job if he was released from jail.
The district court rejected Galaviz’ request to be reinstated to probation, citing Galaviz’ extensive criminal histoiy. The court remanded Galaviz to tire Kansas Department of Corrections to serve tire prison sentences that had been announced at the original sentencing hearings in the two cases.
Regarding the record relating to Cowell’s conflict of interest, Cowell’s brief reference to his role as the guardian ad litem for the victim in the aggravated indecent liberties case was the first and only reference in the record to the circumstances that gave rise to Galaviz’ conflict of interest argument. Neither Cowell nor Galaviz objected, and the district court did not malee any inquiry. Thus, as the State argues, there is no information in the record regarding the type of proceeding that led to Cowell’s appointment as the victim’s guardian ad litem; the date on which Cowell was appointed to serve as the guardian ad litem; the date, if any, on which Cowell’s obligations as guardian ad litem terminated; or the relationship, if any, between the two proceedings.
Court of Appeals’ Decision
Galaviz appealed the district court’s decision to revoke his probation and, for the first time, argued that Cowell had a conflict of interest that required reversing the decisions to revoke probation and to sentence Galaviz to prison. Although Galaviz did not object to Cowell’s representation during the district court proceeding, in his arguments to the Court of Appeals he claimed the facts contained in the record were sufficient for an appellate court to resolve the issue. As we have noted, Galaviz relied on Jenkins, 257 Kan. 1074, to support his argument that he only needed to show there was an active conflict the district court knew or should have known about and the district court failed to inquire into the conflict. Alternatively, Galaviz claimed there was evidence that the conflict of interest had an adverse effect on Cowell’s performance.
The Court of Appeals rejected Galaviz’ arguments and affirmed the district court. The appellate court recognized that Galaviz had a right to effective assistance of counsel in his probation revocation proceeding, which means he had a right to representation free from conflicts of interest. Galaviz, 2009 WL 5206238, at *2. To show there was a violation of this right, the Court of Appeals applied a two-step process.
First, citing Mickens, 535 U.S. 162, the Court of Appeals required Galaviz to show that Cowell “actively represented conflicting interests.” Galaviz, 2009 WL 5206238, at *2. In making this determination, the Court of Appeals examined “the ethics rules tlrat govern lawyer conduct [and] provide that a lawyer may not undertake a representation that involves a concurrent conflict of interest.” Galaviz, 2009 WL 5206238, at *2-3 (citing Kansas Rules of Professional Conduct [KRPC] 1.3 [2009 Kan. Ct. R. Annot. 426] [diligence]; KRPC 1.7 [2009 Kan. Ct. R. Annot. 472] [conflict of interest; current clients], and KRPC 1.9 [2009 Kan. Ct. R. Annot. 490] [conflict of interest; duties to former clients]). These rules established drat Cowell had conflicting concurrent duties to the victim and Galaviz, meaning Galaviz had met his burden of establishing an active conflict. See Galaviz, 2009 WL 5206238, at *2-3.
This, the Court of Appeals concluded, meant the district court had a duty to inquire into the conflict of interest and abused its discretion by fading to do so. Nevertheless, this failure did not mandate reversal because, under Mickens, there was no objection to Cowell’s representation and “reversal is automatic ‘only where defense counsel is forced to represent codefendants over his timely objection.’ ” Galaviz, 2009 WL 5206238, at *3 (quoting Mickens, 535 U.S. at 168). If there was no objection, according to the Court of Appeals, “a defendant must show that the conflict of interest adversely affected his or her counsel’s performance before reversal is appropriate.” Galaviz, 2009 WL 5206238, at *3 (citing Mickens, 535 U.S. at 174, and State v. Carter, 284 Kan. 312, 321, 160 P.3d 457 [2007]).
Hence, the Court of Appeals applied the second step of requiring Galaviz to establish that the conflict had an adverse effect on Cowell’s performance. After examining the record of the probation revocation proceeding and determining there was a sufficient record for making the evaluation, the Court of Appeals concluded the conflict did not adversely affect Cowell’s performance. In fact, according to the Court of Appeals, Cowell’s actions supported, rather than undermined, Galaviz’ request to remain on probation. Thus, the Court of Appeals affirmed the district court’s decision to revoke probation and sentence Galaviz to prison. Galaviz, 2009 WL 5206238, at *4.
Galaviz filed a petition for review, which this court granted. We have jurisdiction under K.S.A. 20-3018(b) and K.S.A. 22-3602(e).
Analysis
As noted, Galaviz asserts his right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This right, made applicable to the states through the Fourteenth Amendment to the United States Constitution, requires more tiran the presence of an attorney; it guarantees the right to effective assistance from the attorney. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984); Avery v. Alabama, 308 U.S. 444, 446, 60 S. Ct. 321, 84 L. Ed. 377 (1940); Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009). The purpose of the effective assistance guarantee “is simply to ensure that criminal defendants receive a fair trial.” Strickland, 466 U.S. at 689. To fulfill this function, “counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest.” Strickland, 466 U.S. at 688; see Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981) (criminal defendant has constitutional right to “representation that is free from conflicts of interest”).
The Sixth Amendment right to counsel attaches on the filing of formal charges or following arraignment when a person is arrested pursuant to a warrant. See Brewer v. Williams, 430 U.S. 387, 398, 97 S. Ct. 1232, 51 L. Ed. 2d 424, reh. denied 431 U.S. 925 (1977); State v. Appleby, 289 Kan. 1017, 1044, 221 P.3d 525 (2009). However, probation revocation proceedings are not considered a part of a criminal prosecution and, therefore, not all constitutional trial rights apply. See Gagnon v. Scarpelli, 411 U.S. 778, 786-87, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Thus, a threshold question in this case is whether Galaviz is justified in relying on his rights under the Sixth Amendment.
The parties have not discussed this threshold issue; Galaviz simply asserted his Sixth Amendment right to conflict-free counsel without citing any authority establishing that the right applies to Galaviz’ probation revocation proceeding, and the State did not contest his assertion. The Court of Appeals, without referring specifically to the Sixth Amendment, stated: “A defendant has a constitutional right to be represented by counsel in probation-revocation hearings.” Galaviz, 2009 WL 5206238, at *2. Even though the question of whether the Sixth Amendment applies was not made an issue by the parties, we begin our analysis with this threshold question because ignoring the question might cause confusion in future cases, this court has not previously decided the issue, and its outcome can dictate whether Galaviz can make his ineffective assistance of counsel claim.
Sixth Amendment and Probation Revocation Proceedings
For its part, the Court of Appeals in concluding there was a constitutional right to counsel in probation revocation proceedings cited State v. Billings, 30 Kan. App. 2d 236, 238, 39 P.3d 682 (2002). Galaviz, 2009 WL 5206238, at *2. In Billings, a panel of tire Court of Appeals pointed out that “[t]he Supreme Court of the United States has determined that revocation of probation is not part of a criminal prosecution and, therefore, the full panoply of rights due a defendant in a criminal case is not applicable to a probation revocation proceeding.” Billings, 30 Kan. App. 2d at 238 (citing Gagnon, 411 U.S. at 786, and Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 [1972]). The Billings court then listed several rights that do apply, including the right to the assistance of counsel. Billings, 30 Kan. App. 2d at 238. To support this unequivocal statement of the right to counsel, the Billings court cited Black v. Romano, 471 U.S. 606, 612, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985).
The United States Supreme Court was not this absolute in Black, however, stating that a “probationer has a right to the assistance of counsel in some circuinstances.” (Emphasis added.) Black, 471 U.S. at 612 (citing Gagnon, 411 U.S. at 790). Although the Black Court did not expand on the circumstances in which the right would attach, the Court had engaged in a more extensive discussion of the circumstances in Gagnon. There, the Supreme Court held that right to counsel in a probation revocation proceeding arises from the Due Process Clause of the Fourteenth Amendment rather than the Sixth Amendment and “that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system.” Gagnon, 411 U.S. at 789-90.
In Kansas, the legislature disposed of tire need for this case-by-case determination by enacting a right to counsel when a defendant is arrested for an alleged probation violation. As codified at K.S.A. 22-3716(b), which deals generally with tire procedures for probation revocation proceedings, the legislature provided an unqualified right, stating the defendant “shall have the right to be represented by counsel and shall be informed by the judge that, if the defendant is financially unable to obtain counsel, an attorney will be appointed to represent the defendant.” Hence, under Gagnon, a defendant in Kansas, including Galaviz, who is alleged to have violated the terms and conditions of probation has a due process right to effective assistance of counsel, which means conflict-free counsel.
Without recognizing that Galaviz’ right to conflict-free counsel does not arise from the Sixth Amendment, Galaviz cites to and relies on cases applying the Sixth Amendment’s guarantee of effective assistance of counsel. See Jenkins, 257 Kan. 1074. He does not cite a state law basis. Nevertheless, Galaviz’ reliance is partially justified by the United States Supreme Court’s decision in Wood, 450 U.S. 261.
In Wood, the United States Supreme Court considered the right to counsel in the context of probation revocation proceedings arising after two probationers failed to pay their fines in a case where they were found guilty of distributing obscene materials by selling products at their place of employment. They were represented by a single attorney who was paid for by their employer; the attorney also represented the employer. The Court concluded that under Georgia law a defendant facing a parole or probation revocation had a right to counsel under the Due Process Clause of the Fourteenth Amendment. Wood, 450 U.S. at 271 (citing Gagnon, recognizing right to counsel under Georgia statute, and also observing revocation proceeding was complex and difficult to develop and present). The Wood Court then stated: “Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.” Wood, 450 U.S. at 271. In considering whether the probationers’ right to effective assistance of counsel may have been violated, the Wood Court discussed and relied on two Sixth Amendment right to counsel decisions that form the basis for the Court’s later decision in Mickens—Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), and Holloway v. Arkansas, 435 U.S. 475, 481, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).
Likewise, in other postconviction situations, this court has recognized that even though a defendant did not have a Sixth Amendment right to counsel, when there is a statutoiy right to the appointment of counsel, the appointed attorney “ ‘must be effective and competent. Otherwise, the appointment is a useless formality.’ ” Brown v. State, 278 Kan. 481, 484, 101 P.3d 1201 (2004) (quoting Cullins v. Crouse, 348 F.2d 887, 889 [10th Cir. 1965]). Hence, this court has recognized a criminal defendant could obtain a remedy pursuant to K.S.A. 60-1507 for a claim of ineffective assistance of counsel in a civil postconviction proceeding. Brown, 278 Kan. at 484.
These authorities lead us to conclude a Kansas criminal defendant has a constitutional right to effective assistance of counsel in a probation revocation proceeding under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This right includes the right to conflict-free counsel. Even though the source of this right is not the Sixth Amendment to the United States Constitution, cases applying the effective assistance of counsel guarantee of the Sixth Amendment can be used to analyze Fourteenth Amendment ineffective assistance of counsel claims because the governing principles and policies are coextensive. Consequently, Galaviz was justified in relying on Sixth Amendment cases. Hence, although we consider Galaviz’ right to conflict-free counsel to arise under the Fourteenth Amendment rather than the Sixth Amendment, we conclude he is entitled to relief if he can meet his burden.
Galaviz’ Burden: Step One—Is There An Active Conflict of Interest.P
Regarding tlrat burden, as we have noted, Galaviz’ primary argument in his petition for review is that the Court of Appeals, in rejecting his claim, ex-red by failing to apply this court’s decision in Jenkins, 257 Kan. 1074. This court held, in part:
“[WJhere the trial court was on notice that defense counsel represented the defendant and the key prosecution witness against the defendant, and was on notice that the defendant had not waived this conflict of interest, the trial court had an independent duty to inquire about the conflict. Failure of the trial court to inquire under these circumstances requires reversal of the defendant’s convictions. Under these circumstances, prejudice to die defendant is presumed.” Jenkins, 257 Kan. 1074, Syl. ¶ 6.
Under this holding, Galaviz argues he is not required to establish tlrat Cowell’s representation was adversely affected by the conflict as required by the Court of Appeals. Rather, according to Galaviz, he need only establish there was a conflict of interest, the district court was aware of the conflict, and the court failed to inquire regarding the conflict.
The State insists that there is not an active conflict of interest, primarily because the victim did not testify and because the record does not establish concurrent representation or reveal what information, if any, Cowell may have learned about tire crime from the victim. This argument ignores the fact that the record indicates Cowell revealed information about tire victim gained from his representation as her guardian ad litem when he told the court he had “noticed[d] something about her. . . . [S]he certainly was among the more willing young ladies.”
Further, although the State is correct that the record does not establish whether Cowell’s representation as a guardian ad litem had terminated before Galaviz’ probation revocation proceeding, attorneys owe ethical obligations to both former and current clients and an obligation to avoid representing clients where there is a conflict of interest with either former or current clients. See KRPC 1.7(a) (2011 Kan. Ct. R. Annot. 484) (conflict of interest; current clients); ICRPC 1.9(a) (2011 Kan. Ct. R. Annot. 502) (conflict of interest; duties to former clients). While there are unique considerations that arise because Cowell acted as the victim’s guardian ad litem, neither party discusses the potential implications.
Nevertheless, the Court of Appeals found that these duties established a conflict of interest, stating:
“[I]t takes little effort to envision substantial, potential conflicts of interest— Cowell had to have learned some confidential information during his representation of the victim. Absent the victim’s informed consent in writing, Cowell had a duty to keep that information to himself, but he also had a duty to locate any information that could help Galaviz.
“Even after Galaviz admitted violating his probation, the district court still retained discretion to decide whether to revoke Galaviz’ probation or to give him another chance at probation. [Citation omitted.] Thus, Cowell needed to paint Galaviz in the best possible light as the district court decided whether to give him another chance at probation or send him to prison. Cowell’s responsibilities to both the victim and the offender of the same crime created a substantial risk that his ability to represent Galaviz in the probation-revocation proceedings would be materially limited by his continuing responsibilities to the victim.” Galaviz, 2009 WL 5206238, at *2.
We agree with the Court of Appeal’s analysis on this point.
Step Two: Does the Conflict Require ReversalP
Given the conclusion that there was an active conflict of interest arising from Cowell’s multiple representation of the victim and Galaviz, we are back to Galaviz’ argument that automatic reversal is mandated by this court’s decision in State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995). This leads us to the critical question in this appeal of whether Jenkins remains valid in light of subsequent decisions of the United States Supreme Court, including Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 (2002), which was decided by the United States Supreme Court approximately 7 years after Jenkins. While the Court of Appeals cited Jenkins, it did not discuss its holdings or facts or determine if it was consistent with Mickens.
The possibility that Mickens overruled Jenkins arises because the United States Supreme Court's decisions control the application of the United States Constitution and Jenkins was decided based on the right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and not on Kansas law. See State v. Scott, 286 Kan. 54, 91, 183 P.3d 801 (2008) (Under Article VI of the United States Constitution, “ ‘tire interpretation placed on the Constitution and laws of tire United States by the decisions of the United States Supreme Court is controlling upon state courts and must be followed.' ”); Jenkins, 257 Kan. at 1075 (Jenkins “argued before the Court of Appeals that his Sixth Amendment right to effective assistance of counsel was violated because of his trial counsel’s conflict of interest.).
Hence, Jenkins must be read in harmony with Mickens and other decisions of the United States Supreme Court. Consequently, we will discuss Mickens and Jenkins, reconcile them, and apply that reconciliation to the facts'of this case'. '
Mickens v. Taylor
In Mickens, the United States Supreme Court answered the question of “what a defendant must show in order to demonstrate a Sixth Amendment violation where die trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known.” Mickens, 535 U.S. at 164. The issue arose several years after Mickens had been convicted of capital murder when, during a postconviction habeas proceeding, Mickens first learned his trial attorney had also represented the murder victim in a criminal case that was pending at the time Mickens allegedly murdered the victim.
The facts of the multiple representation were then discovered. The victim was charged with a crime and had a pending criminal case at the time he was murdered. Upon the victim's death, a judge entered an order dismissing the charges against the victim. The next business day, the same judge appointed an attorney to represent Mickens. The appointed attorney was the same attorney who had been representing the victim in his criminal matter. The at torney did not disclose to the court, his cocounsel, or Mickens that he had been representing the victim at the time of the murder.
In defining Mickens’ burden in light of tiróse facts, the Supreme Court distinguished three categories of ineffective assistance of counsel claims under the Sixth Amendment. The first category includes cases in which it is claimed that the attorney’s performance was so deficient that the defendant was denied a fair trial. The second category applies when the assistance of counsel was denied entirely or denied at a critical stage of the proceeding. The third category includes situations where tire defendant’s attorney “actively represented conflicting interests.” Mickens, 535 U.S. at 166.
Regarding tire first category of an attorney’s deficient performance, the Mickens Court explained that the test for establishing a Sixth Amendment violation was defined in Strickland, 466 U.S. at 687. The Mickens Court referred to this standard as the “general rule” arid explained that a defendant has the burden to establish (1) the attorney’s performance was deficient and (2) “ ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Mickens, 535 U.S. at 166 (quoting Strickland, 466 U.S. at 694); see State v. Gleason, 277 Kan. 624, 643-44, 88 P.3d 218 (2004).
The second category creates an “exception to this general rule,” known as the Cronic exception, because the complete denial of the assistance of counsel or the denial of counsel at a critical stage of a proceeding presents “ ‘circumstances of [such] magnitude’ ” that “the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.” Mickens, 535 U.S. at 166 (citing United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]). Given these exceptional circumstances, a defendant is “spared . . . the need of showing probable effect upon the outcome.” Mickens, 535 U.S. at 166. Instead, a court can presume prejudice. Mickens, 535 U.S. at 166 (citing Cronic, 466 U.S. at 658-59); see, e.g., Edgar v. State, 294 Kan. 828, 839-43, 283 P.3d 152 (2012) (discussing the Cronic exception).
The third category—where the defendant’s attorney actively represented conflicting interests—is more nuanced. The Mickens Court recognized that when a defendant’s attorney actively rep resents conflicting interests there “may” be “ 'circumstances of [such] magnitude’ ” that the “likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.” Mickens, 535 U.S. at 166 (citing Cronic, 466 U.S. at 658-59). In determining when such a circumstance easts, the Court separated conflict cases into three subcategories. All three conflict-of-interest subcategories share a starting point—the defendant must establish that his or her attorney had an active conflict of interest. Beyond that, there are distinguishing points.
The first distinction relates to the temporal relationship of the multiple representations. The first two subcategories arise where the multiple representations are concurrent. The third arises if the multiple representations are successive or if the conflict arises because of the attorney s personal or business interests. See Mickens, 535 U.S. at 167-76; Moss v. United States, 323 F.3d 445, 455 n.15, 459 (6th Cir.) (distinguishing between multiple concurrent representation and successive representation; multiple concurrent representation includes representation that is “joint and dual,” which refers “to simultaneous representation occurring in tire same proceeding” and “multiple representation,” which “refers to simultaneous representation in separate proceedings”; “[s]uccesive representation occurs where defense counsel has previously represented a co-defendant or trial witness”), cert. denied 540 U.S. 879 (2003).
A second distinction between the subcategories depends on whether an objection to the multiple representations is made before or during the proceeding. See Mickens, 535 U.S. at 168-69. Closely related are distinctions regai’ding the district couit’s burden of inquiry in each circumstance. See Mickens, 535 U.S. at 173-76.
Recognizing these distinctions and placing a case in the appropriate subcategory is essential to the determination of the test to be applied. See Mickens, 535 U.S. at 167-76. As we further explain these distinctions and the applicable tests, we will refer to the first of these subclassifications as the automatic reversal exception, the second as the adverse effect exception, and the third as the Mickens reservation.
The automatic reversal exception derives from Holloway, 435 U.S. at 475. It applies when a criminal defendant or his or her attorney voices a timely objection to the multiple concurrent representations of clients with antagonistic interests and the district court fails to investigate the conflict. Mickens, 535 U.S. at 168 (citing Holloway, 435 U.S. at 488). Itemizing these requirements, there are three characteristics that cases in this automatic reversal category must have: (1) multiple concurrent representation; (2) a timely objection, meaning an objection before or during the proceeding; and (3) a failure of the district court to inquire and determine there is no conflict, Mickens, 535 U.S. at 168 (quoting Holloway, 435 U.S. at 488, for its holding that “whenever a trial court improperly requires joint representation over timely objection reversal is automatic”).
When diese three characteristics are present, according to the Mickens Court, a presumption of prejudice is warranted because the situation is “inherently suspect, and because counsels conflicting obligations to multiple defendants ‘effectively sea[ls] his bps on crucial matters’ and make[s] it difficult to measure the precise harm arising from counsel’s errors.” Mickens, 535 U.S. at 168 (quoting Holloway, 435 U.S. at 489-90). Also, “[j]oint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing.” Holloway, 435 U.S. at 489-90. The record in joint representation cases will ordinarily not memorialize mistakes of omission as it does affirmative instances of trial error, so for a court to evaluate the existence and effect of such mistakes of omission would entail “unguided speculation.” Holloway, 435 U.S. at 490-91. Consequently, as when the Cronic exception applies, reversal is automatic unless the district court has determined diere is no conflict. Mickens, 535 U.S. at 168 (citing Holloway, 435 U.S. at 488); see Gleason, 277 Kan. at 650.
The second subcategoiy, which derives from Cuyler, is the adverse effect exception. This exception applies when there is (1) an active conflict of interest because of concurrent representation of codefendants but (2) there was no objection to the conflict of interest before or during the proceeding. In such a situation, “a defendant must demonstrate that ‘a conflict of interest actually af fected the adequacy of his representation.’ ” Mickens, 535 U.S. at 168 (quoting Cuyler, 446 U.S. at 348-49); see Gleason, 277 Kan. at 650. The Mickens Court took care to differentiate the burden under the adverse effect exception from the Strickland test, indicating under the adverse effect exception “prejudice will be presumed only if the conflict has significantly affected counsel’s performance—thereby rendering the verdict unreliable, even though Strickland prejudice cannot be shown.” Mickens, 535 U.S. at 172-73. Later in the opinion, the Mickens Court reiterated that a defendant’s burden does not rise to the level of the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984), test that requires “a showing of probable effect upon the outcome of the trial.” Mickens, 535 U.S. at 174.
The third subcategory of cases, the Mickens reservation, arises in situations where a conflict is “rooted in counsel’s obligations to former clients” or “counsel’s personal or financial interests.” Mickens, 535 U.S. at 174. We refer to this subcategory as the Mickens reservation because, although the Court recognized the potential conflicts in such situations, it reserved for another case tire consideration of a test to be applied to determine if a defendant is entitled to relief. The Court stated that whether the adverse effect exception stated in Cuyler “should be extended to such cases remains, as far as the jurisprudence of this Court is concerned, an open question.’’ Mickens, 535 U.S. at 176. In place of the adverse effect exception, the Court indicated the Strickland test might apply. Mickens, 535 U.S. at 176.
The fact that successive representation or personal interests in a case might raise ethical issues for the attorney was not a sufficient reason to apply the adverse effect exception, the Court concluded, because “[n]ot all attorney conflicts present comparable difficulties.” Mickens, 535 U.S. at 175. The Court elaborated on the distinction, stating:
“This is not to suggest that one ethical duty is more or less important than another. The purpose of our Holloway and [Cuyler v.] Sullivan exceptions from the ordinary requirements of Strickland, however, is not to enforce the Canons of Legal Ethics, but to apply needed prophylaxis in situations where Strickland itself is evidently inadequate to assure vindication of the defendant’s Sixth Amendment right to counsel. See Nix v. Whiteside, 475 U.S. 157, 165[, 106 S. Ct. 988, 89 L. Ed. 2d 123] (1986) (‘[B]reach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel’). In resolving this case on the grounds on which it was presented to us, we do not rule upon the need for the [Cuyler v. ] Sullivan prophylaxis in cases of successive representation.” Mickens, 535 U.S. at 176.
In reserving the question, the Mickens Court acknowledged that the facts presented a successive representation question—the charges against the victim had been dismissed before the attorney was appointed to represent Mickens. Yet, the Court concluded it did not need to resolve the question because the case had been argued on the assumption that Mickens would be required to show defective performance, but he would not be required “in addition (as Strickland does in other ineffectiveness-of-counsel cases), [to show] a probable effect upon the outcome of trial.” Mickens, 535 U.S. at 174. Mickens had been unable to meet that burden. Mickens, 535 U.S. at 173-74.
In explaining the three conflict-of-interest subcategories, die Mickens Court also discussed a district court’s duty to inquire into a potential conflict of interest. As to the first subcategory, the Mick-ens Court reaffirmed its holding in Holloway that a trial court has a duty to inquire when there has been an. objection to the concurrent representation, and a failure to perform that duty of inquiry requires automatic reversal. Mickens, 535 U.S. at 168. As to the second and third categories, the Mickens Court also reaffirmed the holding in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), that a trial court has a duty to conduct a sua sponte inquiry where the court, even without an objection, knows or reasonably should know that a particular conflict exists. The Mickens Court explained when this duty arises, stating it is limited to situations
“when ‘the trial court knows or reasonably should know that a particular conflict exists,’ [citation omitted]—which is not to be confused with when the trial court is aware of a vague, unspecified possibility of conflict,.such as that which ‘inheres in almost every instance of multiple representation.’ [Citation omitted.]” Mickens, 535 U.S. at 168-69 (quoting Cuyler, 446 U.S. at 347, 348).
Mickens argued tliat in his case the duty to inquire arose because the court knew or should have known of the concurrent representation and that a failure to inquire should result in automatic reversal. To support this argument, Mickens cited Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981).
In Wood, the United States Supreme Court remanded the case to the trial court to determine whether the conflict of interest that was suggested in the record “actually existed.” Wood, 450 U.S. at 273-74. In justifying the remand, the Wood Court noted that the State had raised the potential conflict and the trial court knew of the facts that raised the question of whether a conflict existed. Wood, 450 U.S. at 272-73. The possibility that the attorney was actively representing conflicting interests “was sufficiently apparent ... to impose upon the court a duty to inquire further” and to “demonstrate convincingly the duty of the court to recognize tire possibility of a disqualifying conflict of interest.” Wood, 450 U.S. at 272. Yet the trial court’s failure to make an inquiry did not lead to a reversal because the Supreme Court was not able to “be sure whether counsel was influenced in his basic strategic decision by the [conflicting] interests . . . .” Wood, 450 U.S. at 272. Instead, the Wood Court remanded the case.
Mickens argued that through this remand order the Wood Court implicitly relieved the defendant of the burden of establishing that the conflict had an adverse effect on his attorney’s performance because the order merely required the defendant to establish that a conflict “ ‘actually existed.’ ” See Mickens, 535 U.S. at 170 (quoting Wood, 450 U.S. at 273). The Mickens Court rejected this argument, explaining that the phrase “ ‘actual conflict of interest’ ” was “shorthand for the statement in [Cuyler v. ] Sullivan that ‘a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.’ [Cuyler,] 446 U.S., at 349-350.” Mickens, 535 U.S. at 171. The Court further explained this “ ‘actual conflict of interest’ ” requirement means more than a mere division of loyalties; it requires a conflict that affected counsel’s performance. Mickens, 535 U.S. at 172 n.5.
Thus, the Mickens Court refused to apply the automatic reversal exception when a judge violated the Cuyler duty to inquire sua sponte, concluding it “makes little policy sense” to do so because “[t]he trial court’s awareness of a potential conflict renders it no more likely that counsel’s performance was significantly affected” by a conflict than a situation in which “the trial judge is not aware of the conflict (and thus not obligated to inquire).” Mickens, 535 U.S. at 172-73. Neither could it be said that the “trial judge’s failure to make the [Cuyler]-mandated inquiry often make[s] it harder for reviewing courts to determine conflict and effect, particularly since those courts may rely on evidence and testimony whose importance only became established at tire trial.” Mickens, 535 U.S. at 173. Rather, a reviewing court could “often” determine whether the conflict adversely affected the attorney’s performance, “particularly since those [reviewing] courts may rely on evidence and testimony whose importance only becomes established at trial.” Mickens, 535 U.S. at 173. Mickens thus explains the limited practical significance of the Cuyler obligation to inquire: If a defendant raises an ineffective assistance of counsel claim based on an alleged conflict of interest for the first time on appeal, the defendant will bear the same burden of showing an adverse effect on counsel’s performance whether the Cuyler obligation to inquire applied and was ignored or simply did not apply. Mickens, 535 U.S. at 173-74.
Applying these holdings to this case, the Court of Appeals determined the Cuyler duty to inquire sua sponte arose and the district court abused its discretion in failing to make the inquiry when Cowell’s statements made it apparent he had represented the victim in one of the cases at issue in the probation revocation proceeding. The Court of Appeals, applying Mickens, determined this failure to inquire did not result in automatic reversal. Galaviz, 2009 WL 5206238, at *3-4.
It is this conclusion that Galaviz argues is contrary to this court’s holding in State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995).
State v. Jenkins
In Jenkins, the defendant was charged with one count of sale of cocaine as a result of a sale to a confidential informant. Jenkins’ attorney had represented the confidential informant on unrelated charges that took place while the informant was supplying information to law enforcement officers, including information that led to the charges against Jenkins. At Jenkins’ preliminary hearing, the informant appeared as a key witness for the prosecution. Jenkins’ attorney, during voir dire questioning of the informant, established that the informant had no objection to the attorney representing Jenkins. The attorney then asked Jenkins if he was aware of the attorney’s representation of the informant “at an earlier date” and if he was “willing to go forward” with his attorney continuing to represent him. Jenkins answered, “Yes .’’ Jenkins, 257 Kan. at 1077.
After Jenkins was convicted by a jury, he appealed to die Court of Appeals, raising the issue of ineffective assistance of counsel for die first time. The Court of Appeals determined there was a conflict of interest and that Jenkins had not made an informed waiver of the conflict. Nevertheless, the Court of Appeals affirmed the conviction because Jenkins failed to show that the conflict of interest adversely affected his attorney’s performance. State v. Jenkins, No, 70,958, unpublished opinion filed October 28, 1994, rev'd 257 Kan. 1074, 898 P.2d 1121 (1995).
On review of the Court of Appeals’ decision, this court determined the record was sufficient for the court to consider the ineffective assistance of counsel issue, even though it was raised for the first time on appeal. Jenkins, 257 Kan. at 1079-80. This court further found that “[t]he record established that counsel was involved in an attorney-client relationship with the defendant and the key prosecution witness and was representing both during the trial of the defendant.” Jenkins, 257 Kan. at 1080. Thus, this court agreed with the Court of Appeals that an “actual conflict” existed in the case. Jenkins, 257 Kan. at 1087. However, this court disagreed with the Court of Appeals’ requirement that the defendant must show the conflict adversely affected his attorney’s performance in order to receive a reversal of the conviction, concluding the automatic reversal exception stated in Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978), applied even though no objection had been made and the attorney was not representing codefendants. Jenkins, 257 Kan. at 1081, 1083-87. The Jenkins court stated two reasons for applying the Holloway automatic reversal exception rather tiran the Cuyler adverse effect exception even though there had been no objection to the attorney s joint representation of the prosecution witness and Jenkins. Jenkins, 257 Kan at 1086-87.
First, the Jenkins court contrasted the factual circumstances of Holloway—the simultaneous and dual representation of codefen-dants—from the circumstances in Jenkins—multiple representation of a prosecution witness and a defendant in the same case. The court reasoned that a conflict does not always arise from concurrently representing codefendants because, depending on the facts of the case, the codefendants might be united in interest. See Cuyler, 446 U.S. at 348 (while “a possible conflict inheres in almost every instance of multiple representation,” multiple representation of codefendants in itself does not violate the Sixth Amendment). Consequently, “[a]bsent special circumstances,... trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.” Cuyler, 446 U.S. at 346-47. Because of these considerations, the Jenkins court held that “[wjithout an objection, the trial court is in no position to know that a particular conflict exists.” Jenkins, 257 Kan. at 1087. In contrast, because the defense attorney represented the confidential informant “during the time the witness was acting as a confidential informant for the State in the drug transaction involved in this case[, i]t was readily apparent that confidential information in one case would be relevant in the other case. Thus, the court knew that an actual conflict existed .’’Jenkins, 257 Kan. at 1087.
Second, the Jenkins court observed that the district court was aware of the conflict. Specifically, the fact that the defense attorney asked tire witness and Jenkins questions about her representation of both of them meant “[tjhe court was put on notice that a conflict of interest existed and that the defendant had not waived tire conflict on the record.” Jenkins, 257 Kan. at 1087. The Jenkins court concluded:
“Under these circumstances, given the obligation of the trial court to protect tire defendant’s right to a fair trial and the information available to the court from the defense counsel, we conclude that the rule established in Holloway, rather than the rule established in Cuyler, applies and that the trial court had an obligation to inquire further into the conflict of interest. Because the trial court failed to do so, the defendant’s conviction must be reversed.” Jenkins, 257 Kan. at 1087.
Hence, if the holding in Jenkins remains valid, the fact that neither Cowell nor Galaviz objected to Cowell’s appointment would not prevent application of the automatic reversal exception. As a result, because Cowell’s statements were sufficient to trigger the district court’s sua sponte duty of inquiiy and the court failed to make that inquiry, reversal would be automatic. Again, because the Jenkins court based its analysis on Holloway and Cuyler, this raises the question of whether Jenkins can be read in harmony with Mick-ens when applied to the facts of this case.
Jenkins in Light of Mickens
Factually, Mickens, like this case, arose because tire same attorney represented the victim and the defendant charged with a crime against that victim. The Mickens Court recognized this created a conflict of interest. But Mickens informs us that the only circumstance allowing for automatic reversal is one where the representation is concurrent and a timely objection has been made. See Mickens v. Taylor, 535 U.S. 162, 170-74, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 (2002). Hence, any language in Jenkins that would suggest automatic reversal is justified even if an objection is not made or if the representation is successive was effectively overruled by the United State Supreme Court’s decision in Mickens.
As a result, Jenkins does not support Galaviz’ argument that he is entitled to automatic reversal simply because his attorney had a conflict of interest. Galaviz must establish which Mickens subcategory applies and that he met the burden that applies to that subcategory. To make this determination, we next examine the facts of this case regarding what we know about (a) the presence or lack of an objection and (b) the concurrent or successive nature of the representation.
(a) Objection
In this case, we know there was no objection to Cowell’s representation. Hence, while the district court had a duty to malee an inquiry and abused its discretion by failing to fulfill that duty, under Mickens Galaviz is not entitled to an automatic reversal of the district court’s decision finding that Galaviz violated his probation and ordering Galaviz to serve the prison sentences. Rather, the facts of this case fall within either the adverse effect exception if Cowell’s multiple representations were concurrent or the Mickens reservation if the multiple representations were successive.
(b) Concurrent or Successive Representation
The Court of Appeals treated the case as a successive representation situation, referring to Cowell’s representation of his “former client,” the victim in one of Galaviz’ criminal cases. This inference can be drawn from Cowell’s statement that he was the guardian ad litem for the victim. But this statement does not necessarily eliminate the possibility that Cowell had continuing obligations as a guardian ad litem for the victim, especially given that the victim was still a minor at the time of Galaviz’ probation revocation proceeding. We do not even know the type of case in which Cowell was appointed as a guardian ad litem or whether he had withdrawn or had his appointment terminated. See People v. Hernandez, 231 Ill. 2d 134, 896 N.E.2d 297 (2008) (representation of victim and defendant deemed concurrent where attorney remained attorney of record for victim in different criminal prosecution made dormant by victim’s bond forfeiture). Consequently, we simply cannot determine from the record before us whether the representation was concurrent or successive.
Yet, without discussion of what test applied to successive representation cases, the Court of Appeals, as this court did in State v. Adams, 284 Kan. 109, 125, 158 P.3d 977 (2007), applied the adverse effect exception to a situation it deemed to be one of successive representation. See, e.g., Boldridge v. State, 289 Kan. 618, 627-28, 215 P.3d 585 (2009) (without discussion of Mickens subcategories, examined whether conflict was structural or could be waived and, because conflict could be waived, applied adverse ef- feet exception to situation where defendant’s attorney, while acting as pro tempore judge, had authorized an investigatory subpoena related to the charged crime); State v. Carter, 284 Kan. 312, 321-24, 160 P.3d 457 (2007) (noting adverse effect exception and citing Mickens in reference to criminal defendant’s midtrial expression of dissatisfaction with defense attorney; issue decided based on appropriateness of district court’s inquiry and resolution of objection); State v. Gleason, 277 Kan. 624, 650-52, 88 P.3d 218 (2004) (recognizing subcategories but not applying them because conflict of interest not established by defendant’s attorney serving as prosecutor in a neighboring county).
We need not determine whether the adverse effect exception is the appropriate exception to be applied post-Mic/cms to successive representation situations because in this case the State does not argue any other test should be applied. Furthermore, like Mickens, in theory Galaviz benefitted from this treatment by not being required to meet the more difficult Strickland test that requires a showing that counsel’s performance resulted in prejudice, which is determined by examining whether tire deficient conduct affected the outcome of the proceeding. See Mickens, 535 U.S. at 173-74.
Applying the more lenient adverse effect exception, the Court of Appeals concluded the appellate record was sufficient to allow analysis under the exception and that die record did not establish a basis for relief. In considering whether a claim of ineffective assistance of counsel can be considered for die first time on appeal, we have previously stated that generally the factual aspects of a claim of ineffective assistance of counsel require that the matter be resolved through a K.S.A. 60-1507 motion or through a request to remand the issue to the district court for an evidentiary hearing under State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986); see Jenkins, 257 Kan. at 1079-80. We have, however, on occasion recognized that a record is sufficient to make the determination for the first time on appeal. See, e.g., Gleason, 277 Kan. at 650-52. The United States Supreme Court recognized this possibility in Mickens, 535 U.S. at 173-74. But the Supreme Court has also warned that the record in joint representation cases will ordinarily not memorialize mistakes of omission and for a court to evaluate the existence and effect of such mistakes of omission will usually entail “unguided speculation.” Holloway, 435 U.S. at 491. With these concepts in mind, we consider whether die record in this case is sufficient for us to determine if the conflict of interest adversely affected Cowell’s representation.
In pointing to the record on appeal, Galaviz argues there is circumstantial evidence that Cowell was influenced by his divided loyalty to the victim because Galaviz, while initially requesting an evidentiary hearing on the allegations that he had violated his probation, eventually waived his right to require the State to meet its burden of proof. See McFarland v. Yukins, 356 F.3d 688, 706 (6th Cir. 2004) (“Causation can be proved circumstantially, through evidence that the lawyer did something detrimental or failed to do something advantageous to one client that protected another client’s interests.”). It could be argued that Cowell’s loyalties to the victim would be furthered by the certainty of an admission that would lead to a revocation of Galaviz’ probation. The Court of Appeals, however, concluded the more likely cause of the decision to waive the hearing was the amendment of the allegations to include new convictions. See Galaviz, 2009 WL 52016238, at *4. Certainly, if we were to apply Strickland’s prejudice test, we would conclude that Galaviz’ admission to the violations most likely did not change the outcome of the proceeding.
But that is not our test. Here the question is whether Cowell’s active conflict of interest had an adverse effect on his representation. Ultimately, it may be that the answer is that it did not and that it was the new convictions that influenced the decision to admit to the alleged probation violations. However, the record before us does not provide any information regarding the reasons the strategy was changed. Further, Galaviz had a right to insist on an evidentiary hearing even if it was likely, or even virtually certain, that he would not prevail. Cf. Kargus v. State, 284 Kan. 908, 924-25, 169 P.3d 307 (2007) (noting distinction between attorney’s performance denying defendant a fair proceeding, where Strickland presumption of reliability applies, and depriving defendant of a right to a proceeding, where presumption cannot apply because proceeding did not occur). In other words, we disagree with the Court of Appeals’ conclusion that the record on appeal is adequate to allow us to assess this or the other allegations of adverse performance that Galaviz has asserted. As the United States Supreme Court stated in Wood, we are unable to “be sure whether counsel was influenced in his basic strategic decision by the [conflicting] interests . . . .” Wood, 450 U.S. at 272.
Nevertheless, Galaviz has not requested a Van Cleave hearing. Normally, this would mean we would not consider his claim and he would have to bring his claims in a proceeding under K.S.A. 60-1507. But he argues that he should be allowed automatic reversal because Jenkins had precedential authority and controlled his case. For the reasons we have discussed, we disagree. Yet, because this decision is the first time we have recognized the overruling of Jenkins, we conclude that in these exceptional circumstances a remand should be allowed.
We, therefore, remand to the district court with directions to appoint new counsel and either conduct the probation revocation proceeding with conflict-free counsel or conduct a hearing regarding the nature of the conflict of interest and whether that conflict requires a reversal of the probation revocation.
The judgment of the Court of Appeals affirming the district court is reversed. The judgment of the district court is reversed, and the case is remanded with directions.
Moritz, J., not participating.
Nicholas St. Peter, District Judge, assigned.
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Burgess, J.:
Officers executed a search warrant that authorized them to search the premises of a specific Wichita address. While on the property, officers searched not only the residence but also a white Mercedes parked in the driveway. Officers recovered evidence of drug offenses from the Mercedes. Subsequent to the search, Dontae M. Patterson was charged with a number of offenses stemming from the evidence recovered in the house and car. Patterson filed two motions: one to suppress all the evidence seized pursuant to the warrant and one to separately suppress the evidence recovered from the Mercedes. The district court granted tire latter motion, determining that the search warrant did not extend to the Mercedes because it did not constitute part of the residence’s curtilage. The State appeals, arguing first that the Mercedes was within the residence’s curtilage and second that the officers searching the vehicle did so in good faith.
Facts
On November 8, 2012, the Wichita Police Department applied for a warrant to search “[t]he premises of 2720 N. Erie, Wichita, Sedgwick County, Kansas.” The application for the search warrant indicated that a Wichita police officer had twice in the last few months discovered marijuana residue in trash bags at that location. The application also noted that Patterson, his son, and two other individuals—an adult woman and a young adult male—lived at the residence. A district judge approved the warrant on the same day. The particularity with which the warrant described the address in question is not at issue in this appeal. ■
In the evening of that same day, Wichita police officers executed the search warrant. Upon arriving at the residence, officers encountered a white Mercedes parked in the driveway with the rear of the car facing the house and the front facing the street. A juvenile, later identified as Patterson’s teenage son, was seated in the front seat of the vehicle. After officers secured the residence, one member of the team proceeded to search the Mercedes in the driveway. Inside the car, the officer discovered a laundry basket containing clothing; a clear glass container reminiscent of a beaker; a box of plastic sandwich bags; a digital scale with a white, powdery residue on it; and a handgun. Officers declined to search a red Mercedes parked on the street outside the residence.
Patterson, as well as the young adult male named in the application for the warrant, were inside the house with a young juvenile when officers entered. In a bedroom within die residence, officers discovered a tide document that indicated that Patterson owned a white Mercedes. In odier rooms of the house, officers uncovered a second gun and a variety of other evidence of drug offenses, including cocaine residue and a quantity of marijuana.
A few days later, Patterson was charged with three charges stemming from the search of the residence and the Mercedes: possession of marijuana witii the intent to distribute, criminal possession of a firearm by a felon, and possession of cocaine. In January 2013, tiie charges were amended to also include receipt of criminal proceeds and two counts of possession of drug paraphernalia.
Patterson subsequently filed two motions to suppress: one advocating for the suppression of all evidence obtained under the search warrant and one focused solely on the evidence seized from the Mercedes. The district court denied the motion regarding all evidence obtained under the warrant. However, the district court granted the motion to suppress the evidence from the Mercedes. In its decision, the district court focused on whether the car parked in the driveway was sufficiently within the curtilage of the residence and thus within the scope of the search warrant. Ultimately, the district court concluded that the scope of the warrant did not include the Mercedes, rendering the search illegal.
The State timely filed an interlocutory appeal.
Analysis
In appealing the suppression of the evidence from the Mercedes, the State argues first that the warrant’s scope extended to the entire curtilage of the residence, including any vehicles within the curtilage. Additionally, the State reasons that even if the warrant itself did not extend to the Mercedes, the officer searching the car did so under a good-faith belief that it was included within the warrant’s scope. Patterson, however, counters these arguments, contending that the warrant’s scope did not extend to the Mercedes, that the Mercedes was not within the curtilage of the property, and that good faith did not support searching the vehicle.
Did the search warrant extend to the Mercedes parked in the driveway at the residence?
After an examination of the caselaw, the district fcourt determined that the search of the Mercedes exceeded the scope of the search warrant because tire car was not part of the curtilage of the property at the residence. The district court based its decision entirely on legal precedent and that precedent’s applicability to the specific facts of Patterson’s case.
The question of whether a particular seizure occurred within the curtilage of a residence is a mixed question of fact and law. An appellate court reviews the district court’s factual findings for substantial competent evidence and reviews de novo the district court’s legal conclusion of whether the seizure occurred within tire curti-lage. State v. Fisher, 283 Kan. 272, 286, 154 P.3d 455 (2007). However, as the district court’s decision relies solely on legal precedent, this appeal centers solely around a legal question over which this court exercises unlimited review. See 283 Kan. at 286.
As a general statement of law, it is well settled that tire Fourth Amendment to the United States Constitution protects not only an individual’s residence from unreasonable searches and seizures, but also the area surrounding the house called the “curtilage.” United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987). This protection exists to conserve the “sanctity of a man’s home and the privacies of life.” Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 29 L. Ed. 746 (1886).
In discussing this principle and its application in Kansas, this court stated in an opinion affirmed and adopted by our Supreme Court that “it has been generally held that a search warrant describing only the residence will authorize a search of any buildings or vehicles within the ‘curtilage’ even though they are not specifically described in the warrant.” State v. Basurto, 15 Kan. App. 2d 264, 266, 807 P.2d 162, aff'd 249 Kan. 584, 821 P.2d 327 (1991). Operating under this general principle, this court and our Kansas Supreme Court have upheld searches of a shed behind a residence, a trash can in the rear of the yard of a residence, and an individual standing outside a residence. State v. McClelland, 215 Kan. 81, 84-85, 523 P.2d 357 (1974) (individual); State v. Ogden, 210 Kan. 510, 519, 502 P.2d 654 (1972) (trash can); Basurto, 15 Kan. App. 2d at 269 (shed). Additionally, tire United States Court of Appeals for the Tenth Circuit has repeatedly upheld searches of vehicles and other objects within the curtilage of a residence because “outbuildings and vehicles within the curtilage of a residence are considered part of that residence for purposes of a search warrant . . . even when not named in the warrant.” United States v. Finnigin, 113 F.3d 1182, 1186 (10th Cir. 1997); see United States v. Porter, No. 97-8016, 1997 WL 639318, at *1 (10th Cir. 1997) (unpublished opinion).
The specific inquiry in this case—whether the scope of a warrant extended to a vehicle located on the curtilage of the resident to be searched—is a novel one in Kansas. Only one case from this state, State v. Coker, No. 89,851, 2003 WL 22697577 (Kan. App. 2003) (unpublished opinion), directly addresses this issue. In Coker, a search warrant authorized officers to search a specific vehicle and three addresses, all owned by the focus of the warrant, Steve Rowland. Rowland lived at one of the named addresses and operated a business at another of the named addresses, which was directly adjacent to his residence. While executing the warrant, officers searched Coker s car, which was parked in the driveway between Rowland’s residence and his business. On Coker s motion, the district court suppressed drug evidence found in the car.
In affirming the district court’s decision, this court acknowledged the general principle that a search warrant generally applies to outbuildings and vehicles in the curtilage of the premises to be searched. 2003 WL 22697577, at *3. This court dismissed Basurto’s inclusion of vehicles in its statement of law as a “broadly painted rule of law [that] was unnecessary to that decision” and observed that it “did not clarify whether the vehicles to which it referred meant those owned or controlled by the owner of the residence described in the search warrant or whether it meant any vehicle which might fortuitously be present in the area during tire execution of the search warrant.” 2003 WL 22697577, at *3. This court then analyzed whether tire car was within the curtilage of the addresses to be searched under the assumption that the warrant’s scope extended to vehicles properly within the curtilage of Rowland’s residence. This court ultimately concluded that “a temporary visitor’s automobile is not so intimately connected to the residence being visited that it would fall under the homeowner’s expected Fourth Amendment protections.” 2003 WL 22697577, at*4. In fact, this court repeatedly focused on the car’s proximity to Rowland’s business and the likelihood of the warrant embracing an innocent customer’s vehicle rather than the object of the search in affirming the district court’s decision. Importantly, this court also observed the lack of evidence connecting Rowland to both Coker and her car, thus limiting any possibility of the evidence within the car being covered by the warrant. 2003 WL 22697577, at *4.
Patterson relies on this case, as well as persuasive authority from Texas and the Eastern District of Arkansas, to demonstrate that a search warrant will not extend to vehicles within the curtilage of the premises to be searched. But each of these cases is distinguishable from the instant case. In the Texas case, tire warrant by its terms authorized a search of “ ‘all vehicles’ ” on the premises— regardless of whether they belonged to tire object of the warrant— while the vehicle at issue arrived during the search. State v. Barnett, 788 S.W.2d 572, 577 (Tex. Crim. 1990). In its decision, the court disapproved of the search of the late-arriving car primarily due to the overall breadth of the warrant, focusing its analysis on whether tire car constituted a vehicle on the premises for the purposes of the warrant—and not whether a warrant not naming the vehicle embraced it as part of the curtilage. 788 S.W.2d at 576 (“It is difficult to conceive of a broader description than the phrase ‘[ijncluding all vehicles.’ ”). The Arkansas trial court’s decision to suppress the evidence from the vehicle is based on a similar fault in the warrant itself: the warrant, which specifically named “ ‘any and all vehicles’ ” on the premises, was not supported by probable cause. United States v. Swift, 720 F. Supp. 2d 1048, 1056-57 (E.D. Ark. 2010).
Although these two cases are instructive in situations when a warrant broadly names a number of vehicles to be searched, they are inapplicable to the present situation. In tire present case, the warrant clearly only named the residence. At the time officers arrived, the Mercedes was backed into the driveway and a juvenile associated with the residence was seated within. Clearly, then, the case most factually similar to Patterson’s situation is Coker.
Even Coker differs in several important ways. First, in Coker the driveway was situated between Rowland’s residence and business and presumably frequented by “innocent visitors to the residence or bona fide customers of the business.” 2003 WL 22697577, at *3. In this case, neither party alleges that the driveway constitutes a public or shared area. A review of the photograph in the record on appeal, though not entirely clear, suggests that the driveway leads directly to an attached garage at the residence. Officers recovered a title confirming Patterson’s ownership of a white Mercedes. The problem of the warrant potentially embracing an innocent visitor significantly lessened under the facts of this case.
Furthermore, this court in Coker still analyzed whether the defendant’s car could properly be included within the curtilage of Rowland’s properties. Patterson applies the same four factors and concludes that, under the facts of the case, the car was not embraced by tire curtilage of the residence.
The ultimate question when determining whether property is embraced by a premises’ curtilage is “whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Dunn, 480 U.S. at 301. Four principal factors guide whether the area is under the umbrella of a residence’s curtilage: (1) how near the area is to the home; (2) whether any enclosures surrounding the home embrace the area in question; (3) how the area is used; and (4) whether the resident has acted “to protect the area from observation by people passing by.” Dunn, 480 U.S. at 301. However, Dunn also cautions against mechanically applying these factors.
A number of Kansas cases are instructive-on what parts of a residence are considered within the curtilage. For example, in Me- Clelland, our Supreme Court determined that a search warrant embraced a parking area “directly in front of the house... between the sidewalk and the curb of the street.” 215 Kan. at 82. Although decided before Dunn announced tire four curtilage factors, the court stated that the warrant, which named a specific residence, “included all property necessarily a part of and appearing so inseparable as to be considered a portion thereof.” 215 Kan. at 84. The court reasoned that the parking area constituted part of the premises, especially given that “[p]hotographic exhibits of tire area clearly show residents of tire neighborhood utilized the parking area immediately in front of their -respective houses for vehicle parking.” 215 Kan. at 84. However, in another case, a dumpster “placed at tire end of [the defendant’s] driveway and property line, approximately 1½ feet from the street” without any protection from passersby was not within the curtilage of the defendant’s property. State v. Alexander, 26 Kan. App. 2d 192, 197, 981 P.2d 761, rev. denied 268 Kan. 848 (1999). In a third case, a trash can found in a yard shared by duplex residents and used for both leisure purposes and as a parking area was considered to be within the duplex’s curtilage even though the yard was unenclosed save for a fence on one side. State v. Wilson, No. 95,028, 2006 WL 2443710, at *7 (Kan. App. 2006) (unpublished opinion). And again, a vehicle positioned in a driveway shared by a business and a residence and utilized by business patrons as well as those visiting the home was not embraced by the curtilage of tire residence. Coker, 2003 WL 22697577, at *4.
Applying the four curtilage factors and the overarching principle of whether the area in question is intimately connected with the home, the facts here indicate that the Mercedes fell well within the curtilage of the residence. First and foremost, a driveway in front of a residence is clearly a part of property that is “so inseparable as to be considered a portion thereof.” McClelland, 215 Kan. at 84. This premise is especially true in this case, where the driveway leads directly to the garage attached to the residence. Further examination of the picture in the record supports that the driveway and the car parked on it was part of the curtilage as well. The car is backed up all the way against the garage, as close to the home as one can park. Furthermore, there is a fence visible in the photograph that indicates that, although not protected by a gate, the car is within the fence line. At the very least, this placement suggests that the car belongs to the household. Lastly, due to the position of the vehicle, it is clearly protected “from observation by people passing by.” See Dunn, 480 U.S. at 301. A passerby interested in looking into or otherwise interfering with the car would be forced to come down the driveway, into the fence line, and stand very close to the house in order to encounter the Mercedes.
These facts align the car with the trash can in the duplex yard and parking area in Wilson more than with the dumpster in Alexander. Compare Wilson, 2006 WL 2443710, at *7, with Alexander, 26 Kan. App. 2d at 197. Unlike in Coker, nothing in the record indicates that innocent business patrons or individuals unconnected with tire household might be erroneously drawn into the scope of a warrant if the curtilage included the driveway or car. Instead, the driveway and Mercedes are “so intimately tied to the home itself that [they] should be placed under tire home’s ‘umbrella’ ” for the purposes of the search warrant. See Dunn, 480 U.S. at 301. For that reason, the officers did not exceed tire scope of the warrant by searching the car.
The State mentions—and Patterson highlights—cases in which federal Courts of Appeal have limited searches of vehicles on the premises to “those automobiles either actually owned or under the control and dominion of the premises owner or, alternatively, those vehicles which appear, based on objectively reasonable indicia present at the time of the search, to be so controlled.” See, e.g., United States v. Gottschalk, 915 F.2d 1459, 1461 (10th Cir. 1990). Patterson argues that the Mercedes fails this test.
The facts of the case rebut this argument. At the time officers arrived, the Mercedes was parked in the driveway very near to the house. Patterson’s son, an individual listed in the application for search warrant as living at the residence, sat in the car. The position of the car in the driveway, die manner in which it was parked, and its nearness to die house all suggested that the car belonged to a resident of the household and not a visitor. Additionally, the only individuals on the property were Patterson, Patterson’s son, the young adult male named in the application for the warrant, and a juvenile under driving age. As all the individuals in the household of driving age appeared in the application and were understood by officers as living at the residence, it was reasonable to conclude that tire Mercedes belonged to the owner or occupier of the premises—namely, Patterson or another person named in the warrant. Even without considering the title in Patterson’s name—which was recovered at least during the search of the Mercedes, if not afterward—officers had objectively reasonable facts linking the vehicle to the premises sufficient to allow the search. As such, the district court erred in suppressing the evidence found in the Mercedes.
In finding that die Mercedes was within the curtilage of the residence and that the trial court erred in suppressing the evidence found in that automobile, the remaining issues raised on appeal are rendered moot.
Reversed and remanded. | [
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McAnany, J.:
Shane Raikes was convicted in a bench trial of possession or control of a hallucinogenic drug after he failed to complete tire drug court diversion program. He appeals, claiming he was denied his right to a juiy trial. Because of the clear imperative announced in our Supreme Court’s decision in State v. Irving, 216 Kan. 588, 533 P.2d 1225 (1975), we conclude that Raikes’ written waiver of his right to a jury trial in his diversion agreement was insufficient in and of itself to support a waiver of his constitutional right to trial by jury. We recognize that the consequence of this determination is significantly attenuated by the fact that any trial on Raikes’ drug charge will be limited to the stipulated facts set forth in the diversion agreement, facts which would inexorably lead any rational factfinder, be it court or jury, to find Raikes guilty. Nevertheless, we are compelled by the holding in Irving to reverse and remand for a new trial.
Raikes was charged with possession or control of a hallucinogenic drug with a prior conviction, driving under the influence (DUI), possession or control of depressants, transporting an open container, and failing to properly illuminate the rear registration plate on his vehicle.
Raikes made a deal with the State. In exchange for him pleading no contest to the DUI charge and agreeing to enter the district court’s drug court program on the charge of possession or control of a hallucinogenic drug, the State agreed to dismiss the remaining charges. In advance of his plea hearing, Raikes and the State entered into a formal written plea agreement covering all of Raikes’ pending charges. The title of the agreement was “APPLICATION TO MODIFY PLEA TO NO CONTEST AND ADVICE OF RIGHTS IN REGARDS THERETO (DUI).” In it Raikes acknowledged:
“I understand and have been advised by the Court that by entering pleas pursuant to this plea agreement I malee admissions and surrender and waive the legal rights below that I would be otherwise able to exercise if I choose to go to trial:
“c. I have a right to a trial where my guilt or innocence on all of the criminal charges against me'would be determined by a jury, or if I choose to waive a jury, by a trial judge.” (Emphasis added.)
Before accepting Raikes’ plea to the DUI charge, the district court informed Raikes he was waiving important constitutional rights, including his right to a jury trial. The court warned Raikes that all of these rights would be waived by entering his no contest plea to the DUI charge pursuant to tire plea agreement. Raikes indicated that he understood the decision he was making and the rights he was waiving. Raikes pled no contest to the DUI charge, and the court accepted his plea and found him guilty. It is important to note that this was the only plea Raikes entered that day. In fact, this was the only plea Raikes entered in the entire history of the case.
After Raikes entered his plea to the DUI charge, the district court once again told Raikes that, pursuant to the plea, he was required to participate in the drug court program. The court informed Raikes that if he completed the program successfully, then the remaining charge of one count of possession or control of a hallucinogenic drug would be dismissed. But if Raikes did not complete the program successfully, “then that count [would] be brought back on the criminal docket and [would] be set for trial.” There was no discussion about whether the trial would be a bench trial or trial by jury.
About 3 months later, Raikes entered into a diversion agreement with the State entitled “DRUG COURT CONTRACT AND AGREEMENT FOR PRETRIAL DIVERSION.” In it the parties agreed that if Raikes successfully completed the drug court program, which would take a minimum of 12 months, his remaining drug charge would be dismissed. If Raikes failed to complete die drug court program, the diversion agreement provided: “I realize that if I am discharged from the PROGRAM there will be no other proceedings except for a trial to the court on stipulated facts . . . .” The stipulated facts would be “based solely upon the affidavit, any law enforcement reports, and any corresponding KBI Laboratory Report(s).” A document containing the stipulated facts was attached to the agreement. The stipulation reiterated the understanding that if Raikes failed to successfully complete the program, “tire criminal case will be docketed for a Bench Trial.”
Raikes failed to successfully complete the drug court program, so the State proceeded against Raikes on the remaining drug charge. At die commencement of the bench trial, Raikes did not object to being deprived of a jury trial. He conceded that he did not successfully complete the drug court program. But he objected to the admission of the drug court contract and to proceeding with the bench trial based on the incorrect assertion that the drug court judge had not signed the drug court contract. When confronted widi the fully executed contract, Raikes’ counsel wididrew his objection. Raikes’ counsel presented no closing argument, but die court permitted Raikes to malee his own argument, which was essentially a plea to be left alone to self-medicate with drugs which the government unwisely considers to be illegal.
Based on the stipulated facts, the district court found Raikes guilty of possession or control of a hallucinogenic drug with a prior conviction in violation of K.S.A. 65-4162(a)(3). Before sentencing, Raikes moved the court to declare the diversion contract void and to dismiss for lack of jurisdiction because the diversion agreement required him to plead no contest to the DUI in violation of K.S.A. 22-2910. The district court denied Raikes’ motion and sentenced him to 12 months’ probation with an underlying prison sentence of 13 months. Raikes appeals his conviction.
For his only issue, and for the first time on appeal, Raikes argues that he did not waive his right to a jury trial on the drug charge because he was never personally advised by the court of his right to a jury trial, and he did not waive his right in open court or in wilting.
Generally, issues not raised before the district court, even constitutional issues, are not properly before us for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). But we have in the past heard arguments raised for the first time on appeal in order to prevent the denial of fundamental rights, including the claim that the defendant did not waive the right to a juiy trial. State v. Frye, 294 Kan. 364, 370-71, 277 P.3d 1091 (2012); State v. Bowers, 42 Kan. App. 2d 739, 740, 216 P.3d 715 (2009). Thus, we will consider Raikes’ argument.
When the facts are undisputed, whether a defendant knowingly and voluntarily waived his or her right to a juiy trial is a question of law over which we exercise unlimited review. State v. Duncan, 291 Kan. 467, 470, 243 P.3d 338 (2010).
A criminal defendant’s right to a jury trial is guaranteed by constitution and by statute. See U.S. Const. Amend. VI; Kan. Const. Bill of Rights, §§ 5, 10. “There is no more fundamental right in the United States than the right to a juiy trial.” State v. Larraco, 32 Kan. App. 2d 996, 999, 93 P.3d 725 (2004). The constitutional right is codified in K.S.A. 22-3403(1), which requires that all felony cases be tried to a jury unless tire defendant and prosecuting attorney, with the consent of the court, submit the matter to a bench trial. Raikes’ conviction was for a felony.
The right to a jury trial may be waived if done so voluntarily and knowingly. The waiver of the right to a jury trial should be strictly construed in favor of providing a defendant the opportunity for a jury trial. Determining whether this test has been met will depend on the particular facts and circumstances of the case. A court will not accept a jury trial waiver unless the defendant, after being advised by the court of his or her right to a jury trial, personally waives that right, either in writing or in open court. Irving, 216 Kan. at 589-90.
Raikes complains that he was advised of his right to a juiy trial only with respect to his DUI charge, not for his prosecution for possession or control of a hallucinogenic drug. Thus, he was not personally informed by the court of his right to a jury trial on the drug charge should he fail to complete the diversion program. He argues that this lack of advice from the court violated the ruling in Irving.
Raikes’ plea agreement addressed all of his pending charges, including the drug charge for which he later entered the drug court diversion program. When questioned about this agreement at the plea hearing on the DUI charge, Raikes acknowledged that he signed the agreement; that no one had made any promises to him other than as set forth in the plea agreement; that he had an opportunity to review the agreement with his counsel; and that no one threatened or coerced him into signing it. In reference to the rights waived pursuant to the agreement, the court asked, “About some of tire constitutional rights that you’re going to be giving up. Do you realize you have a constitutional right to a jury trial?” Rai-kes responded, “Yes, Your Honor.”
The waiver of rights tire court referred to were tiróse identified in the plea agreement. While the agreement referred to the ultimate dismissal of some charges and Raikes’ referral to drug court on the drug charge, the rights waived in the written agreement related only to his DUI charge. That is clear from the very title of the document, “APPLICATION TO MODIFY PLEA TO NO CONTEST AND ADVICE OF RIGHTS IN REGARDS THERETO (DUI).” The waiver in the agreement provided: “I understand and have been advised by the Court that by entering pleas pursuant to this plea agreement I make admissions and surrender and waive the legal rights below that I would be otherwise able to exercise if I choose to go to trial. . . .” (Emphasis added.) The only plea entered at the plea hearing was Raikes’ no contest plea to the DUI charge. In fact, there was never a hearing at which Raikes entered a plea to the drug charge. The State deferred prosecution on that charge while Raikes participated in the drug court program.
Under Raikes’ drug court contract, entered into 3 months later, the parties agreed that the drug charge would be dismissed with prejudice upon his successful completion of the program. The agreement provided that if Raikes did not successfully complete the program, “there will be no other proceedings except for a trial to the court on stipulated facts.”
There was never a hearing at which the court informed Raikes that he had the right to a jury trial on the drug charge. The hearing at which Raikes pled no contest to the DUI charge was his one and only plea hearing. When Raikes failed to successfully complete the drug court program, the State resumed its prosecution of that charge and the case was set for a bench trial.
While issues of waiver of trial rights often arise in the context of a defendant entering a plea, that is not always the case. In Irving, the defendant, who was found guilty by the magistrate judge, appealed to the district court for a trial de novo. The district court determined that the trial would be a bench trial because the defendant had not demanded a jury trial within 48 hours of the appeal. On appeal, the court declared that while the constitutional right to a jury trial could be waived, any waiver should be strictly construed to afford the defendant every possible opportunity for a jury trial. Such a waiver will not be presumed from a silent record. 216 Kan. at 589. Adopting the American Bar Association Standards for Criminal Justice, Trial by Jury, Section 1.2(b) the court ruled: “ ‘The court should not accept a waiver unless the defendant, after being advised by the court of his right to trial by jury, personally waives Iris right to trial by jury, either in writing or in open court for the record.’ ” 216 Kan. at 589-90.
Raikes had a constitutional and statutoiy right to trial by jury on his felony drug charge. The district court could not peremptorily bypass that right by setting the matter for a bench trial, like the district court did in Irving, without making a determination that Raikes had waived that right. The court questioned Raikes about the waiver of his rights contained in the written plea agreement. But that waiver on its face only addressed the DUI charge, the only charge for which Raikes ever entered a plea.
The court could not presume from Railces’ silence at the bench trial that he was waiving his jury trial right because, as stated in Irving, “a waiver of the right to a jury trial will not be presumed from a silent record.” 216 Kan. at 589. Just as we cannot make such a presumption, neither can the district court from Raikes’ silence. Under the rule announced in Irving, the waiver of Raikes’ right to a jury trial in the drug court contract had to be accompanied by an admonition by the judge about the right he was waiving. As noted by the court in Irving, such a practice is “an additional safeguard against a defendant’s involuntary waiver of his right. It will minimize the uncertainty odierwise attendant to the determination of whether the defendant knowingly and intelligently waives a jury trial.” 216 Kan. at 590.
In In re Habeas Corpus Application of Tolle, 18 Kan. App. 2d 491, 496-97, 856 P.2d 944, rev. denied 253 Kan. 858 (1993), the court determined that in a case in which the defendant failed to complete the diversion program and the diversion agreement pro vided for trial only on stipulated facts in such an event, the district court was not required to conduct a hearing on whether the defendant had knowingly and voluntarily waived the right to present evidence at trial. The court stated: “ ‘We know of no case or statute holding tiiat a trial court must interrogate and advise a defendant, who is represented by counsel, before accepting and approving stipulations as to die evidence, and we are not prepared to initiate such a requirement.’ [Citation omitted.]” 18 Kan. App. 2d at 495. Such is not the case now before us. The issue here is not the defendant’s right to present evidence at trial. We have clear, longstanding pronouncements from our Supreme Court recognizing the fundamental right to trial by jury and what steps must be taken for die court to be satisfied tiiat a defendant’s apparent waiver is not inadvertent but rather is knowingly and voluntarily made.
The dissent accuses us of hair splitting. We consider any hair splitting as merely strict adherence to the rule in Irving. The issue could easily be avoided at the district court by informing the defendant at the plea hearing that on both the charge being pled to today and on the charge being diverted for a later disposition, the defendant has the constitutional right to trial by jury and that by entering into a diversion agreement on the charge for which the defendant is not entering a plea today, the defendant will be waiving the constitutional right to trial by jury if that charge is not later dismissed.
Viewed not in hindsight, it looked like Raikes was getting a pretty good deal. If he could complete the drug court program, he would walk away with only a DUI conviction. We might speculate that Raikes probably would have taken the deal notwithstanding his waiver of his juiy trial rights in the event tiiat he failed to complete the drug court program. After all, the stipulated evidence would seem to lead to an inevitable conviction by any rational factfinder. But under Irving, we cannot engage in such speculation. We are bound to follow Irving. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
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Malone, C.J.:
This is a civil regulatory proceeding in which the Kansas Department of Revenue Division of Alcoholic Beverage Control (ABC) fined MCJS, Inc., dba Reed’s Ringside Sports Bar and Grill (Reed’s) $500 for violating K.S.A. 41-2615 by permitting a minor to possess or consume alcohol on its premises. The Director of the ABC (Director) found that Reed’s is responsible for ensuring that minors do not possess or consume alcoholic beverages on its premises and that K.S.A. 41-2615 creates absolute civil liability on a licensee for any violation of the statute. Reed’s appealed without success to the Secretary of the Department of Revenue (Secretary) and then to the district court.
Reed’s now appeals to this court, claiming that the agency and the district court erred in finding that K.S.A. 41-2615 imposes strict liability on a licensee and in finding that the minor possessed or consumed alcohol on its premises. In the context of a civil regulatory proceeding, we conclude that the agency and foe district court did not err in finding that K.S.A. 41-2615 imposes strict liability on a licensee such that foe statute is violated whenever a minor possesses or consumes alcohol on its premises. We also conclude that the evidence was sufficient to support a finding that the minor possessed or consumed alcohol on Reed’s premises. Thus, we affirm foe district court’s judgment.
Factual and Procedural Background
On July 3, 2010, Potawatomi Tribe Police Officer Darrel Chapman was involved in a high-speed pursuit of Kipp Shupe, who was 17 years old at the time. After Chapman took Shupe into custody, he learned that Shupe had been with his friend, Jonathan Bourdon, earlier that night drinking beer at Reed’s. Bourdon confirmed this information.
On July 28, 2010, foe ABC issued an administrative citation to Reed’s, asserting that Reed’s violated K.S.A. 41-2615 by permitting an underage person to possess or consume alcohol on its premises. Reed’s timely requested an evidentiary hearing before the Director. At the evidentiaiy hearing, the ABC called Chapman who testified about Shupe’s arrest on July 3, 2010, and Shupe’s statement that he had been drinking beer at Reed’s earlier that night. Next, Bourdon testified that on the night in question, he was at Reed’s with Shupe. Bourdon testified that he and Shupe played games and drank beer together. Bourdon further testified that Shupe purchased some of the beer that night. However, Bourdon later clarified that he did not see Shupe purchase the beer; rather, he saw Shupe come back from the general direction of the bar with a pitcher of beer in his hand. Bourdon also stated that Reed’s employees would come around periodically to clear their table. Bour-don testified that no employee asked him for identification when he purchased the beer or asked Shupe for identification while he was drinking at the table.
When Shupe testified, he admitted being at Reed’s with Bour-don on the night in question and that, while driving to Reed’s, he had drunk four beers in his vehicle. Once at Reed’s, Shupe stated that he bought two pitchers of beer, one from the bartender and one from a waitress, and he was not asked for identification either time. Further, Shupe testified that there were always employees walking around the bar and, aldiough he was clearly drinking beer, no one asked him for identification. On cross-examination, Shupe admitted that his first written statement to the police said nothing about him purchasing beer, although his second written statement mentioned purchasing one pitcher of beer. On redirect, Shupe stated that he believed the difference in the statements stemmed from the fact that he was still intoxicated when he wrote the first statement.
Damon Reed, half-owner of MCJS, Inc., which did business as Reed’s, testified that tire first he knew of the allegation that Reed’s had violated the statute regarding alcohol consumption by a minor was when he received something in the mail. Damon stated that there was video footage of the inside of the bar taken by multiple cameras, but the footage was only stored for 14 days. Damon testified that it was Reed’s policy that everyone purchasing beer should be asked for identification. Derrick Reed, the other half-owner of Reed’s, testified that there was no longer video of the night in question because he did not become aware of the incident until over 30 days later.
After the hearing, both parties filed written closing comments. In its closing, Reed’s emphasized the inconsistencies in Shupe’s and Bourdon’s stories and the unfairness of the delayed notification of Reed’s, stating that if Reed’s had known of the allegation sooner, it could have preserved the videotapes of the night in question. Reed’s also argued that there was insufficient evidence to prove the violation, claiming that Reed’s had no criminal intent and that K.S.A. 41-2615 does not create a strict liability offense. Finally, Reed’s contended that none of its employees had “permitted” Shupe to consume alcohol. The ABC’s written closing arguments, on the other hand, asserted that K.S.A. 41-2615(a) imposes absolute liability on the licensee. The ABC contended that the evidence clearly established that Shupe consumed alcohol at Reed’s on the night in question and the evidence was sufficient to justify a civil penalty.
The Director issued written findings and an order dated August 9, 2011. The Director found that “[t]he fact that Shupe had consumed beer at the licensed premises was established during the hearing. Reed’s employees delivered pitchers and cups to the table where Shupe was obviously in possession of and consuming beer.” The Director noted that K.S.A. 41-2615 provides that a licensee may not knowingly or unknowingly permit possession or consumption of alcohol by a minor on the licensed premises. The Director stated that “[i]f knowledge or intent were a required element for an administrative violation, compliance with underage laws would deteriorate because the motivation to proactively check IDs would disappear.” The Director determined that “Reed’s is responsible for ensuring that minors do not possess or consume alcoholic beverages [on the premises] and that K.S.A. 41-2615 creates absolute civil liability on a licensee for any violation of the statute.” Accordingly, the Director concluded that Reed’s had violated the statute and imposed a $500 fine as a civil penalty for the violation.
Reed’s appealed to the Secretary, and both parties submitted their appellate arguments in writing. Reed’s again claimed that the inconsistent nature of Shupe’s and Bourdon’s statements meant that there was insufficient evidence to find Reed’s violated the statute. Reed’s also argued that it did not “permit” Shupe to possess or consume alcohol on its premises. Reed’s argued that its ability to control Shupe’s drinking was limited because it was impossible to continuously monitor every patron and, if Shupe was drinking, he was likely trying to hide it. Reed’s also argued that its exemplary record of enforcing alcohol control laws, as evidenced by multiple letters of commendation from the ABC, showed it did not acquiesce in Shupe’s drinking. Finally, Reed’s argued that public policy went against imposing absolute liability for violations of K.S.A. 41-2615.
The ABC reasserted its argument that the Director’s finding that Shupe possessed and consumed alcohol at Reed’s was based on substantial competent evidence, regardless of the inconsistencies in some of the details of Bourdon’s and Shupe’s testimony. The ABC also contended that tire department can impose either civil or criminal sanctions for a violation of K.S.A. 41-2615 and that in the context of a civil regulatory proceeding, the statute imposes strict liability on a licensee any time that a minor possesses or consumes alcohol on its premises. The ABC asked the Secretary to uphold tire $500 civil penalty that the department had assessed against Reed’s.
On December 2, 2011, the Secretary issued his final order and upheld the findings of the Director. On the issue of whether K.S.A. 41-2615 imposes absolute liability on a licensee, the Secretary concluded:
“After considering this issue, the Secretary is persuaded the Department’s position is correct. While K. S .A. 41-2615(b) clearly imposes sanctions under criminal law, subsection (a) of the statute is also used as a basis for the imposition of civil sanctions. Given the dual nature of the statute, it is logical that criminal and civil authorities may interpret and apply the statute differently. Licensee is operating a business in a highly regulated industry, and the history of K.S.A. 41-2615 supports the Department’s contention the legislature intended to impose an absolute civil liability on licensees.”
On January 3, 2012, Reed’s filed its petition for judicial review in Shawnee County District Court. Reed’s alleged that the Secretary erroneously interpreted or applied the law and that the decision was based on a determination of fact not supported by sufficient evidence. The ABC filed its response, and the district court filed a memorandum decision and order on August 22, 2012. The district court found that Kansas appellate courts have already interpreted K.S.A. 41-2615 to impose an absolute duty on a private club to not permit the consumption of alcoholic beverages by a minor on its premises. Further, the district court held that, although the testimony may have been inconsistent or contradictory, the district court could not reweigh the evidence. The district court found there was sufficient evidence to support the agency’s ruling. Thus, the district court affirmed the Secretary’s decision. Reed’s filed a motion to reconsider which the district court denied. Reed’s timely appealed the district court’s judgment.
On appeal, Reed’s claims that the agency and the district court erred in finding that K.S.A. 41-2615 imposes strict liability on a licensee such that the statute is violated whenever a minor possesses or consumes alcohol on the licensee’s premises. Next, Reed’s claims that even if K.S.A. 41-2615 imposes strict liability on a licensee, there was insufficient evidence to support a finding that Shupe possessed or consumed alcohol at Reed’s on the night in question. We will address each of these claims in turn.
Strict Liability Under K.S.A. 41-2615
Reed’s primary argument is that the agency and the district court erred in finding that K.S.A. 41-2615 imposes strict liability on a licensee such that the statute is violated whenever a minor possesses or consumes alcoholic liquor or a cereal malt beverage on the licensee’s premises. Reed’s contends that the use of the word “permit” in the statute precludes such an interpretation because the statute requires the licensee to permit the minor to possess or consume the prohibited beverage. Relying on prior caselaw to define “permit,” and distinguishing the cases upon which the district court relied, Reed’s asserts that a plain reading of the statute supports its position. Because the agency and the district court did not find that Reed’s or any of its employees permitted Shupe to possess or consume alcohol on its premises, Reed’s concludes that the agency and the district court erred in finding that it violated the statute.
The ABC contends that the Department can impose either civil or criminal sanctions for a violation of K.S.A. 41-2615 and that in the context of a civil regulatory proceeding, the statute imposes strict liability on a licensee whenever a minor possesses or consumes alcohol on its premises. The ABC argues that the evidence was sufficient to uphold the $500 civil penalty that the Department assessed against Reed’s.
An appeal from tire Secretary’s final order is subject to judicial review under the Kansas Judicial Review Act (KJRA). K.S.A. 2012 Supp. 77-603(a). The burden of proving the invalidity of the agency action rests on the party asserting the invalidity. K.S.A. 2012 Supp. 77-621(a). The scope of appellate review is governed by K.S.A. 2012 Supp. 77-621(c)(4), which states that this court shall grant relief if it determines that “the agency has erroneously interpreted or applied the law.” Previously, Kansas courts generally showed deference to an administrative agency’s interpretation of a statute that the agency administers. See, e.g., Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 629, 154 P.3d 1080 (2007). As both parties here recognize, however, the Kansas Supreme Court no longer extends such deference to an agency’s statutory interpretation. See, e.g., In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1044, 271 P.3d 732 (2012). Because this issue depends upon statutory interpretation, which is a question of law, this court’s review is unlimited. See Milano’s Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013).
“ “When courts are called upon to interpret statutes, the fundamental rule governing our interpretation is that “the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.” [Citation omitted.] For this reason, when the language of a statute is plain and unambiguous, courts “need not resort to statutory construction.” [Citation omitted.] Instead, “[w]hen the language is plain and unambiguous, an appellate court is bound to implement the expressed intent.” [Citation omitted.]’ ” 296 Kan. at 500-01.
The statute at issue here is part of the statutoiy scheme governing the licensure and regulation of the sale of liquor by the drink. See K.S.A. 41-2601 et seq. K.S.A. 2012 Supp. 41-2615 states as follows:
“(a) No licensee or permit holder, or any owner, officer or employee thereof, shall knowingly or unknowingly permit the possession or consumption of alcoholic liquor or cereal malt beverage by a minor on premises where alcoholic beverages are sold by such licensee or permit holder, except that a licensee’s or permit holder’s employee who is not less than 18 years of age may serve alcoholic liquor or cereal malt beverage under the on-premises supervision of the licensee or permit holder, or an employee who is 21 years of age or older.
“(b) Violation of this section is a misdemeanor punishable by a fine of not less than $100 and not more than $250 or imprisonment not exceeding 30 days, or both.
“(c) It shall be a defense to a prosecution under this section if: (1) The defendant permitted the minor to possess or consume the alcoholic liquor or cereal malt beverage with reasonable cause to believe that the minor was 21 or more years of age; and (2) to possess or consume the alcoholic liquor or cereal malt beverage, the minor exhibited to the defendant a driver’s license, Kansas nondriver’s identification card or other official or apparently official document that reasonably appears to contain a photograph of the minor and purporting to establish that such minor was 21 or more years of age.”
K.S.A. 2012 Supp. 41-2615(b) provides that a violation of the statute is a misdemeanor criminal offense. However, K.S.A. 41-2633a authorizes civil enforcement of the statute and a civil fine not exceeding $1,000 for each violation of any statute regulating the sale of liquor by tire drink. See also K.A.R. 14-16-15 and K.A.R. 14-16-25(b) (regulations concerning civil enforcement of statutes regulating sale of liquor).
The key statutory language at issue in this case is found at K.S.A. 2012 Supp. 41-2615(a) which provides that “[n]o licensee or permit holder, or any owner, officer or employee thereof, shall knowingly or unknowingly permit the possession or consumption of alcoholic liquor or cereal malt beverage by a minor on premises where alcoholic beverages are sold by such licensee or permit holder . . . .” (Emphasis added.) Caselaw interpreting and applying this statutoiy language is rare, but both parties discuss State v. Sleeth, 8 Kan. App. 2d 652, 664 P.2d 883 (1983), and Sanctuary, Inc. v. Smith, 12 Kan. App. 2d 38, 733 P.2d 839 (1987), which examined a prior version of K.S.A. 41-2615(a).
In Sleeth, Darlene Sleeth was the owner and operator of the Tiger Island private club. In January 1982, a customer under the legal drinking age consumed an alcoholic beverage at Tiger Island. During a routine age check, Junction City police officers discovered the customer was underage and arrested him; he subsequently pled guilty to possession of an alcoholic beverage by a minor. Although she was not present and did not consent to the minor’s purchase or consumption of the beverage, Sleeth was charged with sale of an alcoholic beverage to a minor, in violation of K.S.A. 41-2615. The district court found Sleeth guilty, sentenced her to 15 days in jail, and fined her $100. Sleeth appealed, arguing that her conviction could not be sustained in light of the fact that she was not present at, had no knowledge of, and did not consent to or authorize the sale of alcohol to a minor.
As it existed at the time, K.S.A. 41-2615 provided:
“ ‘No club licensed hereunder shall knowingly or unknowingly permit the consumption of alcoholic liquor or cereal malt beverage on its premises by a minor and no minor shall consume or attempt to consume any alcoholic liquor or cereal malt beverage while in or upon the premises of a club licensed hereunder or as prohibited by K.S.A. 41-715 and any amendments thereto. The owner of any club, any officer or any employee thereof, who shall permit the consumption of alcoholic liquor or cereal malt beverage on the premises of the club by a minor shall be deemed guilty of a misdemeanor and upon conviction shall be subject to the same penalty as prescribed by K.S.A. 41-715 for violation of that section.’ ” 8 Kan. App. 2d at 654.
On appeal, this court examined the statute and found that it was neither purely penal nor purely regulatory but was a hybrid. 8 Kan. App. 2d at 655. The first sentence of the statute was directed at “clubs,” which cannot be punished criminally; therefore, that portion was regulatory. 8 Kan. App 2d at 655-56. The second sentence of the statute, however, was aimed at people—owners, officers, or employees of a club—-and made violation of its terms a misdemeanor; thus, the second sentence was penal. 8 Kan. App. 2d at 656. The Sleeth court noted that the second sentence did not contain the “qualifying phrase ‘knowingly or unknowingly.’ ” 8 Kan. App. 2d at 656. Defining permit as to expressly or formally consent, to allow, to tolerate, or to authorize, the court found that “[t]he omission of the phrase ‘knowingly or unknowingly from the second sentence of the statute is a clear indication of a legislative intent to infuse that penal provision with a scienter requirement.” 8 Kan. App. 2d at 656. Because Sleeth was neither present at nor consented to the act of her employee in serving the minor the prohibited beverage, the court reversed her criminal conviction and remanded for entry of a judgment of acquittal. 8 Kan. App. 2d at 658.
Four years later, Sanctuary, Inc., addressed the statute again, in a civil context. The ABC fined Sanctuary, a private club, $500 for serving alcohol to a minor, thereby violating K.S.A. 41-2615; the version in effect at the time was identical to that analyzed in Sleeth. Sanctuary then attempted to recover the fine in a small claims action against the minor, but the district court granted summary judgment to the minor. Following the Sleeth rationale, the Sanctuary, Inc. court found that K.S.A. 41-2615 “imposes upon a private club an absolute duty not to permit the consumption of alcoholic liquor or cereal malt beverage by a minor on its premises.” 12 Kan. App. 2d at 39. Thus, the court held “that the strict regulatory policy expressed in the first sentence of K.S.A. 41-2615 bars any fraud action by a private club against a minor to recover penalties imposed against the club for serving the minor in violation of K.S.A. 41-2615.” 12 Kan. App. 2d at 39.
The decisions in Sleeth and Sanctuary, Inc. emphasized the fact that the first sentence of K.S.A. 41-2615 addressed only “clubs,” not people, and was therefore regulatory, not penal, in nature. But the statute as it exists in the instant case no longer makes that distinction. The current statute applies to any licensee or permit holder, or any owner, officer, or employee thereof, and prohibits all such persons from “knowingly or unknowingly” permitting the possession or consumption of alcohol by a minor on the premises. The amended version of the statute was addressed by the Kansas Supreme Court in State v. JC Sports Bar, Inc., 253 Kan. 815, 861 P.2d 1334 (1993). In that case, while conducting random bar checks and looking through the front window of the JC Sports Bar, a member of the Geary County Sheriffs Office saw a person he knew to be a minor pick up a cup of beer and drink from it. The evidence was uncontroverted that no employee of JC Sports Bar sold or gave the minor the beer or knew he had taken a drink; an acquaintance who had left the bar earlier had left the beer on the table. JC Sports Bar, Inc., the owner of JC Sports Bar and the holder of a cereal malt beverage license for the premises, and Jong S. Song, the owner of the corporation, were charged with “ “knowingly or unknowingly’ permitting the consumption of a cereal malt beverage by ... a minor.” 253 Kan. at 816.
The district court found there was no evidence that the owner or any employee of the bar knowingly or unknowingly committed any act that permitted the minor to consume the beer and “ ‘because there was no illegal act committed [by the owner or employee], there is no act which constitutes any conduct which falls within the statutory language of “knowingly or unknowingly permit.” ’ ” 253 Kan. at 818. Thus, the district court determined that JC Sports Bar, Inc., and Song had not criminally violated the law.
The State appealed on a question reserved, and our Supreme Court examined “whether the language ‘knowingly or unknowingly permit’ as set forth in K.S.A. 1992 Supp. 41-2615(a) imposes an absolute duty to prohibit the consumption of alcoholic liquor or cereal malt beverages by minors on a licensee’s premises.” 253 Kan. at 818. As the ABC does here, the State argued in JC Sports Bar, Inc. that the plain language of the statute imposed an absolute duty. Also similarly, both parties in JC Sports Bar, Inc. relied upon Sleeth to support their positions. Our Supreme Court noted that the statute had been amended since Sleeth but stated that Sleeth and Sanctuary, Inc. were relevant because the phrase “knowingly or unknowingly permit” had survived the amendment process. 253 Kan. at 820-21.
The JC Sports Bar, Inc. court went on to state that no legislative history shed light on why the language “knowingly or unknowingly permit” was used in the statute or on its intended impact. 253 Kan. at 821. But because the statute was being enforced in a criminal proceeding, the court concluded that it was required to strictly construe the statute and decide any reasonable doubt about the interpretation in favor of the accused. 253 Kan. at 821. The court stated that although the Sleeth and Sanctuary, Inc. courts found tiiat the phrase “knowingly or unknowingly permit” created absolute liability, “those cases involved civil liability and were decided under a more liberal standard than must be applied to the present statute.” 253 Kan. at 823. Despite acknowledging die fact that the legislature has the authority to enact criminal statutes diat create absolute liability offenses, die court held that die legislature here, by using the language “knowingly or unknowingly permit,” meant to require some action or inaction of a greater magnitude than merely opening for business on the night in question before criminal liability would attach. 253 Kan. at 821-23. The court concluded that “K.S.A. 1992 Supp. 41-2615(a) does not establish absolute liability under the facts of this case and does not clearly indicate a legislative purpose to do so.” (Emphasis added.) 253 Kan. at 823.
Reed’s argues that based on J. C. Sports Bar, Inc., there must be evidence of some action or inaction whereby the licensee peimitted a minor to possess or consume alcohol on the premises in order for die licensee to be liable for violating K.S.A. 41-2615. In other words, Reed’s argues that in order for it to liable for violating the statute, there must have been evidence supporting a finding by the Director that a Reed’s employee actually served beer to Shupe or observed him drinking beer on the premises and did nothing to prevent it. Reed’s argues tiiat the agency and the district court erred in finding that K.S.A. 41-2615 imposed strict liability on Reed’s based only on a finding tiiat Shupe possessed and consumed alcohol on the premises.
Reed’s arguments would be more persuasive if this case was a criminal prosecution. But the ABC contends- that the Department can impose either civil or criminal sanctions for a violation of K.S.A. 41-2615 and tiiat in the context of a civil regulatory proceeding, the statute imposes strict liability on a licensee whenever a minor possesses or consumes alcohol on its premises. The ABC argues that in order for the Department to impose a civil fine on Reed’s for violating K.S.A. 41-2615, it is enough tiiat the evidence established that Shupe possessed or consumed beer on the premises, and it was unnecessary to establish tiiat Reed’s employees permitted the act by actually serving the beer to Shupe or by observing him drink beer on the premises.
The Supreme Court’s holding in JC Sports Bar, Inc., turned upon the fact that the case involved a criminal prosecution against the owner of the tavern and there was no evidence that the tavern owner or any of its employees served alcohol to the minor or had any knowledge that the minor consumed alcohol on the premises. The Supreme Court in JC Sports Bar, Inc., acknowledged that the Sleeth and Sanctuary, Inc. courts found that the phrase “knowingly or unknowingly permit” in K.S.A. 41-2615 created absolute liability, but the court stated that “those cases involved civil liability and were decided under a more liberal standard than must be applied to the present statute.” 253 Kan. at 823. The Supreme Court concluded that because K.S.A. 41-2615(a) did not clearly establish absolute liability under the facts of the case, any doubt must be resolved in favor of the accused in the criminal prosecution. 253 Kan. at 823. As ABC argues, had JC Sports Bar, Inc., been a civil case, like we have here, the Supreme Court likely would have concluded that the phrase “knowingly or unknowingly permit” creates absolute liability for a violation of the statute, as the Sleeth and Sanctuary, Inc. courts concluded.
The key language of K.S.A. 2012 Supp. 41-2615(a) provides that no licensee shall “knowingly or unknowingly permit” the possession or consumption of alcohol by a minor on its premises. In interpreting a statute, an appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013). The term “permit” is defined to mean “to consent to” or “to give opportunity for.” Black’s Law Dictionary 1255 (9th ed. 2009). See also State v. Wilson, 267 Kan. 550, 560, 987 P.2d 1060 (1999) (to permit commonly means to give consent, to authorize, to make possible, or to give an opportunity).
Under the plain language of the statute, Reed’s “unknowingly permitted” Shupe to consume alcohol on the premises merely by allowing him to enter the premises and by serving alcohol in an area within Shupe’s reach. Although a scienter requirement may be imposed by courts in a criminal prosecution where die defendant’s liberty is at stake, we agree widi die ABC that the plain lan guage of K.S.A. 2012 Supp. 41-2615(a) prohibits a licensee from knowingly or unknowingly permitting tire possession or consumption of alcohol by a minor on its premises. Applying the statute to the facts of this case, in order to find Reed’s liable for violating the statute, it is enough that the evidence established that Shupe possessed or consumed beer on Reed’s premises, and it was unnecessary to establish that Reed’s employees permitted the act by actually serving tire beer to Shupe or by observing him drink beer on the premises. Reed’s would have had a defense to the prosecution had the evidence established that Shupe exhibited identification purporting to establish that he was 21 years of age. See K.S.A. 2012 Supp. 41-2615(c). But Shupe and Bourdon both testified that no employee of Reed’s ever asked to see identification when they purchased and consumed the beer at Reed’s.
Moreover, we note with significance that after hearing tire evidence presented at the administrative hearing, the Director made a specific factual finding that “Reed’s employees delivered pitchers and cups to the table where Shupe was obviously in possession of and consuming the beer.” Thus, the record is clear that the Director found that Reed’s employees did, in fact, commit an act that permitted Shupe to possess and consume beer on tire premises, although the Director ultimately did not rely on this finding in concluding that Reed’s was civilly fiable for violating the statute. Based on the evidence presented at the administrative hearing, we conclude that the agency and the district court did not err in finding that Reed’s was responsible for ensuring that minors do not possess or consume alcoholic beverages on its premises and that K.S.A. 2012 Supp. 41-2615 imposed strict civil liability on Reed’s when Shupe consumed alcohol on the premises.
Sufficiency of the Evidence
Finally, as a separate issue, Reed’s argues that even if K.S.A. 41-2615 imposes strict liability on a licensee, there was insufficient evidence to support a finding that Shupe possessed or consumed alcohol at Reed’s on the night in question. Reed’s contends that because Shupe and Bourdon told inconsistent stories, their testimony was not credible. Moreover, Reed’s argues flrat the evidence was not substantial because it was not based on observations made by law enforcement officers or corroborated by independent evidence outside Shupe’s and Bourdon’s statements.
K.S.A. 2012 Supp. 77-621(c)(7) provides that a court shall grant relief from an agency action if it determines that
“the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of foe record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by foe court under this act.”
Substantial evidence is evidence that a reasonable person could accept as being sufficient to support the conclusion reached. In re Protests of Oakhill Land Co., 46 Kan. App. 2d 1105, 1114, 269 P.3d 876 (2012). Reed’s bears the burden of proving that the determination of fact is not properly supported to the appropriate standard of proof. See K.S.A. 2012 Supp. 77-621(a)(1).
K.S.A. 2012 Supp. 77-621(d) goes on to explain:
“For purposes of tins section, ‘in light of foe record as a whole’ means that foe adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by foe presiding officer who personally observed foe demeanor of foe witness and the agency’s explanation of why foe relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of foe record as a whole, the court shall not reweigh the evidence or engage in de novo review.”
As Reed’s points out, under this direction, this court must consider “whether the evidence supporting the agency’s decision has been so undermined by cross-examination or other evidence that it is insufficient to support the agency’s conclusion.” Herrera-Gallegos v. H&H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d 239 (2009).
Specifically, Reed’s challenges the Director’s finding that “Shupe did possess and consume alcoholic liquor on the licensed premises”; Reed’s states that each piece of evidence presented at the hearing that supported this finding was contradicted on at least one occasion and was undermined by Reed’s denial that Shupe possessed or consumed alcohol on its premises. At the hearing, Chapman testified that Bourdon first denied that Shupe was at Reed’s but later admitted that Shupe was there and had been drinking beer. According to Chapman, Bourdon maintained that he had purchased the beer, not Shupe.
Chapman also testified that he spoke with a Reed’s employee who said he remembered a young man at Reed’s on the night in question who was with a man fitting Bourdon’s description; the employee told Chapman that the younger man did not drink and stayed at an outside table the entire night. Chapman further testified that Shupe told him that Shupe drank some beer Bourdon purchased and later purchased a pitcher himself. In his initial written statement to police, Shupe stated that he drank beer at Reed’s but did not mention buying any beer; Shupe’s second written statement, however, stated that he bought a pitcher of beer from a waitress while sitting outside at a table.
Bourdon testified at the hearing that he saw Shupe drink multiple beers at Reed’s on the night in question. Bourdon believed that Shupe purchased beer that night, although he did not see Shupe do so, because he saw Shupe come back from the bar with a pitcher of beer. Bourdon testified that his statement to Chapman that Shupe did not buy any alcoholic drinks at Reed’s was said in sarcasm and that he later told Chapman that it was sarcastic statement. Counsel for Reed’s pointed out that Chapman did not testily that Bourdon told him tire original statement was not meant to be taken as truth.
When Shupe testified at the hearing, he stated that when he first got to Reed’s on the night in question, he “went straight up to the bar [and] got a pitcher of beer.” He further testified that throughout the evening, he purchased two pitchers of beer and consumed some of the beer that members of his party bought. On cross-examination, Shupe admitted that his first written statement said nothing about his buying beer; instead the statement said that he drank from pitchers of beer at the table when he got there and that his second written statement said that he bought one pitcher of beer at the end of the night. Shupe testified that there was actually a third version of events: the version to which he testified at the hearing, in which he purchased two pitchers of beer. To explain the differences in his statements, Shupe stated that he was “pretty intoxicated” and terrified by being in trouble when he wrote the first statement and, when he wrote the second statement, he was only counting the one pitcher of beer he purchased completely with his own money; he and Bourdon split the cost of another pitcher of beer.
The Director found that the evidence established that Shupe consumed beer at Reed’s. As the Director noted, the discrepancies between Shupe’s statements concerned the amount of beer he consumed and whether he purchased beer, not the fact that he consumed. On appeal, the Secretary aptly noted that “the Director obviously believed the testimony of Mr. Shupe and/or Mr. Bourdon to the effect that Mr. Shupe possessed or consumed alcoholic liquor while on the licensed premises. Although a different trier of fact could potentially find otherwise, the Director’s decision is based on substantial evidence.” Accordingly, the Secretary upheld the factual finding that Shupe possessed and consumed alcoholic liquor while at Reed’s. Similarly, the district court found that the Director clearly “made a credibility determination which this Court does not dispute upon examination of all the testimony” and concluded that the determination that Shupe possessed and consumed alcohol at Reed’s “is supported to the appropriate standard of proof by evidence which is substantial when viewed in light of the record as a while.”
Considered in light of the record as a whole, taking into account the inconsistent nature of their statements, Shupe’s direct testimony that he drank beer at Reed’s and Bourdon’s similar testimony comprise substantial evidence that supports the Director’s finding that Shupe consumed beer at Reed’s. Despite Reed’s urging, this court does not reweigh the evidence or make credibility determinations. See K.S.A. 2012 Supp. 77-621(d). As previously stated, the Director also found that Reed’s employees permitted Shupe to consume the beer by delivering pitchers and cups to the table where Shupe was obviously in possession of and consuming the beer. We conclude there was sufficient evidence to support the finding that Reed’s violated K.S.A. 2012 Supp. 41-2615.
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McAnany, J.:
The Faye M. Stephens Trust appeals the termination of its oil and gas lease covering 150 acres owned by Wanda Sieker for failure to develop the lease. One hundred and sixty acres was originally leased by Sieker’s predecessor, Emma Vogelsang, in 1950. A producing well was drilled in 1951 and occupied 10 acres of the tract. The remaining 150 acres remained undeveloped.
The Facts
The parties are well acquainted with the facts, which are set forth in the district court’s well drafted and comprehensive memorandum decision. For our purposes, the following brief summary will suffice.
The Faye M. Stephens Trust became the majority working interest owner in 2009. At that time, Sieker, either individually or acting through her son, Kenny, advised the Trust that she wanted it to release the undeveloped portion of the lease. This was followed by written demands in July and October 2009.
The Trust determined that further development would require 3D seismic testing on the lease. 3D seismic testing has been employed on about 90% of the wells currently drilled in Kansas. Because seismic testing could not be performed successfully without including testing of adjoining tracts, and because Credo Petroleum, the lessee on adjoining tracts, would not agree to participate, the Trust decided that further development of the lease was not possible at the time.
In February 2010, Sieker sued the Trust to cancel the lease on the undeveloped 150 acres. Sieker claimed the Trust breached the implied covenant to develop the lease as a reasonably prudent operator should. Following a bench trial, the district court cancelled the lease on the 150 acres, leaving the lease in place for the 10 acres where production was ongoing. On considering the Trust’s motion to alter or amend the judgment, the court determined that the proper relief was to immediately cancel the lease on the undeveloped 150 acres and not to grant a conditional decree of cancellation to be effective if the Trust failed to exercise reasonable efforts to explore and develop tire 150 acres within a reasonable time.
Implied Covenant of Reasonable Exploration and Development
In this appeal, the Trust argues that the district court erred when it found that it breached the implied covenant for reasonable exploration and development. To the contrary, the Trust contends it was willing to participate in a 3D seismic study but Credo Petroleum, probably in cahoots with Sieker, blocked its efforts to do so.
On appeal, we review the trial court’s findings of fact to determine if they are supported by substantial competent evidence and are sufficient to support the trial court’s conclusions of law. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). In doing so, we do not reweigh conflicting evidence, evaluate witnesses’ credibility, or redetermine questions of fact. In re Adoption of Baby Girl P., 291 Kan. 424, 430-31, 242 P.3d 1168 (2010). We have unlimited review over the district court’s conclusions of law. American Special Risk Management Corp. v. Cahow, 286 Kan. 1134, 1141, 192 P.3d 614 (2008).
Every oil and gas lease in Kansas contains by implication a covenant to develop the leased property. Berry v. Wondra, 173 Kan. 273, 281, 246 P.2d 282 (1952); Greenwood v. Texas-Interstate P. L. Co., 143 Kan. 686, Syl. ¶ 1, 56 P.2d 431 (1936); Alford v. Dennis, 102 Kan. 403, Syl. ¶ 3, 170 Pac. 1005 (1918). The Kansas Deep Horizons Act, K.S.A. 55-223 et seq., codified this common-law principle. The Act implies in all oil and gas leases a covenant “to reasonably explore and to develop the minerals which are the subject of such lease.” K.S.A. 55-223.
An owner whose lands are burdened with an oil and gas lease is entitled to have those lands prospected for oil and gas within a reasonable period of time. 102 Kan. at 404. A lessee is required to act as a reasonably prudent operator in developing the leased property. Kansas Baptist Convention v. Mesa Operating Limited Partnership, 253 Kan. 717, 732, 864 P.2d 204 (1993); Sanders v. Birmingham, 214 Kan. 769, 776, 522 P.2d 959 (1974).
“Whether a lessee has performed his duties under the expressed or implied covenants is a question of fact. In the absence of a controlling stipulation, neither the lessor nor the lessee is the sole arbiter of the extent, or the diligence with which, tire operations and development shall proceed. The standard by which both are bound is what an experienced operator of ordinary prudence would do under the same or similar circumstances, having due regard to the interest of both.” Adolph v. Stearns, 235 Kan. 622, Syl. ¶ 1, 684 P.2d 372 (1984).
The Adolph court advanced the general principle that
“[t]his court, when speaking of these covenants, places great emphasis on the individual property rights and construes oil and gas leases to promote development and prevent delay upon the theoiy that the lessor has a right to have his land developed as rapidly as possible. To insure that end when a lease itself does not contain specific expressions regarding production or development, the law determines the intention of the parties and the court has imposed such duties upon the lessees. The legislature as a matter of public policy has by statute included the implied covenant to explore and develop all oil and gas leases when such covenants are not contained in the lease K.S.A. 55-223.” 235 Kan. at 626.
In determining whether an operator has exercised reasonable diligence in its efforts to develop the land, the court must consider a variety of circumstances such as
“ ‘the quantity of oil and gas capable of being produced from the premises, as indicated by prior exploration and development, the local market or demand therefor or the means of transporting them to market, the extent and results of tire operations, if any, on adjacent lands, the character of the natural reservoir'— whether such as to permit the drainage of a large area by each well—and the usages of the business.’ [Citation omitted.]” Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 374, 133 P.2d 95 (1943).
Here, the district court based its decision in part on the fact that lessees on nearby properties had successfully undertaken efforts to drill additional wells and to pursue further development. In addition, oil prices and demand had increased, and Sieker was ap proached by a prospective lessee who was able to conduct the 3D seismic study. Thus, termination of tire lease would probably result in further development for the landowner.
In Berry, our Supreme Court found that an inability to further develop the land does not excuse the lessee from the duty to develop and explore. 173 Kan. 273, Syl. ¶ 2. There, the lessee faced financial constraints preventing him from further development. Here, the Trust has the financial ability to drill additional wells, but it is unable to participate in 3D seismic studies that would provide it with the knowledge of whether and where to drill. But Credo Petroleum apparently does have the ability, so the district court found forfeiture to be appropriate because Sieker then would have an opportunity for further development of this 60-year-old lease.
In Sauder v. Mid-Continent Corp., 292 U.S. 272, 277, 54 S. Ct. 671, 78 L. Ed. 2d 1255 (1934), the district judge cancelled a lease, noting that the lessor in that case “had no present intention of further exploring and developing, unless and until developments in the immediate vicinity should convince them that it would pay to take such action.” The Sander Court framed the issue as follows:
“The matter in dispute is the respondent’s alleged failure to comply with its obligations. The petitioners say that, if the lessee with good reason believes there is no mineral to be obtained by further drilling it should give up the lease; the respondent insists that as there is only a possibility of finding mineral, no prudent operator would presently develop, but the mere possibility entitles it to hold tire lease, because it is producing oil from a portion of the area.” 292 U.S. at 279.
The Sander Court rejected the lessee’s intention to hold onto the lease based on the mere possibility of further development. 292 U.S. at 279-82.
Here, substantial evidence supports the district court’s finding of breach of the implied covenant for reasonable and further development. Experts for both parties testified that a 3D seismic study should be conducted in order to determine whether further drilling would be fruitful. The district court noted that the property had been burdened with an oil and gas lease since 1951 with production occurring on only 10 acres. The parties stipulated that the next step that a reasonably prudent operator would take in satis- lying its requirements would be to further develop and explore the lease through a 3D seismic study. Although the ability to further develop the lease may now be out of the Trust’s hands due to the fact that it cannot find other parties willing to join it in a 3D seismic study, the Trust cannot continue to hold the lease on the 150 acres indefinitely in the hopes that someday there will be a 3D seismic study in which it can participate.
The district court found: “The defendants did nothing and basically sat on their rights and did not go forward with additional development. The evidence showed there has been 3D seismic done throughout land all around and surrounding this particular lease over the years.” As this further development occurred in the surrounding areas, Stephens did not participate.
The Trust argues that Credo Petroleum has singlehandedly blocked its attempts to further develop the land by blocking its participation in the 3D seismic study. However, this assertion ignores tire history of the case. At the time the lawsuit was filed, no additional exploration or production had been undertaken for nearly 60 years.
We are unable to review the exhibits that were relied on by the district court in making its ruling because they were not included in the record on appeal. As the appellant, the Trust has the burden of showing error by the trial court. Based on our review of the limited record, it is clear that the Trust has failed to demonstrate that the district court’s ruling was not supported by substantial evidence.
The Remedy
The Trust argues that the district court erred in imposing an unfair remedy. It asks that we direct the district court to enter a decree cancelling the lease in the future if it fails to further develop the lease within a reasonable time.
But Sieker sought cancellation of the lease, not an order compelling the Trust to develop the lease. K.S.A. 55-226 provides remedies for breach of an implied covenant to further explore or develop a lease. It states:
“If the court determines that the lessee has failed to comply with [the implied covenant to explore and develop], the court may grant the lessee a reasonable time in which to comply, or the court may issue an order terminating tire lessee’s right to such subsurface part or parts as are the subject of such action. The court may enter such other orders as the interests of the parties and equity may require.” K.S.A. 55-226.
Here, the district court concluded that Sieker had no adequate remedy at law and was entitled to a cancellation of the lease covering the nonproducing 150 acres.
As recently noted by this court in Lewis v. Kansas Production Co., 40 Kan. App. 2d 1123, 1127, 199 P.3d 180 (2009):
“Historically, cancelling an oil and gas lease was an extreme remedy. Because cancelling a lease works [as] a forfeiture, courts have usually required a landowner to demand compliance with the implied covenant to explore and develop before granting the landowner’s request to cancel an oil and gas lease.”
In Lewis, a panel of this court noted that K.S.A. 55-229 explicitly provided that the remedies provided in K.S.A. 55-226 are “merely a codification of the preexisting common-law requirements.” 40 Kan. App. 2d at 1128. See Amoco Production Co. v. Douglas Energy Co. Inc., 613 F. Supp. 730 (D. Kan. 1985) (K.S.A. 55-229 preserves the common-law remedies in their original form). Thus, we turn to the available common-law remedies.
“Forfeitures are not favored. [Citation omitted.]” Greenwood, 143 Kan. at 694. See Robbins v. Chevron U.S.A., Inc., 246 Kan. 125, 134, 785 P.2d 1010 (1990) (forfeiture of oil and gas leases as a remedy for breach of an implied covenant is generally disfavored). But cancellation of the lease after a breach of the implied covenant to further develop and explore is an appropriate remedy in order to prevent injustice. Thurner v. Kaufman, 237 Kan. 184, 189, 699 P.2d 435 (1984).
The Trust claims that a demand must be made upon the lessee to further develop the real property before seeking the remedy of cancellation. See Storm v. Barbara Oil Co., 177 Kan. 589, 599, 282 P.2d 417 (1955). As the court stated in Greenwood, 143 Kan. at 694:
“While it has been held that, under certain conditions, notice to explore is not a condition precedent to bringing an action for forfeiture, yet tire fact a suit is brought without any demand having been made by the landowner upon the lessee that further development be made, has some bearing on the question of whether the conduct of the lessee is such that the landowner is entitled to the rather harsh remedy of forfeiture.”
Here, Sieker contacted the Trust by phone and sent two demand letters. The content of the letters is in dispute. It is unclear whether Sieker ever made a request for further development or merely demanded termination of the lease. However, the Trust has not provided the letters in the record on appeal, and the district court found that the Trust had notice that Sieker was seeking further development and exploration of the 160-acre tract of land. Thus, the Trust fails to show that the district court erred in making this finding.
In Alford, the defendant was the lessee of two separate tracts of land under the same contract. One tract contained 716 acres upon which the lessee had drilled 25 oil wells, gas wells, and dry holes. But no exploration or development had been undertaken on die other 220-acre tract. The lessor brought an action to have the lease on the 220-acre tract cancelled for breach of the covenant to further develop and explore. Our Supreme Court held that if the lessor’s tract was not to be developed, then it was of no use or value to the lessee; and if the lessee had no real intention to develop the tract, then the lease had no purpose and cancelling it would do them no injury. 102 Kan. at 406. 'While equity abhors forfeitures it likewise abhors injustice.” 102 Kan. at 406.
In considering whether to cancel a lease, the courts may consider whether tire lessor received offers from other producers to develop the land. Berry, 173 Kan. at 283. As in Berry, Sieker has come forward with evidence that another party is ready and willing to further develop and explore the tract of land. The Trust is not in a position to conduct a 3D seismic study and proceed with further development. However, Sieker has found a party who is willing to do so.
The Trust claims the district court should have imposed a conditional cancellation rather than a forfeiture. See Rook v. James E. Russell Petroleum, Inc., 235 Kan. 6, 17-18, 679 P.2d 158 (1984).
In Lewis, a panel of this court reversed the district court’s cancellation of an oil and gas lease and remanded for further proceedings. 40 Kan. App. 2d at 1134. As in this case, the district court stated that forfeiture was the appropriate remedy because it appeared futile to give the lessee more time to comply. But an important distinction is that the court found in Lewis that no demand for compliance had been made prior to filing suit. The court stated that the language of the letter that the lessor gave to the lessee gave “no reason to believe that [the plaintiffs] would accept efforts to negotiate immediate development. This is probably the reason why the trial court concluded that no demand for compliance was given in this case.” 40 Kan. App. 2d at 1133.
Here, the district court found that Sieker communicated his desire that the land be further developed. We do not have the benefit of the precise language of the letters sent to the Trust, but its attempt to contact other parties about the possibility of joining a 3D seismic study shows that it understood the letter to be a request for further development.
In Vonfeldt v. Hanes, 196 Kan. 719, 414 P.2d 7 (1966), the lessor brought an action to cancel a lease for violation of the implied covenant to reasonably develop the lease. The lessee stated that he had no present plans for drilling, and he would only consider drilling on the land in relation to a secondary recovery operation. The lessee complained that the lessor would not join him in the secondary recoveiy operation. The district court found it “somewhat incongruous” for the lessee to insist that the lessor and he should go into business together. 196 Kan. at 723. The court upheld cancellation of the lease.
Sieker argues the facts in Vonfeldt are substantially similar to the present case. In both cases, the lessee refused to further develop and explore the land without joining another party in its endeavor. The Trust complains that Credo Petroleum is blocking its efforts to further develop the lease, but the Trust does not assert that Credo Petroleum owes it any land of duty or obligation to join in a 3D seismic study.
The district court noted that additional time for the Trust to further develop the lease would be futile. There is no point in allowing it to continue holding the lease to the entire 160-acre tract with no plans for further development or exploration in the foreseeable future. Under the unique facts of this case, a conditional cancellation would not be a practical or adequate remedy. The district court had the authority to impose tire remedy of lease cancellation, or forfeiture, under K.S.A. 55-226, and it did not err in doing so.
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Pierron, J.:
In September 2010, the State charged 15-year-old A.M.M.-H. with rape, aggravated criminal sodomy, and aggravated intimidation of a witness. In April 2011, A.M.M.-H. pled guilty to aggravated indecent liberties with a child and aggravated intimidation of a witness. The parties agreed to proceed under extended juvenile jurisdiction proceedings found in K.S.A. 2012 Supp. 38-2347(a)(3). For his juvenile sentence, the district court ordered A.M.M.-H. to serve 24 months’ incarceration at the juvenile correction facility and then 24 months’ aftercare. For his adult sentence, the court ordered A.M.M.-H. to serve 59 months’ incarceration at the Kansas Department of Corrections for aggravated indecent liberties with a child and a concurrent sentence of 18 months for aggravated intimidation of a witness. The court left the amount of restitution open but ordered costs in the amount of $823.
In September 2012, A.M.M.-H. signed several documents in order to effectuate his conditional release from the juvenile correctional facility. A.M.M.-H. signed a “Conditional Release Contract” that provided the following conditions:
“A. Education, Work and/or Training: If I am under the age of 18 or have not attained a GED, I will attend school in compliance with the compulsory school attendance laws, or participate in an approved educational or vocational/job training program. Otherwise, I will actively seek, obtain and maintain approved employment.
“B. Legal: I will obey all federal, state, county, and local laws, resolutions and ordinances.
“C. Case Plan: I will comply with all conditions listed in my Case Plan.
“D. Community Supervision Agency: I will comply with all program guidelines as set forth by Tohnson County Community Corrections. I will report as directed, attend and actively participate in all services and activities as required.
“E. Reporting Requirements: I will contact my community supervision officer within 48 hours, excluding weekends/holidays.
“F. Sex Offender Registration: Required to Register.”
The conditional release contract also provided the following consequences for violations of the contract: “Any violation of the Conditional Release Contract is a violation of State Law (K.S.A. 38- 2375) and may result in court action to extend the terms of your Release Contract and/or to modify the conditions of your Conditional Release Contract, or to return you to the Juvenile Correctional Facility.”
The second document A.M.M.-H. signed was entitled “Formal Acknowledgment of the Conditional Release Contract.” A.M.M.H. agreed as follows:
“I, [A.M.M.-H.], have reviewed the court-ordered conditions of my Probation with my Intensive Supervision Officer. This is to acknowledge I fully understand the requirements of the court order and I realize failure to complete any or all of the probations conditions can result in a revocation of probation being brought to the Court’s attention.”
The last document signed by A.M.M.-H. was entitled “Juvenile Intensive Supervision Contract.” It provided a list of requirements for A.M.M.-H.: (1) obey the laws and notify his intensive supervision officer (ISO) within 48 hours of any contact with the police; (2) report as directed by his ISO; (3) obey curfew; (4) only use his legal name; (5) pay costs and fees ordered by the court; (6) only operate a properly licensed vehicle and only with a valid driver s license; (7) do not use drugs or intoxicating substances; (8) 12 weeks’ house arrest; (9) attend school; (10) do not associate with others involved in illegal activity; (11) do not possess dangerous weapons; (12) do not threaten anyone; (13) cannot be an informant; and (14) information about him would be shared with other agencies. This contract provided the following consequences for committing a violation:
“The Respondent may be placed in confinement at the Juvenile Detention Center (or Adult Detention Center if over the age of 18), placed on House Arrest, or directed to appear in front of the Juvenile Field Services Review Board, if he/she does not comply with the Supervision Contract, Case Supervision Plan, and/or Conditional Release Contract.”
On September 17, 2012, A.M.M.-H. appeared in district court for a permanency hearing. The court entered an order establishing reintegration with the specific finding: “[A.M.M.-H.] has been reintegrated and is ordered to follow all conditions of conditional release.”
Just over a month after starting his conditional release, A.M.M.H.’s ISO reported that A.M.M.-H. had left home and failed to return. A warrant was issued for his arrest on November 21, 2012, and he was taken into custody on November 26, 2012. The State filed a motion to revoke A.M.M.-H.’s juvenile sentence and impose the adult sentence. The State alleged A.M.M.-H. had failed to notify his ISO of contact with the police involving A.M.M.-H.’s association with known gang members, he had failed to abide by curfew by running away, and he had failed to pay correction and court fees. The district court held a full evidentiaiy hearing on the State’s motion and granted the same. After revoking A.M.M.-H.’s conditional release, the district court imposed A.M.M.-H.’s 59-month adult sentence and ordered him into the custody of the Department of Corrections. A.M.M.-H. appeals.
A.M.M.-H. asks us to strictly construe the juvenile extended jurisdiction statutes in his favor by finding that the conditions of his conditional release were not conditions of his juvenile sentence and therefore he did not violate the conditions of his juvenile sentence. As a result, he argues his adult sentence could not be imposed under K.S.A. 2012 Supp. 38-2364(a)(2).
A.M.M.-H.’s statutory arguments on appeal provide us with an unlimited standard of review. Interpretation of a statute is a question of law over which the appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). An examination of the juvenile statutes at issue will prove helpful.
The procedures for an extended jurisdiction juvenile adjudication are set out in K.S.A. 2012 Supp. 38-2364. Extended jurisdiction juvenile prosecution became effective in 1997 and is a mechanism whereby serious or repeat juvenile offenders who might otherwise have been prosecuted as an adult may remain in the juvenile sentencing system. See In re L.M., 286 Kan. 460, 485, 186 P.3d 164 (2008). Upon the juvenile’s plea to or a court finding of guilt on the charged offense under K.S.A. 2012 Supp. 38-2364(a)(1), the court imposes a juvenile punishment consistent with K.S.A. 2012 Supp. 38-2361; those punishment options run the gamut from probation to confinement in a juvenile detention facility, substance- abuse treatment to vocational training, and resti tution to community service work. At the same time, the juvenile court shall “impose an adult criminal sentence.” K.S.A. 2012 Supp. 38-2364(a)(2). The adult sentence “shall be stayed on the condition that the juvenile offender not violate the provisions of die juvenile sentence and not commit a new offense.” K.S.A. 2012 Supp. 38-2364(a)(2).
If the juvenile violates the conditions of the juvenile sentence, the juvenile court may immediately lift the stay—meaning the adult sentence will be carried out—and, if consistent with the adult sentence, order the offender into the custody of the Department of Corrections. K.S.A. 2012 Supp. 38-2364(b). The juvenile is entitled to a hearing to challenge the alleged violations. If the court finds a violation of the conditions, “the court shall revoke the juvenile sentence and order the imposition of the adult sentence previously ordered.” K.S.A. 2012 Supp. 38-2364(b). At that point, the juvenile court’s jurisdiction ends. In turn, “[t]he ongoing jurisdiction for any adult sanction, other than the commitment to the department of corrections, is with the adult court.” K.S.A. 2012 Supp. 38-2364(b).
A.M.M.-H.’s theory is based on the language in K.S.A. 2012 Supp. 38-2364(a)(2) providing that in this situation an adult sentence “shall be stayed on the condition that tire juvenile offender not violate the provisions of the juvenile sentence and not commit a new offense.” (Emphasis added.) A.M.M.-H. cites several statutes to demonstrate that the commissioner of the juvenile justice authority, not the courts, sets tire requirements of a juvenile’s conditional release and, therefore, those conditions should not be considered part of the “juvenile sentence.” See K.S.A. 2012 Supp. 38-2302(b) (aftercare term conditions established by commissioner); K.S.A. 2012 Supp. 38-2374(a) (commissioner establishes the conditions upon which the juvenile can be release from the juvenile correctional facility); K.S.A. 2012 Supp. 38-2374(c) (district court can recommend modifications or additions to the conditions established by the commissioner of the juvenile justice authority). We find A.M.M.-H.’s argument to be unavailing.
First, the district court classified A.M.M.-H. as a “violent offender II.” See K.S.A. 2012 Supp. 38-2369(a)(l)(B). This classifi cation allowed the court to sentence him to the juvenile correctional facility for a period of incarceration and also a term of aftercare:
“Offenders in this category may be committed to a juvenile correctional facility for a minimum term of 24 months and up to a maximum term of the offender reaching the age of 22 years, six months. The aftercare term for this offender is set at a minimum term of six months and up to a maximum term of tire offender reaching the age of 23 years.” K.S.A. 2012 Supp. 38-2369(a)(l)(B).
A specific part of A.M.M.-H.’s sentence, as ordered by the district court, included a term of aftercare—A.M.M.-H. was sentenced to 24 months’ juvenile incarceration and 24 months’ aftercare. As correctly pointed out by A.M.M.-H., the commissioner of the juvenile justice authority sets the conditions of the aftercare, not the district court. See K.S.A. 2012 Supp. 38-2302(a), (b). However, the aftercare is still a component of A.M.M.-H.’s juvenile sentence, and a violation of the juvenile sentence has consequences. The adult sentence “shall be stayed on the condition that the juvenile offender not violate the provisions of the juvenile sentence and not commit a new offense.” K.S.A. 2012 Supp. 38-2364(a)(2).
A.M.M.-H. contends he could not be ordered to serve his adult sentence as a consequence for violating his conditional release. We disagree. A.M.M.-H. cites K.S.A. 2012 Supp. 38-2375, which provides for a hearing on a motion alleging violations of conditional release:
“If [after a hearing] the court finds that a condition of release has been violated, the court may modify or impose additional conditions of release that the court considers appropriate or order that the juvenile offender be returned to the juvenile correctional facility to serve the conditional release revocation incarceration and aftercare term set by the court pursuant to the placement matrix as provided in K.S.A. 2012 Supp. 38-2369, and amendments thereto.”
We acknowledge that reinstatement of the adult sentence is not specifically listed in K.S.A. 2012 Supp. 38-2375. Additionally, we also recognize that reinstatement of the adult sentence is not specifically listed in the documents quoted above and signed by A.M.M.-H. to permit the conditional release. A.M.M.-H. argues imposition of his adult sentence is inconsistent with the documents he signed for his conditional release. However, K.S.A. 2012 Supp. 38-2369(a)(4) specifically addresses conditional release violators:
“(4) Conditional Release Violators. Upon finding the juvenile violated a requirement or requirements of conditional release, the court may:
(A) Subject to the limitations in subsection (a) of K.S.A. 2012 Supp. 38-2366, and amendments thereto, commit file offender direcdy to a juvenile correctional facility for a minimum term of three months and up to a maximum term of six months. The aftercare term for this offender shall be a minimum of two months and a maximum of six months, or the length of the aftercare originally ordered, whichever is longer.
(B) Enter one or more of die following orders:
(i) Recommend additional conditions be added to those of the existing conditional release.
(ii) Order the offender to serve a period of sanctions pursuant to subsection (f) of K.S.A. 2012 Supp. 38-2361, and amendments thereto.
(iii) Revoke or restrict the juvenile’s driving privileges as described in subsection (c) of K.S.A. 2012 Supp. 38-2361, and amendments diereto.
(C) Discharge the offender from the custody of the commissioner, release the commissioner from further responsibilities in the case and enter any other appropriate orders.“ (Emphasis added.)
K.S.A. 2012 Supp. 38-2369(a)(4)(C), in conjunction with the mandate under K.S.A. 2012 Supp. 38-2364(b) that if the court finds a violation of the conditions, “the court shall revoke the juvenile sentence and order the imposition of the adult sentence previously ordered,” provides authority for the district court to order A.M.M.H. to serve his adult sentence. At his permanency hearing, the district court ordered A.M.M.-H. to follow all the provisions of his conditional release. A.M.M.-H. failed to comply with those provisions and subjected himself to the consequences of K.S.A. 2012 Supp. 38-2369(a)(4)—one of those being discharge from the custody of the juvenile authority. In this appeal, A.M.M.-H. does not challenge the violations of his conditional release and therefore we will not discuss their sufficiency.
Our decision is supported by several cases tiiat have imposed an adult sentence following violations of conditional release; however, the authority to do so was not challenged. See State v. Sims, 40 Kan. App. 2d 119, 121-22, 190 P.3d 271 (2008); In re R.L.R., No. 107,129, 2012 WL 2926163 (Kan. App. 2012) (unpublished opin ion); In re B.C.A., No. 99,452, 2008 WL 2679165 (Kan. App. 2008) (unpublished opinion).
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The opinion of the court was delivered by
Johnson, J.:
Rodrigo Trujillo seeks review of the Court of Appeals’ decision affirming his convictions for possession of cocaine and violation of a protection order based upon an incident at a former girlfriend’s house. The State elicited evidence of multiple acts that would support the violation of a protection order charge; the State failed to elect one particular act upon which the jury could rely; Trujillo did not request a unanimity instruction or object to its omission; and the district court did not give the jury a unanimity instruction requiring it to agree on the particular act that would support conviction on the protection order charge. The Court of Appeals found the unanimity error to be harmless because Trujillo presented a unified defense. The panel also rejected Trujillo’s claim that law enforcement lacked probable cause to arrest him for die crimes, finding diat Trujillo had not preserved the issue for appeal. State v. Trujillo, No. 102,840, 2011 WL 420707, at *3 (Kan. App. 2011) (unpublished opinion). We affirm the Court of Appeals’ decision in which it affirmed both of Trujillo’s convictions.
Factual and Procedural History
The incident giving rise to the charges in this case began on June 22, 2008, when Trujillo drove his truck to the home of Donnita Tilleiy, with whom he had previously been involved. Upon arrival, Trujillo noticed that his truck had overheated, and he raised the hood to check the vehicle’s oil and water. Then, Trujillo entered Tillery’s house and told her that he needed to wash his hands, use the restroom, and get water for his overheated truck. After Trujillo retrieved a drink in a glass bottle from the refrigerator, Tilleiy was hit in the face with the bottle, causing her eye to bleed. Both Tillery and Trujillo stated that they believed the injury was accidental. Trujillo said it happened when they both moved at the same time. Tilleiy maintained that it occurred during a straggle with Trujillo, when he cornered her and tiled to hug her. This was after she had attempted to call the police. Tilleiy also stated that Trujillo tried to “come at her again” but she grabbed her mace and sprayed him in the face.
After Trujillo left the house and returned to his track, Tillery locked the doors and called the police. She then put two pitchers of water on the porch, one of which was a glass container, for Trujillo to use in his truck. Tillery told police that Trujillo intentionally threw the glass pitcher and broke it; Trujillo claimed it slipped from his oily hands.
Officer Tiffany Gorman was the first to arrive at the scene and found Trujillo working on his truck. Officer Gorman described her interaction with Trujillo as going from confrontational to jovial; the officer believed that Trujillo was under the influence of something.
When Officer Gorman interviewed Tilleiy, she observed that Tilleiy was upset, crying, shaking, and bleeding internally in her eye. Tilleiy told the officer that Trujillo had entered her house uninvited, cornered her, and attempted to hug her against her will. The bottle hit her eye during that straggle. When Trujillo attempted to hug her again, Tillery maced him. She also told the officer that Trujillo had deliberately broken the glass pitcher on the porch. Tillery further informed the officer that the couple had a history of domestic violence and that there was a no-contact order issued. Officer Gorman then called dispatch personnel to verify that there was a no-contact order in place, although the police would later discover that the order had expired. Officer Gorman would later testify that she believed she had probable cause to arrest Trujillo for disorderly conduct, criminal property damage, domestic battery, and violation of a protection order.
After Trujillo was arrested and taken to the police station, an officer conducted an inventoiy search that produced a folded dollar bill with cocaine inside. Trujillo was charged with possession of cocaine and domestic batter)'.
While the case was pending, Trujillo was ordered to have no contact with Tillery. But she would later relate that Trujillo called her three times from jail and wrote her letters in July 2008, while tire no-contact order was in force. That prompted the State to charge the additional crime of violation of a protection order.
Trujillo would later admit to making one of the telephone calls. But he testified that he was unaware he could not contact Tillery until he learned of the restriction at his trial in January 2009, well after he was alleged to have made the telephone call and mailed the letters. In addition, he asserted that he mailed the letters to a man named Herrardo Diaz and did not instruct him to deliver them to Tillery, despite the fact that she found them stuffed under her door in mid-July 2008. Although the content of the letters suggested that Tillery was the intended recipient, as for instance the one letter addressed to “Dear Love” and the request for the recipient to “lift that restraining order with the Judge,” Trujillo testified that he was just writing down his thoughts to send to his best friend, Diaz.
Prior to trial, Trujillo sought to suppress the cocaine found in his pocket by asserting that the officer did not have probable cause to arrest him at Tillery’s house. He argued that there was not a valid restraining order in place at the time and that the officer did not have probable cause to believe he had committed any other crime. The district court concluded there was probable cause for the arrest and denied the motion.
At trial, the State failed to elect which contact with Tillery it was alleging violated the protection order, i.e., one of the telephone calls or the mailed letters. The judge also failed to instruct the jury that it had to unanimously agree upon which one of the acts violated the no-contact order. Compounding the effect of those errors, the prosecutor argued in closing that the jury could find that either the call or the letters constituted the prohibited contact. Trujillo did not object to the instructions or request a unanimity instruction.
The juiy ultimately found Trujillo not guilty on the domestic battery charge but convicted him of possession of cocaine and violation of a protection order. The district court sentenced Trujillo to 12 months’ probation with an underlying 11-month prison term. Trujillo then filed the proper notice of appeal.
At the Court of Appeals, Trujillo asserted that the court should have given the jury a unanimity instruction and that the cocaine should have been suppressed because police did not have probable cause to arrest him. The panel unanimously affirmed his convictions. Trujillo, 2011 WL 420707, at *1.
With respect to the unanimity instruction, the Court of Appeals noted that “Trujillo and the State both agree that the case involves multiple acts and that the district court committed error by failing to give the unanimity instruction,” but that the parties disagreed as to whether the omission was clearly erroneous, i.e., reversible error. Trujillo, 2011 WL 420707, at *1. Ultimately, the panel opined that the only dispositive issue for the jury involved Trujillo’s mens rea, i.e., whether he knowingly violated the protective order, so that an instruction that the jury must be unanimous on the particular act, i.e., the actus reus, would not have changed the result of the trial. Trujillo, 2011 WL 420707, at *2.
With respect to the probable cause issue, the panel noted that the remedy sought was the suppression of the evidence of cocaine presented at trial. But because Trujillo had not contemporaneously objected to the introduction of the cocaine evidence at trial on the same constitutional basis as he alleged on appeal, the panel found that “Trujillo did not preserve the issue for review, and his argument fails.” Trujillo, 2011 WL 420707, at *3.
We granted Trujillo’s petition for review of the Court of Appeals’ decision.
Unanimity Instruction
In State v. Voyles, 284 Kan. 239, 160 P.3d 794 (2007), this court laid down analytical steps to follow when considering a multiple acts claim on appeal. The threshold question in the Voyles framework, over which the court exercised unlimited review, was whether the case truly involved multiple acts, i.e., whether the defendant’s actions could have given rise to multiple counts of the charged crime or whether the alleged conduct was unitaiy. Voyles, 284 Kan. at 244.
The second step in Voyles was a determination of whether an error occurred. If the State did not inform the jury which act to rely upon during its deliberations and the trial court did not instruct the jury that it must be unanimous about the particular criminal act that supported the conviction, there was error. Voyles, 284 Kan. at 244-45; see also State v. Colston, 290 Kan. 952, 968, 235 P.3d 1234 (2010).
The final step in Voyles was to determine whether the error was reversible. After considering several alternatives, Voyles determined that the “clearly erroneous” provision of K.S.A. 22-3414(3) should apply. Voyles, 284 Kan. at 245-47. Voyles opined that a district court’s failure to instruct on unanimity was reversible under the clearly erroneous standard unless the defendant had presented a unified defense or a general denial of all of the acts, specifically explaining:
“If diere is no unified defense, we do not tolerate verdict uncertainty in these cases. Stated in the language of the clearly erroneous standard of review applicable when no unanimity instruction has been requested, cases not containing a unified defense are reversed because the reviewing couit is firmly convinced that there is a real possibility the jury would have returned a different verdict if the instruction had been given.” 284 Kan. at 253.
Recently, we have attempted to clarify and standardize the progression of appellate analysis and the corresponding standards of review for jury instruction issues. See, e.g., State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012) (outlining four-step process for jury instruction issues). But we have recognized that jury instruction issues involving the clearly erroneous standard of K.S.A. 22-3414(3) tend to blend or conflate the determinations of appellate reviewability, error on the merits, and reversibility of the error. See State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012). Williams suggested the following framework when an instruction is claimed to be clearly erroneous: (1) Utilizing the unlimited review applied to legal questions, the reviewing court first determines whether the instruction or the failure to give the instruction was erroneous; and, (2) if error is found, the court must review the entire record to make a de novo determination of whether it is firmly convinced that the juiy would have reached a different verdict had tire instruction error not occurred. 295 Kan. at 515-16.
The framework in Williams is not significantly different from the Voyles progression. One must necessarily perform the first two steps of Voyles—determining if the case involves multiple acts and if an error was committed because of a failure to elect or instruct— in order to establish that the failure to give the unanimity instruction was erroneous, as required by the first step in the Williams analysis. Then, both paradigms move to a clearly erroneous reversibility inquiry that uses a result-oriented test. Voyles stated the test as “the reviewing court is firmly convinced that there is a real possibility the jury would have returned a different verdict if the instruction had been given.” 284 Kan. at 253. Williams’ version was “whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. at 516. We do not discern a practical difference between the stated tests, and therefore, we opt to omit the “real possibility” language to avoid any confusion with the constitutional harmless error test we set forth in State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (constitutional harmless error standard paraphrased as “where there is no reasonable possibility that the error contributed to the verdict”).
Granted, Voyles specifically looked at whether the defendant had presented a unified defense or a general denial to any of the multiple acts. But we do not intend those circumstances to create structural error, as Trujillo suggests. See Plummer, 295 Kan. at 162 (declining to find structural error for refusing party’s request for legally appropriate and factually supported instruction). Rather, the defendant’s defense strategy is merely an important and compelling factor in firmly convincing the reviewing court that the jury would have reached a different verdict had the instruction error not occurred.
Here, the parties concede that the alleged telephone call and the sending of tire letters were factually separate and distinct acts, motivated by fresh impulses. See Colston, 290 Kan. at 962 (acts are multiple acts if factually separate and distinct; incidents are factually separate when independent criminal acts occur at different times or when later act motivated by a fresh impulse). Further, the parties concede that it was error not to give the unanimity instruction. We agree; the evidence supports the parties’ concessions in this case. Accordingly, all that remains is to determine whether the erroneous failure to give the jury a unanimity instruction was clearly erroneous, so as to require reversal.
Standard of Review
In Ward, 292 Kan. 541, Syl. ¶ 8, we held that a harmless error analysis involves a de novo review of the entire record. In Willmms, we adopted that same global de novo review standard for the clearly erroneous inquiry on an omitted jury instruction. 295 Kan. at 515.
Analysis
In his petition for review, Trujillo contends that
“the point the Court of Appeals opinion misses is that some members of the juiy could have quite reasonably believed that either 1) Mr. Trujillo sent the letters to his friend, never intending that they reach Ms. Tillery, or 2) that Mr. Trujillo’s phone call to Ms. Tillery was without knowledge of the no contact order.”
Then, he asserts that “[i]f six of the jury members only believed the first was true, and six only believed the second was true, then Mr. Trujillo was not convicted of violation of a protection order by a unanimous jury.” The fallacy in Trujillo’s reasoning is that, if six members of the jury believed his testimony that he did not know about the no-contact order in July 2008, they could not have voted to convict for any of the multiple acts, including the mailing of the letters.
We pause, at this point, to review what the jury was told that it had to determine. The elements instruction on the protection order charge, Instruction No. 13, stated:
“The defendant is charged with the crime of violation of a protective order. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant knowingly or intentionally violated an order issued as a condition of pretrial x'elease, diversion, probation, suspended sentence, postrelease supervision or at any other time during the criminal case that orders the defendant to refrain from having direct or indirect contact with another person.
“2. That this act occurred on or about the 2nd day of July through the 28th day of July, 2008, in Johnson County, Kansas.”
The instruction requires a knowing or intentional violation of the protective order; an accidental or unintentional contact with the subject of the no-contact order is not a crime. Trujillo testified at trial that he had not previously seen or heard of tire conditions of his domestic violence bond and that he did not know that he could not have contact with Tillery when he sent the letters to Diaz or when he called Tillery. His attorney argued in closing that Trujillo had never received the no-contact order and rhetorically asked the jury, “[H]ow do you know what contact order is against you?” With respect to the letters, Trujillo made the additional argument that he had sent them to Diaz without any instructions for Diaz to deliver them to Tillery, i.e., any contact with Tillery via the letters was unintentional, as well as being without knowledge of a protective order.
With tire foregoing in mind, we return to Trujillo’s hypothetical scenario of six jurors only believing that delivery of the letters to Tillery was unintentional and six only believing that Trujillo’s admitted telephone call to Tillery was made without knowledge of tire no-contact order. The facial seduction of that example evaporates when one adds the irrefutable fact that Trujillo was convicted, which means that all 12 jurors had to vote in favor of finding that all of the elements of the crime were present, i.e., Trujillo knowingly or intentionally violated the protective order by malting contact with Tillery. It is possible that less than all of the jurors (six in the hypothetical) could have believed Trujillo’s testimony that he did not intend to contact Tillery with the letters and still vote to convict on the admitted telephone call because of a disbelief of Trujillo’s claim he did not know of the protective order. But the six jurors that hypothetically believed Trujillo’s testimony that he did not know about the protective order could not have voted to convict him even if they believed Trujillo intentionally contacted Tillery with the letters. Regardless of whether the contact by letters was intentional or accidental, no juror could vote to convict on that act without finding that Trujillo had knowledge of the no-contact order.
In Voyles parlance, Trujillo presented the unified defense that he did not knowingly violate a protective order—either by telephone or letter—because he did not know that he had been ordered to have no contact with Tillery. His additional defense that the contact by letter was unintentional did not create any verdict uncertainty. In this case, the simple fact that the jury convicted Trujillo establishes that it was unanimous in its belief'that Trujillo knew about the existence of the protective order when he admittedly made the unlawful telephone call. In other words, under the evidence presented in this case, the jury had to either unanimously find that Trujillo knowingly contacted Tillery by telephone in violation of the protective order or it would have had to acquit him on the charge. Accordingly, we cannot be firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The failure to. give a unanimity instruction was not clearly erroneous under tire unique facts of this case.
Probable Cause to Arrest
The second issue in Trujillo’s petition for review declares that “[t]he district court erred in denying Mr. Trujillo’s motion to suppress the cocaine found in his pocket, because there was not probable cause to arrest him.” The petition then proceeds to argue that there was nothing to lead a prudent law enforcement officer to believe that a crime had been committed by Trujillo; that his arrest was unlawful; and that the cocaine found in his pocket pursuant to that arrest should have been suppressed. But the Court of Appeals did not rule on that issue because it found that Trujillo had not preserved the issue for appeal by contemporaneously objecting to the introduction of the cocaine evidence on constitutional grounds. Trujillo, 2011 WL 420707, at *3. Pointedly, Trujillo does not ask us to review the Court of Appeals’ ruling on preservation.
Recently, this court was presented with a similar situation in State v. Allen, 293 Kan. 793, 268 P.3d 1198 (2012). There, the district court sided with the State’s refusal to follow a plea agreement sentencing recommendation, after the defendant failed to appear at the sentencing hearing in accordance with a condition of the plea agreement. Before the Court of Appeals, Allen argued for the first time that the State was bound to follow the plea agreement because Allen had substantially complied with the contract. The Court of Appeals first declared that issues not asserted before the trial court cannot be raised for the first time on appeal and noted that Allen had claimed no exception to the rule. But the panel then continued by analyzing the merits of Allen’s claim of specific performance. See 293 Kan. at 795.
In her petition for review to this court, Allen only challenged the panel’s holding on the merits with respect to whether she had substantially performed under the plea agreement. “She did not challenge the Court of Appeals’ independent and dispositive procedural holding,” i.e., that she had not preserved the substantial performance issue for appellate review. 293 Kan. at 795. A majority of this court held that Allen’s failure to present the procedural holding of the Court of Appeals as an issue in the petition for review precluded this court from considering the issue. 293 Kan. at 795-96. Therefore, because the procedural holding would remain as a bar to Allen obtaining relief on appeal, any ruling we might make on the merits would be worthless to Allen. 293 Kan. at 796.
Here, the Court of Appeals’ procedural ruling that Trujillo had not preserved the probable cause issue for appeal is the only holding in that opinion. We are not presented with an alternative ruling on the merits by the panel which we could review, even if we so desired. Consequently, because die Court of Appeals’ decision on the preservation issue was “not presented in the petition [for review], or fairly included therein, [it] will not be considered by the court.” Supreme Court Rule 8.03 (a)(5)(c) (2011 Kan. Ct. R. Annot. 70).
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The opinion of the court was delivered by
Johnson, J.:
Kelly Goudschaal and Marci Frazier were committed to a long-time, same-sex relationship, during which they jointly decided to have two children via artificial insemination. In conjunction with the birth of each child, the couple executed a coparenting agreement that, among other provisions, addressed the contingency of a separation. A few months after the couple separated, Goudschaal notified Frazier that she was taking the children to Texas, prompting Frazier to file this action, seeking inter alia to enforce the coparenting agreement. The district court’s final order divided all of the women’s property, awarded the couple joint legal custody of the two childi'en, designated Goudschaal as the residential custodian, established unsupervised parenting time for Frazier, and ordered Frazier to pay child support. Goudschaal appeals, questioning the district court’s division of her individually owned property and challenging the district court’s jurisdiction and authority to award joint custody and parenting time to an unrelated third person. We find that the district court had the legal authority to enter its orders, but we remand for further factual findings.
Factual and Procedural History
The Parties’ Relationship
The relationship of Frazier and Goudschaal began in 1995. At some point, the couple decided to start a family, utilizing assisted reproductive technologies (ART) in the form of artificial insemination. Originally, tire plan was for both women to become pregnant, so that they could share a child from each partner. But when Frazier was unable to conceive, they mutually agreed that Goud-schaal would bear both children. In 2002, Goudschaal gave birth to their first daughter; their second daughter was born in 2004.
Before the birth of their first daughter, Frazier and Goudschaal signed a coparenting agreement. In 2004, the couple executed another coparenting agreement that made provisions for the second child. That agreement identified Frazier as a de facto parent and specified that her “relationship with the children should be protected and promoted”; that the parties intended “to jointly and equally share parental responsibility”; that each of the parties “shall pay the same percent of [child] support as her net income compares to [their] combined net incomes”; “that all major decisions affecting [the] children . . . shall be made jointly by both parties”; and that in the event of a separation “the person who has actual physical custody w[ould] take all steps necessary to maximize the other’s visitation” with the children. In addition, both a consent for medical authorization and a durable power of attorney for health care decisions were executed. Further, each woman executed a last will and testament that named the other as the children’s guardian.
Goudschaal, Frazier, and the two children lived together as a family unit. The adults jointly purchased a home, jointly owned personal property, and shared bank accounts. Although Frazier was primarily responsible for handling the couple’s financial transactions, both parties contributed to the payment of bills and to the educational accounts for the children. For their part, the children used their legal surname of “Goudschaal-Frazier,” and, notwithstanding the absence of a biological connection, both children called Frazier “Mother” or “Mom.” The teachers and daycare providers with whom the family interacted treated both Frazier and Goudschaal as the girls’ coequal parents.
At some point, the adults’ relationship began to unravel, and by September 2007, Frazier and Goodschaal were staying in separate bedrooms. In January 2008, Goudschaal moved out of their home. For nearly half a year thereafter, the women continued to share parenting responsibilities and maintained equal parenting time with the girls. In July, however, Goudschaal began to decrease Frazier’s contact with the girls, allowing her visitation only 1 day each week and every other weekend. Finally, in October 2008, Goudschaal informed Frazier that she had accepted a new job in Texas and intended to move there with both girls within a week. Frazier responded by seeking relief in the Johnson County District Court.
Proceedings in the Distnct Court
Frazier first filed a petition to enforce the 2004 coparenting agreement. She also filed a separate petition for equitable partition of the couple’s real and personal property. The first petition was later dismissed, and the petition for partition was amended to include the request to enforce the coparenting agreement. Goud-schaal responded with a motion to dismiss, claiming that the district court lacked subject matter jurisdiction to address Frazier’s requests for child custody or parenting time and arguing that the court could not properly divide certain portions of the parties’ individually titled property.
The district court denied Goudschaal’s motion to dismiss, opining that the district court had “two separate and independent bases for jurisdiction.” First, the court held that the petitioner had invoked the court’s equitable jurisdiction to determine whether “highly unusual or extraordinaiy circumstances” existed which would permit the court to apply the best interests of the child test to grant Frazier reasonable parenting time, notwithstanding the parental preference doctrine.
Secondly, the district court found jurisdiction under the Kansas Parentage Act (KPA), K.S.A. 38-1110 et seq., to consider Frazier’s claim that she is a nonbiological parent. Specifically, tire district court pointed out that K.S.A. 38-1126 provides that “[a]ny interested party may bring an action to determine the existence or nonexistence of a mother and child relationship.” (Emphasis added.) The court considered Frazier as having interested party status by virtue of her claim that she has notoriously and in writing acknowledged the mother and child relationship with these children. See K.S.A. 38-1113(a) (motherhood can be established “under this act”); K.S.A. 38-1114(a)(4) (paternity can be established by notoriously or in writing recognizing that status); and K.S.A. 38-1126 (insofar as practicable, the provisions of tire KPA applicable to the father and child relationship also apply to the mother and child relationship).
At the hearing on the petition, in addition to presenting the coparenting agreement, the parties stipulated to the value of the house and proffered evidence regarding all their assets and liabilities, such as retirement accounts, tax returns, mortgages, and income. The district court concluded that the parties lived and operated as a couple who had comingled their assets and thus each had an equitable interest in the other’s financial accounts. The court noted that “[e]ach party received tire benefit of sharing bills and responsibilities in a family setting.” As a result, the court concluded it would result in unjust enrichment if the assets and liabilities were not equitably divided. Accordingly, the court ordered an equalization payment of $36,500 to Frazier and assigned $60,000 of the second mortgage debt on the house to Goudschaal. The debt assignment was required because, as the court acknowledged, Goudschaal’s retirement account could not be divided with a nonspouse.
Regarding the children, the district court determined that an award of joint custody was in the best interests of the children. Goudschaal was awarded residential custody. Frazier was ordered to pay monthly child support and was granted reasonable parenting time. After Frazier resumed visitation with the girls, they began to experience behavioral problems that prompted their being placed in therapy. However, the record does not contain any reports from drat therapist.
Goudschaal appealed the district court’s decision. The appeal was transferred to this court on its own motion. K.S.A. 20-3018(c).
Arguments on Appeal
Given the manner in which the arguments have been presented to us and to assure tire parties that we have considered all of their respective arguments, we take the liberty of beginning by summarizing the parties’ arguments on appeal.
Appellant
Goudschaal’s brief to this court asserts two issues, albeit the first issue is divided into subparts. The overarching complaint on the first issue is that the district court violated Goudschaal’s constitutionally protected parental rights when it awarded joint custody and parenting time to a nonparent, i.e., Frazier. Goudschaal summarily dismisses the coparenting agreement by declaring that “an action to enforce a co-parenting agreement ... is not a cause of action recognized by Kansas courts.”
Citing to Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), Goudschaal starts with tire premise that child custody is a parent’s fundamental right, protected by the Due Process Clause of the Fourteenth Amendment to tire United States Constitution, and that such protection includes the right to make decisions concerning one’s children’s care, custody, and control. See Troxel v. Granville, 530 U.S. 57, 65-66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Relying on state law applying a parental preference doctrine and the notion that parents are presumed to do what is best for their children, Goudschaal then contends that the State cannot interfere with a biological parent’s fundamental right to the care, custody, and control of his or her children unless there has been a judicial finding that tire natural parent is unfit, which did not occur in this case.
Goudschaal asserts that she is the only person with the constitutionally protected status of parent of her children and that Frazier is simply an unrelated third party. Goudschaal refuses to accept that the KPA would permit a person who is not the biological mother of a child or who has not legally adopted the child to be come a “mother” within the meaning of the KPA. Specifically, she contends that any presumption arising from a notorious or written acknowledgment of maternity is always rebutted if there is another female who is the known and undisputed birth mother. In other words, Goudschaal argues that known biological lineage always and definitively trumps any statutory presumption of parenthood. She suggests that nothing in the KPA provides for- there to be two mothers, as the district court suggested. Finally, and perhaps more fundamentally, Goudschaal suggests that the question of whether Frazier could be a parent under the KPA is academic because the district court never made that explicit finding in this case.
Goudschaal then argues that, by not qualifying as a legal parent, Frazier has no standing to petition for custody of a child who is not a child in need of care and who has a natural parent who is not alleged to be unfit. Goudschaal points out that this court has said that “ '[i]n the absence of an adjudication that a natural parent is unfit to have custody of a child, tike parent has the paramount right to custody as opposed to third parties In re Guardianship of Williams, 254 Kan. 814, 826, 869 P.2d 661 (1994) (quoting Herbst v. Herbst, 211 Kan. 163, 163, 505 P.2d 294 [1973]). Likewise, Goudschaal recites that
“ ‘[t]here is no mechanism for a third party to intervene in the relationships of an intact family that has not subjected itself to judicial intervention or failed society’s minimal requirements for adequate parenting.’ Morris, Grandparents, Uncles, Aunts, Cousins, Friends: How is the court to decide which relationships toill continue?, 12 Family Advocate 11 (Fall 1989).” In re Hood, 252 Kan. 689, 691, 847 P.2d 1300 (1993).
Continuing in the same vein, Goudschaal avers that the district court erred in finding that it had equitable jurisdiction to award visitation to a third party such as Frazier. Pointing to Hood, Goudschaal contends that there is no common-law right of third-party visitation, but rather those rights have to originate with the legislature. See 252 Kan. at 693-94. Additionally, she quotes from our Court of Appeals, in State ex rel. Secretary of Dept. of S.R.S. v. Davison, 31 Kan. App. 2d 192, Syl. ¶ 3, 64 P.3d 434 (2002): “Third-party visitation is a creature of statute and in derogation of a parent’s constitutional right to direct the upbringing of his or her chil dren. Third-party visitation statutes must, therefore, be strictly construed.” Moreover, Goudschaal warns that if courts entertain visitation requests based on what is in the best interests of the children, that will “open[] a floodgate without establishing any boundaries,” and the result will be an increase in the intrusion by the courts into a family’s private life caused by “ex-boyfriends, ex-girlfriends, aunts, uncles, guardians, teachers, daycare providers, nannies, or any other individuals who have formed a relationship with the child.”
The remedy Goudschaal seeks is for this court to vacate the district court’s order granting Frazier joint custody and parenting time. She does not mention vacating the portion of the order that requires Frazier to pay her child support.
For her second issue, Goudschaal complains that the district court treated the division of the parties’ assets as if it were a marital dissolution by adding up all of the assets, subtracting all of the debts, and dividing the remainder in half. She contends that our caselaw has invested district courts with authority to divide the property of cohabitants only to the extent that such property was “jointly accumulated by the parties or acquired by either with the intent that each should have an interest therein.” Eaton v. Johnston, 235 Kan. 323, Syl. ¶ 2, 681 P.2d 606 (1984). Although Goudschaal concedes that the largest asset, the residential real estate, was a jointly acquired, divisible asset, she complains that the parties’ retirement accounts and insurance policies were separate, individual accounts. She asks for the case to be remanded for a reconsideration of the division of assets, applying the appropriate standard.
As an aside, the parties appear to overlook the irony of Goud-schaal’s concession that Kansas courts have jurisdiction over the jointly acquired property of cohabiting adults, while arguing that those same courts cannot acquire jurisdiction over the children brought into existence by the same cohabiting adults. Nevertheless, that is Goudschaal’s position on appeal.
Appellee
Frazier sets up her brief with seven issues, six of which address various aspects of the overarching question of whether the district court had die jurisdiction and authority to award her joint custody and parenting time. The final issue discusses the division of property.
In her first issue, Frazier asserts that the KPA provided a basis for the district court’s exercise of jurisdiction in this case. She acknowledges the absence of an explicit statement from the district court declaring Frazier to be a parent within the meaning of the KPA. Nevertheless, she argues that such a finding can reasonably be inferred from the court’s orders and the record as a whole.
Pointing to this court’s decision in In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), Frazier disputes Goudschaal’s contention that biology is the paramount question in this state. Ross held that a district court cannot order genetic testing to determine whether a man is the biological father of a child for whom the man had previously acknowledged paternity, unless the court first determines that such testing will be in the best interests of the child. 245 Kan. at 597. Ross found that the Uniform Parentage Act, upon which the KPA was based, is designed to provide for the equal and beneficial treatment of all children, regardless of their parents’ marital status. 245 Kan. at 597. Consequently, Frazier characterizes the holding in Ross to be that in any action under the KPA, the court must always act in the best interests of the child “when imposing legal obligations or conferring legal rights on the mother/ child relationship and the father/child relationship.” 245 Kan. at 597.
Frazier also' argues in favor of the district court’s interpretation of the KPA provisions to permit the establishment of maternity through the presumption in K.S.A. 38-1114(a)(4), i.e., where parenthood has been recognized “notoriously or in writing.” She points out that Goudschaal voluntarily created and fostered Frazier’s public persona as a mother of the two children. Accordingly, Frazier labels Goudschaal’s “open the floodgates” argument as “simply a time worn red herring.”
Finally in her first issue, Frazier contends that the district court was correct in observing that there is nothing in the KPA to prevent a finding that these children had two mothers. Frazier then points out that, if the court cannot utilize the statutory presumptions, the children will be precluded from ever having two parents because of K.S.A. 38-1114(f), which does not recognize a sperm donor as the child’s father without a written agreement between mother and donor. See In re K.M.H., 285 Kan. 53, 72-73, 169 P.3d 1025 (2007) (upholding constitutionality of K.S.A. 38-1114[f]), cert. denied 555 U.S. 937 (2008).
In her next issue, Frazier addresses Goudschaal’s major premise that the court’s exercise of jurisdiction over child custody and parenting time violated Goudschaal’s constitutional due process rights. Frazier contends that Goudschaal knowingly and voluntarily waived those rights when she entered into the coparenting agreement and continued to abide by the agreement even after the couple separated. Frazier points to In re Marriage of Nelson, 34 Kan. App. 2d 879, 125 P.3d 1081, rev. denied 281 Kan. 1378 (2006), where the Court of Appeals upheld a waiver of the constitutionally based parental preference rights in this state.
Alternatively, in the next issue, Frazier contends that cases from the United States Supreme Court dealing with a parent’s liberty interest have not focused on the biological connection, but rather they turn upon tire relationship between parent and child. See Lehr v. Robertson, 463 U.S. 248, 266-67, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983) (mere existence of biological link does not merit due process protection; father who fails to develop relationship with child not automatically entitled to direct-where child’s best interests lie). Frazier then creatively argues that if a natural parent is not entitled to due process protection in the absence of a parent and child relationship, tire corollary must also be true, i.e., a meaningful and well-established relationship with a nonbiological parent should be afforded constitutional protection. She points out that the presumption that a parent will always act in the best interests of his or her child only malees sense where tire natural bonds of affection between parent and child have developed over time, rather than merely through genetics. Finally, she argues that Troxel cannot be read as making unfitness of the biological parent a mandatory condition precedent to State intervention in custody and visitation disputes with a nonbiological parent, but rather a court must always balance the competing interests.
In her fourth issue, Frazier separately addresses the parental preference doctrine and contends that it does not bar her requést to enforce the coparenting agreement. She devotes considerable space in her brief arguing why this court was wrong in Sheppard v. Sheppard, 230 Kan. 146, 149-54, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982), when it declared unconstitutional a 1980 amendment to K.S.A. 60-1610(b), which modified the parental preference doctrine. Elsewhere, Frazier argues that if the parental preference doctrine really creates inviolable rights in biological parents, then a court could not refuse to do DNA testing based on the best interests of the child, as the Ross court held.
For her fifth issue, Frazier presents reasons she believes the district court had equitable jurisdiction to consider this case. She contends that her pleadings can be construed as an action seeking specific performance of the coparenting agreement. She counters tire argument that the agreement is unenforceable as an unlawful assignment of parental duties by pointing out that Goudschaal did not abdicate any of her responsibilities but rather simply agreed to share die children’s parenting. Moreover, Frazier argues simply drat there are times when the best interests of the child outweigh the need to stricdy adhere to the biological connection.
For her last issue on child custody and parenting disputes, Frazier attempts to find jurisdiction in this state’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), K.S.A. 38-1336 et seq. Specifically, Frazier asserts that she fits within the definition of “ ‘[pjerson acting as a parent’ ” under K.S.A. 38-1337(14). But she acknowledges that tire district court did not base its jurisdiction on that statute and did not malee any factual findings in that regard.
With respect to the division of property, Frazier conceded in her brief that the district court did not make any findings as to which items of the couples’ property were jointly acquired or acquired with the intent that they both would share it, as required by Eaton, 235 Kan. 323. Accordingly, Frazier also asks that the case be remanded to permit the district court to malee the requisite findings.
Amici Curiae
Three amicus curiae briefs were filed in this case. One on behalf of the American Civil Liberties Union, American Civil Liberties Union of Kansas and Western Missouri, and the National Center for Lesbian Rights (collectively ACLU); one by Linda Henry Elrod, Director of the Washburn University School of Law Children and Family Law Center; and one by the National Association of Social Workers (NASW). All three briefs were proffered in support of Frazier s claims.
The ACLU brief suggests factors to consider in determining whether a person has become a de facto or functional parent. The ACLU argues that Frazier should be deemed such a parent either because of extraordinary circumstances or because Goudschaal waived her superior rights as a biological mother and the waiver must be acknowledged to prevent harm to the children. The brief points out that there is a fundamental difference between the circumstance where a third-party is seeking to supplant or supercede the biological mother s rights and the current circumstance where a nonbiological caretaker seeks to share parental duties and responsibilities with the biological mother.
The Elrod brief points us to In re Guardianship of Williams, 254 Kan. at 820-21, which held that courts may intervene to prevent harm to a child in extraordinaiy or unusual circumstances. Elrod contends that the use of ART necessarily creates extraordinary circumstances in parent and child relationships. Moreover, Elrod argues that enforcing ART agreements, such as the copar-enting agreement in connection with the artificial insemination in this case, protects children by providing clarity and predictability. The brief also shares three theories which have been used by other states to grant nonbiological caretakers custody and parenting rights: (1) estoppel; (2) recognition of a parent-like status, whether labeled functional parent, psychological parent, or de facto parent; and (3) a finding that the person is a presumed parent under the applicable state parentage acts. The brief also points us to our de cision in In re K.M.H., 285 Kan. at 72-73, where we found that, without a written agreement, a sperm donor has no standing to assert parental rights to the child bom via artificial insemination.
The NASW brief provides us with a number of reasons why the law should be what that amicus would like it to be, i.e., investing a person in Frazier s circumstances with rights akin to a natural parent. NASW informs us that the formation of attachment bonds is critical to a child’s healthy development; that attachment relationships develop despite the absence of a biological' or legal connection between parent and child; that sexual orientation is irrelevant to the development of strong parent and child attachments; and that children experience severe emotional and psychological harm when their attachment relationships are severed.
Jurisdiction and Standing
Goudschaal contends that the most fundamental flaw in tírese proceedings is that Frazier lacked standing to request the relief she sought, which is a jurisdictional question, and that the district court generally lacked subject matter jurisdiction to entertain Frazier’s amended petition. At times, Goudschaal appears to equate jurisdiction with die efficacy of Frazier’s claims for relief. Which party should win a lawsuit is an altogether different question from that of whether the court has the power to say who wins. Moreover, a person’s claim to be protected by rights under the federal Constitution does not deprive the district court of subject matter jurisdiction to determine the applicability of those rights. As we said recently in Miller v. Glacier Development Co., 293 Kan. 665, 669, 270 P.3d 1065 (2011):
“Subject matter jurisdiction refers to the power of a court to hear and decide a particular type of action. Wichita Eagle & Beacon Publishing Co. v. Simmons, 274 Kan. 194, 205, 50 P.3d 66 (2002). Jurisdiction over subject matter is the power to decide the general question involved, and not the exercise of that power. Babcock v. City of Kansas City, 197 Kan. 610, 618, 419 P.2d 882 (1966).”
Standard of Review
“The existence of jurisdiction and standing are both questions of law over which this court’s scope of review is unlimited. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 830, 104 P.3d 378 (2005) (jurisdiction); 312 Education Ass'n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 (2002) (standing).” Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).
Analysis
Goudschaal does not question the district court’s jurisdiction to hear and decide Frazier’s request for a property division. In this state, a district court has the authority to make an equitable division of property that nonmarried cohabitants accumulated while living together. See, e.g., Eaton, 235 Kan. at 328. Consequently, Frazier’s petition stated a claim upon which relief could be granted by the district court, and dismissal of the entire case would have been improper. Cf. Nungesser v. Bryant, 283 Kan. 550, 559, 153 P.3d 1277 (2007) (appellate court must reverse dismissal for failure to state a claim if alleged facts and inferences support a claim on any possible theory).
Instead, Goudschaal contends that our courts only have the authority to address Frazier’s issues on child custody, parenting time, and support when such issues are presented in a divorce action involving two married persons, who would necessarily have to be a man and a woman in this state, or when considering a visitation request by a grandparent or stepparent. See K.S.A. 60-1610; K.S.A. 60-1616; K.S.A. 38-129. She argues that the district court read too much into K.S.A. 60-201(b) when it found therein a grant of equitable jurisdiction over these issues.
The parties’ arguments over whether the district court had “equitable jurisdiction” may be misdirected. Equitable jurisdiction refers to the authority of tire court to impose a remedy that is not available at law. See Stauth v. Brown, 241 Kan. 1, 11, 734 P.2d 1063 (1987) (quoting 27 Am. Jur. 2d, Equity § 70, p. 593) (where “ ‘there is no adequate remedy by an action at law . . . , a court of equity, in the furtherance of justice, may [impose a remedy]’ ”). In Place v. Place, 207 Kan. 734, Syl. ¶ 3, 486 P.2d 1354 (1971), this court suggested that even a court of equity must first have “acquired jurisdiction of a subject matter,” intimating that something more than a need to do justice is required. But once that subject matter jurisdiction is established, the court “will reach out and draw into its consideration and determination the entire subject matter and bring before it the parties interested therein, so that a full, complete, effectual and final decree adjusting the rights and equities of all the parties in interest may be entered and enforced.” 207 Kan. 734, Syl. ¶ 3.
An aspect of the equitable relief sought by Frazier was to have Goudschaal specifically perform under the coparenting agreement. “ ‘The jurisdiction of equity to grant specific performance of contracts, or to reform or cancel them in a proper case, is well settled.’ ” Stauth, 241 Kan. at 11 (quoting 27 Am. Jur. 2d, Equity § 70, p. 593). Goudschaal summarily dismisses that jurisdictional basis on the ground that the coparenting agreement was an unenforceable contract. But a court may exercise its jurisdiction over a contractual dispute in order to evaluate the contract’s legality. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 257, 225 P.3d 707 (2010) (quoting Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, 129, 928 P.2d 73 [1996]) (“ ‘[cjontracts are presumed legal and the burden rests on the party challenging the contract to prove it is illegal’ ”). Accordingly, the district court clearly had jurisdiction to address the consequences of the termination of the parties’ cohabitation arrangement and to determine whether the coparenting agreement in this circumstance unlawfully violated public policy.
Frazier also contended that she had a mother and child relationship with both children, in all respects other than biology. Accordingly, the trial court looked to the KPA provision that permits any interested party to bring an action to determine the existence or nonexistence of a mother and child relationship. K.S.A. 38-1126. Goudschaal challenges that holding by pointing to die definition of parent and child relationship.in K.S.A. 38-1111, which speaks to the legal relationship between the. child and the child’s biological or adoptive parents-. In essence, Goudschaal argues that one must claim to be a biological or -an adoptive parent in order to invoke the jurisdiction of the court pursuant to K.S.A. 38-1126. '
But the only constraint to bringing an action to determine the existence of a mother and child relationship set forth in K.S.A. 38- 1126 is that the petitioner be an “interested party.” Goudschaal’s suggestion that only a biological or an adoptive parent can be an “interested party” under 38-1126 fails to consider the other provisions of the KPA. Specifically, K.S.A: 38-1114(a) provides for the presumptive establishment of a father and child relationship in certain circumstances, to-wit:
“(a) A man is presumed to be the father of a child if:
“(1) The man and tire child’s mother are, or have been, married to each other and tlie child is born during the marriage or within 300 days after the marriage is terminated by death or by the filing of a journal entiy of a decree of annulment or divorce.
“(2) Before the child’s birth, die man and the child’s modier have attempted to many each otiier by a marriage solemnized in apparent compliance witii law, although the attempted marriage is void or voidable and:
(A) If the attempted marriage is voidable, the child is born during the attempted marriage or within 300 days after its termination by deadi or by the filing of a journal entry of a decree of annulment or divorce; or
(B) if the attempted marriage is void, the child is born witiiin 300 days after the termination of cohabitation.
“(3) After die child’s birth, die man and die child’s modier have married, or attempted to many, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and:
(A) The man has acknowledged paternity of die child in wilting;
(B) with the man’s consent, tile man is named as the child’s father on the child’s birth certificate; or
(C) the man is obligated to support die child under a written voluntary promise or by a court order.
“(4) The man notoriously or in writing recognizes paternity of die child, including but not limited to a voluntary acknowledgment made in accordance with K.S.A. 38-1130 or 65-2409a, and amendments tiiereto.
“(5) Genetic test results indicate a probability of 97% or greater diat the man is die father of die child.
“(6) The man has a duty to support die child under an order of support regardless of whether die man has ever been married to the child’s mother.”
Obviously, except for subsection (5), the parental relationship for a father can be legally established under the KPA without the father actually being a biological or adoptive parent. That is important because K.S.A. 38-1113 states that a mother “may be established . . . under this act [KPA] ” and K.S.A. 38-1126, dealing with the determination of the mother and child relationship, spe cifically incorporates tire provisions of the KPA applicable to the father and child relationship, insofar as practicable. A harmonious reading of all of the KPA provisions indicates that a female can make a colorable claim to being a presumptive mother of a child without claiming to be the biological or adoptive mother, and, therefore, can be an “interested party” who is authorized to bring an action to establish the existence of a mother and child relationship.
Moreover, what is conspicuously absent from Goudschaal’s jurisdictional arguments is any consideration of the power of Kansas courts to protect the interests of our children. We have declared that the public policy in Kansas requires our courts to act in the best interests of the children when determining the legal obligations to be imposed and the rights to be conferred in the mother and child relationship. See In the Marriage of Ross, 245 Kan. 591, Syl. ¶ 2, 783 P.2d 331 (1989). Further, after the family unit fails to function, “the child’s interests become a matter for the State’s intrusion,” in order to avoid jeopardizing the child if “a parent’s claim for the child is based solely or predominantly on [selfish] motives.” 245 Kan. at 602. In order to accomplish this parens patriae function of protecting our children, the district court must necessarily be invested with subject matter jurisdiction.
In short, we find that tire district court had the authority to divide the parties’ property; to determine the existence or nonexistence of a mother and child relationship between Frazier and the two children; to determine the validity and effect of the coparenting agreement; and to enter such orders with respect to child custody, parenting time, and child support that are in the best interests of the children.
Validity of Coparenting Agreement
Key to our decision is a consideration of the efficacy of the parties’ coparenting agreement. As noted, Goudschaal summarily dismisses the agreement as unenforceable, apparently believing that such an agreement is always contrary to public policy and, thus, invalid as a matter of law. We disagree with that blanket condemnation.
Standard of Review
“ ‘[T]he interpretation and legal effect of written instruments are matters of law, Dutta v. St. Francis Regional Med. Center, Inc., 254 Kan. 690, 693, 867 P.2d 1057 (1994), and our standard of review is unlimited on a question of law. Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 2[, 823 P.2d 782 (1991)].’ Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, 128, 928 P.2d 73 (1996). ‘Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect.’ Federal Land Bank of Wichita v. Krug, 253 Kan. 307, Syl. ¶ 2, 856 P.2d 111 (1993).” Sunflower Park Apts. v. Johnson, 23 Kan. App. 2d 862, 863-64, 937 P.2d 21 (1997).
Analysis
More than a half century ago, in In re Estate of Shirk, 186 Kan. 311, Syl. ¶ 7, 350 P.2d 1 (1960), this court found that not all contracts in which a parent shares or transfers child custody to a non-parent are unenforceable on public policy grounds. There, a mother of a small child orally agreed with her mother—the child’s grandmother—to consent to the grandmother’s adoption of the child, in return for the grandmother’s promise that the mother and child would inherit the grandmother’s estate in equal shares with the grandmother’s son, i.e., one-third each. In addition, grandmother agreed that, if mother married a suitable person who wished to adopt tire child, grandmother would consent to mother’s readoption. Later, grandmother added the additional requirement that mother leave the city in which grandmother was raising the child. Mother fully performed her part of the bargain, including relocating to another city. Grandmother partially performed, including giving her consent to mother’s readoption of the child after mother remarried, but she failed to provide for die inheritance to the mother and child. Mother sought to enforce the contract against the grandmother’s estate, but die district court granted a demurrer, finding die contract unenforceable as violating the statute of frauds and contravening public policy.
On appeal, after finding that the oral contract was supported by adequate consideration and was otherwise enforceable by the mother, the Shirk court ultimately opined that “[the] controversy resolves itself down to the question whether the contract with respect to the mother’s rights violated public policy.” 186 Kan. at 323. In that regard, Shirk noted that it was so “fundamental that parents may not barter or sell their children nor may they demand pecuniary gain as the price of consent to adoptions .. . that citation of authority is unnecessary.” 186 Kan. at 323. But the court then quoted from 39 Am. Jur., Parent and Child § 30, pp. 621-22, emphasizing that in some jurisdictions an adoption contract or an agreement for the transfer of child custody is not contrary to public policy
“ ‘merely because it provides for the surrender by a parent of his [or her] child to another in consideration of the latter’s promise to give or leave money or property to tire parent or to the child, where it appears that the contract is in fact one which is promótive of the welfare and best interests of the child ....’” 186 Kan. at 323.
Enroute to finding “nothing in the contract as alleged which renders it illegal or void or as against public policy,” 186 Kan. at 326, Shirk related the following principles:
“Public policy forbids enforcement of an illegal or immoral contract, but it equally insists that those contracts which are lawful and which contravene none of its rules shall be enforced, and that they shall not be set aside or held to be invalid on a suspicion of illegality. A contract is not void as against public policy unless injurious to the interests of the public or contravenes some established interest of society (17 C.J.S., Contracts, § 211d, p. 570). Illegality from the standpoint of public policy depends upon the facts and circumstances of a particular case (Stewart v. Fourth Nat’l Bank, 141 Kan. 175, 39 P.2d 918 [1935]), and it is the duty of courts to sustain the legality of contracts where possible (Foltz v. Struxness, 168 Kan. 714, 215 P.2d 133 [1950]). There is no presumption that a contract is illegal, and the burden of showing tire wrong is upon him who seeks to deny his obligation thereunder. The presumption is in favor of innocence and the taint of wrong is a matter of defense (Mosher v. Kansas Coop Wheat Mkt. Ass'n, 136 Kan. 269, 15 P.2d 421 [1932]; Okerberg v. Crable, 185 Kan. 211, 341 P.2d 966 [1959]).” 186 Kan. at 326.
A review of the facts and circumstances of the agreement convinced the Shirk court that “[w]hat was done for [the child] was highly commendable and [the child’s] interests were best served by the family agreement.” 186 Kan. at 325. The court opined that to find grandmother’s promise of an inheritance to be “contrary to public policy, we must ascribe the basest of motives and the most evil of intentions to the mother.” 186 Kan. at 326. Shirk declined to do so and refused to declare the contract unenforceable as a matter of law. Accordingly, tire matter was remanded to the lower court to proceed to trial.
Much more recently, our Court of Appeals upheld a child custody agreement that placed the custody of children with a nonparent. In re Marriage of Nelson, 34 Kan. App. 2d 879, 125 P.3d 1081, rev. denied 283 Kan. 1378 (2006). In Nelson, a divorcing mother and father agreed to place custody of their children with the father s sister—the children’s aunt—and memorialized the parenting agreement in the final divorce decree. Placement was not made with the mother because of her continuing relationship with a boyfriend who was on diversion for engaging in sexually inappropriate contact with a 4-year-old child. After the divorce, mother married the boyfriend and sought to modify tire parenting plan, claiming a material change in circumstances. The district court dismissed the modification motion for failure to show a material change in circumstances. Mother appealed, asserting that the parental preference doctrine entitled her, rather than tire aunt, to have custody of her biological children, notwithstanding tire circumstances. In essence, mother was asserting that her parental preference trumped any risk of harm to the children.
On appeal, the Court of Appeals embraced the district court’s reasoning that a parent can waive his or her rights under the parental preference doctrine. The panel noted that the mother’s express waiver of her rights under the parental preference doctrine was accompanied with an acknowledgement that she had been advised by counsel “ ‘of the Kansas Constitutional provisions concerning parental preference,’ ” and “ ‘that the facts and circumstances warrant the third party placement and that the third party placement is in the best interest of the minor children.’ ” 34 Kan. App. 2d at 884. The panel upheld the district court’s enforcement of the parenting agreement. 34 Kan. App. 2d at 888.
Obviously, Shirk and Nelson are not perfect analogs with the instant case. For instance, both of those cases involved a transfer of child custody to a family member, i.e., a grandmother and an aunt, respectively. On the other hand, both Shirk and Nelson involved the outright transfer of custody by the biological parent, whereas, here, the biological mother created a coparenting arrangement that simply shared her parenting duties with another without relinquishing her responsibilities as a parent. Moreover, as a matter of law, Goudschaal would be deemed to have retained certain parental duties because her parental rights had not been terminated. Cf. State ex rel. Secretary of SRS v. Bohrer, 286 Kan. 898, 908-09, 189 P.3d 1157 (2008) (natural parent has certain common-law duties which cannot be relieved by consenting to the appointment of a permanent guardian).
Despite factual distinctions, we discern that Shirk instructs us that the coparenting agreement before us is not rendered unenforceable as violating public policy merely because the biological mother agreed to share the custody of her children with another, so long as the intent, and effect, of the arrangement was to promote the welfare and best interests of the children. Likewise, Nelson counsels that where two fit parents knowingly, intelligently, and voluntarily waive their parental preference by entering into a custody agreement with a third party that is in the best interests of the child, the court will enforce the agreement rather than second guess the parents’ decision. See 34 Kan. App. 2d at 884-88.
Goudschaal nevertheless suggests that this court’s holding in In re Hood, 252 Kan. 689, 847 P.2d 1300 (1993), precludes a district court from granting a nonparent any parental rights except for those specifically set forth by statute. Hood interpreted the grandparent visitation statute, K.S.A. 38-129, and determined that someone who was merely “grandparent like” did not have standing to seek grandparental visitation. In so holding, the Hood court wielded a broad brush, declaring:
“We will not create a new common-law right of third-party visitation. The legislature is the forum to entertain sociological and policy considerations bearing on the well-being of children in our state. Any expansion of visitation rights to unrelated third parties ought to originate with tire legislature.” 252 Kan. at 693-94.
It is difficult to square Hood’s abdication to the legislature of the court’s responsibility for the well-being of this state’s children with Ross’ declaration that “[p]ublic policy requires courts to act in the best interests of the child when determining the legal obligations to be imposed and the rights to be conferred in tire mother/child relationship and the father/child relationship.” 245 Kan. 591, Syl. ¶ 2. Nevertheless, Hood is factually distinguishable. We are not presented with a circumstance where an unrelated third party wants to become involved with a child who commenced life with two biological parents. The situation presented here is an agreement between two adults to utilize artificial insemination to bring children into the world to be raised and nurtured by the both of them. The biological mother is not abdicating her duties and responsibilities as a parent; she is sharing them. There is not a biological father to displace. See K.S.A. 38-1114(f) (semen donor to inseminate nonwife “is treated in law as if he were not the birth father of a child thereby conceived”); see also In re K.M.H., 285 Kan. 53, 73, 169 P.3d 1025 (2007) (sperm donor must have written agreement with mother to have standing to assert parental rights), cert. denied 555 U.S. 937 (2008).
Further, the court in Hood was presented with tire question of whether it should create the designation of “psychological parent” based on the facts and circumstances of the case. 252 Kan. at 693-94. But here we need not decide on a label to be applied to Frazier because the parties have done that for us. The coparenting agreement designates Frazier as a “de facto parent.” As indicated above, reading K.S.A. 38-1114(a)(4) in conjunction with K.S.A. 38-1113 and K.S.A. 38-1126, the KPA permits the creation of presumptive motherhood through written acknowledgement.
Goudschaal would have us ignore the coparenting agreement and the parental designation therein because of both the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Kansas parental preference doctrine. But we disagree with GoudschaaTs application of those concepts to this factual scenario.
Granted, in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the United States Supreme Court struck down a Washington state statute that gave anyone the right to petition the court for child visitation. In doing so, the Supreme Court reiterated that parents have a fundamental right to make decisions regarding the care, custody, and control of their children. 530 U.S. at 65-66. Likewise, the well-established parental preference doctrine in this state recognizes that
“ ‘a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against others who have no permanent or legal right to their custody.’
“The best interests of the child test. . . has long been the preferred standard to apply when the custody of minor children is at issue between the natural parents of the child or children. However, absent highly unusual or extraordinary circumstances it has no application in determining whether a parent, not found to be unfit, is entitled to custody as against a third-party nonparent.” In re Guardianship of Williams, 254 Kan. 814, 818, 826, 869 P.2d 661 (1994).
But what Goudschaal overlooks is the fact that she exercised her due process right to decide upon the care, custody, and control of her children and asserted her preference as a parent when she entered into the coparenting agreement with Frazier. If a parent has a constitutional right to make the decisions regarding the care, custody, and control of his or her children, free of government interference, then that parent should have the right to enter into a coparenting agreement to share custody with another without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children. Further, as Nelson recognized, parental preference can be waived and, as Frazier points out, the courts should not be required to assign to a mother any more rights than that mother has claimed for herself.
Looking at the coparenting agreement from the other side, the children were third-party beneficiaries of that contract. They would have a reliance interest in maintaining the inherent benefits of having two parents, and severing an attachment relationship formed under that contract would not only risk emotional and psychological harm, as the NASW asserts, but also void the benefits to the children that prompted the agreement in the first instance. So what Goudschaal really wants is to renege on the coparenting agreement without regard to the rights of or harm to the children, all in the name of constitutionally protected parental rights. Surely, her constitutional rights do not stretch that far.
Indeed, we rejected the equivalent of Goudschaal’s effort in Ross. There, a mother permitted a presumptive father to develop a familial relationship with her child but then placed that relationship in jeopardy by seeking to have paternity testing. We refused to allow the mother to destroy the familial relationship she had permitted to develop between her child and the presumptive father, without a court first finding that it would be in the best interests of the child. In other words, notwithstanding the parental preference doctrine and tire biological parents’ constitutional rights, Ross required the district court to consider the rights and determine the best interests of the child before allowing the mother to get what she wanted. That rationale is equally compelling here. It is one thing to assert that a nonbiological, same-gender party to a coparenting agreement has to accept the state of the law at die time of contracting, but quite another to say that children who are the objects of that agreement must suffer the consequences of their biological mother’s change of heart. Before Goud-schaal can assert her parental rights to assuage her own psychological or emotional needs, she must convince the court that her proposed course of action is in the best interests of die children.
Moreover, as we have pointed out, without the coparenting agreement these children would have only one parent. See K.S.A. 38-1114(f) (semen donor not birth father). Denying the children an opportunity to have two parents, the same as children of a traditional marriage, impinges upon the children’s constitutional rights. Creation of the 1973 Uniform Parentage Act (UPA), 9B U.L.A. 377 (2001), upon which our KPA is based, was prompted in part by a series of United States Supreme Court cases that held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution required that all children—both legitimate and illegitimate—be afforded equal treatment under the law. See, e.g., Gomez v. Perez, 409 U.S. 535, 537-38, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173-76, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 70-72, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968). The UPA drafters noted that “in providing substantive legal equality for all children regardless of the marital status of their parents, the [UPA] merely fulfills the mandate of the Constitution.” 9B U.L.A. 377 (2001) UPA (1973), Prefatoiy Note, p. 379. Accordingly, the constitutional rights of the children, as well as those of the parents, must inform our determination of the validity of a coparenting agreement. Here, the agreement effects equality by giving the children two parents. Moreover, the UPA and, in turn, the KPA are gender-neutral, so as to permit both parents to be of the same sex.
To summarize, the coparenting agreement before us cannot be construed as a prohibited sale of the children because the biological mother retains her parental duties and responsibilities. The agreement is not injurious to tire public because it provides the children with the resources of two persons, rather than leaving them as the fatherless children of an artificially inseminated mother. No societal interest has been harmed; no mischief has been done. Like the contract in Shirk, the coparenting agreement here contains “no element of immorality or illegality and did not violate public policy,” but rather “the contract was for the advantage and welfare of the child[ren].” See 186 Kan. 311, Syl. ¶ 7. Further, the agreement provides the children with “ ‘substantive legal equality . . . regardless of the marital status of their parents.' ” See Ross, 245 Kan. at 596 (quoting 9B U.L.A. 288-89 [1987]); K.S.A. 38-1112. Consequently, the coparenting agreement in this case does not violate public policy and is not unenforceable as a matter of law.
District Court’s Rulings
Because the coparenting agreement was enforceable, the district court had tire discretion to make appropriate orders addressing child custody, reasonable parenting time, and child support. Judicial action constitutes an abuse of discretion if it (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
We acknowledge that tire district court was exploring new territory in this case. Although it made the finding that its custody and parenting time orders were in the best interests of the children, we discern an absence of sufficient evidence to make that deter mination. For instance, the reason that the children allegedly began experiencing problems after recommencement of visitation with Frazier is unexplained in the record. Accordingly, we deem it appropriate to remand the case to further explore the best interests of the children and, in that regard, to appoint an attorney to represent the children’s interests.
With respect to the division of the parties’ property, the district court made a blanket finding that the parties intended to share everything. But, pursuant to Eaton v. Johnson, 235 Kan. 323, Syl. ¶ 2, 681 P.2d 606 (1984), the court should conduct an asset-by-asset determination of whether each item was “jointly accumulated by the parties or acquired by either with the intent that each should have an interest therein.” Accordingly, tire request of both parties to remand for a redetermination of the property division, utilizing the Eaton standard, is granted..
Affirmed in part and remanded with directions.
Bruce T. Gatterman, District Judge, assigned.
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The opinion of the court was delivered by
Nuss, C.J.:
If expert opinion testimony based on scientific methods or procedures is offered as evidence in Kansas state courts, the offering party must satisfy the Frye test. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). That test requires a “showing that the basis of a scientific opinion is generally accepted as reliable within the expert’s particular scientific field.” State v. Shadden, 290 Kan. 803, 819, 235 P.3d 436 (2010).
In these proceedings to declare Douglas Girard and Eugene Mallard sexually violent predators, they ask us to instead apply the Daubert test to tire actuarial risk assessments used by the State’s expert witnesses in helping to predict the odds of their reoffending. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The Daubert test essentially makes Frye’s test of “general acceptance” simply one factor to be considered in tire admissibility calculus. 509 U.S. at 594.
In both their cases, the district court essentially ruled that Frye applied to the actuarial risk assessments. It admitted the scientific opinion testimony which was partially based on these statistical calculations of risk. The Court of Appeals affirmed, with a majority holding that neither Frye nor Daubert applied because the actuarial assessments were not scientific. In re Girard, 45 Kan. App. 2d 1109, 1111, 257 P.3d 1256 (2011). We granted the defendants’ consolidated petitions for review and have jurisdiction under K.S.A. 20-3018(b).
We hold Frye applies and the actuarial risk assessments survive Frye’s scrutiny. The district court therefore is affirmed.
Facts
Girard and Mallard were both convicted of aggravated indecent liberties with a child. The State filed petitions for their continued confinement as sexually violent predators under K.S.A. 59-29a01 et seq. To obtain this designation the State was required to prove, among other things, that the men were likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder. See K.S.A. 59-29a02(a). Both men filed motions in limine to exclude the State’s expert witnesses’ testimony predicting tire odds of Girard and Mallard reoffending. The motions were heard at their respective commitment hearings.
The State’s psychologists evaluated both men and opined they met the criteria to be considered sexually violent predators. Their evaluations relied in part on two actuarial risk assessment instruments, the STATIC-99 and the MnSOST-R. The evaluators used these instruments to determine the rate, expressed as a percentage, at which offenders with characteristics similar to Girard and Mai- lard had reoffended. The assessments themselves do not expressly provide a recidivism estimate for the particular offender being evaluated. According to the State’s expert, John Reid, the instrument-based assessments are simply among the factors considered by the evaluators in their sexual predator determinations for the defendants. Other factors include treatment reports, mental health and criminal records, and personal interviews.
In both cases, Reid testified that the actuarial risk assessment instruments, and their use, are generally accepted as reliable widrin die psychological community. In Girard’s hearing, Reid testified that according to a clinical research study, 95.1% of evaluators reported using such instruments “most of die time” or “always.” According to Reid, 73.2% of evaluators rated actuarial assessments as “essential” to an evaluation.
In Mallard’s hearing, Reid testified that the MnSOST is generally accepted in the psychological community and that “[tjhere is lots of literature” that says the MnSOST-R should be used. Mallard’s expert psychologist, Stanley Irving Mintz, countered that actuarial risk assessments are “controversial” because there is “a wide range of differences of opinion” about them. While Mintz testified that he does not use such assessment instruments, he nevertheless conceded that they “are widely used by other psychologists and psychiatrists in mány institutions obviously in Kansas and others” and “are used at Lamed and elsewhere, Canada, so forth.” For Mallard, the district court held that the Frye test applied to the instrument-based assessments. But it also held that they were admissible under either Frye or Daubert.
For Girard, the district court held that the instrument-based assessments were admissible independent of Frye or Daubert because they were not scientific tests but statistical analyses of various factors. In the alternative, the court held the assessments were admissible because Frye applied and they met its requirements.
After the court rejected the defendants’ arguments urging application of the Daubert test to exclude the psychologists’ opinion testimony, it found that Girard and Mallard both met the statutory criteria of a sexually violent predator. Both men were committed to Lamed State Hospital’s Sexually Violent Predator Treatment Program.
After consolidation of the appeals, the Court of Appeals affirmed. The majority held that Frye governs die admissibility of expert scientific opinion in Kansas, and it therefore would “not apply the tests set forth in Daubert until instructed to do so” by the Supreme Court. In re Girard, 45 Kan. App. 2d at 1111. But after examining decisions from some other jurisdictions, it also essentially ruled the use of actuarial risk assessment instruments was not scientific. See, e.g., State ex rel. Romley v. Fields, 201 Ariz. 321, 35 P.3d 82 (Ct. App. 2001). Rather, they “merely help the professional draw inferences from historical data or the collective experience of other professionals who have assessed sex offenders for potential recidivism.” 45 Kan. App. 2d at 1112 (citing Fields, 201 Ariz. at 328). As a result, no test applied.
Judge Malone concurred. Unlike his colleagues, he believed that opinion testimony based on the instrument-based assessments should be subject to the Frye test. But he agreed with the majority’s result because he concluded that Girard and Mallard did not challenge on appeal the assessments’ admissibility under Frye. 45 Kan. App. 2d at 1112 (Malone, J. concurring).
We granted Girard’s and Mallard’s petition for review to address their issue of first impression.
Analysis
Issue: Actuarial risk assessments are subject to Frye.
To establish that an individual is a sexually violent predator under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., the State must prove, among other tilings, that the individual was “convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeated acts of sexual violence.” K.S.A. 59-29a02(a). The narrow issue on appeal concerns the admissibility of the State’s expert witness testimony opining about tiie defendants’ odds of reoffending through use of actuarial risk assessment instruments.
Standard of review
The admission of expert testimony is generally subject to an abuse of discretion standard. Shadden, 290 Kan. at 819. But de novo review is appropriate here because Girard and Mallard ask us to reconsider the application of the Frye standard raising an “abstract question of law.” Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 455-56, 14 P.3d 1170 (2000) (whether district court failed to correctly apply Frye standard presents an “ ‘abstract question of law’ ” and de novo review appropriate). See also Shadden, 290 Kan. at 819; Martinez v. Milburn Enterprises, Inc., 290 Kan. 572, 579, 233 P.3d 205 (2010) (this court exercises de novo review when reviewing a district court’s legal conclusions).
Kansas uses the Fiye test
Kansas has “long recognized that the test for the admission of scientific evidence is that applied in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).” State v. Heath, 264 Kan. 557, 577, 957 P.2d 449 (1998); see Shadden, 290 Kan. at 819. The Frye test requires that before expert scientific opinion may be admitted into evidence, the basis of the opinion must be generally accepted as rehable within tire expert’s particular field. See Shadden, 290 Kan. at 819; State v. Graham, 275 Kan. 176, 184, 61 P.3d 662 (2003).
In both cases the district court ultimately concluded that the two actuarial risk assessment instruments passed the “general acceptance” standard of Frye. Under the facts of their cases, we agree. The State’s expert testified that the instruments are generally accepted and widely used. Even Mallard’s expert conceded that the instruments are “widely used by other psychologists and psychiatrists in many institutions.” Their testimony is consistent with findings of other state courts. See Roeling v. State, 880 So. 2d 1234, 1238-39 (Fla. App. 2004) (all experts including the appellant’s expert testified at trial that actuarial assessments are widely used in evaluating possible sexually violent predators); In re Commitment of Simons, 213 Ill. 2d 523, 535, 821 N.E. 2d 1184 (2004) (noting that experts in at least 20 states “rely upon actuarial risk assessment in forming their opinions of sex offenders risks of recidivism”).
We also recognize that a number of other state appellate courts have generally concluded that actuarial risk assessments pass the Frye test scrutiny. See Simons, 213 Ill. 2d. at 536 (collecting cases holding that actuarial risk assessments meet tire Frye general acceptance test); In re Commitment of R.S., 173 N.J. 134, 136, 801 A.2d 219 (2002); Ortega-Mantilla v. State, 898 So. 2d 1164, 1168 (Fla. App. 2005). Additionally, the general acceptance of actuarial risk assessment has been thoroughly litigated in several states. Simons, 213 Ill. 2d. at 537. And “the academic literature contains many articles confirming the general acceptance of actuarial risk assessment by professionals who assess sexually violent offenders for risk of recidivism.” Simons, 213 Ill. 2d. at 541.
Girard and Mallard correctly concede that the general trend seems to be to uphold admissibility of such evidence under Frye. See also Janus and Prentky, Forensic Use of Actuarial Risk Assessment with Sex Offenders: Accuracy, Admissibility and Accountability, 40 Am. Crim. L. Rev. 1443, 1471, 1497 (2003) (actuarial risk assessments are admissible under either Frye or Daubert). But see Fields, 201 Ariz. at 328 (Frye test does not apply to actuarial assessments because they are not novel scientific evidence.).
This is an issue of first impression in Kansas. But we find similarities between actuarial risk assessments and some other types of evidence to which Kansas appellate courts have applied Frye. See, e.g., Kuhn v. Sandoz Pharmaceuticals Corporation, 270 Kan. at 460 (collecting “Kansas Frye test cases [which] have addressed a variety of scientific techniques”). Particularly persuasive are appellate decisions concerning testing or assessing through the use of probabilities such as State v. Isley, 262 Kan. 281, 936 P.2d 275 (1997).
In Isley, this court rejected defendant’s challenge to the admission of DNA evidence which argued that the derivation of statistical probabilities based upon an expert witness’ chemical analysis did not meet tire Frye test. The court first noted that “DNA testing meets the Frye test in Kansas.” 262 Kan. at 285. It ultimately concluded “the statistical analysis portion of both RFLP [restriction fragment length polymorphism] and PCR [polymerase chain reaction] testing meets the Frye test.” (Emphasis added.) 262 Kan. at 290.
Similarly, in Smith v. Deppish, 248 Kan. 217, 813 P.2d 929 (1991), this court held that DNA profiling results through RFLP analysis based upon probability calculations was subject to Frye. See State v. Hill, 257 Kan. 774, 895 P.2d 1238 (1995) (PCR analysis met Frye test). Indeed, several commentators have compared DNA typing and its probabilities to actuarial assessments of sexually violent predators. See 40 Am. Crim. L. Rev. at 1490-91.
Kansas courts have also applied Frye to blood analysis and accompanying statistical probability testimony. See State v. Washington, 229 Kan. 47, 55, 622 P.2d 986 (1981) (Frye applied to Multi-system method of blood analysis of polymorphic enzymes from which expert opined on the probability that blood found in victim’s apartment was defendant’s); Tice v. Richardson, 7 Kan. App. 2d 509, 644 P.2d 490 (1982) (Frye applied to expert testimony opining that, after using formula for calculating probability that defendant was plaintiff s actual father as compared to a random man selected from population as a whole, plausibility of paternity in defendant was 99.96%; based on results using human leukocyte antigen tests, expert opined defendant was father).
Finally, while using actuarial risk assessment instruments in the area of sexual offender recidivism is not the exact equivalent of testing of DNA and blood, we believe the assessments are nevertheless a science. See Goddard v. State, 144 S.W. 3d 848, 852 (Mo. App. 2004) (“[Actuarial instruments . . . are generally classified as scientific evidence.”). As the Goddard court explained:
“ ‘[T]he STATIC-99 is a risk assessment instrument that combines ten factors. An individual’s scores on these factors are summed, and the total score is compared to a table that shows the reoffense frequencies associated with each score. The table indicates, for example, that a score of 5 is associated with a frequency of sexual recidivism (over a five year follow-up period) of 33%. The highest risk category shown on tire table—scores of 6 or above—is associated with a measured frequency of sexual recidivism (over a 5 year period) of 39%.’ Eric S. Janus, Examining Our Approaches to Sex Offenders ir the Law: Minnesota’s Sex Offender Commitment Program: Would an Empirically-Based Prevention Policy be More Effective, 29 Wm. Mitchell L. Rev. 1083, 1095-96 (2003).” 144 S.W. 3d at 850 n.2.
See 40 Am Crim. L. Rev. at 1465, 1471 (referring to actuarial risk assessments as science and “a serious enterprise, backed by sophisticated empirical methodology”).
For all diese reasons, we affirm die district court’s ruling that the actuarial risk assessments pass Frye scrutiny. So the rationale of die Court of Appeals majority is moot.
Implicit in our holding is a rejection of Daubert’s application to our facts. In Daubert the United States Supreme Court held that the Frye test of 1923 was superseded by the adoption of the Federal Rules of Evidence in 1972. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 587. The Court created the Daubert test to make the admissibility standard for expert testimony consistent with the Federal Rules of Evidence, particularly Rule 702 governing expert testimony. Daubert demoted Frye’s test of “general acceptance” from “an absolute prerequisite to admissibility” to simply one factor to be considered in the admissibility calculus. 509 U.S. at 588.
But Kansas has not adopted the Federal Rules of Evidence. And we disagree with Girard and Mallard that the language in our statute regarding expert testimony, K.S.A. 60-456(b), is substantially similar to Rule 702. We also disagree that this statute and the federal rule contain the same intent—which Girard and Mallard do not identify for us. Finally, we observe that Kansas has not adopted Daubert. See, e.g., State v. Heath, 264 Kan. 557 (Frye is the proper standard for admission of scientific evidence); Shadden, 290 Kan. 803 (applying Frye). The defendants do not persuade us to depart from that path.
We conclude that in both cases the district court correctly admitted the expert testimony which relied in part upon actuarial risk assessments to opine Girard and Mallard were sexually violent predators.
The judgment of the Court of Appeals affirming the district court is affirmed. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnson, J.:
A decade after he was convicted of felony murder and the sale of cocaine, Erick Donaldson filed a motion to correct an illegal sentence. He claimed that the district court’s failure to sua sponte order a competency hearing and stay his prosecution, pursuant to K.S.A. 22-3302, rendered his convictions and sentences void for lack of jurisdiction. The district court summarily denied his motion, and Donaldson filed a direct appeal to this court pursuant to K.S.A. 2014 Supp. 22-3601(b)(3). See also State v. Pennington, 288 Kan. 599, 205 P.3d 741 (2009) (jurisdiction over appeal of motion to correct illegal sentence lies with court that had jurisdiction to hear original appeal).
In a recent decision, State v. Ford, 302 Kan. 455, 467, 353 P.3d 1143 (2015), we held that a K.S.A. 22-3504 motion to correct an illegal sentence is not an appropriate vehicle for challenging a conviction based upon an alleged violation of the competency to stand trial statute, K.S.A. 22-3302. Accordingly, we affirm the district court’s summary denial of Donaldson’s motion to correct an illegal sentence as being the correct result.
Factual and Procedural Overview
In separate criminal cases filed in 2002, Donaldson was charged with felony murder and the sale of cocaine. The cases were consolidated for trial, and Donaldson was found guilty of both charges. No request for a competency hearing was made by Donaldson, the State, or tire district court at any time during tire underlying criminal proceedings.
Donaldson directly appealed to this court, raising nine different issues, none of which involved challenges to his competency to stand trial or the district court’s failure to comply with K.S.A. 22-3302. We affirmed his convictions in State v. Donaldson, 279 Kan. 694, 112 P.3d 99 (2005) (Donaldson I).
Donaldson next filed a K.S.A. 60-1507 motion that raised several issues, albeit none of them were related to his competency to stand trial. The district court summarily denied his K.S.A. 60-1507 motion, and that denial was upheld on appeal. See Donaldson v. State, No. 97,230, 2007 WL 4577917 (Kan. App. 2007) (unpublished opinion), rev. denied 286 Kan. 1177 (2008) (Donaldson II).
Donaldson filed yet another K.S.A. 60-1507 motion, alleging that this court applied the wrong standard of review when determining one of the issues raised in his initial direct appeal. Again, he failed to mention his competency to stand trial. The district court summarily denied the second K.S.A. 60-1507 motion as successive and untimely, which was upheld on appeal. See Donaldson v. State, No. 105,736, 2012 WL 1237894 (Kan. App. 2012) (unpublished opinion), rev. denied 296 Kan. 1129 (2013) (Donaldson III).
Next, Donaldson sought federal habeas corpus relief, alleging multiple trial errors, as well as advancing a claim of ineffective assistance of counsel. Donaldson did not even suggest that he had been incompetent to stand trial, much less claim that the trial court had failed to follow the correct procedure for determining competency. The United States District Court denied his request for habeas relief. See Donaldson v. Roberts, No. 08-3149-RDR, 2009 WL 1158668 (D. Kan. 2009) (unpublished memorandum decision and order). The Tenth Circuit Court of Appeals denied Donaldson’s subsequent appeal in the federal habeas corpus action. Donaldson v. Roberts, 353 Fed. Appx. 118 (10th Cir. 2009) (Donaldson IV).
Returning to state court in January 2013, Donaldson filed a pro se motion to correct an illegal sentence, pursuant to K.S.A. 22-3504. For the first time, Donaldson claimed that he had not been competent to stand trial. Because of that incompetency, Donaldson claimed that the district court lost jurisdiction to convict him when it failed to determine on its own that a competency hearing was required pursuant to K.S.A. 22-3302 and then suspend the trial pending resolution of the competency issue.
The State filed a written response to the motion, asserting that a motion to correct an illegal sentence cannot be used to collaterally attack a conviction. See State v. Davis, 283 Kan. 767, 770, 156 P.3d 665 (2007). The district court summarily denied Donaldson’s motion, and Donaldson filed a timely notice of appeal.
Use of Motion to Correct an Illegal Sentence For Alleged Violations of K.S.A. 22-3302
To reiterate, we are not presented with a motion under K.S.A. 60-1507 that challenges the legality of Donaldson’s convictions. Donaldson has taken at least two bites from that apple. Rather, we are presented with a challenge to the legality of Donaldson’s sentences, because K.S.A. 22-3504(1) states that a “court may correct an illegal sentence at any time.” For purposes of that statute, we have defined an illegal sentence as
“(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.” State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).
Donaldson claims his sentences fit within the first category because the district court lost jurisdiction to continue his prosecution when it failed to follow the procedures for determining competency under K.S.A. 22-3302.
Standard of Review
We review a district court’s summary denial of a motion to correct an illegal sentence de novo. State v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 (2014). Similarly, whether a sentence is illegal is a question of law over which this court has unlimited review. 299 Kan. at 801.
Analysis
The relevant portion of K.S.A. 22-3302(1) on which Donaldson relies provides that “[i]f. . . upon the judge’s own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.” (Emphasis added.) Donaldson argues that the district court should have sua sponte suspended the proceedings and conducted a hearing to determine his competency. He claims that the failure of the trial court to take it upon its own initiative to suspend his prosecution to conduct a competency hearing divested the district court of jurisdiction to impose sentence, thus rendering his sentences illegal. Donaldson manufactures his creative argument from our prior decisions in State v. Murray, 293 Kan. 1051, 271 P.3d 739 (2012), and State v. Davis, 281 Kan. 169, 130 P.3d 69, cert. denied 549 U.S. 823 (2006).
In Davis, the defendant filed a motion to correct an illegal sentence, arguing that his sentence was illegal because the district court lacked jurisdiction when it failed to suspend the proceedings once his competency to stand trial was in legitimate dispute. In that case, defense counsel filed a motion to determine competency, which was granted by the district court, but the competency hear ing was never conducted. This court held that pursuant to the plain language of K.S.A. 22-3302(1), once a court finds there is reason to believe a defendant is incompetent, the proceedings must be suspended until such time as a competency hearing is conducted and a determination of competency is made. 281 Kan. at 177. The court concluded that because the proceedings should have been suspended until such time as competency was determined, the district court was without jurisdiction and the defendant’s sentence was illegal. 281 Kan. at 180.
In Murray, the defendant filed a motion to correct an illegal sentence, arguing he did not undergo a competency hearing ordered by the trial judge after finding good cause to believe the defendant was incompetent to stand trial. The district court summarily dismissed the motion, believing that the issue had already been addressed in a prior K.S.A. 60-1507 motion. This court remanded the matter for an evidentiary hearing to determine whether Murray’s factual assertion that he never received a competency hearing was, in fact, true. 293 Kan. at 1055. Relying on its holding in Davis, the court held that “[ojnce an order to determine competency is issued, a criminal prosecution must be suspended until competency is determined.... Failure to suspend prosecution until it is decided that the defendant is competent to stand trial deprives the district court of jurisdiction for trial and sentencing.” 293 Kan. at 1054.
Donaldson glosses over a conspicuous factual distinction. In both Davis and Murray, the district court ordered that the competency of the defendant to stand trial be determined. Statutorily, that means the court had to malee the predicate finding “that there is reason to believe that the defendant is incompetent to stand trial.” K.S.A. 22-3302(1). No such finding was made in this case and, therefore, under the plain language of the statute, the statutory directive to suspend the proceedings and conduct a hearing was not triggered.
Donaldson suggests that a prosecution must be suspended if a presiding judge should have noticed that a defendant might be incompetent to stand trial. But the statute requires that the judge make the requisite finding “that there is reason to believe that the defendant is incompetent to stand trial” before “the proceedings shall be suspended and a hearing conducted.” K.S.A. 22-3302(1). The statutory reference to “the judge’s own knowledge and observation” simply provides an alternative to a party’s request for a determination of competency, i.e., a judge can proceed to make the requisite finding for a competency determination without a party’s request. Consequently, given that the mandate to suspend the proceedings did not arise in Donaldson’s case because the requisite finding was never made by the presiding judge, the court could not have lost its jurisdiction to impose a sentence by failing to suspend the proceedings. His sentence was simply not illegal.
But before Donaldson loses on the merits of his claim, he is defeated by the procedural vehicle he chose to bring his competency challenge. We disapproved of using a motion to correct an illegal sentence recently in Ford. There, the defendant was charged with first-degree murder, aggravated robbery, and aggravated burglary. Prior to trial, he filed a motion under K.S.A. 22-3302 to determine his competency to stand trial. The district court granted the motion and a mental health evaluation was conducted, wherein the examiner determined that Ford was competent. Although the district court received die evaluation, it appeared that a competency hearing was not held. The case proceeded, Ford pled guilty to the charges, and he was subsequently sentenced to consecutive prison terms.
Approximately 17 years later, Ford filed a motion to correct an illegal sentence, which was denied by the district court after conducting a hearing. On appeal, we first addressed the issue of whether Ford could use a motion to correct an illegal sentence to challenge his conviction. We conceded that pursuant to our holdings in Davis and Murray, Ford’s motion to correct an illegal sentence would have appeared to be the appropriate procedural avenue to challenge his convictions. Ford, 302 Kan. at 463-64. But we noted that Davis and Murray appeared to conflict with a line of our cases which held that the relief available through a motion to correct- an illegal sentence is correction of the sentence, not reversal of the conviction. Ford, 302 Kan. at 464. Recognizing that the emerging trend of caselaw undercut the legal support relied upon in Davis, we disapproved of Davis’ statement that “ ‘the district court had no jurisdiction’ simply because of a procedural error based on the failure to suspend criminal proceedings until a competency hearing was conducted.” Ford, 302 Kan. at 465. We therefore concluded that “[w]ithout the underlying predicate of a lack of jurisdiction, Ford, who relied solely on a lack of jurisdiction as the basis for his motion, may no longer pursue the procedural remedy of a motion to correct an illegal sentence.” 302 Kan. at 467. In other words, we held, “if a district court violated K.S.A. 22-3302 by failing to suspend criminal proceedings and conduct a competency hearing after finding reason to question the defendant’s competency, the error alleged is procedural and not jurisdictional and a motion to correct an illegal sentence is not an avenue through which to reverse the conviction.” 302 Kan. at 467. That rationale is even more compelling in the circumstance, as here, where the presiding district judge did not even make the requisite finding that there was reason to question the defendant’s competency.
Ford’s holding would control this case. See State v. Mitchell, 297 Kan. 118, 124-25, 298 P.3d 349 (2013) (change in caselaw acts prospectively, applying “ ‘to all cases . . . pending on direct review or not yet final’ ”) (quoting State v. Berry, 292 Kan. 493, 514, 254 P.3d 1276 [2011]). Therefore, pursuant to Ford, Donaldson may not utilize a motion to correct an illegal sentence to challenge the trial court’s alleged failure to comply with K.S.A. 22-3302. “[M]ovants seeking to reverse a conviction because of an alleged violation of K.S.A. 2014 Supp. 22-3302 must utilize the procedures in K.S.A. 60-1507 or be subject to summary dismissal.” Ford, 302 Kan. at 467.
Furthermore, although we have, at times, treated pro se motions to correct an illegal sentence as K.S.A. 60-1507 motions, we decline to do so here. See State v. Swisher, 281 Kan. 447, 449, 132 P.3d 1274 (2006). A K.S.A. 60-1507 motion “is not typically an acceptable vehicle for a nonconstitutional claim of error that could have been addressed on a direct appeal.” 281 Kan. at 449. Donaldson has already filed a direct appeal in this case and two motions pursuant to K.S.A. 60-1507 without making any challenge to the district court’s alleged failure to comply with K.S.A. 22-3302. If he had attempted a K.S.A. 60-1507 challenge, it would have been denied. See State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) (court not required to consider successive motions).
The bottom line is that the district court did not err in summarily denying Donaldson’s pro se motion to correct an illegal sentence under K.S.A. 22-3504.
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Denied.
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The opinion of the court was delivered by
Johnson, J.:
Plaintiffs, who were required to pay fees to a State agency in order to practice their trade or transact business in Kansas, brought suit against the State of Kansas and Kent Olson, Director of Division of Accounts and Reports in the Department of Administration. The action challenged a 2009 appropriations bill, Senate Substitute for House Bill No. 2373, which directed the transfer of moneys into the State General Fund (SGF) from the various State agency fee fund accounts into which the respective plaintiffs had paid fees. The plaintiffs argued that the legislature’s sweep of large sums of money from the fee-funded accounts into the SGF was an invalid exercise of the State’s police powers and an unconstitutional exercise of its taxing authority.
The district court dismissed the lawsuit, finding that plaintiffs did not have standing to sue, because the moneys were taken from the agencies, not from tire individuals that paid fees into the agencies’ accounts. Further, tire district court opined that the plaintiffs’ complaints were required to be addressed under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq.
Plaintiffs appealed and the Court of Appeals reversed the order of dismissal, finding that plaintiffs had standing because they had been uniquely damaged by the transfer of funds and that the plaintiffs were not required to bring their claims under the KJRA because the agencies had no authority under the KJRA to grant the relief sought by plaintiffs, which was a finding that the legislation directing the fee fund transfers was unconstitutional.
The defendants petitioned this court for review, raising several issues. Initially, this court only granted review of the standing issue. Subsequently, we requested additional briefing on whether plain tiffs’ claims involved a political question and, if so, whether that deprived the judiciary of jurisdiction. We resolve both the standing and political question issues in plaintiffs’ favor and remand to the district court to reinstate the action.
Factual and Procedural Overview
In the district court, the litigation was terminated early upon a motion to dismiss. Accordingly, we look to the plaintiffs’ amended petition for the salient facts. Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 751, 189 P.3d 494 (2008) (when district court grants motion to dismiss based on lack of standing, appellate court must accept facts alleged by plaintiff as true, along with any inferences that can reasonably be drawn therefrom); cf. McCormick v. Board of Shawnee County Comm’rs, 272 Kan. 627, 634, 35 P.3d 815 (2001) (review of district court’s grant of motion to dismiss for failure to state a claim requires appellate court to assume the facts alleged by the plaintiffs and reasonably drawn inferences are true).
Background of H.B. 2373
In 2009, tire Governor informed the legislature of an anticipated total revenue gap between expenditures and available resources for fiscal year 2010 of over $900 million. Ostensibly, in order to make up for this revenue gap, the Governor recommended transferring $29 million in Special Revenue Fund balances into the SGF in fiscal year 2009 and another $2.2 million in fiscal year 2010. The Governor’s published recommended budget contained an itemized listing of the proposed revenue transfers, which were characterized as “cash sweeps.” The listing included proposed transfers from the Workers Compensation Fund administered by the Kansas Insurance Department (WC Fund), the Real Estate Fee Fund administered by the Kansas Real Estate Commission (RE Fund), and the Bank Commission Fee Fund administered by the Office of tire State Bank Commissioner (Bank Fund).
Using the Governor’s proposed budget, the 2009 Kansas Legislature passed Senate Substitute for House Bill 2373 (H.B. 2373). Senate floor amendments reduced the total amount of transfers by 21.5 percent and granted outright exemptions to several fee funds originally included within the Governor s itemized listing of proposed revenue transfers. Ultimately, H.B. 2373 passed and was signed into law, effective June 11, 2009. The final version of H.B. 2373 authorized and directed the Director of Accounts and Reports to transfer a total of $2,355 million from the WC Fund account to the SGF, a total of $195,671 in RE Fee Funds to the SGF, and a total of $534,517 in the Bank Fund to the SGF. The legislation stated that the purpose of the transfers was to reimburse the SGF for accounting, auditing, budgeting, legal, payroll, personnel and purchasing services, and any other governmental services performed on behalf of the affected agencies by other state agencies which receive appropriations from the SGF to provide such services.
Workers Compensation Fee Fund
Most Kansas employers are required to provide workers compensation coverage for their employees. An employer may self-insure or obtain an insurance policy from a State authorized insurance carrier or group-funded workers compensation pool. These insurers are also required, by statute, to fund the operations of the WC Fund, which is administered by the Kansas Commissioner of Insurance and is liable for specific statutorily authorized workers compensation awards, as well as payment of the actual expenses of the Insurance Commissioner that are incurred in administering the WC Fund.
On June 1 of each year, the Commissioner of Insurance may impose an assessment against the insurers in order to assure payment of compensation under the Workers Compensation Act (the Act). The Act details how the assessment amount for each insurer is computed, but the total amount of the assessment “shall be equal to an amount sufficient, in the opinion of the commissioner of insurance, to pay all amounts, including attorney fees and costs, which may be required to be paid from such fund during the current fiscal year.” K.S.A. 2014 Supp. 44-566a(b)(1). The assessments are received by the Commissioner and remitted to the State Trea surer, who deposits them in the State Treasury to the credit of the WC Fund.
In June 2009, the Kansas Insurance Department informed insurers that the legislature’s 2009 fund sweep required that the Department impose a 1 percent assessment for fiscal year 2010. Subsequently, in June 2010 and June 2011, the Department sent out additional notices indicating Üiat because the legislature continued to sweep money from the WC Fund, the Department would again have to assess additional fees to the insurers. The Department represented that “but for" the $2.355 million sweep from the WC Fund, no assessment would have been required in fiscal years 2010 and 2011. At oral argument, plaintiffs alleged that the WC Fund receives no services from any other state agency that receives appropriations from the SGF to provide such services to the WC Fund.
Real Estate Fee Fund
All persons desiring to operate as a licensed real estate agent or broker in Kansas are required to pay licensing fees to the Kansas Real Estate Commission every 2 years. The license fees are ultimately deposited in the State Treasuiy, and at the time of the actions giving rise to this lawsuit, 20 percent of the deposits were credited to the SGF for administration costs, but the remainder was credited to the RE Fund. Plaintiffs alleged, and the State admitted, that the transferred amount of $195,671 from the RE Fund was derived from the Kansas Savings Incentive Program (KSIP), a State program that allowed participating agencies to keep half of any savings realized by their agency during the prior fiscal year to spend on employee bonuses, technology purchases, and professional development.
Bank Commissioner Fee Fund
The Kansas State Bank Commissioner is statutorily authorized to make assessments on all banks, savings and loan associations, and trust companies (hereinafter “banks”) in order to pay for all costs and expenses associated with administering the banking, saving and loan, and trust laws in Kansas. The Bank Commissioner remits the collected assessments to the State Treasurer, who de posits the money in the State Treasury. Pursuant to the law in existence at the time of the 2009 transfer, 20 percent of the deposit must be credited to the SGF, with the balance credited to the Bank Fund. In other words, normally the State takes $1 out of every $5 of fees that the banks pay into the Bank Fund, ostensibly to cover the costs incurred by other, tax-funded agencies that support the operations of the Bank Fund. The transferred amount of $534,517 from the Bank Fund—which was in addition to the usual upfront 20 percent service fee—was derived from KSIP.
District Court Proceedings
In January 2010, plaintiffs brought suit against the State of Kansas, Department of Administration, Division of Accounts and Reports. Plaintiffs were subsequently granted leave to file an amended petition naming the State of Kansas and Kent Olson, Director of Accounts and Reports, Department of Administration, as defendants in the case. Plaintiffs were comprised of: (1) Insurers who provide workers compensation insurance and are required to pay assessments into the WC Fund (Insurer plaintiffs); (2) the Kansas Association of Realtors, which is comprised of real estate agents and brokers who must pay licensure fees every 2 years to the RE Fund (Realtor plaintiffs); and (3) two supervised lenders, together with the Kansas Bankers Association, a trade association made up of lenders, all of which are required to pay licensure fees and assessments to the Bank Fund (Banker plaintiffs). Another group of plaintiffs who were required to pay into a Conservation Fee Fund in connection with oil and gas operations had their fee funds swept into the SGF, but that group is no longer participating in this lawsuit.
Plaintiffs alleged that the sweep of the respective fee funds constituted a general revenue-raising measure and not a valid exercise of police power authority because the transferred amounts of money exceeded the reasonable and necessary costs of regulation and administration. Plaintiffs sought: (1) a declaratory judgment ruling that the cash sweeps were unconstitutional; (2) injunctive relief barring further or future legislative-enacted transfers of the fee funds; (3) mandamus or quo warranto relief against Kent Olson, seeking restoration or reimbursement of the swept funds; and (4) class certification.
Defendants filed a motion to dismiss, arguing, inter alia, that the court did not have subject matter jurisdiction because plaintiffs lacked standing to bring their claims. Specifically, defendants claimed that plaintiffs had no standing to seek enforcement of a public right, namely the appropriation of public funds.
Plaintiffs responded, claiming that they had standing pursuant to the reasoning found in Sac and Fox Nation v. La Faver, 31 F. Supp. 2d 1298 (D. Kan. 1998), and Watson v. City of Topeka, 194 Kan. 585, 400 P.2d 689 (1965). Plaintiffs further argued that while they did not challenge the statutory authority of an agency to assess and collect fees for the legitimate purposes authorized in enabling legislation, they did challenge “the diversion of fee funds by the state into the State’s General fund coffers and expended for purposes not authorized or contemplated by the enabling legislation allowing the collection of fees by regulatory agencies.” In other words, the plaintiffs objected to their fees—which were assessed for a specifically authorized purpose—being appropriated and used by the State for public purposes as if they were general tax moneys.
The district court framed the motion to dismiss issue as:
“Assuming Plaintiffs’ claims to be true, that is, the fees and charges now being imposed are due to the shortfall in funds available to a respective agency because of the various transfers noted and ‘but for’ they would not have been imposed as they are, the questions before the Court devolve into the question of a remedy and the standing to assert it.”
The district court first determined that a challenge to the agencies’ fee decisions must be brought under the KJRA. The district court reasoned that, even assuming that the transfers were unlawful, defendants’ actions did not harm plaintiffs, but rather it was the agencies’ responses to the transfers that caused plaintiffs’ injuries. For example, the district court surmised, had the agencies cut back on expenses in response to the fund transfer, rather than increasing fees, plaintiffs would not have brought this action because they would have suffered no injury.
The district court then concluded that plaintiffs’ only remedy under the KJRA would be a determination that the additional fee assessment was unlawful but that the KJRA did not provide a means for restoring funds that had already been used somewhere else. The district court noted that the KJRA did not contain a procedure to add other parties, such as the Director of Accounts and Reports or State Treasurer who would be necessary to reverse the transfers. Accordingly, the district court determined that the agencies would be required to reimburse plaintiffs from their own funds, which, in turn, would require the agencies to reduce their services and render them unable to perform their statutory duties. The district court concluded that the agencies’ presumed inability to perform statutory duties constituted an issue of public concern, thereby undermining plaintiffs’ standing to bring the action. Finally, the district court found that the Attorney General and district attorneys are charged with bringing an action that affects the general public. The district court therefore ruled that plaintiffs had until September 9, 2011, to either (1) “secure the substitution of the Attorney General of the State of Kansas or his special designee” to prosecute the case; or (2) pursue individual claims under the KJRA. The district court further ruled that if neither action was taken, it would dismiss the lawsuit for lack of subject matter jurisdiction.
Plaintiffs failed to exercise either option but instead sought to add tire affected agencies as indispensable parties to the action. The district court denied this request and consequently dismissed the case for lack of subject matter jurisdiction. Plaintiffs filed a timely appeal.
Appellate Proceedings
Plaintiffs complained on appeal that the district court misconstrued their arguments, especially with regard to their prayer for a declaratory judgment, which led to the improper dismissal. The Court of Appeals agreed with plaintiffs that the district court had terminated their lawsuit prematurely, summarizing its holding as follows:
“We reverse and remand dris case because the district court erred when it ruled the Plaintiffs had no standing to bring this action. They indeed appear to be uniquely damaged by die legislative enactment in a way that the general public is not—they had to pay increased fees. Thus, this lawsuit was not one that had to be brought by the attorney general or a county or district attorney. Also, the Plaintiffs were not required to bring a case under the Kansas Judicial Review Act because the state agencies cannot give the primary relief the Plaintiffs seek—the declaration that H.B. 2373 is unconstitutional.
“Because the district court dismissed this action solely upon the grounds of standing and the Plaintiffs’ failure to pursue a remedy under the Judicial Review Act, we will not address questions that the district court has had no opportunity to answer first. These questions include: whether the district court properly denied class certification; whether the defendants are immune from suit; whether this is a political question; or whether the Plaintiffs can seek mandamus or quo warranto relief. The district court must address those issues on remand. We do not know how this controversy will end, but we do know it can begin.” Kansas Bldg. Industry Work. Comp. Fund v. State, 49 Kan. App. 2d 354, 356, 310 P.3d 404 (2013).
The State filed a petition requesting that this court review the panel’s published decision. The petition set forth the following issues:
“1. Whether the Defendants are immune from suit in this matter.
“2. Whether the Plaintiffs may avoid the Constitutional requirement that die legislature be the sole branch that appropriates moneys, avoid the presumption of constitutionality, and ask the courts to ignore the plain language of the legislative journals to allow them to assume irregularity in the legislative process.
“3. Whether the courts have jurisdiction to decide Plaintiffs’ case.
“4. Whether Plaintiffs may bypass the exclusivity of the Kansas Judicial
Review Act.
“5. Whether Plaintiffs may bring claims of mandamus and quo warranto when Plaintiffs have alleged no failure to perform an unfulfilled duty.”
The State’s petition for review was only granted in part. Specifically, the court’s order and the clerk’s notice of action to the parties stated that the petition was “granted only as to Issue 3, regarding standing.” After supplemental briefing and oral arguments to this court, we determined that additional briefing was required on the correct test for standing to be applied in Kansas state courts. But additionally, a question arose as to whether the political question doctrine is jurisdictional or prudential. See Hegab v. Long, 716 F.3d 790, 800 n.4 (4th Cir. 2013) (quoting Chemerinsky, Federal Jurisdiction 45 [5th ed. 2007], for the proposition that tire Supreme Court has not announced whether the political question doctrine is constitutional and thus jurisdictional). An appellate court can make a sua sponte inquiry into whether it has jurisdiction over a question presented to it on appeal. See State v. Berreth, 294 Kan. 98, 117, 273 P.3d 752 (2012) (“appellate courts have a duty to question jurisdiction on their own initiative”).
Consequently, this court requested additional briefing that addressed the following questions:
“1, Widi respect to the standing issue:
“a. How should the test for standing be stated in this case?
“b. Is the test for standing applied differently with respect to plaintiffs’ prayer for declaratory judgment?
“2. Whether this case involves a non-justiciable political question, including an analysis of the following questions:
“a. Is tire money in the plaintiffs’ respective funds ‘public moneys’?
“b. Is the money in the Kansas Savings Incentive Program (KSIP) public moneys’?”
We take the liberty of first considering the political question doctrine of nonjusticiability, before discussing the standing issue. Ultimately, we affirm the Court of Appeals and remand to the district court to reinstate the proceedings.
Political Question Doctrine
In the district court, the State claimed an absence of subject matter jurisdiction because the plaintiffs’ claims raised a purely political question, i.e., the political question doctrine rendered the plaintiffs’ claims nonjusticiable. Essentially, the State argued that budgeting is a political matter, the legislature’s intent for the stated purpose of the appropriation may not be questioned, and the court may not depose members of the legislature and inquire into their motives and beliefs for passing the legislation. The State reasoned: “A court may not step into the shoes of a legislator and second-guess the need to reimburse the state and make appropriations.”
Standard of Review
“Whether a claim is nonjusticiable is a question of law. See Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 903, 249 P.3d 434 (2011); cf. Van Sickle v. Shanahan, 212 Kan. 426, 439, 511 P.2d 223 (1973); see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 254-55, 990 A.2d 206 (2010) (’Because an issue regarding justiciability raises a question of law, our appellate review is plenary.’); Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 540, 731 N.W.2d 164 (2007).” Gannon v. State, 298 Kan. 1107, 1118-19, 319 P.3d 1196 (2014).
Analysis
The seminal United States Supreme Court case on the political question doctrine is Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). There, certain Tennessee voters sued under the civil rights statute seeking to declare a state apportionment statute unconstitutional on equal protection grounds. The federal district court dismissed the action as nonjusticiable under the political question doctrine. The Supreme Court reversed, finding the allegations that a state statute effected an apportionment that deprived plaintiffs of equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution presented a justiciable constitutional cause of action which was within the reach of judicial protection, i.e., the case did not present a nonjusticiable political question. 369 U.S. at 237.
Enroute to that decision, Baker extensively explored the political question doctrine and reviewed many cases “in order to expose the attributes of the doctrine—attributes which, in various settings, diverge, .combine, appear, and disappear in seeming disorderliness.” 369 U.S. at 210. The Court opined:
“The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the political question’ label to obscure tire need for case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine. We shall then show that none of tiróse threads catches this case.” 369 U.S. at 210-11.
From its review of prior cases, the Court synthesized the elements of the political question doctrine, which it described as follows:
“It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a land clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
“Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence. The doctrine of which we treat is one of political questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.” 369 U.S. at 217.
The Court also cautioned that, as a tool for maintenance of governmental order, the political question doctrine “will not be so applied as to promote only disorder.” 369 U.S. at 215. Baker ultimately found it “ ' “inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence" by the political question doctrine. 369 U.S. at 230 (quoting Gomillion v. Lightfoot, 364 U.S. 339, 344-45, 81 S. Ct. 125, 5 L. Ed. 2d 110 [1960]).
Recently, in Gannon, this court referred to the enumerated portion of the above Baker quote as “the six Baker v. Carr factors” and clarified that one or more of the factors must exist to give rise to a political question. 298 Kan. at 1137. Gannon further noted “that this court has previously applied the Baker v. Carr factors, sometimes concluding an issue was a nonjusticiable political question (Leek [v. Theis], 217 Kan. [784,] 813-16[, 539 P.2d 304 (1975)]) and sometimes concluding it was not (Van Sickle, 212 Kan. at 438-39).” 298 Kan. at 1138. Accordingly, we will continue to view the political question doctrine through Baker s lens.
Pursuant to Baker, it seems that the first step is to make a “discriminating inquiry into the precise facts and posture of [this] par ticular case.” 369 U.S. at 217. As noted, the posture of this case is a dismissal on jurisdictional grounds. As the Court of Appeals aptly noted, the current appeal is not about which party will win in the end, but rather it concerns whether the lawsuit may begin. Kansas Bldg., 49 Kan. App. 2d at 356. Accordingly, the State’s arguments concerning the presumption of constitutionality afforded to legislative enactments are premature; if the lawsuit is a nullity, there will be nothing to construe.
Likewise, the State’s contentions that budgeting is a political process and that the payment of government expenses is constitutionally committed to the legislative branch are not in issue here. The plaintiffs do not dispute the legislature’s power to appropriate public money over which the State has exclusive control. Rather, in their words, “[w]hat [pjlaintiffs challenge is the diversion of fee funds by the state into the State’s General Fund coffers and expenditures for purposes not authorized or contemplated by the enabling legislation which allows the collection of fees by regulatory agencies.” The State responds that all money in the State Treasury is public money; that the fees collected for the agency funds involved in this case are deposited to the State Treasury; and, therefore, the fee funds are public money subject to appropriation at the sole discretion of the legislature. Accordingly, the character of the moneys in issue is a critical fact to resolve.
The State’s conclusory assertion that all moneys in the State Treasury are public money subject to unfettered appropriation is not universally embraced.
American Jurisprudence provides:
“Appropriations can be made only from state funds which are those funds raised by the operation of some general law. To be subject to the appropriation power of the legislature, funds held by state officers or agencies must belong to the state. Funds held in trust to be distributed according to legislatively prescribed conditions are not subject to appropriation, even though they are received on account of the state and the state treasurer is designated custodian.” 63C Am. Jur. 2d Public Funds § 28.
Similarly, Corpus Juris Secundum provides:
“All public funds and revenue coming into the state treasury, not specifically authorized by the constitution or by statute to be placed in a separate fund, and not given or paid over in trust for a particular purpose, constitute a part of die general fund of the state. The general fund is the collective designation of all the assets of die state which furnish the means for the support of the government and the defraying of die discretionary appropriations of the legislature, that is, the necessary and contingent expenses of die government. . . .
“The payment of funds into the state treasury does not necessarily vest the state widi title to those funds. The term general funds refers to funds belonging to the state and does not apply to funds for the benefit of contributors for which the state is a mere custodian or conduit.” 81A C.J.S., States §§ 383, 384 (2004).
Especially with respect to workers compensation funds, a majority of other jurisdictions considering the issue have found that those funds do not constitute public moneys subject to appropriation by the legislature. For instance, in Moran v. State ex rel. Derryberry, 534 P.2d 1282 (Okla. 1975), an action was brought by policyholders of the Oklahoma State Insurance Fund seeking to enjoin statutorily directed liquidation of certain assets of the Fund and the legislative appropriation of those funds. The action was prompted by the passage of a law to provide for disposition and use of “ ‘existing surplus funds of the State Insurance Funds in excess of the reserves and surplus authorized to be maintained at law.’ ” 534 P.2d at 1284 (quoting 85 O. S. Supp. 1974 § 152). Included in the legislation was authorization for the State Insurance Fund commissioner to liquidate assets of the Workmen’s Compensation Fund in the amount of $4 million dollars, which was subsequently appropriated to the State Board of Education for the support of tire public school activities. 534 P.2d at 1284.
As in this case, the State of Oklahoma claimed that the fee funds involved in that case were state moneys subject to appropriation. The Oklahoma Supreme Court rejected the State’s position as being tire minority view. The Derryberry court reviewed various treatises, to-wit:
“In Appleman, Insurance Law and Practice, Vol. 7A, § 4592, p. 190, ‘State Insurance Funds’ it is stated:
‘The purpose of a compensation act is to provide compensation for workmen injured in occupations defined by the act, and tire funds created by the act, together with the revenues by which they are sustained, are trust funds devoted to the special purposes designated by the act.’
And at page 192, as follows:
‘The fund, itself, is not synonymous with the state, and claims against the fund are not claims against the state, the fund not being considered a state fund.’
“Also in Appleman, Vol. 7A, § 4594, pages 202, 203, ‘State Insurance Funds-Payment Out of Funds’ it is stated:
‘The Industrial Accident Board, Compensation Commission, or whatever department stands in that stead, occupies a position of trust in relation to every person who is entitled to receive benefits from the funds, of which the Board is made trustee. The revenues received from the contributions of employers are a trust fund in the sense that a moral and legal obligation is imposed upon the state to use the revenues for the declared purposes for which they are collected.’
“In 100 C.J.S. Workmen’s Compensation § 357b, page 40, relative to State Funds, we find the following:
‘. . . The fund is a public fund in die sense of being administered by a public body, and its character as a public fund is indicated by a statute providing that industrial insurance premiums shall be paid into the state treasury for the accident and medical aid funds; but it is not public money in the sense of being money of the state to be used for, and on behalf of, the state for a state expenditure.’ ” 534 P.2d at 1286-87.
Ultimately, the Oklahoma Supreme Court concluded that
“the funds of the State Insurance Fund are not State funds and do not belong to tire State, that such funds are trust funds for the benefit of employers and employees, and are not available for the general or other purposes of the State, nor are they subject to appropriation by the Legislature for purposes other than those contemplated by the State Insurance Fund Act.” 534 P.2d at 1288.
Accord State v. Musgrave, 84 Idaho 77, 84, 370 P.2d 778 (1962) (“The money in the fund does not belong to the state ....”); Senske v. Fairmont & Waseca Canning Co., 232 Minn. 350, 356, 45 N.W.2d 640 (1951) (“It is a fund which belongs to industry, in which the state has no interest other than its proper administration.”); State v. McMillan, 36 Nev. 383, 388, 136 P. 108 (1913) (premiums could not be used or made available for payment of ordinary expenses of state government); State v. Padgett, 54 N.D. 211, 217, 209 N.W. 388 (1926) (“The claims against the fund are not claims against the state; and the fund itself is not a state fund.”); State v. Olson, 43 N.D. 619, 625, 175 N.W. 714 (1919) (“not a state fund”); Chez, Atty. Gen. v. Industrial Comm. of Utah, 90 Utah 447, 452, 62 P.2d 549 (1936) (holding that while state workers compensation fund was “a public fund in the sense of being ad ministered by a public body, [it was] not public money in the sense that it is money of the state to be used for and on behalf of the state for a state expenditure”); State v. Yelle, 174 Wash. 547, 550, 25 P.2d 569 (1933) (holding that funds within a workers’ compensation accident fund were “trust funds drawn from particular sources and devoted to special purposes.... These funds are therefore not subject to appropriation by the legislature for puiposes other tiran those contemplated by the act, nor by methods that run counter to the effective operation of the act.”). But cf. Industrial Com'n of Arizona v. Brewer, 231 Ariz. 46, 51-52, 290 P.3d 439 (2012) (rejecting idea that moneys held in workers compensation special fund were held in trust for benefits of employers and employees and instead determining they were public moneys that could be transferred by the Arizona Legislature to the general fund).
The majority view with regard to workers compensation funds comports with this court’s assessment of the purposes of Kansas’ WC Fund. One of those purposes is to encourage the employment of handicapped persons by relieving employers of workers compensation Lability; another purpose is to pay benefits to injured workers where the employer has no insurance and is financially unable to pay, or where the employer cannot be located to pay workers compensation. See Wasson v. United Dominion Industries, 266 Kan. 1012, 1019, 974 P.2d 578 (1999).
Likewise, while all of the funds involved in this litigation are deposited into tire State Treasury, the portion of the paid-in fees remaining after any automatic service fee assessment by the State is credited to a separate account for the respective fund. Then, expenditures from a fund account are limited to those purposes for which the fund was statutorily created. For instance, money in the Bank Fund cannot be used to build a bridge or to pay the Governor’s salary. In that vein, K.S.A. 75-3036 contemplates that fee funds designated for a specific purpose are not part of the SGF and are not “public moneys.” That statute provides:
“The state general fund is exclusively defined as the fund into which shall be placed all public moneys and revenue coming into tire state treasury not specifically authorized by the constitution or by statute to be placed in a separate fund, and not given or paid over to the state treasurer in trust for a particular purpose, which unallocated public moneys and revenue shall constitute the general fund of die state; but moneys received or to be used under constitutional or statutory provisions or under the terms of a gift or payment for a particular and specific purpose are to be kept as separate funds and shall not be placed in the general fund or ever become a part of it, except by proper statutory enactment, and any such moneys which are wrongfully or by mistake placed in the general fund shall constitute a proper charge against such general fund: Provided, That all legislative appropriations which do not designate a specific fund from which they are to be paid shall be considered to be proper charges against the general fund of the state: Provided further, That all revenues received by the state of Kansas or any department, board, commission, or institution of the state of Kansas, and required to be paid into the state treasury shall be placed in and become a part of the state general fund, except as provided in this act.” (Emphasis added.)
In short, we reject the State’s assertion that all moneys in the State Treasury are public moneys over which the State has unfettered, general appropriation powers. Here, the fee funds were composed of payments for a particular and specific purpose and, accordingly, they were to be kept as separate funds and not as part of the general fund. Consequently, the State’s attempt to fit within the Baker v. Carr factors with conclusory declarations that budgetary matters are political falls within Bakers rejection of “semantic cataloguing.” 369 U.S. at 217.
The State’s more colorable argument is that, specific to these funds, the legislature determined that the transfers were to “reimburse the state general fund for accounting, auditing, budgeting, legal, payroll, personnel and purchasing services, and any other governmental services which are performed on behalf of the state agency by other state agencies which receive appropriations from the state general fund to provide such services.” Journal of the Kansas Senate for May 5, 2009, p. 803. The State contends that such a legislative declaration is nonjusticiable. We disagree.
Although the Court of Appeals initially said that it would not consider the political question issue, it nevertheless found that the question presented was justiciable. The panel said:
“Our Supreme Court has held that the State may only reimburse itself for the legitimate costs of regulation and supervision (i.e., what is reasonable and necessary) through legislative transfers from fee funds to the State General Fund. See Panhandle Eastern Pipe Line Co. v. Fadely, 183 Kan. 803, 806-07, 332 P.2d 568 (1958). We follow the lead of the Supreme Court and consider this to be a question of the propriety of an exercise of police powers of the State and is thus a justiciable controversy.” Kansas Bldg. Industry Work. Comp. Fund v. State, 49 Kan. App. 2d 354, 369-70, 310 P.3d 404 (2013).
Panhandle Eastern Pipe Line Co. v. Fadely, 183 Kan. 803, 332 P.2d 568 (1958) involved a circumstance similar to the facts of this case. Panhandle paid assessments into the Natural Gas Conservation fund (NGC Fund), which was administered by the State Corporation Commission (KCC) to pay the expenses of the agency’s Conservation Division. The KCC determined that the NGC Fund had sufficient moneys to pay its expenses and reduced its assessments. Shortly thereafter, the legislature passed two bills: One directed die transfer of $100,000 from the NGC Fund to die SGF, and the other directed the State Treasurer to credit the SGF widi 20 percent of all NGC fees collected by the KCC. After the $100,000 fee fund transfer, the KCC restored its former assessment order. Panhandle brought suit to challenge the constitutionality of the enactments.
Panhandle argued that die legislatively ordered transfer of NGC Fund moneys to die SGF was a revenue-raising measure that took its property without due process and violated the taxing provisions in Article 11, §§ 1 and 5 of the Kansas Constitution. Further, it contended that charging 20 percent of the fee assessments for the SGF violated the Commerce Clause and Fourteenth Amendment to the United States Constitution.
The State answered that the transfer and die 20 percent exaction merely covered indirect expenses incurred by the KCC and paid by the State from the SGF. It argued that neitiier the Kansas Constitution nor the United States Constitution prohibited the State from receiving “reasonable recompense for the assistance in regulation and supervision rendered by other departments.” 183 Kan. at 806.
The district court found the legislation unconstitutional, and the Supreme Court affirmed, stating, inter alia:
“[I]t is clear that under its police power the state may reimburse itself for the costs of otherwise valid regulation and supervision by charging the necessary expenses to the businesses or persons regulated. [Citations omitted.] A statute, how ever, is void if it shows on its face that some part of the exaction is to be used for a purpose other than the legitimate one of supervision and regulation [citation omitted], or if inore than adequate remuneration is secured [citations omitted].” (Emphasis added.) 183 Kan. at 806-07.
“When a regulatory measure openly becomes a revenue enactment, that portion thereof which exacts revenue fails as a valid exercise of the police power. We are of the opinion that [the bills at issue] amount to a tax and a revenue measure levied under the guise of a regulatory fee, and violate article 11, section 1 of our state constitution, the commerce clause and the Fourteenth Amendment of the Federal constitution.” 183 Kan. at 808.
Granted, the legislation reviewed in Panhandle did not include a legislative expression that the transfer was intended as a reimbursement of costs. But nevertheless, the overarching point for our purposes is that the question of whether the legislature has failed to validly exercise its police power is a justiciable question. As the Court of Appeals pointed out, even a Kansas Attorney General’s opinion suggests that courts need to analyze whether cost assessments are reasonable in relation to the actual costs of regulation, i.e., the question of whether the legislature has exceeded its police power authority is justiciable. Att’y Gen. Op. No. 2002-45, at *5 recites:
“If an assessment is determined to so exceed the cost of regulation that it is apparent the Legislature is using it as a general revenue raising measure, the overage cannot stand on police power authority. If the assessment is in fact a revenue raising measure, it must be analyzed as such, which may include a determination as to whether it meets Commerce Clause and Equal Protection requirements, as well as any state constitutional requirements applicable to the type of tax that it is.”
Moreover, a review of the Baker v. Carr factors shows the inapplicability of the political question doctrine. The State has not shown a textually demonstrable constitutional commitment of the unfettered exercise of the State’s police power to the legislature. Courts often are called upon to determine whether the amount charged for expenses was reasonably necessary, so that judicially discoverable and manageable standards exist to resolve the question. The question does not require an initial policy determination of a kind clearly for nonjudicial discretion, but rather the resolution is a matter of accounting. In undertaking an independent resolu tion to the question presented—whether the legislature overstated the amount required to be reimbursed—it will not be necessary to express a lack of respect for the legislative branch. The State has not revealed an unusual need for unquestioning adherence to a political decision already made, especially in light of the plaintiffs’ request for a declaratory judgment to protect their future assessed fees from being swept. Finally, die potentiality of embarrassment from multifarious pronouncements by various departments on one question is not evident in this case. Baker, 369 U.S. at 217.
Having determined that this case does not present a nonjusti-ciable political question, we move on to the issue of standing.
Standing
Utilizing the federal test for standing, tire State argues that plaintiffs do not have standing because diey: (1) fail to show an interest not possessed by all citizens who pay fees and taxes; (2) fail to show that their claimed injury was caused by defendants; and (3) fail to show how the defendants can redress tire claimed injury. On the other hand, plaintiffs claim drat drey meet the requirements for standing as articulated in Kansas caselaw, i.e., they “have been uniquely damaged by [H.B. 2373] in a way that is entirely different from any harm experienced by members of the general public.” As noted, we gave the parties an opportunity to submit supplemental briefing on which standing test that we should employ in this case, which we will discuss below.
Standard of Review
“The existence of jurisdiction and standing are both questions of law over which an appellate court’s scope of review is unlimited.” Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1121, 307 P.3d 1255 (2013). When a district court grants a motion to dismiss based on a lack of standing, the appellate court accepts the facts alleged in the petition as true, and if those facts demonstrate that the appellants have standing to sue, the decision of the district court must be reversed. See Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 751, 189 P.3d 494 (2008).
The State agrees that a de novo standard of review is generally employed when determining standing. But it then makes the curious argument that we must “dismiss this case forthwith on the basis that the question the Plaintiffs ask the Court to review is beyond the proper standard of review.” The State points to Harris v. Shanahan, 192 Kan. 183, 194, 387 P.2d 771 (1963), for the proposition that all doubts as to the constitutionality of legislation are construed in favor of validity. The State then suggests that the presumption of validity is a standard of review which requires this court to decline to review the constitutionality of presumably valid legislation.
The State’s circular argument is apparently the product of melding the concepts of a standard of review, a canon or rule of statutory construction, and jurisdiction or justiciability. A standard of review denotes “[t]he criterion by which an appellate court exercising appellate jurisdiction measures die constitutionality of a statute or the propriety of an order, finding, or judgment by a lower court.” Black’s Law Dictionary 1441 (8th ed. 2004). The presumption of constitutionality is not a standard of review but a canon of statutory construction. See Kansas One-Call System v. State, 294 Kan. 220, 225, 274 P.3d 625 (2012). Jurisdiction encompasses “the court’s statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998). Therefore, the presumption of constitutionality has no relevance to whether this court has authority or jurisdiction to adjudicate a case or controversy, nor does it define the scope of review or deference afforded the trial court. Moreover, as noted above, the presumption has no impact on determining the nonjusticiability of a political question.
Clearly, courts have the power to determine whether a statute is unconstitutional. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 138, 2 L. Ed. 60 (1803); State v. Cheeks, 298 Kan. 1, 11, 310 P.3d 346 (2013) (It is the legislature’s prerogative to make policy decisions, but the court is tasked with ensuring those decisions are within the parameters of the constitution.). This power applies to statutes dealing with legislative appropriations. Gannon v. State, 298 Kan. 1107, 1181, 319 P.3d 1196 (2014) (“the legislature’s with holding of all capital outlay equalization payments since fiscal year 2010 renders the operation of 72-8814[c] unconstitutional— whether done by appropriations bill or the provisions of the statute itself’). However, tins power only arises when the question is presented in an actual case or controversy between parties. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 888, 179 P.3d 366 (2008). Standing is a requirement for a case or controversy. Gannon, 298 Kan. at 1122. Standing is also a component of subject matter jurisdiction. 298 Kan. at 1122. As a jurisdictional matter, standing requires the court to decide whether a party has alleged a sufficient personal stake in the outcome of the controversy to invoke jurisdiction and to justify the court exercising its remedial powers on the party’s behalf. Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 903, 249 P.3d 434 (2011). Thus, although this court has authority to determine whether H.B. 2373 is constitutional, it must first determine whether it has subject matter jurisdiction based on plaintiffs’ standing.
Analysis
“Standing is ‘a party’s right to malee a legal claim or seek judicial enforcement of a duty or right.’ Black’s Law Dictionary 1536 (9th ed. 2009).” Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 324, 255 P.3d 1186 (2011). “While standing is a requirement for case-or-controversy, i.e., jus-ticiability, it is also a component of subject matter jurisdiction that may be raised at any time.” Gannon, 298 Kan. at 1122. “A justi-ciable controversy has definite and concrete issues between the parties and ‘adverse legal interests that are immediate, real, and amenable to conclusive relief.’ State ex rel. Morrison v. Sebelius, 285 Kan. 875, 890-91, 179 P.3d 366 2008).” State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012).
Kansas’ standing requirement is grounded in the separation of powers doctrine which is implicit in our State Constitution. Morrison, 285 Kan. at 896. “Under the traditional test for standing in Kansas, ‘ “a person must demonstrate that [1] he or she suffered a cognizable injury and [2] that there is a causal connection between the injury and the challenged conduct.” ’ ” Gannon, 298 Kan. at 1123 (quoting Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 908-09, 249 P.3d 434 [2011]). This traditional standing test has been utilized repeatedly by the Kansas Supreme Court. See Sierra Club v. Moser, 298 Kan. 22, 33, 310 P.3d 360 (2013); Friends of Bethany Place, Inc., 297 Kan. at 1126; Board of Miami County Comm’rs, 292 Kan. at 324; Cochran, 291 Kan. at 908; Bremby, 286 Kan. at 761; Lower v. Board of Dir. of Haskell County Cemetery Dist., 274 Kan. 735, 747, 56 P.3d 235 (2002).
The Court of Appeals initially referred to the two-part Kansas test. But in discussing the impact of the federal case, Sac and Fox Nation of Missouri v. Pierce, 213 F.3d 566 (10th Cir. 2000), the panel also discussed and applied both the constitutional and prudential standing requirements utilized by federal courts. Kansas Bldg. Industry, 49 Kan. App. 2d at 367-68. Federal constitutional standing enforces the United States Constitution's case-or-controversy requirement found in Article III. United States v. Windsor, 570 U.S. _, 133 S. Ct. 2675, 2685, 186 L. Ed. 2d 808 (2013). It requires: (1) that the plaintiff suffered an injury in fact, or a concrete and particularized actual or imminent injury; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury can be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Prudential standing, on the other hand, embodies self-imposed judicial restraints on the exercise of jurisdiction. Windsor, 133 S. Ct. at 2685-86. The prudential standing principles are: (1) the plaintiff asserts his or her own rights and not those of a third party; (2) the plaintiff s grievance is not a general one shared by a large class of citizens; and (3) the interests which the plaintiff seeks to protect are arguably within the zone of interests protected by statutory or constitutional guarantee. See Sac and Fox, 213 F.3d at 573. Prudential standing requirements apply only to the exercise of federal courts’ jurisdiction. The Wilderness Soc. v. Kane County, Utah, 632 F.3d 1162, 1168 (10th Cir. 2011).
This court has occasionally cited to the federal constitutional standing requirements. See, e.g., Ternes v. Galichia, 297 Kan. 918, 921, 305 P.3d 617 (2013). But we have not explicitly abandoned our traditional state test in favor of the federal model. Moreover, as opposed to the United States Constitution, our State Constitution contains no case or controversy provision. The Kansas Constitution grants “judicial power” exclusively to the courts. Kan. Const. art. 3, § 1. And Kansas courts have repeatedly recognized that “judicial power” is the “ ‘power to hear, consider and determine controversies between rival litigants.’ ” State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 337, 955 P.2d 1136 (1998) (quoting State, ex rel., v. Mohler, 98 Kan. 465, 471, 158 P. 408 [1916], aff'd 248 U.S. 112, 39 S. Ct. 32, 63 L. Ed. 153 [1918]). Given the differences in the genesis of the two systems, we do not feel compelled to abandon our traditional two-part analysis as the definitive test for standing in our state courts. Nevertheless, we would find, as did the Court of Appeals, that plaintiffs established standing under either test.
Cognizable Injury
The Court of Appeals adequately described a cognizable injury that plaintiffs suffered:
“The damage alleged by the Plaintiffs is entirely different from any harm that members of the general public experienced. H.B. 2373 reduced the fee funds that the Plaintiffs paid into, and the Plaintiffs were required to pay increased fees and assessments in order to replenish those funds. That increase in fees was die specific injury suffered by the Plaintiffs. Members of dre general public do not pay into the fee funds, and, therefore, diey could have suffered no special harm from the fee transfers caused by die enactment of H.B. 2373. In the event that the fee transfers were reversed by a court, any possible harm to the public upon that occurrence would be speculative at this point and would only oppose a possible remedy of the Plaintiffs and not deny them die right to sue.” 49 Kan. App. 2d at 364-65.
The State advocates for the causation rationale of the district court, i.e., the increased fees were due to the agencies’ actions, rather than the legislature’s cash sweeps, because the agencies could have chosen to reduce expenses rather than replenish their respective funds through increased assessments. We will discuss the causation aspect of this rationale in the second step, causal connection. But it bears mentioning that, if the agencies had reduced the level of services instead of assessing additional fees, the plaintiffs might still have presented a cognizable injury because they did not get what they paid for. For instance, a hank contributing to the Bank Fund has an interest in the Bank Commissioner assuring that competing banks are following the same rules under which die contributing bank must operate. If the Bank Commissioner reduces its auditing operations because the State took most of the Bank Fund, the contributing bank has paid for a service that it is not getting.
Before moving to causation, we address the State’s complaint aimed specifically at the RE Fund. The State contends that plaintiffs did not allege that the Real Estate Commissioner had actually assessed the payors into that fund for the amounts swept. Nevertheless, the RE Fund plaintiffs are required to make periodic fee payments into the fund which will arguably be used to replenish the swept funds. The fact that the replenishing fees may not have actually been paid at the time of the lawsuit does not foreclose a cognizable injury. Perhaps those plaintiffs will fail in proving their damages when the case proceeds on the merits, but their showing at this early stage forecloses their dismissal.
Moreover, part of the requested relief is a declaratory judgment safeguarding the RE Fund from future cash sweeps. As the sole contributors to the RE Fund, the injuiy caused by any future sweeps would fall squarely on the RE Fund plaintiffs.
Causal Connection
In Gannon, this court borrowed the federal courts’ definition of the requisite causal connection for standing: “[T]he injuiy must be ‘ “fairly . . . tracefable] to the challenged action of the defendant, and not. . . th[e] result [of] the independent action of some third party not before the court.” ’ Lujan, 504 U.S. at 560.” 298 Kan. at 1130. Federal courts have clarified that the fairly traceable standard does not set a high bar for plaintiffs:
“Such a nexus is most easily shown if there is a direct relationship between the plaintiff and the defendant with respect to the conduct at issue. However, while the ‘indirectness’ of an injury ‘ “may make it substantially more difficult” ’ to show the ‘fairly traceable’ element of Article III standing, i.e., ‘to establish that, in fact, the asserted injury was the consequence of the defendants’ actions,’ indirectness is ‘not necessarily fatal to standing,’ . . . because tire fairly traceable standard is lower than that of proximate cause. [Citations omitted.]” Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (finding that terrorist victims had Article III standing to sue bank that provided Iran with U.S. currency because injury was fairly traceable based on reasonable inference that Iran’s ability to amass U.S. currency to fund terrorist organizations was increased by bank transfers).
See also Bennett v. Spear, 520 U.S. 154, 168-69, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997) (It is wrong to equate injury “ ‘fairly traceable’ to the defendant with injury as to which the defendant’s actions are the very last step in the chain of causation.”); Focus on the Family v. Pinellas Suncoast Transit, 344 F.3d 1263, 1273-74 (11th Cir. 2003) (The standing doctrine does not require proximate causation, it suffices that the injury flow indirectly from the challenged conduct.). “Thus, tire fact that there is an intervening cause of the plaintiff s injury may foreclose a finding of proximate cause but is not necessarily a basis for finding that the injury is not ‘fairly traceable’ to the acts of the defendant.” Rothstein, 708 F.3d at 92.
Notwithstanding drat dre fairly traceable standard encompasses injury that flows indirectly from the challenged conduct, the State contends that the plaintiffs’ injuries—increased fee assessments— were caused by the nonparty agencies, rather than by the State. It claims drat “but for” the agencies’ decisions to assess additional fees to replenish the swept funds, the plaintiffs would have suffered no injury.
The Court of Appeals rejected this middleman-as-intervening-cause argument, based in part upon the holding in Sac and Fox, 213 F.3d at 573-74. Kansas Bldg. Industry, 49 Kan. App. 2d at 368-69. There, Kansas assessed a motor fuel tax on distributors, who sold to retailers on sovereign Native American lands. The distributors passed on the Kansas tax in its pricing to the tribal retailers. The tribal retailers sued Kansas because drey were not subject to State taxation. The State unsuccessfully argued that the tribal retailers’ injuries were actually caused by the distributors’ pricing, rather than by the State’s tax on the distributors.
But dre Tenth Circuit disagreed, holding that the tribe’s economic injuiy—the distributor’s act of passing the cost of dre tax along to the retailers—was causally connected to the challenged act of taxing the distributor, giving the tribal retailers standing to challenge the tax in a lawsuit against the State. 213 F.3d at 573-74; see also Maryland v. Louisiana, 451 U.S. 725, 736-37, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981) (finding first-use tax on pipeline was fairly traceable to injury of increased cost of natural gas suffered by consumers); but cf. Illinois Ass’n of Realtors v. Stermer, 2014 IL App. (4th) 130079, ¶ 37, 5 N.E.3d 267 (2014) (finding no standing for contributors to swept real estate license fee fund because fee increases may have resulted from other factors such as inflation or increased overhead costs).
Any notion that the increased fee assessments for the WC Fund or the Bank Fund were precipitated by something other than the cash sweeps, i.e., was not fairly traceable to the legislative transfers, is belied by the agencies’ notice to their contributors. A June 1, 2010, Kansas Insurance Department notice to insurers stated: “ This Legislative sweep makes it necessary that the Kansas Insurance Department levy an assessment this year of 1.0%.’ ” The Bank Commissioner’s Notice of Assessment provided, in part,
“ ‘Over the past several years tire Kansas Legislature has made the difficult decision to “sweep” surplus funds from our Agency and others for use in other areas of state government, thereby eliminating that surplus. As a result, our fees must be increased to better reflect the actual cost of regulation and maintain a viable regulatory structure.’ ”
The RE Fund was in the same position as the other plaintiffs in losing its funds to the SGF because of tire legislatively ordered transfers, so that the injury suffered by the fund contributors to replenish the swept funds has to be fairly traceable to those transfers.
Likewise, we reject the district court’s suggestion that the agencies caused the plaintiffs’ injuries by choosing to replenish their funds with additional assessments, rather than constricting their operations to live within their post-sweep means. The agencies are granted the authority to assess fees for their respective funds for a reason. The agencies are charged with the responsibility to regulate and supervise the particular operations to which the respective funds apply. They are not granted the discretion to cease operations if they run out of money, but rather it is their responsibility to raise the funds necessaiy to carry out their statutorily mandated responsibilities. For instance, the Insurance Commissioner cannot refuse to pay covered workers compensation benefits to a claimant simply to reduce the expenditures from the WC Fund.
As an additional standing argument, the State claims that Kent Olson, Director of the Division of Accounts and Reports, Department of Administration, is not a proper party to be a defendant in this action. That is a separate issue which is not properly before the court in this appeal because the propriety of naming Olson is irrelevant to whether plaintiffs have standing to bring their claim.
In short, we find that the plaintiffs have suffered a cognizable injury and that the injury is fairly traceable to tire challenged conduct, which is the legislatively ordered transfer of fee funds to the SGF.
Associational Standing
. Additionally, we note a potential issue of associational standing, given that two of the plaintiffs are trade associations, the Kansas Bankers Association and the Kansas Association of Realtors. Although the parties do not discuss this issue, its impact on our jurisdiction mandates that we do.
An association has standing to sue on behalf of its members when: “(1) the members have standing to sue individually; (2) the interests the association seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires participation of individual members.” Friends of Bethany Place, Inc., 297 Kan. at 1126. Here, a member would have standing to sue individually, but the individual participation of a member is not required to resolve tire claim or grant relief. Clearly, the associations seek to protect interests that are germane to their missions of advocating for their respective professions. We find all plaintiffs have standing here.
Accordingly, we affirm the Court of Appeals’ reversal of the district court’s dismissal of the lawsuit and remand to tire district court to reinstate the lawsuit. | [
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Denied
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Denied
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Granted in part; sentence vacated; remanded to Dist. Ct.
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Denied.
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Denied
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The opinion of the court was delivered by
Luckert, J.:
After a jury convicted Ryan C. Pfannenstiel of aggravated sexual battery, he raises two issues on appeal. First, he argues the district court should have given a lesser included offense instruction allowing the jury to consider sexual battery. Because Pfannenstiel did not request the instruction, we will reverse only for clear error, and Pfannenstiel fails to firmly convince us that the jury would have reached a different verdict if the lesser included offense instruction regarding sexual batteiy had been given. Second, Pfannenstiel argues the district court erred in failing to appoint new, conflict-free counsel during a hearing on his motion to dismiss trial counsel. We hold that Pfannenstiel failed to establish a right to new counsel.
Consequently, we affirm Pfannenstiel’s conviction.
Factual and Procedural Background
Pfannenstiel’s conviction arose from a complaint made by C.W. According to statements made to investigating officers, on September 21, 2011, C.W. visited a bar and grill in Conway Springs with her parents, a family friend, and her boyfriend. Shortly before she left the bar for the evening, she smoked on the patio and then went back into the bar. As she stepped in, she shook hands with an acquaintance who was an employee of a carnival that was in town. Pfannenstiel, who also worked for the carnival, stood nearby. He and C.W. also shook hands, and Pfannenstiel said something like, “ ‘Yeah, you live next to us/ ” or, “ ‘Hello, neighbor.’ ” C.W. found it “creepy” that Pfannenstiel knew they were neighbors.
C.W. told investigators that she and her boyfriend went to their apartment around 10:15 p.m. She prepared something for her boyfriend to eat and then fell asleep in her bed. Sometime that night, she sensed the bed moving and felt a couple of brushes against her arm followed by “a moisture feeling” and a sucking sensation on her arm. She opened her eyes to find a man kneeling next to her bed. C.W. immediately elbowed the man and yelled to her boyfriend that there was someone in the apartment. Her boyfriend chased the man out of the apartment while C.W. called the police.
The police later located Pfannenstiel, who matched C.W.’s description of her assailant. Pfannenstiel told officers C.W. had invited him over. He indicated that when the bar closed he went to her house, crawled through her window, and whispered, “ Tm here.’ ”
That evening, police swabbed the area of C.W.’s arm where she had felt the moist, sucking sensation. They swabbed the same area the next day. Analysts obtained a DNA mixture from at least two individuals on both swabs, and both swabs revealed a major DNA profile that matched a known sample taken from Pfannenstiel.
The State charged Pfannenstiel with aggravated sexual battery and aggravated burglary. At trial, he testified that he was hanging out at the bar with some friends when he was introduced to and shook hands with C.W. After that, he went outside to smoke a cigarette. When he came back inside, she engaged him in conversation. She said she had seen him walk past her apartment the day before and that her apartment was the one with the windows open. He explained that the carnival trailers were on the same street as her apartment and he had noticed that her windows had been open for 3 days. She invited him to come over to her apartment “ ‘a little later.’ ” He jokingly said, “ If the dooryou don’t come to tire door, I can come through the window.’ ” She replied, “ Tes[,] you can.’ ” He told her he would come by a little later.
Pfannenstiel said he left the bar and went back to his trailer for about 2 hours. He recalled C.W. inviting him over, so he went to her apartment and knocked on the door. When C.W. did not answer, he went through the living room window and into her bedroom. He touched her arm and whispered, “ Tm here. Wake up.’ ” She woke up, hit him in the mouth with her elbow, and screamed for her boyfriend who chased him out of the apartment. He denied kissing, sucking, or licking C.W.’s arm. He recalled that she had a blanket halfway over her but could not recall if his skin touched her skin. He testified her arm “most likely” was covered when she hit him in the mouth.
C.W. testified that she denied telling Pfannenstiel where she lived, asking him to come over, or telling him to come through her window. She also described being asleep and not opening her eyes until after she felt the moist, sucking sensation. When specifically aslced if she was unconscious, C.W. replied, “I was asleep.”
The jury acquitted Pfannenstiel of aggravated burglaiy but found him guilty of aggravated sexual battery. Nine days later, he filed a pro se motion to dismiss counsel due to ineffective assistance. As discussed more fully below, the district court took up the matter prior to sentencing. The court questioned Pfannenstiel and defense counsel about the allegations and allowed the State to respond. The district court denied Pfannenstiel’s motion, and defense counsel then proceeded to represent Pfannenstiel on a motion for acquittal and at sentencing. The district court denied the motion for acquittal and sentenced Pfannenstiel to 34 months’ imprisonment.
Pfannenstiel appealed, arguing the district court should have instructed the jury on the lesser included offense of sexual battery and that he should have been appointed conflict-free counsel at the hearing on his pro se motion to dismiss counsel. The Court of Appeals affirmed in State v. Pfannenstiel, No. 107,987, 2013 WL 1876462 (Kan. App. 2013) (unpublished opinion). This court granted Pfannenstiel’s petition for review on the same issues.
Analysis
Issue 1: The District Court Did Not Commit Clear Error by Failing to Give the Lesser Included Offense Instruction.
In Pfannenstiel’s first argument, he contends the district court committed clear error by failing to instruct the jury on the lesser included offense of sexual battery. Under K.S.A. 2014 Supp. 21-5505(a), “[s]exual batteiy is the touching of a victim who is not the spouse of the offender, who is 16 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.” To prove aggravated sexual batteiy as charged in this case, the State was required to prove those same elements, except for the spousal relationship, plus show that the victim was “unconscious or physically powerless” when the touching occurred. K.S.A. 2014 Supp. 21-5505(b)(2). Pfannenstiel argues the jury could have found him guilty of the lesser offense because the evidence, at best, only vaguely suggested that C.W. was unconscious at the time of the incident, and thus the evidence did not conclusively show aggravated sexual battery.
1.1. Standard of review explained
When analyzing jury instruction issues, we follow a three-step process:
“(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i. e., whether the error can be deemed harmless.” State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).
Our first and third steps are interrelated in that whether a party has preserved a jury instruction issue will affect our reversibility inquiry at the third step. See, e.g., State v. Briseno, 299 Kan. 877, 882, 326 P.3d 1074 (2014) (describing a “higher hill for a party that fails to request an instruction”); Williams, 295 Kan. at 515-16; see also K.S.A. 2014 Supp. 22-3414(3) (“No party may assign as error tire giving or failure to give an instruction ... unless the party objects thereto before the jury retires to consider its verdict . . . unless the instruction or the failure to give an instruction is clearly erroneous.”). Here, Pfannenstiel did not request the lesser included offense instruction. Hence, Pfannenstiel must establish clear error. K.S.A. 2014 Supp. 22-3414(3).
At the second step of determining whether there was any error at all, we “ ‘consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.’ ” State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013) (quoting Williams, 295 Kan. 506, Syl. ¶ 4); see also State v. Plummer, 295 Kan. 156, 160-63, 283 P.3d 202 (2012) (utilizing a four-step review of jury instructions, in which the second and third steps ask whether any error occurred, first from a legal standpoint and then from a factual one).
Finally, because Pfannenstiel did not request the instruction, even if we determine that the district court erred in failing to give the lesser included offense instruction we will not reverse the verdict unless Pfannenstiel convinces us that the district court com mitted clear error. To find clear error, we must be “firmly convinced that the jury would have reached a different verdict if the instruction had been given.” State v. Cameron, 300 Kan. 384, 389, 329 P.3d 1158, cert. denied 135 S. Ct. 728 (2014).
1.2. Failure to give lesser included offense instruction was not clear error
We agree with Pfannenstiel that sexual battery is a lesser included offense of aggravated sexual battery. K.S.A. 2014 Supp. 21-5109(b)(1) defines a lesser included offense as one that is a “lesser degree of the same crime,” and sexual battery and aggravated sexual battery are different degrees of the same crime. See K.S.A. 2014 Supp. 21-5505(c) (defining sexual battery as a class A person misdemeanor and aggravated sexual battery as a severity level 5, person felony). Typically, because we have determined that the lesser included instruction would have been legally appropriate, we would next consider whether the instruction would have been factually appropriate. But that discussion is not necessary here because, even if we assume the lesser offense was factually appropriate, Pfannenstiel fails to convince us the district court committed clear error.
In suggesting clear error occurred, Pfannenstiel argues there are two ways a juiy would have a reasonable doubt about whether C.W. was unconscious when the touching took place. First, he contends the jury could have believed that C.W. was conscious enough to have reached some assumptions about the initial brushing feeling. For example, C.W. was apparently aware enough to think that her boyfriend caused the initial movement of the bed. Second, the jury could have found that Pfannenstiel initially touched C.W. with the intent to wake her and that the touching with intent to arouse or satisfy sexual desires did not occur until C.W. was clearly awake and felt the moist feeling on her arm. Neither argument persuades us.
His first argument hinges on whether the jury would have determined C.W. was conscious. He admits C.W. was sleeping when he first touched her and that he said, “ “Wake up.’ ” But he argues the fact she was able to formulate the thought that her boyfriend was coming to bed must mean she gained consciousness. Yet, when questioned, C.W. stated she was asleep when she felt the moist, sucking sensation.
Kansas law does not define “conscious,” which is, of course, a word of common understanding. See State v. Armstrong, 299 Kan. 405, 440, 324 P.3d 1052 (2014) (A district court does not have to provide the jury a definition for widely used words or those readily comprehensible by individuals of common intelligence.).
Other courts have determined that “unconsciousness” includes (a) deep sleep, (b) the state of sleep between deep sleep and waking, and (c) the state of going to sleep but not yet in deep sleep. See Ballew v. Aiello, 422 S.W.2d 396, 399 (Mo. App. 1967) (in case of “sound sleep” or of “dropping off to or awakening from sound sleep. .. . there is no conscious or voluntary action or no volition”); State v. Newman, 353 Or. 632, 641, 302 P.3d 435 (2013) (referring to dictionary definition of “conscious” and concluding “[t]hat definition associates consciousness with a wakeful state and implies that a person in a state of sleep cannot execute a conscious action”); see also Webster’s II New College Dictionary 239, 1200 (1999) (defining “unconscious” as “[wjithout conscious thought or feeling .... [b]eing without conscious control”; defining “conscious” as “[cjapable of thought, will, or perception. . . . [t]he component of waking awareness perceptible by an individual at a given instant”). Jurors applying their common sense to determine the ordinary meaning of “unconsciousness” would reach the same conclusion about the definition of consciousness. From their common experiences, jurors could relate to someone reaching a state of full wakefulness (i.e., consciousness) with die realization that he or she had felt or heard something while asleep (i.e., in an unconscious state) and subconsciously formed a thought or sense about the sound or feeling.
Applying that to the facts of this case, we are not firmly convinced that die juiy would accept that C.W. was conscious when she interpreted the movement of die bed and the brushes against her arm as her boyfriend coming to bed. Indeed, the evidence suggests that it was the moist, sucking sensation, rather than the brushing or shaking, that brought C.W. to full consciousness. Even Pfannenstiel’s version of facts suggested that C.W.’s immediate response upon realizing he was by her bed was to cry out for help and strike him with her elbow—both of which happened after Pfannenstiel sucked on her arm.
Furthermore, the evidence weighs against Pfannenstiel’s second argument that any touching before C.W. awoke was merely an effort to wake her, not to arouse or satisfy sexual desires. Pfannen-stiel admitted that C.W. awoke and screamed, causing him to flee. And C.W. testified it was the moist, sucking feeling that woke her— an act the jury could have believed that Pfannenstiel performed to satisfy his sexual desires. The physical evidence also supports the credibility of C.W.’s version of events. While Pfannenstiel suggests he might have deposited his DNA when he shook C.W.’s hand, this explanation seems improbable in light of the evidence that he was the major contributor to the DNA found on the part of C.W.’s arm where she described feeling the moist, sucking sensation. A reasonable jury would more likely believe Pfannenstiel deposited the DNA on C.W.’s arm by sucking, licking, or kissing than by shaking hands.
Hence, we hold the district court did not commit clear error because we are not firmly convinced the jury would have reached a different conclusion had the instruction been given.
Issue 2: The District Court Did Not Commit Error by Failing to Appoint Substitute Counsel.
After trial, but before sentencing, Pfannenstiel filed a pro se “Motion [t]o Dismiss Counsel Due to Ineffective Assistance of Counsel.” Pfannenstiel opened his written motion by asking the district court to “dismiss the current Attorney of record . . . and appoint new Counsel.” Pfannenstiel listed the reasons for his request in five numbered paragraphs. In the first paragraph, he referred to a similar pretrial motion in which he had requested new counsel. He renewed one of his pretrial complaints, specifically that counsel had not subpoenaed all of his witnesses for trial. (The district court had denied the pretrial motion following a brief hearing.) In tire second paragraph, Pfannenstiel stated that his attorney “lied to me and told me she would not cross examine my alleged accusers.” Third, he complained that he had asked his attorney “to submit[] certain statements as evidence at trial that could change the outcome of trial.” Next, he complained that his attorney “withheld the fact that I told her that I was gay. She also withheld certain statements and went as far as to help the prosecution at trial.” Finally, he complained his attorney “told me I [was] guilty for these crimes,” she “went as far as to use my own questions against me,” and there were “10 women on my Jury.”
The district court held a joint hearing addressing Pfannenstiel’s pro se motion to dismiss counsel, a motion for judgment of acquittal and new trial which was filed by his attorney, and sentencing. The district court started by stepping through each paragraph of Pfannenstiel’s motion to dismiss counsel, allowing Pfannenstiel to explain and support his allegations. The court asked Pfannenstiel questions and at two points asked questions of defense counsel— whether she had interviewed the witnesses Pfannenstiel wanted to have subpoenaed and whether she had provided him all discovery. Counsel responded that she had contacted some witnesses but had been unable to locate one, and she listed the discovery she had provided, which indicated she had shown or read him everything except for some pictures. In most respects, counsel’s responses merely reported her actions. Counsel also reported that the witnesses she had been able to contact gave statements that conflicted with each other and with Pfannenstiel’s statements and, because of those conflicts, she “did not believe that they would be of any use to us at trial and might undermine his testimony.” Pfannenstiel responded that one of the witnesses, along with his mother who had talked to the witnesses, would disagree with counsel’s representations. The judge also asked if defense counsel had any response she wanted to make after hearing all of Pfannenstiel’s allegations, and she responded:
“Well, Judge, obviously I think Mr. Pfannenstiel has misunderstood some things I’ve told him, but I think the most important thing here is that we’re at a crucial stage and that is sentencing. Obviously, from all of his concerns, I don’t expect that he’s going to believe that I’m handling sentencing. And he is a border box, Judge. We did discuss everything yesterday about that, and we did send him a letter. But in view of his serious apprehensions about my representation, I believe that perhaps it would be best to get another attorney to look at sentencing and maybe be able to work with him onon that.”
The prosecutor argued the victims had been waiting in the courtroom all day and none of the allegations “stand[] out remarkably as some error on [counsel’s] part.” The district court ruled:
“Well, here’s my problem with this case. I mean, it’s possible I could appoint a new attorney, and maybe the new attorney and Mr. Pfannenstiel would get along better. I don’t know. But from what he is saying, I mean, it just seems to me that Mr. Pfannenstiel just—you know—tire conflicts to—with his attorney, I think get back more than anything to his lack of understanding of courts and procedures, rather than anything improper that the attorney has done, so, you know, it strikes me that if I appoint a new attorney it’s likely the new attorney is going to have the same lands of problems crop up again with Mr. Pfannenstiel.”
The district court accordingly denied Pfannenstiel’s motion to dismiss counsel.
Before the Court of Appeals, Pfannenstiel argued he was entitled to conflict-free counsel at die hearing on his pro se motion to dismiss defense counsel. The Court of Appeals rejected this argument.
The Court of Appeals cited State v. Kirby, 272 Kan. 1170, 1194, 39 P.3d 1 (2002), which discussed a pro se motion for new trial based on alleged ineffective assistance of counsel. The Court of Appeals noted that under the holding in Kirby a district court should malee a preliminary examination to determine whether a motion raised substantial questions of law or fact. If not, the motion could be summarily denied. On the other hand, if the defendant raises substantial questions the court must appoint counsel and conduct a hearing. Applying Kirby’s holding to the instant facts, the Court of Appeals held that the district court had merely conducted a preliminary hearing, any questions of counsel were to determine whether substantial questions were presented, there was not a “trial-like confrontation,” and, therefore, counsel was not required to be appointed. State v. Pfannenstiel, No. 107,987, 2013 WL 1876462, at *5 (Kan. App. 2013) (unpublished opinion).
While we disagree with the Court of Appeals’ reliance on Kirby—a case dealing with a motion for new trial rather than a request for a new attorney—and, therefore, some of its reasoning, we affirm the Court of Appeals’ holding.
2.1. Nature of Pfannenstiel’s rights explained
Under the Sixth Amendment to the United States Constitution, Pfannenstiel had a right to effective assistance of counsel during all critical stages of the criminal proceeding. State v. Brown, 300 Kan. 565, 574-75, 331 P.3d 797 (2014) (quoting State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 [2012]); State v. Stovall, 298 Kan. 362, 370, 312 P.3d 1271 (2013). This right extends to sentencing proceedings. Stovall, 298 Kan. 362, Syl. ¶ 6.
Courts have long recognized that the Sixth Amendment right to counsel contains a correlative right to representation that is unimpaired by conflicts of interest or divided loyalties. See, e.g., Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); Sola-Morales v. State, 300 Kan. 875, 894, 335 P.3d 1162 (2014); State v. Sharkey, 299 Kan. 87, 96, 322 P.3d 325 (2014); Stovall, 298 Kan. at 370. Conflict of interest and divided loyalty situations can take many forms, and whether an actual conflict exists must be evaluated on the specific facts of each case. In general, a conflict exists when an attorney is placed in a situation conducive to divided loyalties, Zuck v. Alabama, 588 F.2d 436, 440 (5th Cir.), cert. denied 444 U.S. 833 (1979), and can include situations in which the caliber of an attorney’s services “may be substantially diluted,” United States v. Hurt, 543 F.2d 162, 166 (D.C. Cir. 1976); accord State v. Prado, 299 Kan. 1251, 1258, 329 P.3d 473 (2014).
A posttrial claim that counsel is ineffective most often seeks one of two remedies: (1) appointment of new counsel or (2) a request to set aside a conviction, either through a motion for a new trial or a motion to set aside a plea. Even with the most liberal of readings, we do not view Pfannenstiel’s motion as one seeking a new trial, despite appellate counsel’s valiant effort to parse Pfannenstiel’s words in a way that might suggest this was in fact the underlying purpose of his motion. Pfannenstiel clearly—at the beginning and end of his motion—indicated his purpose was to obtain new counsel. And everything in between attempted to document and explain Pfannenstiel’s lack of confidence in his attorney and examples of what he believed represented his attorney s poor communication.
As a result, rather than look to cases dealing with a motion for new trial, we will primarily rely on cases dealing with requests for appointment of new counsel, acknowledging as we do that both lines of cases share the same doctrinal basis and many of the same procedural rules, though some procedures and the ultimate test of determining the merits of the motion may differ. Compare Brown, 300 Kan. at 572, 575 (to obtain substitute counsel because of alleged “ ‘lack of performance’ by current counsel,” defendant “ ‘must show “justifiable dissatisfaction” with his or her appointed counsel’ ”), with Prado, 299 Kan. at 1257, 1260 (court noted that defendant “does not assert a substitute counsel claim” but rather sought to withdraw his plea based on alleged conflict with counsel; court held defendant met the constitutional test defined in Mickens v. Taylor, 535 U.S. 162, 172 n.5, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 [2002]); Sharkey, 299 Kan. at 96, 100-01 (in considering motions for new trial, court applied Mick-ens); State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 (2010) (court distinguished the K.S.A. 22-3210[d] manifest injustice standard governing a post-sentence plea withdrawal motion, which requires meeting the Mickens constitutional ineffective assistance standard, from the good cause standard governing a presentence plea withdrawal motion where “[m]erely lackluster advocacy . . . may be plenty to support” the judge’s exercise of discretion to allow the plea withdrawal).
The line of cases regarding a request for new counsel is largely premised on the principle that the Sixth Amendment does “not guarantee the defendant the right to choose which attorney will be appointed to represent the defendant.” Brown, 300 Kan. at 575. Because the right to choose counsel is not absolute, it necessarily follows that a defendant does not have an absolute right to substitute counsel. Consequently, a defendant, such as Pfannenstiel, who files a motion for new counsel “ ‘must show “justifiable dissatisfaction” with his or her appointed counsel,’ which can be ‘demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant.’ ” 300 Kan. at 575 (quoting State v. Wells, 297 Kan. 741, 754, 305 P.3d 568 [2013]); see, e.g., State v. Burnett, 300 Kan. 419, 449-51, 329 P.3d 1169 (2014) (court’s inquiry of defense counsel revealed disagreement fell within range of counsel’s professional judgment and did not constitute justifiable dissatisfaction); State v. Smith, 291 Kan. 751, 755, 247 P.3d 676 (2011) (“ ‘ “To warrant the appointment of new trial counsel, a defendant must show justifiable dissatisfaction’ with his or her appointed counsel.” ’ ”).
Pfannenstiel’s motion, in which he requested the dismissal of his court-appointed attorney and the appointment of new counsel, alleged several grounds that potentially established a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between himself and his attorney. Thus, his motion constituted “ ‘ “an articulated statement of attorney dissatisfaction,’ ” which will, in turn, ' “trigger the district court’s duty to inquire into a potential conflict” ’ of interest. (Emphasis added.) [Citations omitted.]” Brown, 300 Kan. at 575. This duty of inquiry exists regardless of the remedy sought as a result of the alleged conflict of interest, whether it be a new trial or new counsel. See, e.g., Wood, 450 U.S. at 272 n.18 (citing Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S. Ct. 1708, 64 L. Ed. 2d 333 [1980]); Sharkey, 299 Kan. at 98; State v. Carter, 284 Kan. 312, 321, 160 P.3d 457 (2007); State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999); State v. Jenkins, 257 Kan. 1074, 1084, 898 P.2d 1121 (1995).
This duty of inquiry can lead to three types of errors. Each of these errors is reviewed on appeal for an abuse of discretion. See, e.g., Brown, 300 Kan. at 576; Burnett, 300 Kan. at 449; Sharkey, 299 Kan. at 98; Stovall, 298 Kan. at 370; Wells, 297 Kan. at 754; Carter, 284 Kan. at 321; State v. Jasper, 269 Kan. 649, 654-55, 8 P.3d 708 (2000). An abuse of discretion can occur if judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would taire the view adopted by the trial court; (2) based on an error of law, i.e., the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
The first type of error—the one most frequently discussed in our opinions'—occurs when a district court becomes aware of a potential conflict of interest between a defendant and his or her attorney but fails to conduct an inquiry. We have held that this failure constitutes an error of law—a failure to follow the law and fulfill a legal duty—and, thus, an abuse of discretion. Brown, 300 Kan. at 576; Wells, 297 Kan. at 753-54.
The second type of error occurs when a district court investigates the potential conflict but not appropriately—that is, the court fails to conduct what we often refer to as an “appropriate inquiry.” See, e.g., Brown, 300 Kan. at 575-76; Burnett, 300 Kan. at 449; Sharkey, 299 Kan. at 98-99; Stovall, 298 Kan. at 370; Wells, 297 Kan. at 754; Carter, 284 Kan. at 321; Jasper, 269 Kan. at 654-55. An appropriate inquiiy requires fully investigating (1) the basis for the defendant’s dissatisfaction with counsel and (2) the facts necessary for determining if that dissatisfaction warrants appointing new counsel, that is, if the dissatisfaction is “justifiable.” See, e.g., Stovall, 298 Kan. at 372 (affirming Court of Appeals’ conclusion that district court failed to make an “in-depth inquiry” into counsel’s potential conflict of interest); Wells, 297 Kan. at 755-56 (one, open-ended question sufficient because it gave defendant an opportunity to “suggest a conflict of interest, an irreconcilable disagreement, or an inability to communicate with counsel” and defendant failed to articulate anything that warranted follow up); State v. Bryant, 285 Kan. 970, 991, 179 P.3d 1122 (2008) (court satisfied requirement by asking open-ended questions “to learn everything that was bothering” defendant and “fully hearing” complaints); State v. Sappington, 285 Kan. 158, 169, 169 P.3d 1096 (2007) (“court satisfied this requirement by fully hearing Sappington’s complaints”); see also Stovall, 298 Kan. at 385-90 (Biles, J., dissenting in part and concurring in part) (discussing need for inquiry to cover both [1] grounds for dissatisfaction complaint and [2] facts necessary to determine whether relief is warranted); United States v. Baisden, 713 F.3d 450, 454 (8th Cir. 2013) (“ The focus of the justifiable dissatisfaction inquiry is the adequacy of counsel in the adversarial process, not the accused’s relationship with his attorney.’ ”); Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991) (“When a defendant raises a seemingly substantial complaint about counsel, the judge ‘has an obligation to inquire thoroughly into the factual basis of defendant’s, dissatisfaction.’ ”).
Finally, even if a district court conducts an appropriate inquiry into a defendant’s expression of dissatisfaction with his or her attorney, it can commit an abuse of discretion when determining whether to substitute counsel. See Carter, 284 Kan. at 321; Taylor, 266 Kan. at 977-78; State v. Hegwood, 256 Kan. 901, 903-04, 888 P.2d 856 (1995).
Here, Pfannenstiel concedes the district court initiated an inquiry in response to his motion. He contends that had the district court not had a hearing on his motion, he “might not have been entitled to conflict-free counsel.” Nevertheless, because the district court did hold a hearing on his motion, Pfannenstiel asserts the district court was required to appoint him conflict-free counsel to represent him during that hearing. Pfannenstiel makes two associated arguments. First, he argues that because tire State was represented at the hearing on his motion, he had the right to conflict-free representation. Second, he argues that a conflict of interest arose when the district court “called upon its court-appointed attorney to answer Mr. Pfannenstiel’s allegations.” He argues that conflict is per se prejudicial and entitles him to automatic reversal because substitute counsel must be appointed anytime the court inquires of defense counsel about a motion for substitute counsel. Pfannenstiel’s arguments can be categorized as alleging that the district court abused its discretion by employing the wrong legal standard and in not conducting an appropriate inquiry—not because the inquiiy was not thorough, as is typically the argument raised on appeal, but because it went so far as to create an immediate right to substitute counsel and it created a conflict of interest. We conclude Pfannenstiel’s arguments lack merit.
2.2. Court inquiry does not give rise to right to substitute counsel
In support of the argument that Pfannenstiel had a right to substitute counsel during the court’s inquiiy, he cites State v. Pierce, 246 Kan. 183, 188, 787 P.2d 1189 (1990), for die “general rule” that “ ‘[i]f the trial court determines that a hearing should be held, then counsel should be appointed.’ ”
In Pierce, which involved a postconviction motion to modify sentence, the court noted Kansas’ “comprehensive statutory scheme of legal representation for indigent persons in criminal matters.” 246 Kan. at 187-88 (citing K.S.A. 22-4503 (Ensley); State v. Andrews, 228 Kan. 368, 373-75, 614 P.2d 447 [1980]). Nevertheless, the court held the statutory right to counsel did not extend to all postconviction motions. Pierce, 246 Kan. at 188 (citing K.S.A. 22-4503 (Ensley) [right to attorney during pretrial and trial proceedings]; Andrews, 228 Kan. at 375] [contrasting pretrial and trial proceedings from postconviction motions]; State v. Jennings, 240 Kan. 377, 378-79, 729 P.2d 454 [1986] [no right to counsel for hearing on motion to modify sentence if motion does not allege facts or circumstances which might justify a modification by the court]). But the court also held that “[i]f the trial court determines that a hearing should be held, then counsel should be appointed.” Pierce, 246 Kan. at 188. Pfannenstiel focuses on this last holding to argue he should have been given counsel as soon as tire court began asking questions and conducting a hearing, but he overlooks the fact that the defendant in Pierce sought a different remedy.
Significantly, in contrast to the facts in Pierce, Pfannenstiel did not ask for a new sentencing. Nor did he ask for a new trial, where, if tire district court granted a hearing on such a motion, he might have been entitled to conflict-free counsel. See Sharkey, 299 Kan. at 95-96 (recognizing right to assistance of conflict-free counsel for purposes of arguing timely motion for new trial, but not for untimely one). Pfannenstiel only requested the removal of his trial counsel and the appointment of new counsel—the district court was not deciding whether trial counsel’s representation entitled Pfannenstiel to a new trial. Pfannenstiel does not cite, and we have not found, any authority that extends the holding in Pierce or similar cases to a district court’s inquiry about a defendant’s articulation of dissatisfaction with counsel.
To the contrary, a long line of cases, both in Kansas and federal courts, impose a threshold burden on the defendant before a dis trict court appoints new counsel in those cases: A defendant must establish justifiable dissatisfaction with current appointed counsel before substitute counsel is appointed. See, e.g., Brown, 300 Kan. at 575; Burnett, 300 Kan. at 449; Wells, 297 Kan. at 754; Carter, 284 Kan. at 321-23; Jasper, 269 Kan. at 654-55.
Rather than require automatic substitution of counsel at the hint of a potential conflict of interest, the United States Supreme Court has recognized that either a defendant or defense counsel might raise a potential conflict as the basis for seeking new counsel “for purposes of delay or obstruction of the orderly conduct” of the proceedings. Holloway v. Arkansas, 435 U.S. 475, 486, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). An inquiry assures any delay is for good cause, thereby avoiding automatically delaying proceedings by discharging the current counsel and appointing new counsel for all motions seeking substitute counsel, regardless of the motion’s merits. In fact, federal courts routinely include timeliness or potential delay as one of the factors considered when determining if a trial court abused its discretion in denying a motion for new counsel. See, e.g., United States v. Ryals, 512 F.3d 416, 419 (7th Cir. 2008) (applying three-factor test, including timeliness of motion); United States v. Lott, 433 F.3d 718, 725 (10th Cir. 2006) (four-factor test, including timeliness of motion); United States v. Mack, 258 F.3d 548, 556 (6th Cir. 2001) (same); United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001) (applying three factors, including timeliness); United States v. Corona-Garcia, 210 F.3d 973, 976 (9th Cir. 2000) (applying three factors, including a weighing of “the timeliness of the motion against any inconvenience or delay that would result from granting the motion”); United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994) (applying three factors, including consideration of the “ public interest in proceeding on schedule’ ”); United States v. Allen, 789 F.2d 90, 92 (1st Cir.1986) (applying three factors, including timeliness). But see Jasper, 269 Kan. at 653-54 (criticizing use of Kansas Court of Appeals adaptation of federal test but focusing on prong other than timeliness; court neither accepts nor rejects timeliness as an appropriate factor to be considered).
These multi-factor tests drat federal courts utilize contradict Pfannenstiefs assertion that an inquiry into the basis of the motion for new counsel automatically gives rise to a right to have a new attorney appointed. Likewise, our past cases have held that a Kansas district court need not appoint new counsel until it finds, after its initial inquiry into the potential conflict of interest, that a defendant has established justifiable dissatisfaction with his or her current attorney. Brown, 300 Kan. at 575; Wells, 297 Kan. at 754. Pfannenstiel has failed to present any caselaw contradicting that long-standing holding. Nor has he argued here that the district court erred in not finding justifiable dissatisfaction, and an issue not briefed by an appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, Syl. ¶ 10, 303 P.3d 680 (2013).
Thus, Pfannenstiefs argument that he was automatically entitled to new counsel to argue his motion fails regardless of the fact that the State’s attorney was present at the hearing. Courts generally recognize that an inquiry conducted after a defendant’s expression of dissatisfaction with his or her attorney will occur on the record and in the presence of the prosecutor but also recognize “[tjhere may be unusual circumstances where, to avoid the possibility of prejudicial disclosures to the prosecution, the court may exercise its discretion to pursue the inquiry with defendants and their counsel on the record but in chambers.” United States v. Foster, 469 F.2d 1, 5 (1st Cir. 1972). In this case, the record does not reflect the types of disclosures that would have warranted a hearing outside the presence of the prosecutor.
The district court did not abuse its discretion by conducting an inquixy without appointing substitute counsel for Pfannenstiel.
2.3. Inquiry of counsel did not create a conflict of interest
Next, Pfannenstiel argues a conflict of interest arose when the district court asked questions of his court-appointed attorney, such that he should have been appointed new counsel to represent him during the hearing. Again, caselaw suggests otherwise. Several Kansas cases reflect that the inquiry into the basis of the alleged conflict of interest often includes questions of the attorney. See, e.g., Burnett, 300 Kan. at 449 (inquiry of defendant and counsel did not reveal justifiable dissatisfaction); Carter, 284 Kan. at 323 (same); Jasper, 269 Kan. at 654-55 (same). Similar situations can be found in federal cases. See, e.g., United States v. Rodriguez, 612 F.3d 1049, 1054 (8th Cir. 2010) (colloquy included statements by defense counsel and prosecutor); United States v. McKenna, 327 F.3d 830, 843-44 (9th Cir. 2003) (discussing defense counsel’s comments regarding motion); United States v. Mullen, 32 F.3d 891, 893 (4th Cir. 1994) (counsel answered questions about contact with client); United States v. Levy, 25 F.3d 146, 154 (2d Cir. 1994) (trial judge “conducted extended colloquies” with defense counsel in effort to determine if conflict of interest existed). In fact, in Ryals, the Seventh Circuit Court of Appeals criticized a trial court for only asking two questions of defense counsel, indicating that the court should have “inquired further, asking why counsel could not carry on, what had caused the dispute between lawyer and client, and whether the breakdown in their relationship was beyond fixing.” 512 F.3d at 420.
Nevertheless, the inquiry into whether a defendant has demonstrated justifiable dissatisfaction with his attorney requires both the court and defense counsel to walk a delicate line in making the inquiry. The Supreme Court has observed that judges must explore the basis of the alleged conflict of interest “without improperly requiring disclosure of the confidential communications of the client.” Holloway, 435 U.S. at 487. Moreover, other courts draw a meaningful distinction between (1) an attorney truthfully recounting facts and (2) an attorney going beyond factual statements and advocating against the client’s position. See McKenna, 327 F.3d at 843-44. This court drew the same distinction in Prado, 299 Kan. at 1259.
In Prado, Jorge Alberto Prado requested to withdraw his plea, alleging deficiencies in his counsel’s performance during plea negotiations. We held those allegations triggered the district court’s obligation to inquire into the alleged conflict. In addition, we noted that even if Prado’s and his counsel’s statements failed to alert the district court to the potential conflict, Prado’s attorney put the court on notice of that potential when he went beyond facts, expressed a personal opinion about the merits of Prado’s claim, and explicitly advocated against Prado’s interest by explicitly saying, “ ‘I didn’t see a conflict.’ ” 299 Kan. at 1259.
Pfannenstiel likewise argues his “court-appointed attorney essentially advocated against him at a hearing on his pro se motion.” But he does not point to specific statements of counsel. Instead, he argues that if appointed, conflict-free counsel “would have done further investigation” and he or she “may have been able to present other evidence to support Mr. Pfannenstiel’s factual claims or at least subject the court-appointed attorney to vigorous cross-examination of her explanations regarding the alleged deficiencies.” Again, however, Pfannenstiel must meet the threshold showing of justifiable dissatisfaction before counsel would be appointed, and he failed to do so. Further, from our review of the record, only two of defense counsel’s comments approach the line of advocating against Pfannenstiel’s position and neither one crosses it.
First, counsel made an evaluative statement regarding her strategy, indicating she felt Pfannenstiel’s witnesses would not be helpful and might undermine his testimony. We have recognized that the decision on which witnesses to call is a matter of trial strategy left to the professional judgment of the attorney. See State v. Foster, 290 Kan. 696, 709, 233 P.3d 265 (2010). In Foster, this court rejected a defendant’s conflict of interest claim and approved of a court’s colloquy with a defendant and defense counsel in which counsel indicated he did not plan to call witnesses for the defense because those available “ ‘will hurt me.’ ” 290 Kan. at 709. Pfannenstiel’s counsel made essentially the same comment. The comment recounted counsel’s strategic decision, a generally appropriate area of inquiry.
Pfannenstiel’s counsel also approached the line of advocating against Pfannenstiel’s position by saying, “Mr. Pfannenstiel has misunderstood some things I’ve told him.” But counsel immediately followed that statement by arguing that the district court should grant Pfannenstiel’s motion. Taken in context, the comment about the misunderstandings actually supported Pfannenstiel’s view that there had been a breakdown in communication between him and his attorney.
We find no basis in the record to hold that the district court abused its discretion by improperly conducting the inquiry into Pfannenstiel’s claimed dissatisfaction. Pfannenstiel’s arguments on this point fail.
Conclusion
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
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In a letter signed November 2, 2015, addressed to the Clerk of the Appellate Courts, respondent Jimmy E. Allen, Jr., an attorney admitted to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2014 Kan. Ct. R. Annot. 403).
At the time the respondent surrendered his license, a hearing on a formal complaint was scheduled before the Kansas Board for Discipline of Attorneys. The formal complaint alleged that the respondent violated Kansas Rules of Professional Conduct 1.3 (2014 Kan. Ct. R. Annot. 475) (diligence), 1.4 (2014 Kan. Ct. R. Annot. 495) (communication), 1.5 (2014 Kan. Ct. R. Annot. 515) (fees), 1.15 (2014 Kan. Ct. R. Annot. 567) (safekeeping property), 1.16 (Kan. Ct. R. Annot. 583) (terminating representation), 8.1 (2014 Kan. Ct. R. Annot. 670) (cooperation), 8.4 (2014 Kan. Ct. R. Annot. 680) (misconduct), Supreme Court Rule 207 (2014 Kan. Ct. R. Annot. 342) (cooperation), and Supreme Court Rule 208 (2014 Kan. Ct. R. Annot. 356) (registration of attorneys). The formal complaint included allegations that the respondent misappropriated client funds.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Jimmy E. Allen, Jr., be and he is hereby disbarred from die practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered diat the Clerk of the Appellate Courts strike the name of Jimmy E. Allen, Jr., from the roll of attorneys licensed to practice law in Kansas.
Dated this 5th day of November, 2015.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2014 Kan. Ct. R. Annot. 414). | [
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Denied. ..
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The opinion of the court was delivered by
ROSEN, J.:
Daniel W. Tims appeals the Court of Appeals’ decision in State v. Tims, 49 Kan. App. 2d 845, 317 P.3d 115 (2014), reversing the district court’s decision holding that Tims’ 2002 un-counseled driving under the influence (DUI) diversion could not be counted as a prior DUI conviction for purposes of determining his sentence for his current DUI conviction. The Court of Appeals found that Tims’ Sixth Amendment right to counsel did not attach during the 2002 diversion proceedings. The court also concluded that though Tims had a statutory right to counsel during the diversion proceedings, the diversion agreement that Tims signed showed that he had validly waived this statutory right. Accordingly, the Court of Appeals determined that Tims’ 2002 DUI diversion could be properly counted as a prior conviction and, thus, re manded Tims’ case with directions that his current DUI conviction be classified and sentenced as a felony third DUI.
We granted Tims’ petition for review to determine whether, absent a valid waiver of the right to counsel, an uncounseled DUI diversion can be considered as a prior conviction for classification and sentencing purposes in a subsequent DUI proceeding without violating a defendant’s constitutional or statutory right to counsel.
Facts
Tims does not contest the accuracy of the Court of Appeals’ recitation of the facts in its opinion. That portion of the opinion is quoted below:
“The Jackson County District Court found Tims guilty of driving under the influence of alcohol in June 2012. This was not Tims' first DUI. In 2002, Tims executed a DUI diversion agreement in the Topeka Municipal Court. There is no evidence in the record regarding whether Tims successfully completed the diversion; however, Tims malees no claim that he served jail time in connection with his Topeka offense; Tims’ presentence investigation report lists it as a diversion and not a conviction; and since it is the subject of this appeal, we presume the diversion was never revoked and no sentence was imposed. Tims was convicted of another DUI in 2004.
“Based upon the 2002 DUI diversion and the 2004 DUI conviction, in 2012 the State charged Tims with felony DUI under K.S.A. 2011 Supp. 8-1567(a)(5) and (b)(1)(D). Curiously, Tims waived his preliminary hearing then subsequently filed a Motion to Strike Diversion from Consideration of Defendant’s Criminal History and Discharge from Felony Charges. After tire State responded only to the merits of the motion and not its procedural propriety, the district court heard arguments and granted Tims’ motion. The State then filed a motion to reconsider, resulting in a brief hearing and denial by the district court. Thereafter, the parties agreed to a bench trial upon stipulated facts. The State reserved the right to appeal the district court’s sentencing decision based on the court’s exclusion of Tims’ 2002 DUI diversion from his criminal history.
“The district court found Tims guilty, treated his conviction as a second misdemeanor DUI conviction, and sentenced him to probation. The State timely appeal[ed] based on an illegal sentence and on a question reserved.” Tims, 49 Kan. App. 2d at 847.
The Court of Appeals, relying on State v. Key, 298 Kan. 315, 322-23, 312 P.3d 355 (2013) (“A defendant who intends to challenge the validity of a prior misdemeanor DUI as a classifying factor for a DUI felony charge under K.S.A. 8-1567 should challenge the prior misdemeanor at preliminary hearing . . .”), found that because Tims waived his right to a preliminary hearing, he waived his right to challenge the classification of the current DUI as a nonperson felony. Additionally, the panel, relying on State v. Bell, 268 Kan. 764, 768, 1 P.3d 325 (2000) (once probable cause existed to bind defendant over on charge, judge had no authority to amend charge), and State v. Leslie, 237 Kan. 318, 319, 699 P.2d 510 (1985) (magistrate judge had no authority to amend felony charge to misdemeanor at die conclusion of preliminary hearing), concluded tiiat once Tims waived his right to a preliminary hearing, the district court did not have the authority to reclassify the DUI charge as a misdemeanor. The panel also determined that because the State was challenging the legality of Tims’ sentence based on the assertion that he should have received a sentence for a felony third DUI instead of a misdemeanor second DUI, the State’s appeal was properly before it under K.S.A. 22-3504. Tims, 49 Kan. App. 2d at 848-50. Tims did not challenge these conclusions in his petition for review and, thus, they are waived. See State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012) (An issue not briefed by the appellant is deemed waived and abandoned.).
Regarding the merits of the State’s argument, the panel found that the district court erred in not considering Tims’ 2002 DUI diversion as a prior conviction for sentence enhancement purposes. Based on precedent from the United States Supreme Court and this court, die panel concluded that Tims’ Sixth Amendment right to counsel did not attach during the 2002 diversion proceedings and, thus, his diversion could be properly considered for sentencing purposes without violating his constitutional rights. The panel, however, found that based on K.S.A. 12-4416(a), Tims had a statutory right to counsel during the diversion conference with the city prosecutor. But based on the language within the diversion agreement that Tims signed, the panel concluded that Tims validly waived his statutory right to counsel. The panel specifically rejected Tims’ argument that in order for his waiver to have been valid, there had to be a written certification from a municipal court judge stating that the judge fully advised Tims of his right to counsel and that Tims knowingly and voluntarily waived that right in front of the judge. The panel reasoned that because a diversion agreement is a contract solely between a prosecutor and a defendant, there was no need for a judge’s certification on the diversion agreement. Thus, the Court of Appeals reversed the decision of the district court and remanded the case for resentencing as a felony conviction for a third DUI. Tims, 49 Kan. App. 2d at 852-58.
Tims’ failure to seek review of these procedural and jurisdictional conclusions on petition for review constitutes a waiver of the issues under State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012). Yet, as noted by tire Court of Appeals, appellate courts have a duty to question appellate jurisdiction sua sponte. Ryser v. State, 295 Kan. 452, 456, 284 P.3d 337 (2012). Our review of the proceedings in this case reveals a tangled web of procedural and jurisdictional issues which have not been adequately briefed or addressed by either party or fully considered by the panel below. As the State originally appealed tire use of the prior uncounseled DUI diversion on alternate jurisdictional grounds, we elect to consider this appeal as a question reserved of statewide importance under K.S.A. 2014 Supp. 22-3602(b)(3), rather than an appeal from an illegal sentence under K.S.A. 22-3504, cognizant that our review will have no effect on Tims’ sentence. See State v. Berreth, 294 Kan. 98, 123, 273 P.3d 752 (2012) (“an appellate court’s answer to a State’s question reserved has no effect on the criminal defendant in tire underlying case”).
Constitutional Right to Counsel in DUI Diversion Proceedings
In his petition for review, Tims argues that the Court of Appeals erred in determining that he did not have Sixth Amendment right to be represented by counsel when he entered into the 2002 DUI diversion agreement with the Topeka city prosecutor. As noted above, this conclusion led the Court of Appeals to hold that the diversion could be counted as a prior conviction for purposes of enhancing Tims’ sentence for his current felony third DUI conviction without violating his constitutional rights.
Whether Tims had a constitutional right to counsel during the 2002 diversion proceedings raises a question of law subject to un limited review. See State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010) (stating that the extent of the right to counsel is a question of law over which this court exercises unlimited review).
Based on the United States Supreme Court’s holding in Alabama v. Shelton, 535 U.S. 654, 658, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002), this court in State v. Youngblood, 288 Kan. 659, Syl. ¶ 2, 206 P.3d 518 (2009), held:
“A person accused of a misdemeanor has a Sixth Amendment right to counsel if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. The right to counsel arises at the stage of the proceedings where guilt is adjudicated, eligibility for imprisonment is established, and the prison sentence determined.”
Further, we held in Youngblood that an uncounseled misdemeanor conviction obtained in violation of a defendant’s Sixth Amendment right to counsel (i.e., an uncounseled conviction that resulted in a prison sentence, even if the sentence was suspended or conditioned upon a term of probation) “may not be collaterally used for sentence enhancement in a subsequent criminal proceeding.” 288 Kan. 659, Syl. ¶ 3. Conversely, an uncounseled misdemeanor conviction that resulted in no prison sentence being imposed may be used to enhance punishment for a subsequent conviction without violating the Sixth Amendment. Nichols v. United States, 511 U.S. 738, 748-49, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994); Youngblood, 288 Kan. at 667 (“[W]hile a constitutionally obtained uncounseled misdemeanor conviction can be used to enhance a subsequent sentence, an unconstitutionally obtained uncounseled misdemeanor conviction cannot be used for that collateral purpose.”).
K.S.A. 2011 Supp. 8-1567, the statute governing Tims’ present DUI offense, is a recidivist statute providing for an enhanced severity in charge and sentence if the offender has previous DUI convictions. The statute states that a third conviction for DUI is a nonperson felony “if the person has a prior conviction which occurred within the preceding 10 years, not including any period of incarceration.” K.S.A. 2011 Supp. 8-1567(b)(1)(D). Subsection (j) of the DUI statute states that a DUI diversion agreement entered in lieu of further criminal proceedings is considered a prior DUI conviction for purposes of determining the classification and sentence of a current DUI conviction. K.S.A. 2011 Supp. 8-1567(j).
Based on the above, determining whether an uncounseled DUI diversion can be constitutionally used to enhance punishment for a subsequent DUI conviction depends on whether the diversion should be considered the same as an uncounseled misdemeanor conviction that resulted in a term of imprisonment—suspended or otherwise. If the two are the same, then, unless the defendant properly waived his constitutional right to counsel, the diversion cannot be used to enhance punishment for a subsequent DUI conviction. See Youngblood, 288 Kan. 659, Syl. ¶ 3. If, however, an uncounseled diversion is more similar to an uncounseled misdemeanor conviction that resulted in no prison sentence being imposed, then the diversion can be constitutionally used to enhance punishment for a subsequent DUI conviction. See Nichols, 511 U.S. at 748-49; Youngblood, 288 Kan. at 667.
According to Tims’ diversion agreement, he committed the underlying DUI on July 24, 2002. Then and now, a city attorney has the discretion to offer a first time DUI offender a diversion in lieu of further criminal proceedings. Under a diversion agreement, an offender must waive certain constitutional and statutory rights and agree to abide by certain conditions; a diversion agreement, however, may not be conditioned on the defendant entering a plea to the offense charged. If defendant abides by all the terms of the agreement, the city attorney will dismiss the charge widi prejudice. K.S.A. 12-4414(a); K.S.A. 12-4415; K.S.A. 12-4416. Thus, satisfying a diversion agreement is a means to avoid a formal judgment of criminal guilt. Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001); see K.S.A. 12-4413(c) and (d). If the defendant fails to fulfill the terms of the diversion agreement (as determined at a hearing before the municipal court), then the diversion agreement is revoked and criminal proceedings are resumed. K.S.A. 12-4418. Specific to diversion agreements on DUI charges, the
“agreement shall include a stipulation, agreed to by the defendant and the city attorney, of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the terms of the specific diversion agreement and the criminal proceedings on the complaint are resumed, the proceedings, including any proceedings on appeal, shall be conducted on the record of the stipulation of facts relating to the complaint.” K.S.A. 12-4416(b).
Tims argues that his DUI diversion is essentially the same as a suspended sentence for an uncounseled misdemeanor conviction as contemplated in Shelton and Youngblood. He maintains that the diversion agreement could have resulted in his imprisonment had the agreement been revoked and had he been sentenced to a jail term as a first-time DUI offender. We are unconvinced. Tims’ argument ignores a crucial distinction between a diversion agreement and a suspended sentence or probation: at the time a defendant enters into a diversion agreement, no formal adjudication of guilt is entered, eligibility for imprisonment is not established, and no prison sentence is imposed. See Youngblood, 288 Kan. 659, Syl. ¶ 2 (“The right to counsel arises at the stage of the proceedings where guilt is adjudicated, eligibility for imprisonment is established, and the prison sentence determined.”). Though a diversion is considered a prior conviction pursuant to K.S.A. 2011 Supp. 8-1567(j), the diversion does not have an underlying sentence attached to it and, thus, is distinguishable from a misdemeanor conviction resulting in a suspended jail sentence. An uncounseled diversion is more analogous to an uncounseled misdemeanor conviction that did not result in any jail sentence. As noted above, such a conviction is valid under the Sixth Amendment and can be used to enhance a sentence in a subsequent criminal proceeding.
Notwithstanding the fact that Tims may have been vulnerable to imprisonment had his diversion been revoked and had he been convicted of the underlying DUI offense, see K.S.A. 2002 Supp. 8-1567(d) (sentence for first-time DUI offender is “not less than 48 consecutive hours nor more than six months’ imprisonment, or in the court’s discretion 100 hours of public service” [Emphasis added.]), his Sixth Amendment right to counsel never attached during the diversion proceedings because the proceedings did not result in an actual or suspended term of imprisonment being imposed. Consequently, the 2002 diversion can be considered as a prior conviction without violating Tims’ constitutional rights.
Statutory Right to Counsel in DUI Diversion Proceedings
As just noted, the Court of Appeals concluded that though Tims’ constitutional right to counsel did not attach during the 2002 diversion proceedings, he did have a statutoiy right to counsel during the proceedings. The applicable statute, K.S.A. 12-4414(c), states in pertinent part: “[T]he defendant shall be present and shall have the right to be represented by counsel at the diversion conference with the city attorney.” (Emphasis added.)
In construing this statutory language, the Court of Appeals in Paletta v. City of Topeka, 20 Kan. App. 2d 859, 866, 893 P.2d 280, rev. denied 258 Kan. 895 (1995), stated: “There is no statutory requirement in this state mandating that a defendant have counsel to enter into a misdemeanor diversion agreement.” The panel in Paletta further opined: “This statutory provision does not mandate that counsel be provided for a defendant nor void any diversion agreement entered into without counsel.” 20 Kan. App. 2d at 866.
In commenting about the Paletta’s interpretation of K.S.A. 12-4414(c), the panel here stated:
“We mostly agree with the Paletta panel’s conclusions as to the nature of this statutory right. First, we agree that a defendant is not required to have counsel in order to enter into a valid diversion agreement as that right may be knowingly and voluntarily waived. K.S.A. 2012 Supp. 22-2909(a); K.S.A. 2012 Supp. 12-4416(a). Second, we agree that this statutory right to counsel does not mandate that counsel be provided because any Kansas statute requiring counsel and requiring die appointment of counsel in case of the defendant’s indigence specifically says so. See, e.g., K.S.A. 12-4405 (some municipal cases); K.S.A. 22-2805(b) (material witness in custody); K.S.A. 22-3104(1) (counsel for inquisition witness); K.S.A. 2012 Supp. 22-3428a(2) (annual hearing for committed mentally ill person); K.S.A. 2012 Supp. 22-3716(b) (probation revocation hearing); K.S.A. 22-4503(a) and (b) (felony cases); K.S.A. 2012 Supp. 38-2205 (parents in CINC case); K.S.A. 2012 Supp. 59-29a06(b) (sexual predator commitment proceeding); K.S.A. 59-3063 (proposed ward); K.S.A. 2012 Supp. 65-129c(d)(10) (health official ordered isolation or quarantine); see also Supreme Court Rule 183(i) (2013 Kan. Ct. R. Annot. 278) (right to counsel in K.S.A. 60-1507 proceeding where motion presents substantial question of law or triable issue of fact). Third, we express no view as to whether an uncounseled diversion is void in the absence of a valid waiver but would certainly agree that a diversion agreement is not void where there has been a knowing and voluntary waiver of counsel.” Tims, 49 Kan. App. 2d at 855-56.
The panel then proceeded to determine whether Tims had validly waived his statutory right to counsel when he entered into the diversion agreement. After reviewing this court’s decisions in State v. Hughes, 290 Kan. 159, 224 P.3d 1149 (2010), and In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985), the panel concluded that the language within the diversion agreement established that Tims knowingly and voluntarily waived his statutory right to counsel. The panel then held that the 2002 diversion could be counted as a prior DUI conviction for sentencing purposes without running afoul of Tims’ statutory right to counsel. Tims, 49 Kan. App. 2d at 856-58.
Tims argues that Hughes and Gilchrist mandate that before a defendant can validly waive his or her right to counsel and enter into a diversion agreement, a judge must have fully advised the defendant of his or her right to counsel. Furthermore, Tims argues that the two cases require language within die diversion agreement certifying that the judge fully advised the defendant of his or her right to counsel and that the defendant, after receiving this information, knowingly and voluntarily waived that right in front of the judge.
Both Hughes and Gilchrist involved uncounseled municipal court convictions that resulted in jail sentences being imposed. Thus, the issue in both cases was whether those convictions were constitutionally valid, i.e., whether the defendants had properly waived their Sixth Amendment right to counsel prior to being convicted and sentenced to jail. Hughes, 290 Kan. at 160, 162-64, Gilchrist, 238 Kan. at 203, 206-07. As already determined, Tims’ Sixth Amendment right to counsel was not implicated by the 2002 diversion proceedings. Consequently, the certification language and procedure suggested by Hughes and Gilchrist to ensure that a municipal court judge properly advises a defendant of his or her right to counsel is not a requirement for a valid diversion agreement. As the panel in this case noted, any waiver of the statutory right to counsel “must simply be done knowingly and voluntarily.” Tims, 49 Kan. App. 2d at 857. Thus, the language of the diversion agreement controls appellate review of the soundness of the waiver.
This court has held that diversion agreements are to be interpreted in accordance with contract principles. State v. Chamberlain, 280 Kan. 241, 245-46, 120 P.3d 319 (2005). An appellate court exercises unlimited review over the interpretation and legal effect of written instruments. Prairie Land Elec. Co-op v. Kansas Elec. Power Coop, 299 Kan. 360, 366, 323 P.3d 1270 (2014). “The primary rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of tire parties is to be determined from the language of the contract without applying rules of construction.” Anderson v. Dillard’s, Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007).
The text of the diversion agreement states in pertinent part:
“This agreement is voluntarily entered into by tire above-named defendant and the Office of the City Attorney of Topeka, Kansas, in lieu of further prosecution on the above charge(s).
“The defendant understands he/she has the following rights in this case: The right to a speedy arraignment; the right to a trial to tire Court. . . the right to be represented at all stages of this case by a lawyer of his/her own choosing or; if without funds with which to hire a lawyer and found by the Court to be indigent, by a court-appointed lawyer. Knowing these rights, tire defendant by signing this agreement, knowingly and voluntarily gives up these rights, including the right to a lawyer if not represented by one in this case.” (Emphasis added.)
The diversion agreement notes that Tims was acting pro se when he entered into the agreement. There is no signature on the line dedicated to “Attorney for Defendant.” The diversion agreement was signed by Tims and by the attorney for the City of Topeka.
As noted by the panel in this case, Tims raises no argument on appeal challenging the content of the diversion agreement or the capacity of either party to enter into the agreement. He merely argues that his waiver of the right to counsel within tire diversion agreement was invalid under Hughes and Gilchrist. However, as we just distinguished, tiróse cases are inapplicable to determining whether a defendant’s waiver of the statutory right to counsel was knowing and voluntary. Here, the language of the diversion agreement—which Tims signed—specifically states that after being informed of the stated rights, including his right to counsel, Tims “knowingly and voluntarily gives up these rights, including the right to a lawyer if not represented by one in this case.” Thus, based on the clear and unambiguous language of the diversion agreement, it appears that Tims knowingly and voluntarily waived his right to be represented by an attorney during the diversion conference.
Based on the above, we conclude that counting Tims’ 2002 diversion as a prior DUI conviction for purposes of classifying and sentencing him for his current DUI conviction does not violate his constitutional or statutory right to counsel. Thus, we affirm the Court of Appeals’ decision reversing the district court. However, our consideration of this issue on question reserved compels us to vacate the order of the Court of Appeals remanding the case for resentencing as a felony DUI. | [
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Denied.
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Hill, J.:
This is an appeal from a district court’s denial of insurance coverage. Under the terms of an excess coverage policy issued to the Kansas State High School Athletic Association, Jesus Rodriquez could receive compensation for his catastrophic injuries if his travel was authorized by the school and the travel-was subject to reimbursement by the school. Rodriguez’ school authorized his travel to his soccer game in a pickup truck driven by a teammate when it permitted him to ride to the game instead of riding on the school bus provided for that purpose. But his travel was not subject to reimbursement by the school. Accordingly, we affirm the district court’s denial of insurance coverage.
The facts are undisputed.
In 2006, Rodriguez was a 10th grade student at Sumner Academy, one of the public high schools in Unified School District No. 500. Rodriguez, a member of the school soccer team, traveled to a school soccer game in a pickup truck driven by a teammate, Michael Hitze. Hitze owned the truck. On the way to the game, the pickup truck was involved in an accident and Rodriguez was severely injured. He made a claim for benefits under an excess catastrophic injuiy insurance policy issued by Mutual of Omaha Insurance Company to the Kansas State High School Athletic Association.
The excess catastrophic insurance policy provided coverage for students participating in activities under the jurisdiction of the Kansas State High School Athletic Association, including “pre and post game-related activities.” Such activities included “covered travel as defined under the policy.” The policy defined “Covered travel” as:
“[Tjeam or individual travel, for purposes of representing the Participating School, that is to or from the location of a Covered Event and is authorized by the Insured Person’s Participating School, provided the travel is paid for or subject to reimbursement by the Participating School.” (Emphasis added.)
The insurance company denied Rodriguez’ claim for benefits under tire policy, reasoning the accident did not occur during “Covered Travel.” The company first noted that Rodriguez was not traveling in a vehicle provided by the school but was instead traveling in a vehicle owned by a private individual. The company found no authority for Sumner Academy to reimburse a student for travel expenses incurred while transporting another student to an athletic event in a private vehicle. And, in its view, there was no evidence Hitze had requested reimbursement of his travel expenses or that the school had actually reimbursed him. Therefore, the company concluded Rodriguez’ means of travel was not “paid for or subject to reimbursement” as contemplated byrihe policy.
Rodriguez took his claim to court seeking declaratory judgment. The parties agreed that Rodriquez was a student at Sumner Academy, a participating school under the policy, and tire soccer game was a covered event according to the policy. These stipulations focused tire dispute on travel. The district court ruled there were two questions to answer: (1) whether the travel at issue was “authorized” and (2) if authorized, whether the travel was “subject to reimbursement.” The court answered both questions in the negative.
In answering these questions, the district court cited Hobart v. U.S.D. No. 309, 230 Kan. 375, 634 P.2d 1088 (1981), where the Supreme Court held that a school district can only take actions that are authorized by the legislature. In other words, school districts must obey the law. The district court recognized that a written policy of the school in this case authorized travel by bus or private vehicle, but also held that according to K.S.A. 72-8305, a school district may only provide transportation by bus or private vehicle if there is adult accompaniment. Putting the two together, the court said that in this case, then, the school would have violated state law had it authorized transportation without an adult riding along. The court also found the Kansas State High School Athletic Association and Mutual of Omaha entered into the insurance contract with an understanding that tire school districts had to obey Kansas law. The district court concluded Rodriguez’ travel was not authorized under Kansas law, so there was “clearly” “no right of.reimbursement” for the travel. The district court ruled in favor of the insurance company.
Fundamental insurance law offers guidance.
An insurance agreement is a contract. The interpretation of an insurance contract is a question of law over which this court has unlimited review. Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003). We are not bound by the district court’s interpretation of a contract. In general, exceptions, limitations, and exclusions to insurance policies are to be narrowly construed. The insurer assumes the duty to define limitations to coverage in clear and explicit terms. To restrict or limit coverage, the insurer must use clear and unambiguous language; otherwise, the insurance policy must be construed in favor of the insured. 276 Kan. at 112. If the language in an insurance policy is clear and unambiguous, it must be construed in its plain and ordinary sense and according to the sense and meaning of the terms used. 276 Kan. at 111.
An insurance policy is ambiguous if it contains language of doubtful or conflicting meaning based on a reasonable construction of the policy’s language. 276 Kan. at 112. Contract language is not ambiguous simply because the parties disagree on the interpretation of the language. To determine whether the language of a contract is ambiguous, the court must not consider what the insurer intends the language to mean, but must view the language in terms of what a reasonably prudent insured would understand the language to mean. 276 Kan. at 111. If contract language is ambiguous, the contract must be construed against the drafter. Whether a contract is ambiguous is a matter of law subject to de novo review. Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, 921, 46 P.3d 1120 (2002).
Of course, while considering statutory interpretations, this court exercises unlimited review of such questions. Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 587, 257 P.3d 255 (2011).
We hold the school district authorized this travel.
We begin our analysis by stating that we see no ambiguity in this insurance contract. The two terms used in the insurance contract that are at the heart of this dispute are “authorized” and “subject to reimbursement.” In our view, a reasonably prudent insured would understand the two controlling terms of the policy. The terms in question are not ambiguous just because the parties here disagree about their meaning. Therefore, following the ruling in Marshall, we shall attribute ordinary everyday meanings to the ordinary words used in this clause dealing with covered travel because the context indicates there is no technical sense attributed to the words that would alter their ordinary meaning., We look first at “authorized.”.
Black’s Law Dictionary 153 (9th ed. 2009) defines “authorize” as: “1. To give legal authority; to empower .... 2. To formally approve; to sanction.” Using that definition, we can see that the school authorized Rodriguez’ travel with another student.
The record contains a copy of a “Transportation Release Form” signed by one of Rodriguez’ parents. It clearly informs the parents that the school was going to permit Rodriguez to either drive or ride with other team players if a parent gave them permission:
“Saber Soccer “Sumner Academy “Transportation Release Form
“I have read and understand the procedures for the 06-07 Saber Soccer team. I realize that advance notice of schedule changes and special events will be given as soon as possible. I understand that while busses are ordered for all matches, the transportation issue for the school present unusual situations, and give my permission for my son/daughter Jesus Rodriguez to:
“(Check all that apply)
" 7 Drive without passengers from school to practices, home matches, or to
meet the bus for away matches.
“ J Drive with passengers from school to practice, home matches or to meet the bus for away matches.
“ J Ride with other players from school to practice, home meets, or to meet the bus for away meets.
“ J Ride with a coach from school to practice, home matches, or to meet the bus for away matches on occasion. (If the coach has room in their car)
“ J Drive to team events without passengers.
“ J Drive to team events with passengers.
J Ride to team events with other players.
“ J Ride with another player’s parenifguardian to or from practices, matches or event if there is room.
“List any parent/guardian your player may NOT ride with:
“-Any situation the coaches didn’t think of (please describe).”
All of the statements were checked on the form filed with the school. Signing this form and submitting it to the school meant that Rodriguez would not have to ride the school bus to the games.
The two statements at the bottom of the form were left blank with lines drawn through the spaces, indicating the spaces were intentionally blank. Leaving them blank meant there were no parental restrictions of with whom Rodriguez could ride or drive. One of Rodriguez’ parents signed the form and included phone numbers.
Once this completed form was signed and returned, the school allowed Rodriguez to ride with another student to the soccer games. Thomas Petz, the executive director of human resources for the school district, testified that the school permitted student athletes to travel to school sponsored games in cars driven by other participating students. He said that students did not have to ride the bus to events. According to Petz, in order to inform the parents of this practice, the school sent home the forms (shown above). Thus, in our view, the school obtained parental consent to permit the student to travel in this manner when the foim was signed by the student’s parent(s). In this instance, parents of both boys had signed a form. Furnished with these signed permission slips, the school allowed Rodriguez to get in his teammate’s pickup truck and allowed the teammate to drive to the game.
After reading this record, it becomes clear that the school created an informal method of transporting team members to soccer games by permitting teammates to ride with each other instead of riding on the school bus—the “official” mode of transportation. Employing permission slips from parents gave ample notice to all participants that the district would permit this form of travel. We do not speculate why this was done because the record is unclear on that point. What is clear, though, is that the school was not paying for this transportation. None of the slips mentioned reimbursement for such travel.
These words and deeds compel us to conclude that tire school permitted this transportation—this trip was not some impromptu act of two young men trying to break the rules as an act of rebellion. This system of informal transportation of students was created and sanctioned by the school. In our view, this was authorized travel as contemplated by the insurance policy.
We examine the district court’s -ruling.
The district court reached a different conclusion based upon one of the school district’s written policies and K.S.A. 72-8305, a statute dealing with bus transportation. We look first at tire school district’s policy.
School Policy 3.5.5.0,0-A, entitled “Pupil Transportation,” pertains to “Field Trips, Curricular Activities, Extracurricular Activities.” Subsection 3.1 states in part:
“When district equipment or drivers are unavailable or when it is economically advantageous to use other means of activity transportation, arrangements for hired or non-district-owned activity transportation shall be made by the building administrator.”
After that statement comes subsections dealing with various means of transportation: Contracted or Leased School Buses (.3.1.1), Rental or Lease Vehicles (.3.1.2), Chartered Buses (.3.1.3), and Private Vehicle (.3.1.4).
Subsection .3.1.4, entitled “Private Vehicle,” states:
“Use of private automobiles for field trips and activity transportation shall not be authorized except in such instances where drivers are fully responsible adults (over 21 years of age). Authorized drivers shall verify insurance coverage in accordance with established Kansas insurance minimums to the building principal or his designated representative.”
The school district’s own interpretation of this policy reveals much. Petz testified that this provision, 3.5.5.0.0-A.3.1.4, would apply to the facts of this case if the school arranged private transportation as the “official mode of transportation” to an event. Petz believed the provision would not apply to cases such as this with Rodriguez, where the “official authorized travel” by the school was the bus and Rodriguez simply used another method of transportation with his teammate. Petz suggested that the policy cited above would only have applied here, thus triggering the provision’s requirements of a 21-year-old or older driver in a car with a sufficient amount of insurance, if the pickup truck had been the official, authorized means of travel to the soccer game. In other words, if the building administrator had asked Hitze to drive, then Hitze or someone else in the vehicle needed to be at least 21 and his pickup truck needed to be insured to the level of coverage required by the school. That is a reasonable interpretation. The school policy, when read in its entirety, gives building principals several options to secure transportation of students to field trips and extracurricular (sports) activities.
But the district court ignored Petz’ testimony and took a more general view of the school’s travel policy and stated that the school district could authorize travel “by the bus or by private vehicle or by a combination of the two.” The court failed to acknowledge that the building administrator was required to take action before the .3.1.4 requirements were activated. Indeed, there is no evidence in the record here that any such action was taken by the building administrator.
Actually, the major focus of the district court in its ruling dealt with K.S.A. 72-8305. The statute is entitled: “Transportation for activities; rules and regulations for school bus operation.” It provides:
“The board of education of any school district. . . which ... is ... (c) engaged in any extracurricular school activity, may provide and furnish transportation for students and school personnel of the school district.... The school district. . . may pay mileage for those school buses contracted, leased or hired for such purposes, and may adopt rules and regulations governing the use and operation of such school buses. All students so transported shall be under school control and discipline and in every case shall be accompanied by a suitable adult person.” (Emphasis added.)
Obviously, this law permits the districts to make bus transportation arrangements for these off-campus activities but requires school control and discipline for those students so transported, as well as adult accompaniment. By its plain terms, this statute is limited to transportation by buses. There is no mention in this law of the use of privately owned vehicles for the transportation of students to these activities.
But, by using a definition from a different statute, K.S.A. 72-8301(c), the district court stretched the adult accompaniment requirement found in this statute to apply to all student transportation. This is too much of a stretch.
In the definitions statute of Article 83, “Transportation of Students,” K.S.A. 72-8301(c) states:
“The words ‘provide or furnish transportation’ in addition to their ordinary meaning shall mean and include the right of a school district to: (1) Purchase, operate and maintain school buses and other motor vehicles; (2) contract, lease or hire school buses and other motor vehicles for the transportation of pupils, students and school personnel; (3) purchase, operate and maintain buses other tiran school buses for the transportation of pupils, students or school personnel to or from school-related functions or activities; (4) contract, lease or hire buses other dian school buses for die transportation of pupils, students and school personnel if the buses are owned and operated by a public common carrier of passengers under a certificate of convenience and necessity granted by die state corporation commission or die interstate commerce commission and are operating within the authority granted to the public common carrier; and (5) reimburse persons who furnish transportation to pupils, students or school personnel in privately owned motor vehicles.” (Emphasis added.)
Clearly, this legislation is a grant of authority to school districts to use various means to provide for the transportation of students. Unlike K.S.A. 72-8305, tliere is no mention of the types of school activities associated with this statute, as it is a part of the general definitions used in Article 83. Under this grant of authority, school districts can spend money on school buses for the transportation of students as well as reimburse persons who transport students in privately owned motor vehicles under this law.
Unfortunately, the district judge lumped the two laws together and ruled:
“It is my belief and finding that the statute K.S.A. 72-8305 says to a school district you can provide transportation to these lands of activities by bus, by private vehicle, but tliere must be an adult driving diat vehicle—or I should say not driving, but I diink present in the vehicle—the way the statute reads—accompanied by an adult. . . .”
The court went on to hold:
“It is this court’s finding that District 500 would have to violate state law by providing and authorizing transportation of their students to and from sporting activities in a manner driven by someone diat is not an adult. . . .
“The policy was clearly entered into widi the understanding by all die players, tiiat being die Kansas Athletic Association and Mutual of Omaha, diat the activities by die school districts that were members had to conform to those statutes.”
We note that the district court made its last finding concerning the parties’ understanding of the insurance contract without support of any evidence we can find in the record. The policy speaks for itself, and the intent of the parties should be gleaned from the contract itself.
The major point of this holding is that the district court ruled that every student transported by a school district in Kansas to sporting activities must be accompanied by a suitable adult, no matter whether that transportation is by school bus or by private vehicle.
That is not what K.S.A. 72-8305 requires. We agree that if a school district provides bus transportation to extracurricular activities, then this law requires that a suitable adult must ride along. But the statute is silent with respect to transportation in privately owned vehicles. Further, the statute is silent about “authorizing” transportation. This is where the district court’s error occurred. It rewrote the statute from “provide and furnish transportation for students” to read “authorize and furnish transportation for students.” We see no prohibition in the statute that would prevent the school district here from authorizing alternative means of transportation of students to extracurricular activities.
We therefore reverse the district court’s holding on this point. Based on the ordinary meaning of the term “authorized,” we hold the school district indeed authorized this travel by Rodriguez by first seeking the permission of his parents and then, once that was obtained, permitting him to ride with a teammate.
But that does not mean that Rodriguez prevails, because we must come to the second requirement of the insurance policy, i.e., the travel was paid for or “subject to reimbursement.” We conclude this travel was not reimbursable as the term is used in the insurance policy.
This travel was not subject to reimbursement as contemplated in the policy.
Rodriguez maintains his travel was subject to reimbursement by the school district because: (1) Both Petz’ and the school district’s attorney’s testimony suggested Hitze could have made a claim for reimbursement of his travel expenses; (2) K.S.A. 72-8301 and K.S.A. 12-105b give the school the right to reimburse persons who furnish private transportation to students; (3) the school’s principal had the discretion to reimburse Hitze’s travel expenses out of the school activity fund; (4) there is no adult accompaniment requirement under Kansas law as it pertains to reimbursement of travel expenses; and (5) Mutual of Omaha is estopped from denying coverage where performance was complete. We have several reasons that persuade us that this trip was not subject to reimbursement.
We begin, once again, with the applicable statute. K.S.A. 72-8301(c) enables a school district to reimburse persons in private vehicles who provide transportation for pupils but does not elaborate on how such reimbursement should be made. That procedure must be found in the published policies and procedures of the various school districts.
When we look at the written policy of the district here, we see no grounds for reimbursement. These rules and regulations are how a school district governs its own actions, agents, and employees. The school district policy here clearly states:
“Use of private automobiles for field trips and activity transportation shall not be authorized except in such instances where drivers are fully responsible adults (over 21 years of age). Authorized drivers shall verify insurance coverage in accordance with established Kansas insurance mínimums to the building principal or his designated representative.”
We note two requirements—21-year-old or older driver and verified/required insurance coverage for the vehicle used for the transportation. There is no evidence of either of those requirements being met here. This means that unless those two requirements are met, the transportation is not subject to reimbursement.
We turn now to the insurance policy. Coverage included:
“[T] earn or individual travel, for purposes of representing the Participating School, that is to or from the location of a Covered Event and is authorized by the Insured Person’s Participating School, provided die travel is paid for or subject to reimbursement by the Participating School.”
The structure of tins sentence leads us to conclude that the clause, “provided the travel is paid for or subject to reimbursement by the Participating School,” modifies the prior clause, “travel . . . authorized by the . . . Participating School.” In other words, only travel that is paid for or subject to reimbursement by the school district is covered by this policy. The clause refers to a subset of authorized travel. It is a limitation of coverage to those instances where the school district is financially responsible for the transportation.
There is no evidence in this record that suggests Hitze made a claim for his driving expenses or that the district paid such a claim. Further, we are unmoved by the testimony cited by Rodriguez on this point. Petz testified that if Hitze had submitted a request for reimbursement, it would have been “processed” through the building activity fund for consideration. The school district’s attorney, Gregory P. Goheen, testified that in his opinion, the school could “receive” a claim for the type of travel.
In our view, this testimony simply indicates Hitze could have made a claim for reimbursement. The testimony does not support a finding that Hitze’s expenses could have actually been reimbursed. To satisfy the terms of the insurance policy, the expenses must be costs the school, in fact, could have reimbursed. Petz’ and Goheen’s testimony merely suggests any person can make a claim for reimbursement. The question here is whether the claim could actually be paid. Because Hitze’s expenses could not have been paid in compliance with school policy, as no person over 21 years old was present and proof of required insurance coverage was not submitted, any such expense claim was not subject to reimbursement.
Rodriguez mistakenly relies on K.S.A. 12-105b(h) to support the argument that Hitze’s travel was subject to reimbursement. That statute provides that claims against a school for the purchase of gasoline while students are participating in an extracurricular activity outside the school boundaries “may be paid in advance of approval thereof by the governing body.” The statute states: “The governing body may designate and authorize one or more of its officers or employees to pay any such claim made against the school district in advance of its presentation to and approval by tire governing body.” K.S.A. 12-105b(h).
We do not see how this statute applies to the facts of this case. It is undisputed that Hitze did not ask for approval of his transportation in advance of the soccer game. Under K.S.A. 12-105b(h), a student could indeed try to obtain advance permission to transport students to an activity and request reimbursement for gasoline, but that transportation would still require adult accompaniment in order to comply with the school district policy.
Similarly, Rodriguez’ reliance on the principal’s discretion to pay expenses out of the school activity fund is unpersuasive. Indeed, K.S.A. 72-8208a permits the school district to establish a school activity fund from which athletic expenses may be paid. But this statute makes no reference to student travel. Kansas courts have repeatedly held that a specific statute controls over a general statute. In re Tax Exemption Application of Mental Health Ass’n of the Heartland, 289 Kan. 1209, 1215, 221 P.3d 580 (2009). Thus, K.S.A. 72-8301(c) and K.S.A. 72-8305, laws that deal with student transportation, govern this issue. Moreover, as with K.S.A. 12-105b(h), it is theoretically possible that a principal could reimburse travel expenses from the school activity fund, but the travel at issue would still need to involve adult accompaniment and sufficient insurance coverage in order for travel expenses to be reimbursable in compliance with school policy.
For his final argument, Rodriguez contends that Mutual of Omaha is estopped from denying coverage because “performance” under the insurance contract was complete—i.e., the policy had been purchased and paid for and Mutual of Omaha had accepted the premiums. He then contends that the insurer cannot now, after an insured has been injured during travel, escape liability by arguing the travel was illegal.
This argument totally ignores the fact that an insurance policy can limit liability by eliminating certain risks, as long as the insurer assumes the duty to define limitations to coverage in clear and explicit terms. See Marshall, 276 Kan. at 112. When the Kansas State High School Athletic Association purchased its catastrophic injury insurance policy for its members, it only bargained for coverage of “covered travel” as defined by the policy. Rodriguez’ travel was not “covered travel” because it was not subject to reimbursement.
We reverse the district court’s ruling that the school district did not authorize Rodriguez’ travel. We affirm the district court’s holding that this was not covered travel as contemplated by the excess insurance policy in this case. We hold that the district court did not err when it dismissed Mutual of Omaha as a party.
Affirmed in part and reversed in part. | [
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Arnold-Burger, P.J.:
Cleophus C. Currie appeals his sentence, arguing that the sentencing court erred by misinterpreting K.S.A. 2012 Supp. 21-6804(p), finding that the statute prevented the court from granting probation in Currie’s case. The State concedes that the statute allows probation, but the State asserts that because Currie was given a presumptive sentence, this court does not have jurisdiction to hear this appeal. We find that because the court misinterpreted its authority in the case by denying probation on the sole basis that it believed such action was not allowed by the statute, we have jurisdiction to hear the appeal. Furthermore, we find that K.S.A. 2012 Supp. 21-6804(p) does allow the district court to enter a departure sentence. Accordingly, we vacate Cur-rie’s sentence and remand the case for resentencing.
Factual and Procedural History
In three cases, Currie pleaded guilty to one count of burglaiy, one count of criminal damage to property, one count of misdemeanor possession of drug paraphernalia, one count of identity theft, two counts of forgeiy, and three counts of felony theft.
Currie had five previous theft convictions and five previous burglary convictions. The parties were aware that because of Currie’s previous theft and burglary convictions, the special rule under K.S.A. 2012 Supp. 21-6804(p) applied. According to the rule, imprisonment is presumed. Both parties were aware that tire sentencing judge would interpret the rule to preclude probation.
At sentencing, the State recommended prison. Defense counsel argued that K.S.A. 2012 Supp. 21-6804(p) did not preclude a probation sentence. The sentencing court disagreed with defense counsel and imposed a presumptive 21-month prison sentence.
Currie filed a timely notice of appeal.
Analysis
Currie contends that the sentencing court misinterpreted K.S.A. 2012 Supp. 21-6804(p) when it held that the statute precluded it from departing from the presumptive prison sentence. The State argues that this court does not have jurisdiction to decide this appeal because Currie was sentenced to a presumptive prison term. However, tire State concedes that if this court does have jurisdiction, then K.S.A. 2012 Supp. 21-6804(p) does not preclude a sentencing court from granting a dispositional departure.
We have jurisdiction over this appeal even though Currie's crimes called for the presumptive sentence he was given.
The sentencing judge stated the following at the sentencing hearing:
“This is the difficulty I have. It says the presumption is prison, which, under most interpretations, when it says the presumption is prison, you can go forward, and then there’s a departure. But there is additional language that says, ‘and the sentence shall be prison.’ And for me to interpret that in any other way, other than I can’t depart, would make that language surplusage. I’ve done opinions on this in two or three other cases, and I incorporate those opinions by references and reserve the right to supplement that.
“But the Court finds that, as a matter of law, I cannot depart, other than by making the findings provided for in the statute. That will be the order of the Court.”
The State first contends that this court does not have jurisdiction because Currie’s sentence is a presumptive sentence and both K.S.A. 2012 Supp. 21-6820(c)(l) and K.S.A. 2012 Supp. 21-6804(p) preclude a defendant from appealing a presumptive sentence. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009). The State’s jurisdiction argument was recently addressed and rejected in State v. Warren, 297 Kan. 881, 304 P.3d 1288 (2013). In Warren, our Supreme Court stated the following:
“Under K.S.A. 21-4721(c)(l) [now K.S.A. 2012 Supp. 21-6820(c)(l)], Kansas appellate courts do not have jurisdiction to hear the appeal of a presumptive criminal sentence. But when a district court misinteiprets its own statutory authority and explicitly refuses to consider a defendant’s request for a discretionary, nonpresumptive sentence that tire district court has statutory authority to consider, the appellate court may take up the limited question of whether the district court properly interpreted the sentencing statute.” Warren, 297 Kan. 881, Syl. ¶ 1.
Therefore, this court does have jurisdiction because Currie is arguing that the sentencing court misinterpreted K.S.A. 2012 Supp. 21-6804(p) when it ruled that the statute did not provide the sentencing court with the authority to grant a dispositional departure.
We examine the court’s authority to grant a dispositional departure under KS.A. 2012 Supp. 21-6804(p).
According to K.S.A. 2012 Supp. 21-6804(p), when a defendant is being sentenced on a felony theft charge and has three or more prior felony convictions for certain designated theft and or burglary crimes, the sentence
“shall be presumed imprisonment and the defendant shall be sentenced to prison as provided by this section, except that tire court may recommend that an offender be placed in the custody of the secretary of corrections, in a facility designated by the secretary to participate in an intensive substance abuse treatment program.” (Emphasis added.)
The question presented is whether this language precludes the grant of probation. Both the State and Currie agree that the court retains the authority to grant a dispositional departure of probation. In fact, the State presents no argument to the contrary. Nevertheless, we will address the merits of Currie’s claim.
Our review is unlimited over issues of statutory interpretation. State v. Jolly, 291 Kan. 842, 845-46, 249 P.3d 421 (2011). In interpreting a statute, the intent of the legislature governs if such intent can be ascertained. In examining the statue we consider the language employed, giving ordinary words their ordinaiy meaning. If the statute is plain and unambiguous, that ends the matter and we do not resort to the various canons of statutory construction or to the legislative history of the statute. State v. Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012).
This court has been split on its interpretation of the statute. There are conflicting Court of Appeals decisions on whether the statute precludes a dispositional departure. See State v. Howard, No. 106, 304, 2012 WL 4121114, at *1-2 (Kan. App. 2012) (unpublished'opinion) (K.S.A. 2010 Supp. 21-4704[p] merely creates a presumption of imprisonment), rev. denied 297 Kan. 1251 (2013); State v. Upton, No. 106, 230, 2012 WL 3289970, at *2 (Kan. App. 2012) (unpublished opinion) (K.S.A 2010 Supp. 21- 4704[p] clearly mandates imprisonment), rev. denied 297 Kan. 1256 (2013).
We agree with and adopt the Howard panel’s analysis rather than the Upton panel’s analysis for the following reasons.
In Howard, as here, the defendant was subject to K.S.A. 2010 Supp. 21-4704(p) (now K.S.A. 2012 Supp. 21-6804[p]) because the defendant had three or more prior burglary convictions and three or more prior theft convictions. The sentencing court found that it did not have the discretion to consider the defendant’s downward dispositional departure motion, based on its interpretation of the statute. Howard, 2012 WL 4121114, at **1. Relying on the logic set forth in State v. Chesbro, 35 Kan. App. 2d 662, 134 P.3d 1, rev. denied 282 Kan. 792 (2006), the court in Howard stated the following:
“K.S.A. 2010 Supp. 21-4704(p) establishes the sentencing provisions for felony theft when the defendant has a certain number of prior felony theft convictions. By harmoniously construing the provisions of K.S.A. 2010 Supp. 21-4704, we conclude that subsection (p) merely establishes the presumptive sentence for felony theft committed by those with multiple prior felony convictions. [Citation omitted.] But as in Chesbro, the provisions of K.S.A. 2010 Supp. 21-4716(c) [now K.S.A. 2012 Supp. 21-6815(c)] regarding departure sentences maybe applied and the district court may consider departures from the presumptive sentence.” Howard, 2012 WL 4121114, at °5.
We agree. K.S.A. 2012 Supp. 21-6804(a) leads off by stating that the provisions of the section shall be applicable to the sentencing guidelines for nondrug crimes. Moreover, according to K.S.A. 2012 Supp. 21-6804(d), “[t]he sentencing guidelines grid for nondrug crimes as provided in this section defines presumptive punishments for felony convictions, subject to the sentencing court’s discretion to enter a departure sentence.” (Emphasis added.) This is consistent with K.S.A. 2012 Supp. 21-6815(a), which states that “[ejxcept as provided in subsection (b), the sentencing judge shall impose the presumptive sentence provided by tire sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure sentence.” (Emphasis added.) We believe that K.S.A. 2012 Supp. 21-6804(p) merely directs that the sentence shall be presumptive prison when a defendant has prior felony theft and/or burglary convictions. It does not negate the other provisions in the statute allowing for departure. It uses the term “presumed” imprisonment. Giving ordinary words their ordinary meaning, as we are required to do, this would indicate that prison is only presumed, but not mandatory. Although K.S.A. 2012 Supp. 21-6804(p) follows this with a clause unique to subsection (p) (“and the defendant shall be sentenced to prison as provided by this section”), we believe this simply refers the reader back to the sentencing grid.
So for example, under the terms of K.S.A. 2012 Supp. 21-6804(p), if a defendant is charged with felony theft of properly under K.S.A. 2012 Supp. 21-5801(b)(3), which is a severity level 9 nonperson felony, and has three or more similar felony theft convictions, absent the direction of K.S.A. 2012 Supp. 21-6804(p) he or she would fall into a presumptive probation box on the sentencing grid. But the specific language of K.S.A. 2012 Supp. 21-6804(p) informs us that we are to presume prison instead of probation, although tire months of imprisonment will be as set out in the grid. The clear language does nothing to negate the prior discussion in the section of the ability to grant a departure sentence.
The Upton panel disagreed and discerned that the language in K.S.A. 2010 Supp. 21-4704(d) (nowK.S.A. 2012 Supp. 21-6804[d]) refers only to the sentencing grid, not the more specific statutory subsections under K.S.A. 2010 Supp. 21-4704 which set out special rules. The panel opined that the more specific provision at issue governed, and it interpreted the language to require imprisonment, with no chance of departure unless there is a finding of substance abuse and amenability to treatment. Upton, 2012 WL 3289970, at *2. Although we agree with the Upton panel that K.S.A. 2010 Supp. 21-4704 sets out specific exceptions to the grid sentence, we disagree that these exceptions are to be read in isolation.
The sentencing grid set out at K.S.A. 2012 Supp. 21-6804(a) defines presumptive punishments. K.S.A. 2012 Supp. 21-6804(d). It includes presumptive prison, presumptive probation, and border boxes. According to K.S.A. 2012 Supp. 21-6804(d), these presumptive sentences are subject to the court’s discretion to enter a departure sentence. But there are some unique circumstances, set out specifically in the statute, when an offender may fall into a “presumptive probation” box based on his or her crime and criminal history but some other factor compels the legislature to treat the offender more seriously than the grid allows. For example, if a gun is involved in the commission of a person felony, the statute requires the sentence to be presumed imprisonment even though, based on a straight application of the grid, presumptive probation might be called for. K.S.A. 2012 Supp. 21-6804(h). Moreover, as discussed in Chesbro, if a person is a persistent sex offender and is convicted of a crime whose sentence is presumptive prison, the sentence shall be double the maximum grid box number. K.S.A. 2012 Supp. 21-6804(j); see 35 Kan. App. 2d at 679-81. And, as here, when a defendant has several prior convictions for theft or burglary, the statute provides that even though the grid may indicate presumptive probation, the sentencing court must consider the sentence to be one of presumptive prison. However, application of this special rule does not negate the court’s discretion to impose a departure sentence of probation.
Therefore, we find that the district court erred in finding that it lacked the discretion and authority to consider Currie’s request for probation. Accordingly, we vacate Currie’s sentence and remand for resentencing at which the district court should consider Cur-rie’s request for probation.
Sentence vacated and case remanded with directions. | [
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Powell, J.:
The City of Atchison (City) appeals the district court’s decision setting aside its ordinance establishing the annexation of Bunge Milling, Inc.’s (Bunge) property under K.S.A. 12-520(a)(1). The City argues Midland Surveying (Midland) acted as Bunge’s agent when Midland filed a boundary survey of Bunge’s property with the register of deeds. As the City would only have had the authority to annex Bunge’s property if the owners had filed the survey under K.S.A. 12-519(e), the filing of a boundary survey by Bunge’s agent would meet this requirement. Bunge argues its property was not subject to annexation because Midland was not its agent for the purpose of filing the survey.
Because we agree with the district court that Midland was not acting as Bunge’s agent when it filed a boundary survey of Bunge’s property with the register of deeds, meaning that the survey had not been filed by the “owner” of such tract, we affirm the district court.
Factual and Procedural History
Bunge is the owner of four tracts of land totaling approximately 58.3 acres outside the City. Bunge hired Midland to conduct a property boundaiy survey of the land. The survey was completed on May 5, 2006, by Troy Hayes of Midland.
. According to Bunge, the boundary survey was intended for the corporation’s use to certify the boundary lines of the property and for taxation purposes. On May 12, 2006, Midland filed the boundary survey with the Atchison County Register of Deeds. Bunge never asked, directed, or expressly authorized Midland to file the boundary survey. However, a filing fee of $20 was charged, and Hayes added that $20 fee as an itemized cost onto Midland’s invoice to Bunge.
Bunge claims it was unaware that the boundary survey had been filed until the City initiated the unilateral annexation action of the property in 2011. Hayes supported Bunge’s claim by testifying that he had never informed Bunge that he had filed the boundary survey.
Hayes testified that he “typically file[s] all [his] surveys as a matter of professional courtesy. . . . [t]ypically, it’s best, you know, for the surveyors that practice in the area on a regular basis to have access to that information and, you know, in the event that they would be working on an adjacent parcel or something like that.” Hayes neither received a copy of the recorded survey nor sent a copy of the recorded document to Bunge.
Hayes’ affidavit and his testimony before the district court explained that he filed the boundaiy survey with the Atchison County Register of Deeds because such a filing was a requirement of his professional license as a Kansas land surveyor under Kansas Administrative Regulation (K.A.R.) 66-12-1. K.A.R. 66-12-l(c) (2006) adopted by reference the “Kansas Minimum Standards For Boundary Surveys and Mortgagee Title Inspections Standards of Practice” as the minimum standards for the practice of land surveying. The register of deeds for Atchison County filed the boundary survey as a “survey” in the “unplatted lands index.”
The City commenced the process of unilateral annexation by the adoption of Resolution #2805 on April 18, 2011. K.S.A. 12- 520(a)(1) provides that a city may annex land if the “land is platted, and some part of the land adjoins the city.” K.S.A. 12-519(e) defines the term “platted” as “a tract or tracts mapped or drawn to scale, showing a division or divisions thereof, which map or drawing is filed in the office of the register of deeds by the owner of such tract.” (Emphasis added.) The City relied on the survey of Bunge’s property as prepared and filed by Midland.
The district court concluded that Hayes’ survey constituted a “platting” of land under K.S.A. 74-7003(m), which required him to file the survey because K.A.R. 66-12-l(c) (2006), adopting the minimum standards for the practice of land surveying, has the force and effect of law. The district court held that there was “no evidence in the record that would attribute Midland’s filing of the boundary survey to its principal, Bunge Milling.” The district court used the word “principal” to describe Bunge once but never specifically made a finding whether Midland was an agent of Bunge. Interpreting K.S.A. 12-519(e), the district court explained that if the legislature had meant to allow anyone to file a qualifying “plat” for annexation purposes, then the legislature would have omitted the words “by the owner.” The district court held that the City lacked authority to unilaterally annex Bunge’s property under K.S.A. 12-520(a)(l) and accordingly set aside the City’s annexation of the property.
Did the City Provide Enough Evidence to Establish the Existence of an Agency Relationship Between Bunge and Midland?
If So, Did an Agency Relationship Exist?
The City argues that tire district court incorrectly set aside its annexation of Bunge’s property because Midland acted as Bunge’s agent and Bunge never repudiated Midland’s act of filing the survey. Conversely, Bunge argues that Midland was not its agent for the purpose of filing the survey, the City failed to prove the existence of an agency relationship between Bunge and Midland, and Midland’s act of filing was repudiated and never ratified by Bunge. Answering these questions require us to interpret the relevant Kan sas statutes and to determine whether an agency relationship existed between Bunge and Midland.
Standard of Review
“Interpretation of a statute is a. question of law over which this court has unlimited review.” Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). With regard to statutory construction, the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009).
What constitutes a principal/agent relationship and whether there is competent evidence reasonably tending to prove such a relationship is a question of law. However, resolution of conflicting evidence that might establish the existence of a principal/agent relationship is a question for the finder of fact. Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 446, 827 P.2d 24 (1992). The parties have not produced conflicting evidence; rather, they disagree on whether the given evidence tends to prove the existence of an agency relationship between Bunge and Midland. As a question of law, this court has unlimited review. Town Center Shopping Center v. Premier Mortgage Funding, Inc., 37 Kan. App. 2d 1, 6, 148 P.3d 565 (2006), rev. denied 283 Kan. 933 (2007).
Analysis
The language in K.S.A 12-520(a)(l) is clear and unambiguous. K.S.A 12-520(a)(l) provides that a city may annex land if the “land is platted, and some part of the land adjoins tire city.” K.S.A. 12-519(e) defines the term “platted” as “a tract or tracts mapped or drawn to scale, showing a division or divisions thereof, which map or drawing is filed in the office of the register of deeds by the owner of such tract.” (Emphasis added.) The parties agree that the first four elements in the definition of “platted” were met by the filed survey. The disagreement is whether the requirement that the sur vey be filed “by the owner” was satisfied by Midland’s filing of the survey in 2006.
In this case, it is undisputed that Bunge owned the property being annexed by the City. As a statutoiy entity, a corporation is required to act through its directors, officers, employees, or agents. See Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 503, 14 P.3d 1149 (2000). On appeal, the City maintains that Bunge acted through an agent—Midland—when the survey was filed, meaning the survey had been filed by the owner. However, in the March 13, 2012, hearing before the district court, the City spent little time establishing the existence of an agency relationship between Midland and Bunge. The district court, in its order, also did not discuss whether an agency relationship existed between Midland and Bunge. Rather, the district court focused on the reason Midland filed the survey. It found that Midland, independent of any client’s direction, was required to file the survey under K.A.R. 66-12-l(c) (2006) and K.S.A. 74-7003(m), and there was no evidence in the record that attributed Midland’s filing of the survey to Bunge.
No Agency Relationship Between Midland and Bunge
We think tire first inquiry should be whether the City met its burden of proof to show that an agency relationship existed between Midland and Bunge before we assess the motives behind Midland’s filing of the survey. Midland’s actions could only be attributed to Bunge for tire purposes of K.S.A. 12-519(e) if Midland had acted as Bunge’s agent with regard to the filing of the survey.
An actual agency relationship may be express or implied.
“ ‘An express agency exists if the principal has delegated authority to tire agent by words which expressly authorize the agent to do a delegable act. An implied agency may exist if it appears from the statements and conduct of the parties and other relevant circumstances that the intention was to clothe the agent with such an appearance of authority that when the agency was exercised it would normally and naturally lead others to rely on the person’s acts as being authorized by die principal.’ [Citation omitted.]” Golden Rule Ins. Co. v. Tomlinson, 47 Kan. App. 2d 408, 422-23, 277 P.3d 421 (2012) (quoting Barbara Oil Co., 250 Kan. at 446), rev. granted May 20, 2013.
There is no evidence in the record to establish the formation of an express agency relationship because it is undisputed that Bunge never directed or authorized Midland to file the survey.
With regard to whether an implied agency relationship existed between Midland and Bunge, our Supreme Court set out the test for the existence of an implied agency in Barbara Oil Co., 250 Kan. at 448-49:
“The test utilized by this court to determine if the alleged agent possesses implied powers is whether, from the facts and circumstances of the particular case, it appears there was an implied intention to create an agency, in which event the relationship may be held to exist, notwithstanding either a denial by tire alleged principal or whether the parties understood it to be an agency. [Citation omitted.]
“An agency is implied if, from statements of the parties, their conduct, and other relevant circumstances, it appears the intent of the parties was to create a relationship permitting the assumption of authority by an agent which, when exercised, would normally and naturally lead others to believe in and rely on the acts as those of the principal. While the relationship may be inferred from a single transaction, it is more readily inferable from a series of transactions. An agency will not be inferred because a third person assumed that it existed, nor because the alleged agent assumed to act as such, nor because the conditions and circumstances were such as to make such an agency seem natural and probable. [Citation omitted.]”
Bunge argues that the City failed to provide sufficient evidence to show tire existence of an agency relationship between Bunge and Midland. “The party asserting that an agency relationship exists has the burden of establishing the existence of the agency with substantial evidence that is clear and convincing in quality.” Bichelmeyer Meats v. Atlantic Ins. Co., 30 Kan. App. 2d 458, 464, 42 P.3d 1191 (2001).
Bunge is correct that the record provides very little evidence regarding tire conduct of, or communications between, Bunge and Midland. Bunge, through the affidavit of its Milling Operations Manager, admitted to “commissioning” Midland to conduct a survey of the property boundaries for Bunge’s own use. According to Hayes’ testimony, before Bunge hired Midland to conduct the boundary survey, Midland was working with the engineering firm Bunge had hired. Hayes testified that the engineering firm put Midland “in touch with Bunge and Bunge land of extended our services to include a boundary survey in addition to the topographic survey work that we were doing.” Bunge and Midland executed what Hayes described as a “standard purchase order.” The pur chase order is not provided in tire record, Hayes explained that most of his communication was through die engineering firm rather than directly with Bunge, and that Midland had not prepared any documents that described the scope of work Midland intended to complete for Bunge.
Bodi parties agree diat Midland had the authority to conduct the survey. However, die City failed to meet its burden to provide “substantial evidence [of an agency relationship] diat is clear and convincing in quality.” Bichelmeyer Meats, 30 Kan. App. 2d at 464. There is no evidence suggesting that Bunge intended Midland to act on its behalf witii regard to the filing of the survey, diat Bunge intended third parties to rely on Midland’s actions to assume Midland was Bunge’s agent, or that Bunge had the right to control how Midland conducted and created the boundary survey.
In Highland Lumber Co., Inc. v. Hudson, 219 Kan. 366, 372, 548 P.2d 719 (1976), our Supreme Court affirmed the district court’s finding that Highland Lumber did not meet its burden of proof to show an agency relationship existed between the owner of the property (Knudson) and the construction contractor (Boyce). Knudson had hired Boyce to construct a building on Knudson’s property. Boyce ordered materials for the project from Highland Lumber but failed to pay. Highland Lumber sued Knudson to recover its payment. Highland claimed Boyce was Knudson’s agent because Knudson had changed the construction plans after Boyce had begun working, consulted with Boyce regarding the construction, helped work on rainy days, and at various times had the men stop working and wait. After reviewing conflicting evidence, the district court found that Highland had failed to provide sufficient evidence of an agency relationship between Boyce and Knudson.
In this case, the City failed to produce even as much evidence of contact between the potential principal and agent as was presented in Highland Lumber. Without sufficient evidence of an implied agency relationship, it is difficult to see how we can conclude that Midland’s action of filing the survey satisfied the dictates of K.S.A. 12-519(e) that the survey be filed “by the owner” of the property.
Foreseeability
Relying on Commerce Bank of St. Joseph v. State, 251 Kan. 207, 210, 833 P.2d 996 (1992), the City attempts to salvage its position by asserting that Hayes, Midland’s employee, was ethically and legally required to file the survey pursuant to K.A.R. 66-12-l(c) (2006), thereby giving Midland the authority to fife the boundary survey because it was a foreseeable and reasonably necessary action stemming from the nature of the agency and the duties relating to it. We reject such an argument for the same reasons the district court did. Hayes was ethically and legally required to file the survey regardless of the nature of Midland’s relationship with Bunge. Moreover, to adopt such a position would render the phrase “by the owner” meaningless because any owner of land who wished to have a survey done by a professional surveyor, but who wanted to avoid annexation, could not do so as tire owner’s survey would have to be fifed by the surveyor, making the property subject to annexation anyway.
Failure to Repudiate or Failure to Ratify
As a final effort to prove an agency relationship between Bunge and Midland, the City points out that Bunge never took any actions to repudiate Midland’s filing of the survey. It is true that repudiation by the principal may be necessary if an agent commits an act outside the scope of the agency. “[Ojnce a principal knows of an agent’s unauthorized actions, it cannot sit back and see if it will benefit or suffer from the agent’s actions. Instead, a principal who receives notice of an unauthorized act of an agent must promptly repudiate the agent’s actions or it is presumed that the principal ratified the act.” Foley Co. v. Scottsdale Ins. Co., 28 Kan. App. 2d 219, 223-24, 15 P.3d 353 (2000). The City contends that Bunge never repudiated Midland’s actions because Midland’s filing was within the scope of the agency relationship entered into by Bunge.
Conversely, Bunge argues that Midland’s filing of the survey was an unauthorized act that would have required ratification by Bunge in order for the filing to bind Bunge.
“Ratification is the adoption or confirmation by a principal of an act performed on its behalf by an agent that has acted without authority. Brown v. Wichita State University, 217 Kan. 279, 287-88, 540 P.2d 66 (1975). The doctrine of ratification is based upon the assumption there has been no prior authority, and ratification by the principal of the agent’s unauthorized act is equivalent to an original grant of authority. Once tire principal discovers the agent’s unauthorized act, the principal must promptly repudiate the act or the court will presume the principal ratified the act. The key to ratification is knowledge of the unauthorized act; without a showing of the principal’s knowledge, the principal cannot be deemed to have ratified the act. See 217 Kan. at 287-88.” Town Center Shopping Center, 37 Kan. App. 2d at 10.
Testimony from Hayes and Bunge confirm that Bunge did not know that Midland filed the survey until the City commenced the annexation process in 2011, a passage of time of 5 years. The City did not produce any evidence to refute those statements of fact. The City started the annexation process in April 2011, which only then gave notice to Bunge of the filed survey. Bunge promptly filed this lawsuit in July 2011. Therefore, Bunge could not have ratified Midland’s actions before having knowledge of the filing, and Bunge could not have taken any actions to repudiate until 2011. Because Bunge was unaware of Midland’s filing of the survey, die City cannot use Bunge’s lack of action from 2005 to 2011 as evidence that Bunge knew it had an agency relationship with Midland.
Accordingly, we hold diat Midland was not Bunge’s agent for the purposes of filing the survey. Therefore, because Bunge’s property does not meet the definition of being “platted” under K.S.A. 12-519(e), the City did not have the authority to unilaterally annex Bunge’s property under K.S.A. 12-520(a)(l). The district court correctly set aside the City’s Ordinance No. 6406 establishing the annexation of Bunge’s property.
The district court is affirmed. | [
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Knudson, J.:
The Kansas Department of Revenue (KDR) ap peals from the decision of the district court to set aside an administrative order suspending Shane A. Bixenmaris driving privileges for 30 days and thereafter restricting his driving privileges for an additional 330 days. The district court concluded police officers lacked probable cause to arrest Bixenman for driving under the influence of alcohol (DUI) and therefore did. not have reasonable grounds to request an evidentiary breath test under K.S.A. 2009 Supp. 8-1001.
We reverse the decision of the district court and remand with directions that the administrative order of the KDR be reinstated.
The underlying facts are not in material dispute. On April 28, 2010, Officer Benjamin Kahle and Investigator Aaron Larson of die Hays Police Department lawfully stopped Bixenmaris truck for driving with one headlight. Twenty-year-old Bixenman did not exhibit any signs of intoxication or erratic behavior while driving or stopping his truck.
Kahle spoke to Bixenman and noticed that he had bloodshot eyes and there was an odor of alcohol emanating from Bixenman and his truck. Bixenman told Kahle he had been to a bonfire and consumed one beer.
Bixenman performed two field sobriety tests. Throughout the tests, Bixenman was cooperative and did not slur his speech. When speaking, however, Bixenman would turn away from Kahle. Kahle thought this behavior was unusual.
Of the two field sobriety tests, Bixenman first performed the walk-and-tum test. He demonstrated only one possible sign of intoxication—starting the test too soon—but otherwise successfully completed the test. Bixenman then took the one7leg-stand test. He demonstrated one of four possible signs of intoxication—he put his foot down 3 seconds after commencing the 30-second test—but otherwise successfully completed the test.
At Larson’s request, Bixenman then took a preliminary breath test, which yielded a blood-alcohol content greater than .02 but less than .08. Consequently, Kahle arrested Bixenman for DUI. Following his arrest, Bixenman took the evidentiary breath test, which again yielded a blood-alcohol content between .02 and .08. Accordingly, the KDR suspended Bixenman’s driving privileges for 30 days to be followed by 330 days of restricted privileges.
Bixenman next took an administrative appeal. The administrative hearing officer affirmed the suspension, finding:
• Officers Kahle and Larson had reasonable grounds to believe that Bixenman was operating or attempting to operate a vehicle while under the influence of alcohol, drugs, or both, or was driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system.
• Bixenman was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury, or death.
• Officer Kahle presented Bixenman with the oral and written notices required by K.S.A. 8-1001, and amendments thereto, and the notices required by K.S.A. 8-1567a(b), and amendments thereto.
• The testing equipment used was reliable.
• The person who operated the testing equipment was qualified.
• The testing procedures used were reliable.
• The test result determined that Bixenman had an alcohol concentration of .02 or greater, but less than .08, in his blood or breath.
• Bixenman was operating a vehicle.
• Bixenman was less than 21 years of age at the time a test was requested.
Bixenman filed a timely petition for judicial review of the administrative order pursuant to K.S.A. 2009 Supp. 8-259 and the Kansas Judicial Review Act pursuant to K.S.A. 2009 Supp. 77-601 et seq. Bixenman’s contention in his petition for review was that the arresting officers did not have reasonable grounds to believe he was operating a vehicle while under the influence of alcohol.
After an evidential hearing the district court ruled in Bixen-man’s favor and against the KDR. The court found that the required deprivation period of 15 minutes before the preliminaiy breath test was to be administered had not been met. As a consequence the district court concluded the results of the preliminary breath test should not be considered. The district court judge then stated:
“What I have to consider is the totality of the circumstances and frankly, in looking at the video and the testimony of the officer, I don’t see where this young man was impaired under the law. He had some alcohol in his system for which he was properly charged apparently for consuming alcohol underage, but he certainly was not impaired by any stretch of the imagination.
“He passed all the tests. I listened to him qdk in tire video, the speech was appropriate to all the questions and there were many unrelated to this. I mean it was just general discussions about where he went to school and so forth and so on. I just don’t see it. In fact, I’m not sure I could have performed those tests as well as he did.” (Emphasis added.)
In its journal entry (filed October 11, 2011), die district court stated:
“[T]here was not sufficient evidence upon which to believe [Bixenman] operated a vehicle while under the influence of alcohol, no probable cause to arrest and no basis to proceed with further alcohol testing based on the results of the field sobriety tests and the improperly administered preliminary breath test.”
After trial, the KDR filed a motion requesting that the district court reconsider its ruling. The court denied the motion Januaiy 13, 2012.
On appeal, the KDR contends that the district court erred in deciding that the police officers lacked probable cause to arrest or take Bixenman into custody for DUI and as a result lacked reasonable grounds to request that he submit to a breath test pursuant to K.S.A. 8-1567a and K.S.A. 2009 Supp. 8-1001.
An appellate court generally reviews a district court’s decision in a driver’s license suspension case to determine whether the decision is supported by substantial competent evidence. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). Interpretation of a statute, however, is a question of law over which appellate review is unlimited. See Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 657, 256 P.3d 845 (2011), disapproved on other grounds by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012).
K.S.A. 8-1567a is a civil proceeding and imposes no criminal penalties. See State v. Schuster, 273 Kan. 989, 995, 46 P.3d 1140 (2002). In Schuster the court also noted the legislative intent behind K.S.A. 8-1567a was to enact a law that considers an individual under the age of 21 with a blood-alcohol concentration of .02 or greater while operating a motor vehicle to be DUI. 273 Kan. at 991-92. In State v. Wick, 28 Kan. App. 2d 888, Syl. ¶ 3, 24 P.3d 158, rev. denied 271 Kan. 1042 (2001), a panel of our court recognized a violation of K.S.A. 8-1567a is a separate and distinct offense from DUI as defined in K.S.A. 8-1567.
The distinctive nature of K.S.A. 8-1567a is also recognized in K.S.A. 2009 Supp. 8-1001 that provides for tests for alcohol in a person’s system. Subparagraph (b) states:
“A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) If the officer has reasonable grounds to bebeve the person was operating or attempting to operate a vehicle while under the influence of alcohol..., or to believe that the person was driving a commercial motor vehicle . . . while having alcohol... in such person’s system, or was under the age of 21 years while having alcohol.. .in such persons system; and one of the folloioing conditions exists: (A) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol. . ., or for a violation of KS.A. 8-1567'a, and amendments thereto, or involving driving a commercial motor vehicle . . . while having alcohol... in such person’s system, in violation of a state statute or a city ordinance; or (B) the person has been involved in a vehicle accident or collision....” (Emphasis added.) K.S.A. 2009 Supp. 8-1001(b).
The police officers arrested or placed Bixenman in custody for DUI. It is apparent that the district court applied the definition of DUI as applicable under K.S.A. 8-1567 rather than under K.S.A. 8-l567a. We acknowledge there is a contentious issue as to whether the police officers had probable cause to arrest Bixenman for DUI as defined in K.S.A. 8-1567. However, under the facts of this case, we do not need to reach that issue.
In Sloop, 296 Kan. 13, Syl. ¶¶ 3-5, the Kansas Supreme Court held under the facts of the case that a lawful arrest based on probable cause was necessary before requesting that a driver submit to an evidentiary breath test. Sloop is distinguishable from the case before us. Here, under the uncontroverted facts of the traffic stop and subsequent investigation, the controlling issue is whether the police officers possessed probable cause to support taking Bixen-man into custody for violation of K.S.A. 8-1567a and to then request he submit to a breath test. Because K.S.A. 8-1567a is a civil offense with its own unique process, and not a criminal offense, an arrest is not a prerequisite to its enforcement. See also K.S.A. 22-3202(4) (defines an arrest as the taking of a person into custody to answer for the commission of a criminal offense).
We conclude legislative intent is unambiguous and clearly stated in both K.S.A. 8-1567a and K.S.A. 2009 Supp. 8-1001—a breath or blood test may be administered to an underage driver if he or she is has been arrested or placed in lawful custody and the arresting officers have reasonable grounds to believe the driver was operating a vehicle while under the influence of alcohol as defined in K.S.A. 8-1567a. See K.S.A. 2009 Supp. 8-1001(b).
Our inquiry now turns to whether the police officers had probable cause to take Bixenman into custody for driving under the influence as defined in K.S.A. 8-1567a and reasonable grounds to request that he submit to an evidentiary breath test. This requires that we consider whether the police officers had a reasonable belief drat Bixenman was under 21 years of age and driving while having alcohol in his system. See K.S.A. 2009 Supp. 8-1001(b).
The term “reasonable grounds” is equated to probable cause, which is a higher standard than reasonable suspicion but a lower standard than necessary to establish guilt beyond a reasonable doubt. See Swank, 294 Kan. at 881; Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775-76, 148 P.3d 538 (2008). Our Supreme Court, however, has recently cautioned against use of the phrase that sufficient proof of reasonable grounds exists when guilt is more than a possibility. See Sloop, 296 Kan. at 20-21 (phrase crept into Kansas appellate cases, including Bruch and Swank, without explanation and has been unduly emphasized in probable cause calculation).
Under the facts of this case, we conclude the arresting officers did have reasonable grounds to believe that Bixenman was under the age of 21 and was driving with alcohol in his system. Bixenman had bloodshot eyes, alcohol on his breath, and admitted to con suming alcohol. The evidence was sufficient to support placing Bix-enman in custody and reasonable grounds did exist to support the request for a breath test. The evidentiary breath test produced a result of .037. Accordingly, Bixenman violated K.S.A. 8-1567a, and the district court erred in setting aside the suspension and restriction of his driving privileges. We direct that the order of the KDR be reinstated., -
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Powell, J.:
Naazir Jackson appeals his convictions for one count of aggravated robbery, one count of aggravated burglary, and two counts of possession of drug paraphernalia. He argues several points of error: (1) The prosecutor’s misconduct during voir dire denied him a fair trial; (2) there was insufficient evidence to support the alternative means for aggravated robbery; (3) the court committed reversible error in answering four written jury questions outside of Jackson’s presence; and (4) there was insufficient evidence to support his convictions for possession of drug paraphernalia.
Because we find: First, that tire prosecutor’s use of a painting analogy was not prosecutorial misconduct; second—with regard to the crime of aggravated robbeiy—that principal versus aiding and abetting, the phrase “aids or abets” in die aiding and abetting instruction, and the phrase “person or presence” in the aggravated robbeiy instruction do not constitute alternative means of committing the crime; third, the trial court committed harmless error by answering the jury’s questions outside the presence of the de fendant; and fourth, there was sufficient evidence to support the defendant’s convictions for possession of drug paraphernalia, Jackson’s convictions are affirmed.
Factual and Procedural History
On April 18, 2011, around noon, Christopher Detar-Newbert and Meagan Rocha were in the bedroom they shared in their apartment when Detar-Newbert heard a knock at the door. Looking through the peephole, he saw Jackson, whom he recognized from a prior acquaintance, so he opened the door. When he opened the door, Jackson and a second man were standing close to the door. Detar-Newbert did not recognize the second man, who appeared to have a gun with a blue handkerchief around the gun’s visible stock tucked into the top of his pants. Detar-Newbert later described the gun as what he believed to be a black semi-automatic handgun.
Jackson ordered Detar-Newbert to be quiet and go into his room. Detar-Newbert complied, and the two men followed him into his room where Rocha was asleep on the bed. Detar-Newbert woke Rocha, then Jackson ordered them to open the small safe sitting next to the bed. Rocha opened the safe; Jackson proceeded to take the cash and a small bag of marijuana from the safe and put them into the other man’s black backpack. Jackson and the second man then left the apartment. Detar-Newbert estimated that there was between $350 to $450 cash and about $20 to $30 worth of marijuana in the safe.
About 30 to 40 minutes later, Detar-Newbert called the police; at 12:58 p.m., Riley County Police Officer Carl Stevens was dispatched to the apartment. When the police arrived, Detar-New-bert provided them with a description of both men who had robbed them. Though neither Detar-Newbert nor Rocha knew Jackson’s name, they recognized him as being a friend of a mutual friend, Deangelo Grimm. A couple of months prior to the date of the robbery, Detar-Newbert, Rocha, and their friend Grimm had all been to Jackson’s apartment. Then, a couple of weeks before the robbery, Jackson had come to Detar-Newbert and Rocha’s apartment with Grimm.
Detar-Newbert and Rocha went with detectives to a neighboring apartment complex and pointed out Jackson’s apartment. The detectives ascertained tire names of the tenants in that apartment; one of them, Jackson, fit the physical description given by Detar-Newbert and Rocha. A review of the surveillance footage from a few minutes prior to the time of the robbery showed two black males walking from Jackson’s apartment complex towards the victims’ apartment complex. A short time later, the same two individuals walked past the surveillance cameras in the opposite direction towards Jackson’s apartment complex.
Detar-Newbert identified Jackson as one of the robbers when presented with a photo line-up. A search warrant was obtained for Jackson’s apartment, and the apartment was searched later that same day. One of the detectives who was positioned outside the door of the apartment testified that he could smell the. odor of burnt marijuana emanating from within the apartment. Jackson and the suspected second robber were both found within the apartment. The police searched both men and found $162 in cash on Jackson and $159 in cash on the other man.
When officers searched Jackson’s bedroom, they located a box in Jackson’s closet that contained a black air pistol (BB gun) that resembled a semi-automatic handgun. Wrapped around the pistol was a blue bandanna. Under the bed was a Wal-Mart bag that contained the packaging from the air pistol and a receipt indicating it was purchased on April 11, 2011—7 days before the robbery. The officers also found a small digital scale on the dresser and some plastic baggies in the top dresser drawer.
Officers found empty packaging from Swisher Sweets cigars and discarded loose tobacco in a trash can. One of the police sergeants, a former narcotics detective, testified at trial that one common way to ingest marijuana is to smoke a “blunt,” which is a cigar that has had the tobacco hollowed out and replaced with marijuana. One of the most common brands of cigars used as blunts is Swisher Sweets. The sergeant also testified that it is common for marijuana users to own a small scale and that plastic baggies are the most common container in which marijuana is stored. The sergeant had personally examined the baggies and scale found in the defendant’s bedroom and had observed flecks of green vegetation on the items that were consistent with the appearance of marijuana.
From the area surveillance footage, the detectives identified the second robber as exiting the bus at Jackson’s apartment complex at 12:06 p.m., before the robbery occurred. He was wearing a white t-shirt with a very distinct memorial logo on the front, and he was wearing a black Nike backpack with a Nike logo. Officers searched this man’s apartment and found the distinctive white t-shirt seen on the video. Other surveillance footage from 12:21 p.m. showed this same man wearing this distinctive white shirt walking with an individual who had long hair roughly the same length as Jackson’s hair.
During the weeks that followed Jackson’s arrest, he remained in jail and made a number of phone calls. The police monitored these phone calls, and Jackson was aware of this. Jackson made a phone call to his girlfriend, asked her to get in touch with tire man identified as the second robber, and find out why he had not been arrested. Jackson also called his mother and told her that the second robber was deeper in “it” than he was and he had a good plan to get the victims to drop the charges.
The trial was held on October 26-27,2011. During deliberations, the jury sent out four questions by note. These questions were handled between the court and counsel in chambers off the record. The questions and answers were retained in the court file and made part of the record.
The jury convicted Jackson of aggravated robbery, aggravated burglary, and two counts of misdemeanor possession of drug paraphernalia. Jackson was sentenced to a controlling prison term of 94 months with the Kansas Department of Corrections. Jackson’s motion for dispositional departure to probation and durational departure was denied.
Jackson timely appeals his convictions asserting four allegations of error.
Did the Use of an Analogy Concerning an Incomplete Painting During Voir Dire Constitute Prosecutorial Misconduct?
Jackson’s first allegation of error is that the prosecutor committed misconduct by using an analogy during voir dire in an attempt to improperly define the burden of proof. Relying on a prior decision of our court, State v. Crawford, 46 Kan. App. 2d 401, 262 P.3d 1070 (2011), petition for rev. granted in part May 21, 2012, Jackson claims the prosecutor s analogy had the effect of diluting the burden of proof.
Standard of Review
The Kansas Supreme Court has recently reaffirmed the two-step analysis an appellate court must use in evaluating allegations of prosecutorial misconduct during voir dire. State v. Stevenson, 297 Kan. 49, 51, 298 P.3d 303 (2013). “First, the court determines whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, if misconduct is found, the appellate court determines whether those comments constitute plain error . . . .” Stevenson, 297 Kan. 51 (citing State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 [2012]).
Analysis
Prosecutors Wide Latitude
It is common for prosecutors to use analogies to help explain the concept of beyond a reasonable doubt during trial. However, our Supreme Court has found “drat prosecutors embellish on the definition of the burden of proof in criminal cases at their peril.” State v. Magallanez, 290 Kan. 906, 914, 235 P.3d 460 (2010). An “argument designed to define reasonable doubt . . . with unusual or seemingly clever analogies” is a dangerous path for prosecutors. Crawford, 46 Kan. App. 2d at 416.
In this case, Jackson argues that the prosecutor’s use of an analogy to define the beyond a reasonable doubt standard by employing a painting of George Washington with some flakes of the paint missing diluted the burden of proof and constitutes prosecutorial misconduct. During voir dire the following exchange took place between the prosecutor and prospective jurors:
“Q: ... [The defendant is] obviously charged with a crime. Ms. [P.], that doesn’t mean that he’s guilty. It is just simply an allegation of the State making it. Do you understand that?
“A: Uh-huh.
“Q: It’s our responsibility to prove beyond a reasonable doubt that he is guilty. Are you presuming that the defendant is guilty just because we have charged him? “A: No.
“Q: Okay. Is there anyone who has trouble with that concept? Obviously, there is going to be evidence but we have to prove it and you can’t give the State, Ms. [P.], a head start. You can’t say well if drey charge him that he must be guilty. We start at square one. Do you understand that?
“A: Right.
“Q: . . . Ms. [H], who is Bob Ross?
“A: He’s a painter on TV.
“Q: . . . When he starts [painting] that he starts with a blank canvas and . . . when the Judge talks about presumption of innocence . .. what I would like [you] to think of is that it’s a blank canvas. We don’t know what is going to be painted but you got to presume that he’s innocent. And then we put on evidence, as the trial progresses [ ] we’ll have one witness who will get up and put a little bit of paint, a little bit of evidence on the canvas. We’ll have another one. Eventually, a picture will start to form. And Ms. [W], your job then at the end of the trial is to sit back and determine has the State shown me a picture that I know what it is beyond a reasonable doubt. Do you understand diat?
“A: Yes.
“Q:' Have you ever seen that picture of George Washington and at the very bottom that there is no paint on it? Have you ever seen that?
“A: No.
“Q: I think drat they had to move it from tire White House when the British invaded. Does anyone know the picture I’m talking about? You can still tell that [it] is George Washington, correct, even drought drat there might be a little spot on the painting that is missing? Mr. [H], you could say beyond a reasonable doubt who drat was, right?
“A: Absolutely. Yes. 1 ''
“Q: And so Ms. [W], when tire Judge says that we have to prove our case beyond a reasonable doubt, you realize that not every little corner of the painting has to have paint on it. Do you understand that?
“A: Yeah.
“Q: As long as you can tell beyond a reasonable doubt what it is?
"A: Yes.”
Jackson argues that this use of the George Washington painting analogy is outside the scope of a prosecutor’s latitude because it is similar to the analogy that this court held to be prosecutorial misconduct in Crawford.
In Crawford, the defendant claimed that he was denied a fair trial because the prosecutor committed reversible prosecutorial misconduct by “misrepresenting the definition of reasonable doubt and minimizing the standard of proof during voir dire and closing argument.” 46 Kan. App. 2d at 409. During voir dire, the prosecutor and prospective jurors had the following discussion:
“ ‘Q: Okay. You have seen jigsaw puzzles. Have you seen jigsaw puzzles where maybe one or two pieces, a couple pieces are missing throughout tire puzzle?
“ ‘A: I don’t know. I suppose.
“ ‘Q: Okay. Go with me here then, just go with me for a second. We have got a big puzzle like this, the scene is a lighthouse and die ocean and die waves crashing against the rocks, a [sic] there’s couple gulls flying around. Got that?
“ ‘A: Got it.
“ ‘Q: Okay. If you’re missing some of the pieces to the lighthouse and some of the pieces to the ocean, do you then say, well, that just can’t be a lighthouse and an ocean because there’s some pieces missing?
“ ‘A: No.
“ ‘Q: ... [S]o even though there’s some pieces missing, you’re able to say that looks like a lighthouse and an ocean?
“ ‘A: Yeah, I’m sure.
“ ‘Q: That’s land of what I’m talking about is reasonable doubt. There’s probably always going to be some question something that doesn’t get answered. The question is, when you put the pieces together, even if diere are some pieces missing, does that mean it didn’t happen? No. So—and that’s kind of why I bring that up. Thanks.’ ” 46 Kan. App. 2d at 411-12.
The prosecutor also referred to the jigsaw puzzle analogy in closing arguments by stating:
“ ‘You get to determine credibility of witnesses, and when I talked in voir dire about the jigsaw puzzle, and the scene with die lighthouse and die ocean, there are always going to be pieces of the puzzle missing because none of us were there. None of you were there. The question you got to ask yourself is just because a piece of the puzzle—pieces of the puzzle are missing, does that mean you can’t see die whole picture? Are those questions reasonable in your mind?’ ” 46 Kan. App. 2d at 412.
The Crawford court held this constituted prosecutorial misconduct because the prosecutor suggested through the use of his analogy in voir dire and in closing arguments that the juiy may convict the defendant if it “ looked like’ ” he committed the crimes. The prosecutor cannot suggest to the jury that it might convict on anything less than proof beyond a reasonable doubt. 46 Kan. App. 2d at 414.
Jackson claims that the analogy of a painting of George Washington is extremely similar to the jigsaw puzzle analogy used in Crawford and therefore reduced the State’s burden by telling the jurors that they can convict as long as they get the overall point the prosecution is attempting to prove. Since the court found the jigsaw puzzle analogy constituted misconduct, Jackson claims that the painting analogy should also constitute misconduct.
The State argues that Crawford cannot be interpreted to mean the prohibition of all use of analogies by prosecutors when explaining reasonable doubt, especially when solely used in the voir dire process. The State distinguishes this present case from Crawford by pointing out that tire misconduct in Crawford came during closing arguments when the prosecutor urged the jury to convict if it “ looked like’ ” the defendant committed the crime. But, in this case, the prosecutor did not refer to the painting analogy in closing arguments, and during voir dire the prosecutor stressed that the State must prove each element and find guilt beyond a reasonable doubt.
This case is also similar to Stevenson. In Stevenson, during voir dire, the prosecutor showed the juiy a sign with the words “Wheel of Fortune” printed on it but with one letter missing. The prosecutor pointed out that, although there was a letter missing, there was no reasonable doubt about which letter was needed to complete the title. The prosecutor continued:
“ ‘As to reasonable doubt, when we apply that standard, does anybody think that I’m going to have to have a videotape of exactly how eveiything happened? It would be impressive if I did, right? If you were there, you saw every step of the way, that would be beyond all doubt.
“ ‘Does anybody think that I have to put you in that position?
“ ‘. . . Now, what if in your mind I have put on enough evidence to prove beyond a reasonable doubt that it occurred this way. Okay. So you are to that point, you’ve made your decision beyond a reasonable doubt.
“ ‘But then you say you know what, I wish they would have done whatever. Okay ... I guess the question I’m asking is do you think there’s always something you could do in an investigation for instance?
“ ‘PROSPECTIVE JUROR . . . : I would say up to a point. But at some point in time there’s just nothing else you can do.’ ” Stevenson, 297 Kan. at 52.
“The prosecutor followed up this exchange by asking, ‘Does everybody understand what I’m trying to say here? That I have to put on enough evidence to prove beyond a reasonable doubt? I do not have to put on every possible piece of evidence in existence ....’” Stevenson, 297 Kan. at 53.
From reviewing the exact questions and wording used by the prosecutor during voir dire, our Supreme Court concluded that the prosecutor was “drawing a distinction between the concept of proof beyond a reasonable doubt and proof beyond all doubt, rather than attempting to provide a meaning for ‘reasonable doubt.’ ” Stevenson, 297 Kan. at 53. The analogy stated the prosecutor’s burden and did not misstate the law; therefore, the analogy did not fall outside the wide latitude afforded prosecutors. Because the analogy was inside the prosecutor’s wide latitude, the court did not analyze the second step in the prosecutorial misconduct analysis. Stevenson, 297 Kan. at 54-55.
Similar to the Stevenson analogy, in this case the prosecutor’s analogy and comments about the painting of George Washington also served to explain to the potential jury members that the prosecutor’s burden was not one to show proof beyond all doubt. The prosecutor clarified, “ ‘[W]hen the Judge says that we have to prove our case beyond a reasonable doubt, you realize that not every little corner of the painting has to have paint on it.’ ” The prosecutor stressed that the defendant was presumed innocent, it was the State’s burden to put paint on that “ ‘blank canvas’ ” of innocence, and it was tire jury’s responsibility to decide whether the picture presented by the State was identifiable beyond a reasonable doubt. In no way did the prosecutor attempt to diminish the State’s burden of proof or try to explain the possible differences between how much paint verses blank space might rise to the level of beyond a reasonable doubt. Moreover, the prosecutor never mentioned the painting analogy after voir dire, and the jury was given a correct statement of the law regarding reasonable doubt in the jury instructions. As used in this particular case, the George Washington painting analogy falls within tire wide latitude afforded prosecutors and, therefore, does not constitute prosecutorial misconduct. See also State v. Galloway, No. 106,895, 2013 WL 517699, at *2-4 (Kan. App. 2013) (unpublished opinion) (use of President Obama’s birth certificate controversy as analogy to define reasonable doubt not error).
Plain Error Analysis
Even if we held this analogy to be outside the wide latitude afforded to prosecutors, the misconduct was not so prejudicial that it denied Jackson fair trial. See Stevenson, 297 Kan. at 54 (statements may not be so prejudicial as to deny defendant a fair trial). In making this determination we must consider 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. State v. Brinklow, 288 Kan. 39, 44, 200 P.3d 1225 (2009).
Jackson claims that the prosecutor’s conduct was gross and flagrant because the prosecutor used this analogy only 1 month after a panel of this court issued the Crawford decision. However, our Supreme Court has stated: “With regard to the first factor-— whether the misconduct was gross and flagrant—we consider whether the misconduct was repeated, was emphasized, violated a long-standing rule, violated a clear and unequivocal rule, or violated a rule designed to protect a constitutional right.” State v. Stafford, 296 Kan. 25, 58-59, 290 P.3d 562 (2012) (citing State v. Marshall, 294 Kan. 850, Syl. ¶ 6, 281 P.3d 1112 [2012]). There was no long-standing rule, a clear and unequivocal rule, or a rule protecting constitutional rights here, so the prosecutor’s comments were not gross and flagrant.
The second factor is whether a prosecutor s misconduct was motivated by ill will. “In analyzing [this factor], we consider whether tire misconduct was deliberate, repeated, or in apparent indifference to a court’s ruling.” Stafford, 296 Kan. at 59. There is no evidence to support that the prosecutor’s comments were showing indifference to the court’s ruling or deliberately against this court’s .ruling in Crawford. The prosecutor did not use die jigsaw puzzle analogy, and he did not repeat any aspect of the painting analogy at any other time during the trial.
The last factor is whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. “[T]he State, as the party ‘benefitting from the prosecutorial misconduct, bears the burden to establish beyond a reasonable doubt that the error did not affect the defendant’s substantial rights, i.e., there is no reasonable possibility die error affected the verdict.’ ” Stafford, 296 Kan. at 59 (quoting State v. Inkelaar, 293 Kan. 414, 431, 264 P.3d 81 [2011]).
The State argues diat the prosecutor’s comments were very brief. After the comments were made, the defense attorney had many opportunities to discuss the beyond a reasonable doubt standard and even ask potential jurors individually whether diey would hold the State to the burden of proof beyond a reasonable doubt.
Furthermore, the evidence presented at trial directly and overwhelmingly pointed to Jackson having committed the charged offenses. The two victims both positively identified Jackson as one of the men in their apartment and testified to witnessing Jackson take the cash and marijuana out of their bed-side safe. The victims had been to Jackson’s apartment before and were able to show the police which apartment was his. When the police searched Jackson’s apartment, the smell of burnt marijuana was in the apartment, the man later identified as the other man with Jackson in the victims’ apartment was in Jackson’s apartment, and a search of both men turned up about the same amount of cash that had been taken from the victims’ safe. Inside Jackson’s room, the police also found the blue bandanna wrapped around the very real-gun-looking air pistol that the victims testified the two men used to intimidate them.
Therefore, even if this court were to hold that the painting analogy was outside of the wide latitude given to prosecutors, the conduct was neither gross and flagrant nor motivated by ill will, and there was overwhelming evidence that allowed the jury to find beyond a reasonable doubt that Jackson was guilty.
Did the Jury Instructions on Aggravated Robbery Present Alternative Means, and, if so, Is There Sufficient Evidence to Support Each Alternative Means?
Jackson’s second allegation of error asserts that we must reverse his conviction of aggravated robbery because the district court instructed the jury on alternative means of committing the crime and the State failed to present sufficient evidence of each alternative means. Jackson identifies three instances of alternative means: (1) principal versus aiding and abetting; (2) the'phrase “aids or abets” in the aiding and abetting instruction; and (3) the phrase “person or presence” in the aggravated robbery instruction. For the reasons more fully explained below, we find none of these instances constitutes alternative means and therefore find there was sufficient evidence to convict Jackson of aggravated robbery.
Standard of Review
In Kansas, a criminal defendant has the right to a unanimous jury verdict. See K.S.A. 22-3421. However, this right is not a federal or state constitutional right, but a statutoiy one. State v. Voyles, 284 Kan. 239, 250, 160 P.3d 794 (2007). An alternative means issue can arise when a single offense may be committed in multiple ways. State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). “ ‘[Wjhere a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.]’ ” Timley, 255 Kan. at 289 (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]). The State must meet the “ ‘super-sufficiency of the evidence’ requirement” for each means. State v. Swindler, 296 Kan. 670, 676, 294 P.3d 308 (2013). “If the State fails to present sufficient evidence to support each means, reversal is required.” Swindler, 296 Kan. at 676 (citing State v. Rojas-Marceleno, 295 Kan. 525, 544, 285 P.3d 361 [2012]). “This safeguard prevents a jury, partially or wholly, from reaching a finding of guilt based on insufficient evidence.” State v. Snover, 48 Kan. App. 2d 298, 300, 287 P.3d 943 (2012), petition for rev. filed December 10, 2012.
Deciding whether a case of alternative means exists requires statutory interpretation over which the appellate courts have unlimited review. State v. Brown, 295 Kan. 181, 193-94, 284 P.3d 977 (2012).
“And because alternative means questions are ultimately resolved on tire sufficiency of the evidence, that standard of review is whether, after considering all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt on each of the alternative means presented.” State v. Cato-Perry, 48 Kan. App. 2d 92, 94-95, 284 P.3d 363 (2012) (citing State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 [2011]).
Analysis
Aiding and Abetting as Alternative Means to Principal Liability
First, Jackson argues that the district court instructed tire jury to convict him of aggravated robbery if it found Jackson “intentionally took property from the person or presence of Christopher David Detar-Newbert and Meagan Lyn Rocha” as either a principal or as an aider or abettor, thereby creating alternative means upon which he could have been found guilty of aggravated robbery. The State argues that the aiding and abetting statute, K.S.A. 21-3205(1) (this statute was repealed and recodified in July 2011, but this crime was committed in April 2011), from which the jury instructions were based, does not create alternative means of committing aggravated robbery.
This is not the first time the question of whether aiding and abetting, as opposed to being a principal, is an alternative means of committing the crime has been before this court. Various panels of this court have differed on this issue. E.g., Snover, 48 Kan. App. 2d at 303 (aiding and abetting is not an alternative means); Cato-Perry, 48 Kan. App. 2d at 96 (aiding and abetting is an alternative means); State v. Boyd, 46 Kan. App. 2d 945, 953-54, 268 P.3d 1210 (2011) (aiding and abetting is an alternative means), petition for rev. filed January 23, 2012, cross-petition for rev. filed February 6, 2012; State v. Kittman, No. 107, 519, 2013 WL 1339902, at *4 (Kan. App. 2013) (unpublished opinion) (aiding and abetting is not an alternative means), petition for rev. filed April 29, 2013. See also State v. Gonzalez, No. 104,612, 2012 WL 3822474; at *10 (Kan. App. 2012) (unpublished opinion) (panel divided on question of whether aiding and abetting is an alternative means).
In Boyd, the panel found aiding and abetting under K.S.A. 21-3205(1) to be an alternative means to conviction as a principal. While acknowledging that “aider and abettor liability applies to pretty much every substantive criminal offense,” the panel concluded there is the danger that jurors who might favor conviction of the defendant as an aider or abettor rather than as a principal would actually choose acquittal rather than conviction if the aiding and abetting option was not present. Boyd, 46 Kan. App. 2d at 953-54. While admittedly such logic has some appeal, we must respectfully disagree because “the long history of Kansas law on this subject does not support the conclusion that aiding and abetting is an alternative means of committing a crime.” Cato-Perry, 48 Kan. App. 2d at 99 (Ward, J., dissenting).
Because jury unanimity is not a constitutional right, our court may extend alternative means protection to the area of aiding and abetting only by interpreting K.S.A. 21-3205(1): “A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
Since statehood, the aiding and abetting statute has meant that “ ‘[t]he one acting, the one present, aiding and abetting, and the one absent, counseling, aiding and abetting, are declared to be equally and alike guilty.’ ” Cato-Perry, 48 Kan. App. 2d at 99 (Ward, J. dissenting) (quoting State v. Cassady, 12 Kan. 550, 556, 1874 WL 666 [1874]); see also State v. Robinson, 293 Kan. 1002, 1037-38, 270 P.3d 1183 (2012) (under shared accomplice liability, all persons involved are equally as responsible for all the actions of the others); State v. Williams & Reynolds, 217 Kan. 400, 404, 536 P.2d 1395 (1975) (all participants in crime equally guilty without regard to extent of their participation); State v. Turner, 193 Kan. 189, 196, 392 P.2d 863 (1964) (all participants in the crime equally guilty); State v. Wolkow, 110 Kan. 722, 726, 205 Pac. 639 (1922) (out-of-state aider and abettor equally guilty as in-state principals); State v. Roberts, 95 Kan. 280, 288, 147 Pac. 828 (1915) (all participants equally guilty regardless of extent of their participation). As a result, our state’s jurisprudence has not distinguished between principal liability and aider and abettor liability. State v. Jackson, 201 Kan. 795, 799, 443 P.2d 279 (1968) (one who aids and abets may be treated as principal); State v. Potter, 15 Kan. 302, 321, 1875 WL 811 (1875) (aider and abettor may be regarded by jury as a principal). Therefore, “prosecutors have generally not bothered to distinguish between principals and aiders and abettors in charging codefendant cases.” Cato-Perry, 48 Kan. App. 2d at 100 (Ward, J., dissenting); see also State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009) (aider and abettor may be charged as principal); State v. Green, 254 Kan. 669, 687, 867 P.2d 366 (1994) (person who aids and abets may be charged as principal); State v. Garcia, 243 Kan. 662, 666, 763 P.2d 585 (1988) (aider and abettor maybe convicted as a principal); State v. Goering, 225 Kan. 755, 758-59, 594 P.2d 194 (1979) (aider and abettor may be charged, tried, and convicted in same manner as principal); State v. Cook, 149 Kan. 481, 483-84, 87 P.2d 648 (1939) (aider and abettor maybe charged as principal); Snover, 48 Kan. App. 2d at 303 (person charged as principal may be convicted as aider and abettor if supported by the evidence).
“All that has historically mattered is that the State proves each element of the crime and the defendant on trial played a willing role in the commission or furtherance of the crime as either the principal or as the aider and abettor. To be guilty under the theory of aiding and abetting, a defendant ‘must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.’ ” Cato-Perry, 48 Kan. App. 2d at 100 (Ward, J., dissenting) (quoting State v. Schriner, 215 Kan. 86, Syl. ¶ 6, 523 P.2d 703 [1974]).
Moreover, just 3 months after the Boyd decision, our Supreme Court held that aiding and abetting under K.S.A. 21-3205(1) does not create a separate crime but, rather, “extends criminal liability to a person other than the principal actor.” Robinson, 293 Kan. at 1038. The United States Court of Appeals for the Tenth Circuit has interpreted the federal aiding and abetting statute, 18 U.S.C. § 2 (2006), in a similar fashion. See United States v. Scroger, 98 F.3d 1256, 1262 (10th Cir. 1996).
More recently, the panel in Snover also disagreed with the Boyd analysis. The Snover panel started from the underlying premise of accomplice liability—all participants in a crime are equally guilty without regard to the extent of each one’s participation. The panel further pointed out that the aiding and ábetting statute, K.S.A. 21-3205(1), does not define a separate crime; it merely “ ‘explains the circumstances under which a person may be criminally responsible for a crime committed by another person.’ ” Snover, 48 Kan. App. 2d at 302. Of particular note to the Snover panel was the fact that the Supreme Court of Washington, tire same court Timley favorably cited regarding the alternative means doctrine, has held principal and accomplice liability are not alternative means of committing an offense. See State v. McDonald, 138 Wash. 2d 680, 687, 981 P.2d 443 (1999). The Washington court reasoned that extending the alternative means doctrine to accomplice liability would contradict its holdings concerning “the emptiness of any distinction between principal and accomplice liability.” 138 Wash. 2d at 687-88. Applying the same reasoning, the Snover panel concluded that applying the alternative means doctrine would contradict the well-settled law in this state regarding criminal liability. Accordingly, the Snover panel held the aiding and abetting statute does not create alternative means of committing a single offense. 48 Kan. App. 2d at 303. We adopt this reasoning.
Finally, very recently and after the decisions in Boyd and Snover, our Supreme Court in Brown clarified the test to be used when examining whether a criminal statute contains alternative means of committing tire crime:
“[A] court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea., actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from tire structure of the statute. On the other hand, tire legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means— that do not, even if included in a jury instruction, raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” Brown, 295 Kan. at 199-200.
Conducting this analysis as directed by Brown strengthens our conclusion that aiding and abetting does not constitute an alternative means of committing a crime. First, the aiding and abetting statute does not set out alternative material elements of the underlying crime. Second, K.S.A. 21-3205(1), describing one who “intentionally aids, abets, advises, hires, counsels or procures” another to commit a crime with intent to promote or assist in its commission, merely provides descriptors as to how a person participates in the crime. Third, and more fundamentally, K.S.A. 21-3205(1) only provides factual circumstances that impose equal liability on a person who aids and abets the principal actor. Accordingly, in Jackson’s case, we hold the jury instruction on aiding and abetting did not create an alternative means of committing the crime of aggravated robbery, and the super-sufficiency requirement does not apply.
“Aids or Abets” as Alternative Means
Second, Jackson argues that the phrase “aids or abets” in the aiding and abetting instruction constitutes alternative means of committing aggravated robbery and there was insufficient evidence to convict him of abetting in the crime. We find this claim of error also without merit for the rationale set forth by another panel of our court in State v. Johnson, 46 Kan. App. 2d 870, 885-86, 265 P.3d 585 (2011).
In Johnson, the defendant was convicted of aggravated battery. Among her contentions of error on appeal, Johnson argued that there was insufficient evidence to support her conviction by aiding and abetting, claiming the aiding and abetting statute set forth alternative means to commit the crime. After conducting an analysis of the history of aiding and abetting similar to what we have done above, the court concluded:
“Although there are minor differences in the meaning of the terms ‘aidf,’ ‘abets,’ ‘advises,’ ‘hires,’ ‘counsels,’ and ‘procures,’ we find-that these terms do not entail materially different or distinct ways of committing a particular crime. The thrust of K.S. A. 21-3205 is that a person who knowingly induces or assists another person to commit a crime is criminally responsible for the crime regardless of the extent the person participates in the actual commission of the crime. We conclude that K.S.A. 21-3205(1) does not set forth alternative means of committing a crime.” 46 Kan. App. 2d at 885-86.
We agree with this analysis as it comports with our Supreme Court’s command in Brown to determine whether there are “two or more alternative distinct, material elements of a crime” versus merely a listing of “options within a means.” 295 Kan. at 200. We hold that the words “aids” or “abets” as they appear in the aiding and abetting statute are not alternative means of committing the crime of aggravated robbery.
“Person or Presence” as Alternative Means
Third, Jackson argues that the element of taking property from the “person or presence” of the victims in the aggravated robbery instruction also raises an alternative means issue. Jackson relies on State v. Robinson, 27 Kan. App. 2d 724, 728, 8 P.3d 51 (2000), which held that the taking of property from an individual’s “person” is more restrictive than taking property from an individual’s “presence.” Conversely, the State argues that alternative means are not created by the phrase “person or presence” and relies on the more recent case of Boyd, in which the court held that “taking property from the person or the presence” of the victim does not create alternative means. 46 Kan. App. 2d at 950.
In Robinson, the issue before the court concerned what the State must prove when the juxy instruction on robbery only included the language of taking from the victim’s “person” and omitted the “presence” language. In that situation, the State must specifically prove that the property taken was indeed from the victim’s person rather than the victim’s general presence. Robinson, 27 Kan. App. 2d at 727-28. However, the Robinson panel only conducted a suf ficiency of the evidence analysis as it specifically applied to a tailored jury instruction. It did not conduct an alternative means analysis; therefore, it does not apply in .this case. See State v. Sandy, No. 105-603, 2012 WL 6734503, at *5 (Kan. App. 2012) (unpublished opinion) (Robinson court dealt with an instruction error and not alternative means), rev. granted May 20,2013 (on State’s cross-petition for review on intent to take issue).
The use of “person or presence” describes the victim’s proximity to the property taken. When conducting the Brown analysis on this point, it is apparent that the two words are simply two options used to describe different factual circumstances in which aggravated robbery (or robbery) can occur.
“The essence of the crime [of robbery] is forcibly taking property when a person is present. The term ‘from the person or the presence’ of the victim describes the proximity of the property and the individual. It does so with phraseology that overlaps. Taking property from the presence of the victim (who need not be the owner of whatever the perpetrator seizes) describes an area in the general vicinity of the victim. Taking property from the person of tire victim refers to the immediate environs of the body such as a pocket, a purse, or the hands. Thus, a taking ‘from tire person’ is actually encompassed within a taking ‘from the presence’ of the victim. The robbery and aggravated robbery statutes would criminalize the same range of conduct even if the phrase ‘the person’ had been omitted from the definitions of those crimes. Accordingly, taking property from the person of the victim and taking property from the presence of the victim do not constitute alternative means of committing aggravated robbery.
“... Taking property from tire presence of the victim is a comparable umbrella term covering taking property from the person of the victim. The Schreiner court recognized some degree of redundancy may be tolerated in criminal statutes to enhance the objective of giving fair notice of the proscribed conduct. [Citation omitted].” Boyd, 46 Kan. App. 2d at 950-51 (citing State v. Schreiner, 46 Kan. App. 2d 778, 785, 264 P.3d 1033 [2011]).
Moreover, the Boyd panel emphasized tire historical difference between robbery—or in the present case, aggravated robbery— and theft in determining the actus reus of robbery. “Robbery entailed obtaining the property from the individual by a direct threat or application of force. The crime created a volatile, potentially deadly confrontation.” 46 Kan. App. 2d at 951. “In contrast, theft . . . entailed no such danger to tire victim. The thief worked by stealth and secured the victim’s property without his or her knowl edge. [Citation omitted].” 46 Kan. App. 2d at 951. “The legislature’s use of the phrasing ‘taking property from the person or the presence of another’ merely serves to criminalize the peril associated with the crimes of robbery and aggravated robbery. We reject [the defendant’s] argument that alternative means lurlc somewhere beneath that statutory language.” 46 Kan. App. 2d at 951-52.
The Boyd court’s analysis of “person or presence” has been followed by multiple panels of our court to show that the phrase “person or presence” does not create alternative means of committing the crime. See State v. Edwards, 48 Kan. App. 2d 383, Syl. ¶ 5, 290 P.3d 661 (2012), rev. granted May 20, 2013; State v. Moore, No. 106,209, 2013 WL 1010284, at *3-4 (Kan. App. 2013) (unpublished opinion), petition for rev. filed April 8, 2013; Sandy, 2012 WL 6734503, at *5; State v. Delacruz, No. 106,082, 2012 WL 1352865, at *4-5 (Kan. App. 2012) (unpublished opinion), petition for rev. filed May 10, 2012.
We agree with the Boyd panel’s excellent analysis on this point because it comports with the Brown test on alternative means. We hold that the phrase “person or presence” in the aggravated robbery statute does not create an alternative means of committing the crime. Therefore, since no alternative means issue is present in this case, there is no need to weigh the sufficiency of tire evidence regarding whether tire defendant took property from the person or the presence of the victims. The record clearly supports that Jackson took tire property out of the victims’ safe which was sitting next to the bed on which the victims were sitting. Accordingly, there was sufficient evidence to establish that the property was taken from the presence of the victims, which is all that is needed to satisfy that element of aggravated robbery.
Did the Trial Court Commit Error by Answering the Jury’s Questions In Writing Outside the Presence of Defendant?
Jackson’s third allegation of error is that the district court violated his statutory and constitutional right to be present during every critical stage of the trial by formulating answers to the jury’s questions with counsel off the record, in chambers, and outside his presence. The State replies that there was no error, but if there was, it was harmless.
Standard of'Review
A defendant has a constitutional and statutory right to be present at every stage of his trial. U.S. Const. Amend. VI; K.S.A. 22-3405. “A claim that a defendant was deprived of his or her statutory and constitutional right to be present during a portion of the trial raises legal questions that are subject to unlimited review on appeal.” State v. Wells, 296 Kan. 65, 89, 290 P.3d 590 (2012). If there was indeed a violation of the defendant’s rights, the error is then subject to the same harmless error analysis as other constitutional violations. See State v. Adams, 292 Kan. 151, 164, 254 P.3d 515 (2011).
Analysis
During deliberations, the jury asked four questions to the judge, each via a written note. The district court and counsel addressed each of the questions in the judge’s chambers and off the record. The judge wrote the answer on the same sheet of paper containing the jury’s question, and the paper was returned to the juiy. The four questions from the juiy and each answer were:
Question #1: “Did [the victims] have to ask the defendant to leave in order to remove authority.”
Answer #1: “You must decide this case based on the evidence as you remember it and the instructions given.”
Question #2: “Are we permitted to make a determination or have an opinion on the truthfulness of testimony.”
Answer #2: “Please refer to instruction No. 2.”
Question #3: “What is the legal definition of ‘resionable [sic] doubt?’ ”
Answer #3: “There is no legal definition for ‘reasonable doubt.’ ”
Question #4: “May we see the ‘baggies’?”
Answer #4: “We are having that exhibit returned. It was inadvertently sent back to the RCPD. The bailiff will bring it to you when it arrives.”
Violation of Jackson’s Right to Be Present
K.S.A. 22-3420(3) sets out a defendant’s statutory rights:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.” (Emphasis added.)
Jackson claims that it was error for the trial court to answer the jury’s questions using a written note rather than in open court. K.S.A. 22-3420(3) neither requires that the jury be brought back into the courtroom in order to ask the court a question, nor does it require that the judge only respond to the jury’s questions in open court. Wells, 296 Kan. at 91. The possible violation in this case is not whether the court should have answered the questions in the courtroom or in writing, but, rather, whether the defendant was present or voluntarily absent when the court’s answers were discussed and written in chambers. See State v. Coyote, 268 Kan. 726, 732, 1 P.3d 836 (2000); State v. Bell, 266 Kan. 896, 919, 975 P.2d 239, cert. denied 528 U.S. 905 (1999).
The Kansas Supreme Court set out tire following rule to protect defendants’ right to be present:
“A trial court, when confronted with a question submitted to it by a jury during deliberations is required to advise counsel, provide the parties with the question, and give them an opportunity for input in the presence of the defendant. Thereafter, tire court is required to respond in writing to the jury in the presence of the defendant.” Coyote, 268 Kan. at 732.
Our Supreme Court upheld and applied the Coyote rule in Wells. The Wells jury asked for the definition of “abets.” The defendant was present during the court’s discussion with the attorneys and, over the defense attorney’s objection, the court sent a definition back to the jury. Because Wells was present during the discussion, the court held her rights were not violated. 296 Kan. at 92.
In this case, the State argues that the record is insufficient to establish whether Jackson was present in chambers when the judge and attorneys discussed and answered the jury questions. The State claims that if the transcript is completely silent, it is insufficient; therefore, the claim of error fails. The State is incorrect.
If the record is silent regarding whether the defendant was present or absent during tire discussion in chambers between the judge and the attorneys, then the court will presume that the defendant was not present. State v. Betts, 272 Kan. 369, 391, 33 P.3d 575 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). A defendant may voluntarily waive his or her right to be present, but if the record does not reflect that the defendant personally waived the right or his or her attorney waived it after consulting his or her client, then a waiver will not be presumed from a silent record. State v. Acree, 22 Kan. App. 2d 350, 353, 916 P.2d 61, rev. denied 260 Kan. 995 (1996).
In this case, there is no mention in the record of Jackson being or not being in chambers with the judge and attorneys when the jury questions were discussed and answered. There is no record of his attorney discussing the questions with his client or Jackson voluntarily waiving, his right to be present. Therefore, under the presumption that where the record is silent, the defendant is not present, Jackson is presumed to have been absent from tire chambers; thus, his rights were violated.
Harmless Error Test
The degree of certainty by which the court must find a constitutional error is harmless beyond a reasonable doubt that there was no impact on the trial’s outcome. In other words, the court must find there is no reasonable possibility that the error contributed to the verdict. State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Moreover, the party benefiting from the error has the burden of production to prove beyond a reasonable doubt that the constitutional error did not contribute to the verdict obtained. 292 Kan. at 569.
In Bell, 266 Kan. 896, the trial court responded to the jury’s question outside the presence of the defendant, but the court’s answer accurately stated the law and placed no undue emphasis on the defendant’s guilt or innocence. The Bell court concluded beyond a reasonable doubt that the error did not change the verdict. 266 Kan. at 920. The same was true in State v. Murdock, 286 Kan. 661, 684-85, 187 P.3d 1267 (2008), where the trial court’s answer to the jury was an accurate statement of law and did not place undue emphasis on either possible verdict outcome, so the Murdock court found that the error had very little likelihood of changing the verdict.
The jury’s questions in this case were completely innocuous. The court responded by accurately stating the law, pointing the jury back to the jury instructions, and reminding tire jurors that they must decide the case on the evidence as they remember it only. The questions neither invoiced legally significant explanatory answers nor were they of the nature to require Jackson’s attorney to consult with him on trial strategy. Jackson’s presence in the chambers would not have changed the answers to any of the posed questions. Though it is hard to prove a negative, it is safe to conclude beyond a reasonable doubt that tire error of Jackson not being present for the in-chambers discussion about tire answers to the jury’s questions was harmless.
Was There Sufficient Evidence to Convict Jackson of Possession of Drug Paraphernalia?
In his final allegation of error, Jackson contends the State failed to present sufficient evidence to convict him of possession of drug paraphernalia because there was no evidence presented at trial that the scale or baggies found in his residence was used to ingest, inhale, or otherwise introduce a controlled substance into the human body.
Standard of Review
When the sufficiency of evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012).
Analysis
Jackson was charged with four counts—two felonies and two counts of drug paraphernalia for the scale and baggies found in his room. Jackson’s complaint specifically arises from foe wording used in foe information. The charges for the baggies and foe scale bofo read in pertinent part as follows:
“Defendant . . . did then and there unlawfully use or possess with the intent to use an item of drug paraphernalia, as defined in K.S.A. 65-4150(c) as amended, scale [baggies], to ingest, inhale, or otherwise introduce a controlled substance . . . into the human body. (Contrary to K.S.A. 2009 Supp. 21-36a09[b][2])
Jackson does not present this claim as an issue of a defective charging document but only as a sufficiency of the evidence issue. The charge as recorded in the information is in fact incomplete. The full statutory language in K.S.A. 2010 Supp. 21-36a09(b)(2) states that it is illegal to use “any drug paraphernalia to store, contain, conceal, inject, ingest, [or] inhale ... a controlled substance into the body.” (Emphasis added.) The charging document does not contain those three italicized words; however, Jackson made no argument that this omission limited his right to a fair trial, prejudiced his ability to prepare a defense, or prohibited him from raising the conviction in a subsequent prosecution as would be required in the post-Hall analysis of a defective charging document. See State v. Hall, 246 Kan. 728, Syl. ¶¶ 11-12, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). Therefore, this court will not discuss the validity of the charging document.
Sufficiency of the Evidence
There was ample evidence presented to the juiy to support that Jackson was in possession of drug paraphernalia that he intended to use. The scale and the baggies were found in Jackson’s bedroom among his personal items. One detective testified that he could smell the odor of burnt marijuana emanating from Jackson’s residence when officers entered to execute the search warrant. Another police officer testified that the baggies contained what appeared to be marijuana residue and that baggies were the most common container used to store marijuana. This officer also testified that scales' are utilized by drug users to make sure they have received the quantity of drugs for which they paid, and she observed marijuana residue on the scales. Reviewing all the evidence in the light most favorable to the prosecution, a rational factfinder could have found Jackson guilty beyond a reasonable doubt.
Relying only on his sufficiency of the evidence argument, Jackson neither raises any concerns regarding the jury instructions nor alleges jury confusion in his brief. At the end of the trial, the judge went through the jury instructions with both counsel on the record, and neither objected to anything in the two drug paraphernalia instructions. The two jury instructions did not include the “ingest, inhale, or otherwise introduce a controlled substance into the human body” language that Jackson has now put at issue. The jury instructions simply read, in pertinent part, that the State must prove “[tjhat the Defendant intentionally used or possessed with the intent to use drug paraphernalia, specifically: a digital scale [baggies].”
Based on those instructions, the jury had more than enough evidence to convict Jackson of having “used or possessed with the intent to use” the scale and baggies. Any variations or exclusions of the multiple words used in the drug paraphernalia statute to describe “use” in the charging documents was ultimately harmless error.
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Malone, C.J.:
Bluestem Telephone Co. and numerous other Kansas Rural Local Exchange Carriers (RLECs) appeal from orders of the Kansas Corporation Commission (Commission) issued during two general investigation dockets. The Commission opened these dockets to explore the impact of proposed new federal regulations relating to the provision of and payment for universal service in the telecommunications industry. The RLECs filed their petition for judicial review in the Washington County District Court. The Commission filed a motion seeking to transfer the case to tire Court of Appeals under K.S.A. 66-118a(b), claiming the challenged orders arose from a “rate hearing.” The district court agreed and found that this court had exclusive jurisdiction to hear the case.
The threshold issue in this appeal is whether the Court of Appeals has exclusive jurisdiction under K.S.A. 66-118a(b) to hear the RLECs’ challenge to the Commission’s orders. We conclude this case does not arise from a “rate hearing,” nor is it sufficiently like a rate hearing to grant this court exclusive jurisdiction under K.S.A. 66-118a(b). Thus, the district court erred in transferring the case to this court, and we remand to the district court for further proceedings. '
Factual and .Rrocedural Background
In 2009, Congress directed the Federal Communication Commission (FCC) to ensure Americans had ubiquitous access to broadband service through the National Broadband Elan (NBP). At Congress’ direction, the FCC issued a report proposing to change the focus of universal telecommunication services to a broadband infrastructure for many forms of communications, in- eluding voice communication. The FCC’s proposed reforms focused on wireless/mobility, universal service, and intercarrier compensation (ICC). Due to the FCC’s initial proposals, the Commission issued an order on September 13, 2011, opening a general investigation docket—No. 12-GIMT-170-GIT (the 12-170 docket)—to explore the impact of tire FCC’s potential reforms on the Kansas Universal Service Fund (KUSF).
By way of additional background, the KUSF was created by the 1996 Kansas Telecommunications Act, K.S.A. 66-2001 et seq. Initially, KUSF funds were paid to replace lost access charge revenues that previously subsidized services provided by Local Exchange Carriers (LECs). Many LECs had charged more for intrastate connections than for interstate connections; thus, the Commission made KUSF payments to the LECs when they were required to bring their intrastate fees into parity with interstate charges. See Bluestem Telephone Co. v. Kansas Corporation Comm’n, 33 Kan. App. 2d 817, 819, 109 P.3d 194, rev. denied 280 Kan. 981 (2005). After a 3-year transition period, KUSF began shifting to a cost-based fund. For LECs electing to operate under a traditional rate of return regulation (which were primarily rural LECs), all KUSF support was to be “based on such carrier’s embedded costs, revenue requirements, investments and expenses.” K.S.A. 2012 Supp. 66-2008(e).
Prior to 2011, eligible Kansas LECs also received support from a Federal Universal Service Fund (FUSF) if they operated in a high-cost service area. The Commission would consider the amount of FUSF funds an LEC received when determining the amount of KUSF support that would be paid to that company. Thus, any changes to the FUSF would directly impact the amount of subsidies available for Kansas LECs. One of the Commission’s stated purposes for opening the 12-170 docket was to explore changes that would be needed to maintain a KUSF that is “ "not inconsistent with the [FCC’s] rules to preserve and advance universal service.’ ” (Quoting 47 U.S.C. § 254[f] [2006].) Telecommunications carriers operating in Kansas were asked to address a variety of issues the Commission perceived would arise as a result of FCC actions.
On November 18, 2011, the FCC released Report and Order 11-161 (FCC Order) detailing its planned reforms and issuing a notice of proposed rulemaking. The FCC Order acknowledged the Congressional mandate to develop the NBP. To do so, the FCC proposed creating the Connect America Fund (CAF) and tire Access Recovery Charge (ARC) as methods to reform universal service funding and to accelerate targeting of subsidies to unserved areas. The FCC also proposed to reform the FUSF to cap growth of subsidies charged to consumers and to reduce inefficiencies it found in the current funding mechanisms. Finally, the FCC proposed to reform the FUSF to promote broadband deployment and to reform the ICC scheme. The FCC Order marked a fundamental shift in the FUSF and ICC systems previously used at the federal level.
As part of the FCC’s reformation of the ICC scheme, LECs were ordered to cap intrastate terminating access rates to interstate levels. Consequently, the Commission opened a separate industry-wide docket—No. 13-GIMT-004-GIT (the 13-004 docket)—on July 12, 2012. Following staff recommendations, the Commission ordered Kansas RLECs to file specific reports delineating between each RLEC’s originating intrastate access rates and the RLEC’s terminating intrastate access rates. In addition, the Commission requested comments from the parties on a variety of related issues. In its order, the Commission determined that the RLECs could receive an increase or decrease from the KUSF for part of 2013 due to adjusting intrastate access to parity but that after June 30, 2013, any recoveiy or reduction related to terminating access charges would be removed from KUSF and recovered via the federal ARC set forth in the FCC Order.
The RLECs filed their access reduction calculations with the Commission in August 2012, and these were ultimately accepted. The RLECs also filed comments taking issue with the Commission’s indications that they would not be receiving KUSF payment for losses caused by capping terminating access recovery and that any revenue recovery would be transferred to ARC. For the sake of administrative efficiency, the Commission ordered in September 2012 that any issues relating to KUSF reimbursements would be transferred to the 12-170 docket. RLECs were required to file revised tariffs containing the new intrastate access rates by May 31, 2013.
Meanwhile, telecommunication carriers and the Commission were focusing on addressing FUSF and ICC reforms in the 12-170 docket. In April 2013, the Commission took official notice of H.B. 2201 adopted by the Kansas Legislature and signed by the governor. See L. 2013, ch. 110. H.B. 2201 created a Telecommunications Study Committee, took steps to deregulate telecommunications in Kansas, and made changes to distributions from KUSF.
On May 29, 2013, the Commission released its order and decision in tire 12-170 docket. The Commission found that the enactment of H.B. 2201 addressed many of the issues the parties had briefed. Based on part of this legislation, the Commission found the KUSF support could not be provided to rate-of-retum LECs to offset any loss of FUSF support. The Commission order also discussed tire reforms set out in the FCC Order, which it characterized as a transition to a bill-and-keep regime for ICC by reducing some ICC rates and providing some carriers with new revenue recovery mechanisms, the ARC and CAF. The Commission found that the FCC’s intent was to transition to more fiscally responsible programs, rejected the idea that ICC reforms should be revenue neutral, and found the reforms were geared toward minimizing the overall universal services burden on businesses and consumers.
The Commission also discussed the effect of the FCC Order on K.S.A. 66-2005(c)(l) as amended by H.B. 2201, which provides: “Any reduction of a rural telephone company’s cost recovery due to reduction of its intrastate access revenue, except such revenue recovered from another support mechanism, shall be recovered from the KUSF.” L. 2013, ch. 110, sec. 8. The RLECs had argued that this statute entitled them to recover support for lost intrastate access revenue beyond any funding provided by ARC and CAF. The Commission disagreed and stated:
“The Commission concludes the FCC Order preempts K.S.A. 66-2005(c)(l)’s language that any reduction to intrastate access revenue . . . shall be recovered from the KUSF. Any interpretation of K.S.A. 66-2005(c)(l) that requires the KUSF to make up any revenue shortfall resulting from the FCC-required reduc tion of its intrastate terminating access revenue would defeat the objectives of the FCC Order. Accordingly, the FCC preempts such interpretation.”
Finally, the Commission focused on K.S.A. 2012 Supp. 66-2008(e) that directs KUSF support for RLECs to be “based on such carrier’s embedded costs, revenue requirements, investments and expenses.” The Commission determined that the statute did not require KUSF to be based on all embedded costs and that KUSF did not need to cover all of those costs and expenses. Specifically, the Commission stated:
“The Commission finds ‘based on embedded costs’ does not mean KUSF support must cover all embedded costs, revenue requirements, investments and expenses. Instead, embedded costs, revenue requirements, investments and expenses must merely serve as a basis for determining KUSF support. In other words, the Commission must use embedded costs, revenue requirements, investments and expenses as the starting point in determining KUSF support, but KUSF support does not need to cover all those costs and expenses.”
On May 31, 2013, the Commission released its order and decision in the 13-004 docket. In that order, the Commission approved the intrastate access rates and revenues submitted by the RLECs and adopted staff s recommendation “of a net, aggregate reduction to the KUSF in the amount of $652,164 as a result of the intrastate originating access rate and revenue adjustments.”
The RLECs filed petitions for reconsideration in both dockets challenging the Commission’s orders pertaining to KUSF offsets and reimbursement changes. Significantly, tire RLECs admitted the accuracy of the calculations of changes in intrastate access revenue and did not dispute the amounts reflected in their tariffs. The Commission denied both petitions for reconsideration. In doing so, the Commission upheld its ruling relating to the preemption of K.S.A. 66-2005(c)(l) as amended by H.B. 2201 and its interpretation of K.S.A. 2012 Supp. 66-2008(e).
On July 25, 2013, the RLECs (Petitioners) filed a timely petition for judicial review from both Commission orders in Washington County District Court. The Petitioners challenged only the Commission’s orders pertaining to KUSF offsets and reimbursement changes. The Petitioners requested that those orders be overturned and also requested injunctive relief.
On August 14, 2013, the Commission filed a motion to transfer the case to the Court of Appeals, asserting that the orders on appeal directly impacted rates and therefore fell within this court’s exclusive jurisdiction under K.S.A. 66-118a(b). The Commission admitted that neither docket was a formal rate proceeding but argued that each docket was sufficiently like a rate hearing for purposes of this court’s jurisdiction. The Commission also cited this court’s expertise in addressing ratemaking proceedings and the expedited process imposed on this court. The Petitioners opposed the motion to transfer, arguing that the Commission orders did not arise from a “rate hearing” and the mere fact that the orders might indirectly impact rates was insufficient to deprive the district court of jurisdiction. Sprint filed a motion to intervene in the action, which the district court ultimately granted, and Sprint joined the Commission’s motion to transfer.
On October 16, 2013, the district court issued an order transferring the case to the Court of Appeals, finding “that the underlying agency action was a policy decision that directly affects rates, therefore the Court of Appeals has exclusive jurisdiction to decide this matter under K.S.A. 66-118a(b).” Petitioners docketed the appeal with this court on November 15, 2013.
Jurisdiction Under K.S.A. 66-118a(b)
Upon the docketing of this appeal, this court issued a show cause order asking the parties to address this court’s jurisdiction. The show cause order noted that “we find drat there are serious questions whether the matter on appeal arises from a Tate hearing’ as defined in K.S.A. 66-118a(b) as interpreted in prior cases in the appellate courts.” The parties were ordered to show cause by written response why this case should not be remanded to the district court for further proceedings. .
The Commission responded to the show cause order and argued drat the district court properly transferred this case to tire Court of Appeals based on K.S.A. 66-118a(b), which gives this court exclusive jurisdiction “to review any agency action of the state corporation commission arising from a rate hearing.!’ The Commission argued that this court’s prior decisions Teollectively adopt a broad definition of the phrase ‘arising from a rate hearing’ ” found in K.S.A. 66-118a(b). The Commission noted that this case “involves two large dockets dealing with the highly technical field of telecommunications and tire interaction between the FCC and State law. These dockets involve tire type of complex and highly technical issues . . . over which this Court has developed an expertise.”
Sprint responded to the show cause order and also argued that this court has exclusive jurisdiction under K.S.A. 66-118a(b). Sprint argued that this court “has repeatedly held that K.S.A. 66-118a(b) vests exclusive jurisdiction in the Court of Appeals if the Commission’s order impacts rates or sets them.” Sprint argued that the Commission’s rulings in this case directly impact tire petitioners’ rates and revenues; thus, this case is sufficiently “like” a rate case for this court to exercise exclusive jurisdiction under K.S.A. 66-118a(b).
The Petitioners responded to tire show cause order and argued that this court does not have exclusive jurisdiction under K.S.A. 66-118a(b). The Petitioners argued that under the plain language of the statute, the district court should conduct judicial review in accordance with K.S.A. 77-609 because the agency action being challenged did not arise from a rate hearing. The Petitioners distinguished prior decisions of this court relied upon by the Commission and by Sprint that have adopted a broad definition of the phrase “arising from a rate hearing” found in K.S.A. 66-118a(b).
An appellate court may exercise jurisdiction only under circumstances allowed by statute. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609-10, 244 P.3d 642 (2010). Also, an appellate court has a duty to question jurisdiction on its own initiative. Ryser v. State, 295 Kan. 452, 456, 284 P.3d 337 (2012). Whether jurisdiction exists is a question of law over which an appellate court has unlimited review. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013). Moreover, to determine whether this court has jurisdiction, we are required to interpret K.S.A. 66-118a(b). Interpretation of statute is a question of law over which an appellate court has unlimited review. Milano’s Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013).
The parties agree that this court’s jurisdiction over this appeal is governed by K.S.A. 66-118a(b), which states:
“The court of appeals shall have exclusive jurisdiction to review any agency action of tire state corporation commission arising from, a rate hearing requested by a public utility or requested by the state corporation commission when a public utility is a necessary party. Proceedings for review of other agency actions of tire state corporation commission shall be in accordance with K.S.A. 77-609 and amendments thereto.” (Emphasis added.)
Under this statute, the Court of Appeals has exclusive jurisdiction to review the Commission’s order only if it “aris[es] from a rate hearing.” The district court has jurisdiction over any other appeals from Commission orders in accordance with the Kansas Judicial Review Act. See K.S.A. 77-601 et seq. Thus, if the Commission’s orders herein arose from a rate hearing, then the case should have been filed in the Court of Appeals, and the case was properly transferred here by the district court. But if the Commission’s orders did not arise from a rate hearing, then the appeal was properly filed in district court pursuant to K.S.A. 66-118a(b).
The most fundamental rule of statutory construction is that the intent of tire legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013).
When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013). Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use cannons of construction or legislative history to construe the legislature’s intent. Northern Natural Gas Co., 296 Kan. at 918.
Turning to the case at hand, the Petitioners are challenging orders of the Commission issued during two general investigation dockets. We will briefly address the Commission’s authority to supervise public utilities doing business in Kansas and review some of the types of hearings that come before the Commission. The Commission is given full power, authority, and jurisdiction to supervise and control public utilities doing business in Kansas, and “is empowered to do all tilings necessary and convenient for the exercise of such power, authority and jurisdiction.” K.S.A. 66-101. Under this broad authority, the Commission carries out a number of functions and utilizes a number of different types of dockets and hearings to carry out its various functions.
A public utility initiates a “traditional” rate case under K.S.A. 66-117(a) by proposing a change in its rates, tolls, or charges. The Commission may then give notice and hold a hearing upon such proposed changes. K.S.A. 66-117(b). The Commission’s regulations require public utilities to file detailed documentation and prefiled testimony to justify any change in rates. See K.A.R. 82-1-231. Appeals from the Commission’s orders in these types of cases unquestionably are filed with this court. See, e.g., Kansas Industrial Consumers Group, Inc. v. Kansas Corporation Comm’n, 36 Kan. App. 2d 83, 138 P.3d 338, rev. denied 282 Kan. 790 (2006) (various consumers appealed from Commission order granting electric utility net revenue increase).
Historically, this court has not limited its exclusive review of Commission orders to “traditional” rate cases. As the Commission and Sprint point out, prior decisions have broadly interpreted our court’s exclusive jurisdiction under K.S.A. 66-118a(b). These prior cases fall into three general categories: (1) appeals of Commission orders involving tariff rate changes designed solely to increase a public utility’s revenues; (2) appeals of Commission orders from generic dockets that are closely related to prior rate cases or involve rate-like issues; and (3) appeals of Commission orders requiring individual LEC audits to determine the LEC’s entitlement to support from die KUSF.
The first category of cases applying a broad interpretation of K.S.A. 66-118a(b) includes appeals of Commission orders involving tariff rate changes designed solely to increase a public utility’s revenues. For example, in MAPCO Intrastate Pipeline Co. v. Kansas Corporation Comm’n, 10 Kan. App. 2d 527, 704 P.3d 989 (1985), this court exercised jurisdiction under K.S.A. 66-118a(b) because the pipeline company had filed to increase its tariff rates. Even though the pipeline company had not initiated its process with the elaborate documentation of a “traditional” rate case, its proposed tariff changes “dealt only with new rates designed to produce higher revenues.” 10 Kan. App. 2d at 531.
The second category of cases applying a broad interpretation of tire statute includes appeals of Commission orders from generic dockets that are closely related to prior rate cases or involve rate-like issues. For example, in Kansas Gas & Electric Co. v. Kansas Corp. Comm’n, 14 Kan. App. 2d 527, 794 P.2d 1165, rev. denied 247 Kan. 704 (1990), the Commission ordered the utility to refund customers nearly $7 million as part of a general investigation docket examining the utility’s prudence in managing its facilities during temporary shutdowns of its nuclear power plant. This court found the proceeding was closely related to a prior rate case that allowed the utility to use a retail energy cost adjustment (ECA) clause, and the issues on appeal dealt with the relevance of the ECA clause in determining the proper refund to consumers. 14 Kan. App. 2d at 530. The court also noted that tire tariff at issue was similar to a rate schedule. 14 Kan. App. 2d at 530.
Another example of this second category of nontraditional rate cases can be found in Citizens’ Utility Ratepayer Bd. v. Kansas Corporation Comm’n, 24 Kan. App. 2d 63, 64-66, 941 P.2d 424, rev. denied 262 Kan. 959 (1997). In that case, the Commission opened a general investigation docket to determine what Southwestern Bell Telephone Company (SWBT) could charge in interconnection agreements with other telecommunication companies entering the market. This court noted that the docket was treated by the Commission as a rate hearing and established a specific price SWBT could charge to its competition for access to its network. 24 Kan. App. 2d at 64-65. That price was based on SWBT’s costs of providing the interconnection or network element, plus a reasonable profit, i.e., traditional ratemaking calculations. 24 Kan. App. 2d at 65.
The third category of cases applying a broad interpretation of K.S.A. 66-118a(b) includes appeals of Commission orders requiring individual LEC audits to determine the LEC’s entitlement to support from the KUSF. For example, in Columbus Telephone Co. v. Kansas Corporation Comm’n, 31 Kan. App. 2d 828, 75 P.3d 257 (2003), the Commission conducted an audit of a rural LEC to determine what KUSF support, if any, the LEC would be entitled to receive under K.S.A. 66-2008(e). This court noted that the case was handled before the Commission using the same procedures that would apply in a traditional rate case. The prefiled testimony included evidence of the LEC’s rate base, operating income, rate of return, plant investment, depreciation, working capital, cost of capital, and taxes. This court found the audit was “sufficiently like a standard rate hearing to serve the purpose of the statute.” 31 Kan. App. 2d at 833.
Although prior decisions of this court have applied a broad interpretation of K.S.A. 66-118a(b), the mere fact that a Commission order from a general investigation docket ultimately may impact rates is not a basis for exclusive Court of Appeals jurisdiction under the statute. Undeniably, the Commission’s order in the 12-170 docket ultimately will impact rates consumers pay to their carriers (whether they are the RLECs or their competitors), as carriers are charged a specific amount per line to fund the KUSF and pass on those charges to their customers. But the Commission’s order in the 12-170 docket being challenged by the Petitioners addresses the effect of new federal regulations on KUSF payments and establishes an industry-wide cost methodology for distributing those payments to RLECs. The order does not determine the amount of KUSF payments that will be available to individual RLECs, and the order does not set the rates for services that any individual RLEC can charge to its customers.
The Commission points out that the order in the 13-004 docket approved intrastate access rates for part of 2013 submitted by individual RLECs. But the Petitioners are not challenging that part of the order. The Petitioners do not challenge the calculations used to establish their tariffs or the capping of intrastate terminating rates, i.e., traditional ratemaking calculations. The only part of the order in the 13-004 docket being challenged on appeal relates to the KUSF reimbursements.
As the Petitioners argue, every decision of the Commission ultimately has an “impact” on rates in one way or another. Thus, to accept the argument being asserted by the Commission and Sprint would mean that every Commission decision would be appealable directly to the Court of Appeals rather than to the district court. But K.S.A. 66-118a(b) does not grant this court exclusive jurisdiction to review a Commission order from a general investigation docket simply because the order ultimately may impact rates charged to consumers. Such an interpretation would render the statute meaningless.
The Commission and Sprint cite Citizens’ Utility Ratepayer Bd. v. Kansas Corporation Comm’n for the proposition that Court of Appeals jurisdiction under K.S.A. 66-118a(b) is not limited to “traditional” rate cases. In that case, as discussed above, the Commission opened a general investigation docket to determine what SWBT could charge in interconnection agreements with other telecommunication companies. Interestingly, the Commission argued before this court that the case did not arise from a rate hearing and instead sought to transfer the case to the district court. 24 Kan. App. 2d at 64. But this court found that this argument “ignore[d] several statements in the record which characterize this proceeding as a rate hearing.” 24 Kan. App. 2d at 64.
As this court noted, several telecommunication carriers instituted the proceeding to “determine the prices SWBT could charge for services” under the interconnection agreements. 24 Kan. App. 2d at 64. In contrast, the present case was not brought to determine or set the rates or prices which the Petitioners can charge to their customers for their services. Instead, this case is focused on a methodology to determine what funds the Petitioners will receive/rom the State under the mandated KUSF program as affected by recent FCC regulations. Also, the Commission’s order in Citizens’ Utility Ratepayer Bd. v. Kansas Corporation Comm’n affected only SWBT, whereas the Commission’s orders herein establish industry-wide standards for distributing KUSF payments.
The Commission and Sprint also cite Columbus Telephone Co. v. Kansas Corporation Comm’n. In that case, this court found that, according to tire available legislative history, its exclusive jurisdiction in appeals from rate hearings served three purposes: (1) It shortened the appeal process; (2) it eliminated utilities’ ability to file appeals in any county where the Commission order became effective; and (3) it allowed this court to develop an expertise in handling rate proceedings that are typically complex and highly technical. 31 Kan. App. 2d at 833. The Commission and Sprint argue that these purposes would be served if this court hears the present appeal.
But despite these purposes, it is clear tire legislature did not intend to bypass the district court in every appeal of a Commission order. In a traditional rate case, a utility’s proposed rates become effective within 30 days after the application materials are filed unless timely suspended by the Commission. See K.S.A. 66-117(a) and (c). If suspended, the Commission has only 240 days to compile pleadings, testimony, and documentation and then make a decision. See K.S.A. 66-117(c). By filing a rate case, the utility is claiming that it is not earning sufficient revenue to provide its monopolized service, and prompt decision-making is necessary. Thus, under K.S.A. 66-118a(b), these types of cases are expedited before the Court of Appeals.
Here, the Commission was utilizing general investigation dockets that contained no statutory time limit. The 12-170 docket had been pending more than 20 months before the Commission issued its initial decision; the 13-004 docket had been pending 10 months before the challenged order was filed. The order in the 12-170 docket, which is the heart of this appeal, merely sets forth an industry-wide cost methodology for KUSF payments without individual determinations of what KUSF payments would be available to each company. This case is clearly distinguishable from Columbus Telephone Co., which involved an evaluation of an individual LEC’s embedded costs and revenue requirements that were processed under tire timeline of a “traditional” rate case.
We note that in an earlier proceeding involving some of the same parties to this appeal, the Commission never challenged the juris diction of the district court to review Commission orders from generic dockets addressing industry-wide cost methodologies for distributing KUSF payments. In Bluestem Telephone Co. v. Kansas Corporation Comm’n, the Commission issued an order in several general investigation dockets determining that KUSF funds would be distributed to RLECs on a per-line basis. The RLECs appealed to the district court, which reversed the Commission’s order finding it was contrary to statutory language regarding KUSF payments being based upon an individual company’s embedded costs. This court agreed with the district court’s interpretation of the statute in question. 33 Kan. App. 2d at 818. The prior Bluestem case supports the proposition that jurisdiction for the present appeal initially lies in the district court rather than the Court of Appeals.
The Commission further argues that this case was properly transferred to this court because it deals “with the highly technical field of telecommunications” and involves issues over which this court has developed an expertise. While this court has developed some degree of expertise in handling utility rate cases, that expertise is based on addressing the more traditional ratemaking functions. See, e.g., Western Resources, Inc. v. Kansas Corporation Comm’n, 30 Kan. App. 2d 348, 42 P.3d 162, rev. denied 274 Kan. 1119 (2002) (utility challenging order imputing off-system sales revenues and calculating plant depreciation); Aquila, Inc. v. Kansas Corporation Comm’n, No. 94,326, 2005 WL 1719705 (Kan. App. 2005) (unpublished opinion) (addressing Commission’s order using an aggregated capital structure for corporation and the utility division and the return on equity elements).
In contrast, this appeal raises straightforward legal issues involving statutory interpretation and federal preemption. Such issues are well within the expertise and skills of any district judge in Kansas. While it might be more convenient for the Commission to handle appeals only in this court, the legislature has not limited the venues in which the Commission must handle nonrate hearing appeals. See K.S.A. 66-118a(b) (orders from nonrate hearings governed by K.S.A. 77-609); K.S.A. 77-609(b) (venue is in the county in which the agency action is entered or is effective).
In summary, this case does not arise from a “rate hearing,” nor is it sufficiently like a rate hearing to grant this court exclusive jurisdiction under K.S.A. 66-118a(b). The Commission orders being challenged by the Petitioners address the effect of new federal regulations on KUSF payments and establish an industry-wide cost methodology for distributing those payments to RLECs. The orders do not determine the amount of KUSF payments that will be available to individual RLECs, and the orders do not set the rates for services that any individual RLEC can charge to its customers. K.S.A. 66-118a(b) does not grant this court exclusive jurisdiction to review a Commission order from a general investigation docket simply because the order ultimately may impact rates that a public utility charges to consumers. Thus, we conclude that the Commission orders being challenged by the Petitioners do not arise from a rate hearing within the meaning of K.S.A. 66-118a(b), and we remand this case to the district court for further proceedings.
Remanded to district court for further proceedings. | [
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Hill, J.:
In this criminal appeal, Roy Wetrich contends the district court erred when it prevented him from presenting evidence that his wife had lied about him in a statement she gave the police. Kansas law allows a witness’ credibility to be attacked by presenting evidence that the witness has a character trait for dishonesty. That trait may not be proved by evidence of a specific instance of conduct but may be proved only by opinion testimony. Because Wet-rich sought the admission of evidence he claimed would prove his wife had lied to the police, a specific instance, we hold the district court correctly denied its admission to show she was lying on this occasion.
Wetrich also asks us to find a sentencing error because he was not allowed to contest his criminal history. The sentencing statutes now permit an offender to challenge a criminal history that has been previously established but when doing so, the offender has the burden to prove his or her criminal history by a preponderance of the evidence. We hold the district court incorrectly denied Wet-rich an opportunity to contest his criminal history based upon the doctrine of collateral estoppel. We affirm Wetrich’s convictions but vacate his sentence and remand for a new sentence, thus giving Wetrich an opportunity to contest his criminal history.
Evidence of domestic violence arises in this case.
In early 2009, Suzanne Galbraith lived with her husband Roy Wetrich and their two children in Olathe. The two offer different stories about what happened. Galbraith testified that on March 7, 2009, she and Wetrich got into a disagreement in their upstairs bedroom. Wetrich began threatening her and banging her against the wall. According to Galbraith, she got away from Wetrich and ran downstairs. When Galbraith refused to come back upstairs, Wetrich came after her. Galbraith then ran out the back door and down the street. Once outside, Galbraith testified she telephoned a friend, Al Wymer, and asked him to come over and calm Wetrich down. After this, Galbraith received a phone call from Wetrich, who told her to come back to the house to help him look for some papers. Galbraith returned to their house.
When Galbraith approached their back door, she saw Wetrich seated in a chair. When Wetrich noticed her, he jumped up and approached her so fast that she became scared. According to Galbraith, Wetrich came outside, grabbed her and pushed her against the brick wall of their house, and then forced her back inside. Galbraith testified she yelled, “Roy, no. Please, no,” but Wetrich forced her over to the computer, pushed her down on the floor, and held her there with his foot while he loaded a gun. Wetrich then put the gun barrel to Galbraith’s head and said, “Do you want me to kill you, you stupid bitch? This is how easy it would be for me to blow your fucking head off.”
Galbraith testified Wetrich then tossed the gun onto a nearby pool table and told her that he was going to teach her a lesson because she had run from him. Wetrich grabbed her shirt, jerked her up onto her knees, and then punched her in the chest, knocking the wind out of her. Wetrich let Galbraith go. She then ran across the room to the other side of the pool table. Galbraith testified Wetrich picked up a pool cue, broke it over his lomee, and began jabbing it towards her throat and chest without making contact. Wetrich then told Galbraith that if she did not “stop crying and whining that [her] chest was hurt, that he was going to bréale it, and he was going to hurt [her] worse.” Galbraith also testified she vaguely remembers sitting in the dining room chair before the pool cue incident with Wetrich’s back towards her and then him turning around with the gun and telling her “that the boys didn’t need any parents, and he was going to kill [them] both.”
Wetrich dropped the pool cue when Wymer and his girlfriend Karen Wry arrived outside. Before Wymer and Wry came into the house, Wetrich told her to “[sjtop crying and act like everything’s okay.” According to Galbraith, Wetrich then put the gun in a case, slid it across the pool table to her, and indicated that she should take it upstairs.
Wymer later testified that once in the house, he saw Galbraith holding her chest and she told him that Wetrich “was beating on her.” Wry testified that she noticed a red mark on Galbraith’s chest. Both Wymer and Wiy testified Galbraith carried a metal case upstairs. Galbraith and Wry went upstairs together. Once there, Galbraith told Wry what had just happened with Wetrich. Wry observed that tire metal case contained an “old revolver handgun.” Wymer and Wry left. No one called the police.
According to Galbraith, a couple of days after the incident they both went to the hospital after she complained to Wetrich of chest pain from him punching her. Before going, Wetrich told Galbraith she could only see a doctor if she “kept [her] mouth shut and let him tell the stoiy of what happened.” At the hospital, Wetrich stated that Galbraith had tripped over the cat and fallen down some stairs.
Then, in April 2009, Galbraith told the principal at their children’s school about the March 7 incident. Galbraith and the principal agreed to meet at the school on April 3, 2009, so that Galbraith and tire children could go to Safe Home. As Galbraith left her house that day with some belongings, two police officers approached her. The officers made sure Galbraith was alright and took her to the school. The police arrested Wetrich later that same day. Detective Damon Bell subsequently searched their house and seized some marijuana.
On April 6, 2009, Galbraith obtained a district court no-contact order prohibiting Wetrich from making contact with her. Wetrich subsequently called Galbraith from jail and told her not to go to court and testify against him and she should leave Kansas and go to his father’s house in Missouri so the State would drop the charges against him. Wetrich also told Galbraith to say that the principal had coerced her into saying what had happened and it was all a he.
The case is tried by the jury.
At the beginning of the jury trial, the district court denied Wet-rich’s motion seeking to admit evidence of an alleged false statement Galbraith made to the police during an interview following the incident on March 7, 2009. During the interview, she told the police about another incident between her and Wetrich that involved a gun, where she was forced to perform an oral sex act on a friend of Wetrich. On the second day of trial, Wetrich renewed this motion. At this time, the district court allowed defense counsel to question Galbraith about the alleged incident outside the jury’s presence. Galbraith testified that she could not recall either telling the police this had happened or that it had occurred. The district court did not modify its prior ruling, and the evidence was not given to the jury.
Wetrich elected to testify but remembered the events differently, essentially denying all of Galbraith’s allegations. Wetrich, however, did admit the marijuana belonged to him and that he violated the no-contact order.
The jury convicted Wetrich of kidnapping in violation of K.S.A. 21-3420; two counts of aggravated assault in violation of K.S.A. 21-3410; possession of a firearm in violation of K.S.A. 21-4204; possession of marijuana with a prior conviction in violation of K.S.A. 2008 Supp. 65-4162(a); violation of a protective order in violation of K.S.A. 2008 Supp. 21-3843; intimidation of awitness in violation of K.S.A. 21-3832; and domestic battery in violation of K.S.A. 2008 Supp. 21-3412a.
Wetrich challenged his criminal history score. He claimed the presentence investigation report incorrectly scored a 1988 Missouri burglary conviction as a person felony. Just prior to imposing sentence, the district court denied Wetrich’s challenge to his criminal history score. The district court agreed with the State and ruled that Wetrich was collaterally estopped from challenging the Missouri conviction because he had previously challenged the criminal history unsuccessfully in another Johnson County case. The district court sentenced Wetrich to a controlling term of 124 months’ imprisonment.
In this appeal, Wetrich malees two arguments. First, he contends tire district court committed reversible error in ruling that his evidence challenging Galbraith’s prior alleged “false allegation” to the police was inadmissible under K.S.A. 60-422. Wetrich next argues tire district court erred in ruling that collateral estoppel barred him from challenging the use of his 1988 Missouri conviction for burglary in his criminal history score. Wetrich maintains that the district court erroneously interpreted K.S.A. 2009 Supp. 21-4715(c) by not giving him an opportunity to challenge his criminal history score widr tire burden of proof on him to contest the prior conviction.
We find no error in the court barring the evidence of the so-called false allegation made by Galbraith. We do find, however, that the court erred by denying Wetrich the opportunity to challenge the use of the Missouri conviction in a hearing where Wetrich has the burden to prove how the conviction should be scored in his criminal history.
Wetrich seeks to admit pictures of his wife performing a sex act on a friend.
Wetrich argues the district court erred when it prevented his defense counsel from cross-examining Galbraith about her previous statement to the police in which she had falsely accused him of putting a gun to her head to force her to perform oral sex on his friend, Louis Glasgow. Wetrich contends that this evidence was admissible to impeach Galbraith’s credibility about her gun allegation and the other allegations against him.
He contends this was relevant evidence because the key disagreement between himself and Galbraith during trial was whether there was a gun in the house on March 7, 2009, and whether he placed that gun to Galbraith’s head. In his view, if she lied about the prior incident, then the jury could decide she lied about this one.
Prior to the commencement of the trial, Wetrich sought to introduce photographs depicting Galbraith performing an oral sex act on a man named Glasgow in an effort to attack her credibility and dispute her allegation to police that Wetrich forced her at gunpoint into doing the act. Wetrich argued that the photographs demonstrate Galbraith must have made a false allegation because they did not show a gun pointed at her head while she was engaged in the sex act. The district court ruled that this was evidence of a specific instance of misconduct and inadmissible under K.S.A. 60-422(d).
We view this issue as a question of district court discretion. The admission and exclusion of evidence lies within the sound discretion of the trial court. State v. Leitner, 272 Kan. 398, 408, 34 P.3d 42 (2001). According to the Supreme Court in Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P. 3d 560 (2013), judicial discretion is abused if the judicial action is:
• arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; • based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or
• based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.
A review of some testimony is important at this point.
During trial, Wetrich proffered Galbraith’s testimony regarding the incident with Glasgow. Galbraith never denied making the statement but simply maintained she did not remember:
“Q. [defense counsel] Okay. Isn’t it true that you told the police that Roy put - literally put a gun to your head and forced you to engage in fellatio or oral sex with Louis Glasgow?
“A. [Galbraith] He had threatened me with a gun before, yes.
“Q. That’s not my question.
“A. I don’t recall.
“Q. Isn’t it true you told the police he put a gun to your head and made you do it?
“A. I don’t recall. I don’t remember.
“Q. If you told the police that he put a gun to your head and threatened you to do that, that is not true? Yes?
“A. I don’t remember.
“Q. If you told the police he held a gun to your head and made you have sex with Louis Glasgow, that is not true?
“A. I don’t remember.
“Q. You don’t remember what?
“A. So much has happened I don’t remember exactly.
“Q. What don’t you remember?
“A. I don’t remember exactly how many times he’s had a gun to my head or exactly what it was for each time.
“Q. You’re saying now that he’s held a gun to your head on numerous occasions? “A. He has.
“Q. I just want to make sure that this record is clear. Nobody put a gun to your head and made you do those things; right?
“A. I don’t recall. He threatened me in so many ways.
“Q. It’s a yes or no question.
“A. I don’t recall. I can’t say either way. I don’t remember
“Q. If he would have put a gun to your head, there would have been an eye witness to drat; correct?
“A. That is incorrect. He did all the threatening when it was just him and I. There was no one else there, but I already knew before the person got there, I already knew the consequences, and what he expected.”
After Galbraith’s testimony, Wetrich conceded that tire prior incident in question was a specific instance of conduct, but argued, “[T]he juiy should know [Galbraith] said that before, and it’s not true.” The district court relied on K.S.A. 60-422 and State v. Penn, 41 Kan. App. 2d 251, 201 P.3d 752 (2009), to deny Wetrich’s second request to cross-examine Galbraith on this issue before the jUty.
The law clearly bars evidence of specific instances of conduct.
According to K.S.A. 60-422(c) and (d), when attacking the credibility of a witness, evidence of an individuars traits or character other than honesty or veracity or their opposites are inadmissible and evidence of specific instances of conduct tending to prove a trait of an individual’s character are also inadmissible. In Penn, this court made clear, “ ‘ “[A] witness’s credibility may be attacked by showing the witness has character traits for dishonesty or lack of veracity, but those traits may only be proven by opinion testimony or evidence of reputation. Those traits may not be proven by specific instances of the witness’s past conduct. [Citations omitted.]” 41 Kan. App. 2d at 261 (quoting State v. Lewis, 252 Kan. 535, 536-37, 847 P.2d 690 [1993]).
The district court made a sound ruling based on these authorities. Wetrich wanted to depict Galbraith as a liar and wanted to use the photographs of the incident with the sex act as showing her trait of dishonesty. This was evidence of a specific instance offered to prove a trait of dishonesty. The statute, K.S.A. 60-422(d), clearly prohibits its admission. Further on this line, we do not see that admission of a photograph showing Galbraith performing a sex act with a man who is not her husband proves she is a liar. We question whether the photograph proves what Wetrich claims it proved. Obviously, if Wetrich did hold a gun to her head to force her to engage in this conduct, as she claimed to the police, one would not expect Wetrich to photograph his own criminal act of threatening her with a gun. The photograph does not show she was lying to the police. A more reasonable view of why Wetrich sought its admission was to prove Galbraith was an unfaithful wife and a bad person who the jury should not believe. We agree with the district court, the photograph was inadmissible.
Wetrich relies solely on State v. Barber, 13 Kan. App. 2d 224, 766 P.2d 1288, rev. denied 244 Kan. 739 (1989), to support his argument that K.S.A. 60-422(d) does not prohibit a defendant to cross-examine a witness about a prior false allegation. Barbers ruling does not apply here.
In Barber, this court found that the district court properly excluded evidence that the victim of an alleged crime of indecent liberties with a child had allegedly made prior false accusations of sexual abuse. 13 Kan. App. 2d at 227. This court, however, held that “under certain circumstances the limitation of 60-422 must bend to a defendant’s right of cross-examination.” 13 Kan. App. 2d at 226. This admission of evidence is not without limitations. This court further held:
“[D]espite the restriction of 60-422(d), in a sex crime case, the victiin/complaining witness may be cross-examined about prior false accusations, and if she denies making those accusations, defendant may put on evidence of those accusations. However, the prior accusations are admissible only after tire trial court has made a threshold determination that a reasonable probability of falsity exists.” (Emphasis added.) 13 Kan. App. 2d at 227.
Barber is not helpful to Wetrich because the panel stated the ruling specifically applied to sex crime cases, which this case is not. Moreover, Barber requires that the victim denied making the allegation at issue. During the proffer offered by Wetrich, Galbraith did not deny making this specific accusation. Galbraith simply testified she could no longer recall the specific instance because Wet-rich had threatened her on numerous occasions with a gun. Accordingly, the district court was not required to make a threshold determination whether falsity existed. The district court did not abuse its discretion in excluding the evidence under K.S.A. 60-422(d). See Penn, 41 Kan. App. 2d at 261.
The district court should have allowed Wetrich to contest his criminal history in a hearing where the burden was upon him.
The determination of a Kansas guideline criminal sentence depends upon tire severity level of the crime and the criminal history of the offender. Therefore a prior conviction may be important in deciding what sentence to impose. This issue focuses on an interpretation of the applicable Kansas sentencing statutes. Interpretation of a statute is a question of law over which this court has unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). “An appellate court is not bound by the trial court’s interpretation. [Citation omitted.]” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
The statutes create a procedure for determining an offender’s criminal history. At sentencing, the State has the burden of proving a defendant’s criminal history by a preponderance of the evidence. See K.S.A. 2009 Supp. 21-4715(a). Under K.S.A. 2009 Supp. 21-4715(b), a presentence investigation report containing the defendant’s criminal histoiy worksheet prepared for the district court will generally satisfy the State’s burden of proof. But the defendant can challenge alleged errors in the history and the effect on the criminal histoiy score. K.S.A. 2009 Supp. 21-4715(c) states:
“Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in tire proposed criminal history worksheet. Such notice shall specify the exact nature of the alleged error. The state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal histoiy and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence. If the offender later challenges such offender’s criminal history, which has been previously established, the burden of proof shall shift to the offender to prove such offender’s criminal history by a preponderance of the evidence.” (Emphasis added.)
Based on Wetrich’s criminal histoiy of one adult person felony and five adult nonperson felony convictions, the presentence investigator scored Wetrich in the nondrug criminal histoiy category C. See K.S.A. 21-4709. Given the conviction at issue, a change in Wetrich’s criminal history score would have a practical effect on his sentence. If the 1988 Missouri conviction was an adult nonperson felony conviction, Wetrich’s criminal histoiy score would change to category E.
At sentencing, the district court denied Wetrich the opportunity to challenge his criminal history score based upon collateral estop-pel, an equitable doctrine. By doing so, the court overruled or overlooked the statute. We vacate that sentence and remand the matter to the district court to reconsider Wetricb’s sentence after giving him an opportunity to challenge his criminal history score at a new sentencing hearing where he has the burden of proof as stated in the statute.
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Malone, C.J.:
Sirmark K. Brewer appeals his convictions of multiple drug-related offenses and a traffic offense. Brewer claims ' the district court erred in denying his motion to suppress evidence of the drugs found in the vehicle he was driving. He also claims the district court erred in denying his motion for substitute counsel during his jury trial. Finding no reversible error, we affirm the district court’s judgment.
Brewer was charged with multiple drug-related and traffic offenses stemming from an encounter with law enforcement during the early morning hours of February 18, 2010. According to the charging affidavit, a police officer noticed two potential traffic offenses related to the vehicle that Brewer was driving. The officer followed the vehicle for a few minutes until it stopped in a driveway. The officer made contact with Brewer and ultimately conducted an exterior air sniff of the vehicle using a K-9 dog that was riding in the officer’s vehicle. The K-9 exhibited behavior changes indicating an alert to the odor of drugs. During a subsequent search of the interior of the vehicle, the officer found substances that appeared to be marijuana and methamphetamine.
Brewer filed a motion to suppress the evidence- of die drugs found in the vehicle. The district court held an evidentiary hearing on the motion. At the hearing, Officer Aaron Carswell testified that he noticed that the vehicle Brewer was driving had very dark tinted windows and that the temporary license tag appeared to have been altered with some markings on the tag. Based on conversations with other law enforcement officers, Carswell was informed that Brewer might be driving die vehicle and that Brewer and the vehicle might be associated with drug activity. Carswell followed the vehicle for six or seven blocks. When the vehicle pulled into the driveway of a residence, Carswell stopped at the end of the driveway and activated his emergency lights.
Brewer quickly exited the vehicle and began walking toward the front door of the residence, at which point Carswell stopped him and asked him for his driver s license as well as the registration and proof of insurance for the vehicle. Brewer handed Carswell a Texas driver s license. According to Carswell, Brewer was acting nervous and did not appear to want anything to do with the vehicle. Brewer was hesitant to return to the vehicle, and Carswell had to ask several times for Brewer to retrieve his papers from tire vehicle. When Brewer finally did so, he opened the passenger door, reached inside the glove box, and quickly closed the passenger door without ever sitting inside the vehicle, which Carswell drought was suspicious.
Carswell called dispatch to check the status of Brewer s Texas driver s license, which was confirmed to be valid. Because Carswell was reasonably certain that Brewer also had a Kansas driver s license that had been suspended, he began to check that status as well. Meanwhile, a second police officer arrived, and Carswell advised him of the situation. When informed by dispatch that Brewer’s Kansas driver’s license was in fact suspended, Carswell asked tire other officer to write a traffic citation.
While the other officer was writing a citation, Carswell used a K-9 to conduct an exterior air sniff of the vehicle. The K-9 sniff was initiated about 10 to 12 minutes after the vehicle stop. Carswell testified that the K-9 was certified annually and underwent ongoing monthly training. He estimated that the K-9’s false positive rate was about 10-percent. Carswell and the K-9 made several passes around the vehicle, and each time the K-9 stopped at the passenger door and made behavior changes indicating an alert to the odor of drugs. Carswell asked Brewer for the keys to the vehicle, which Brewer had locked when he exited. Instead of giving Carswell the keys, Brewer walked to the front door of the residence and put the keys inside. Carswell contacted Brewer’s girlfriend, who was inside the residence, and eventually persuaded her to hand over the keys. Carswell searched tire vehicle and found a large bag in the center console, which contained several smaller bags of marijuana and a small bag of what appeared to be methamphetamine.
The district court denied Brewer’s motion to suppress the evidence. The district court found that Carswell had reasonable suspicion to conduct a traffic stop based on his observations that the window tint appeared to be excessive and that the temporary license tag appeared to be altered. The district court further found that Carswell had probable cause to conduct a warrantless vehicle search based on the K-9 alert, Carswell’s information from other law enforcement officers that Brewer and tire vehicle might be involved in drug activity, and Carswell’s observations of Brewer’s nervous behavior.
Brewer subsequently filed a motion to reconsider tire denial of his motion to suppress. The motion to reconsider alleged that the State failed to provide documentation that the K-9 was certified at tire time of tire exterior air sniff and that the K-9’s training records and reports indicated a much higher rate of false positives tiran the 10 percent estimate given by Carswell at the hearing on the motion to suppress.
The district court held an evidentiary hearing on the motion to reconsider. At tire outset, Brewer acknowledged that he had received documentation that dre K-9 was recertified in October 2009. But Brewer stated that he had not received documentation that the K-9 had undergone monthly training between July 2009 and February 2010, except for a single training session on February 9, 2010. Carswell testified that the monthly training was a police department policy rather than a requirement for certification. He did not know why there were no training records for that time period but testified that he and the K-9 consistently did the training.
With respect to the K-9’s false positive rate, Carswell stated he was not surprised the records showed that the K-9 indicated the odor of drugs on approximately 35 to 37 percent of deployments— i.e., real world police use as opposed to controlled training situations—in which drugs were not actually found. But Carswell testified that those numbers were misleading because even when a K-9 indicates the odor of drugs and no drugs are found, it is possible that the K-9 detected the residual odor of drugs that were recently removed from the vehicle or vicinity.
After hearing the evidence, the district court denied Brewer s motion to reconsider. The district court found that the K-9 was properly certified at the time of the exterior air sniff of the vehicle. The district court further found that based on Carswell’s testimony, Carswell and the K-9 underwent regular training together.
At trial, the State presented die testimony of Carswell, the second police officer who responded to the scene, two other police officers involved in the processing and handling of evidence collected, and a chemist who tested the substances sent to the Kansas Bureau of Investigation (KBI) laboratory. At the close of the State’s evidence, Brewer’s counsel made an oral motion to withdraw as counsel, stating that “Mr. Brewer has expressed quite a bit of dissatisfaction with my performance on tire trial so far today.” Counsel elaborated that there was “a disagreement with respect to questions I’m asking and how I’m proceeding.”
The district court then questioned Brewer directly about the reasons for his dissatisfaction. Brewer stated that he believed Cars-well was lying about what happened on the morning in question and that his counsel “[kept] blowing [him] off’ when he asked him to point out inconsistencies in Carswell’s testimony. Brewer asked for different counsel. The district court told Brewer that he could either discharge his counsel and represent himself for the rest of the trial or he could continue with his present counsel:
“[W]e are in the middle of a trial. At this point the State has rested and you have had an attorney who appears to the court, anyway, to be prepared and representing you. And, you know, ultimately the questions that are asked are up to him after consulting with you about the case and preparing trial strategy. But, ultimately, since you chose to have an attorney, the actual questions that are to be asked are up to him. He is the one that is trained in the law, so, those questions—what questions are asked are up to him.
“So, at this point, unless you want to represent yourself and discharge your attorney, you know, we are going to continue.”
Brewer elected to continue with his present counsel. The defense presented the testimony of the finance manager of an automobile sales group, who stated that the vehicle in question was sold on January 21, 2010, to a person other than Brewer. The vehicle owner’s given address was the same address as the residence where the vehicle search occurred. The defense also presented the testimony of a forensic scientist, who testified that he found one fingerprint on tire plastic bags sent to the KBI laboratory. The fingerprint did not belong to Brewer, but the fingerprint was a possible match with another person in the database. Brewer did not testify on his own behalf. During closing argument, defense counsel emphasized that the vehicle did not belong to Brewer, that no drugs were found on Brewer’s person, and that the fingerprint on the plastic bag did not belong to Brewer.
The jury found Brewer guilty of multiple drug-related offenses and driving while suspended. The district court sentenced Brewer to a controlling term of 41 months’ imprisonment followed by 24 months’ postrelease supervision. Brewer timely appealed his convictions.
Motion to Suppress
Brewer claims the district court erred in denying his motion to suppress the evidence. He contends that-Carswell lacked reasonable suspicion to conduct a traffic stop and lacked probable cause to conduct a.warrantless vehicle search. He specifically argues that tire K-9 alert was unreliable because the K-9 had a 37 percent false positive rate and because the State failed to show that the K-9 had undergone die required continued training; that Carswell’s knowledge of Brewer’s possible drug activities was unreliable; and that Brewer’s nervousness could not support a finding of probable cause. The State argues that Carswell had reasonable suspicion to conduct a traffic stop based on his observations that the window tint appeared to be excessive and that the temporary license tag appeared to be altered. The State also contends that Carswell had probable cause under the totality of the circumstances to conduct a warrantless vehicle search.
An appellate court uses a bifurcated standard to review a district court’s decision on a motion to suppress. Without reweighing the evidence, the appellate court reviews the district court’s factual findings to determine whether they are supported by substantial competent evidence. State v. Sanchez-Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). The district court’s ultimate legal conclusion is reviewed de novo. Sanchez-Loredo, 294 Kan. at 54.
The Fourth Amendment to the United States Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Section 15 of the Kansas Constitution Bill of Rights provides identical protection to the Fourth Amendment. State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007).
Reasonable suspicion to conduct traffic stop
A traffic stop is a seizure under the purview of the Fourth Amendment. In order to stop a vehicle, an officer must have artic-ulable facts sufficient to constitute reasonable suspicion that tire operator of the vehicle is committing, has committed, or is about to commit a crime. See K.S.A. 22-2402(1); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). A traffic violation provides an objectively valid reason to effectuate a traffic stop, even if the stop is pretextual. Moore, 283 Kan. at 349-50.
Here, the district court found drat Carswell had reasonable suspicion to make the traffic stop based on his articulated observations regarding the excessive window tint and tire altered temporary license tag, both of which are traffic violations. See K.S.A. 8-1749a (excessive window tint); K.S.A. 2009 Supp. 8-142 Second (altered tag). Brewer does not contest tire factual basis for Carswell’s observations but argues that the observations did not rise to the level of reasonable suspicion given that Carswell waited until Brewer pulled into a driveway to make the traffic stop. This argument fails because either apparent traffic violation provided an objectively valid reason for Carswell to make the traffic stop, even if the stop was pretextual. Carswell did not allow a significant amount of time to pass between observing the traffic violations and the ultimate stop. See State v. Schneider, 32 Kan. App. 2d 258, 262-63, 80 P.3d 1184 (2003) (court questioned propriety of pretextual traffic stop where stop occurred 15 miles after officer observed infraction). Thus, the district court did not err in finding that the stop was supported by reasonable suspicion.
Probable cause to conduct warrantless vehicle search
A warrantless search by a police officer is per se unreasonable under the Fourth Amendment unless the State can fit the search within one of the recognized exceptions to the warrant requirement, one of which is probable cause plus exigent circumstances. Probable cause to search a vehicle can be established if the totality of the circumstances indicates there is a fair probability that the vehicle contains contraband or evidence of a crime. Sanchez-Loredo, 294 Kan. at 55. The mobility of the vehicle provides the exigent circumstances without the necessity of proving anything more. If a vehicle is readily mobile and probable cause exists to believe tire vehicle contains contraband or evidence of a crime, the Fourth Amendment does not require a warrant for police to search tire vehicle. 294 Kan. 55, Syl. ¶ 4.
Here, the district court found that Carswell had probable cause to conduct a warrantless vehicle search based on three factors: (1) the K-9 alert; (2) Carswell’s information from other law enforcement officers that Brewer and the vehicle might be involved in drug activity; and (3) Carswell’s observations of Brewer’s unusual and nervous behavior. We will examine each of these factors in turn.
First, with respect to the K-9 alert, Brewer acknowledges that a K-9 alert may supply the probable cause necessary to search a vehicle as long as there is some evidence that the K-9’s behavior reliably indicates the likely presence of a controlled substance. See State v. Barker, 252 Kan. 949, 959-60, 850 P.2d 885 (1993). But Brewer argues that the K-9 alert in his case did not constitute probable cause because the State failed to establish that the K-9 alert was reliable. Specifically, Brewer argues that the K-9 had a high false positive rate and the State failed to show that the K-9 had undergone die required continued training.
There is no dispute that the K-9 was properly certified at the time of the exterior air sniff in this case. Furthermore, the district court’s factual finding that Carswell and the K-9 underwent regular monthly training together during the relevant timeframe is supported by substantial competent evidence where Carswell testified that they underwent regular training and where documentation showed that tiiey had completed a training session just 9 days before the exterior air sniff. The evidence of die K-9’s certification and regular training provided the necessary foundation to establish that die dog’s “alert” provided probable cause to search the vehicle. Barker, 252 Kan. at 960. See Florida v. Harris, 568 U.S. _, 133 S. Ct. 1050, 1057-58, 185 L. Ed. 2d 61 (2013) (when training and testing records supported dog’s reliability in detecting drugs, and defendant failed to undermine that evidence, officer had probable cause to search defendant’s truck).
As to die K-9’s false positive rate of approximately 35 to 37 percent, Brewer fails to cite any caselaw supporting the proposition diat this rate is unusually high or indicates that a K-9 is not reliable. Brewer also ignores the uncontroverted evidence that the K-9’s false positive rate was based on its real world deployment. Although it appears that no Kansas courts have explicitly addressed the issue, courts in a majority of jurisdictions either have minimized or rejected real world deployment records as material evidence of a K-9’s reliability, in part because of a K-9’s ability to detect residual odor even where drugs are not found. See, e.g., State v. Nguyen, 157 Ohio App. 3d 482, 488-99, 811 N.E.2d 1180 (collecting state and federal cases addressing materiality of real world deployment records), rev. denied 103 Ohio St. 3d 1480 (2004). In United States v. Salgado, No. CR. 12-30088(01)-RAL, 2013 WL 230217, at *3-4 (D. S.D. 2013), the court stated:
“A controlled environment provides the most effective means of determining whether a dog has undergone die training necessary to reliably indicate to drug odor. Those involved in evaluation exercises know where contraband is hidden. By correlating a dog’s indications and non-indications to known locations, the dog’s reliability in detecting drug odors can be verifiably gauged.
“In the real world arena, the situation is markedly different, and it is not possible to assess a dog’s reliability in thé same way. If a dog does not indicate to a car that in reality contains drugs, the failure may never be discovered because the car was never searched. On the other-hand, if a dog indicates to a vehicle in which contraband is not ultimately found, it is impossible to know whether the dog detected to a residual odor of a drug, a correct indication, but not one that resulted in the recovery of drug evidence or whether the dog indicated without there being any drugs at all.
“For these reasons, unconfirmed’ real world indications do not necessarily detract from a drug dog’s reliability. For instance, field records may indicate that 55 percent of a particular dog’s indications were confirmed in some manner by the recovery of drugs or by a car occupant’s admission that drugs had been in the vehicle. But what about the remaining 45 percent of the indications? Were they accurate too? Most, if not all, of diem may have been and their existence does not necessarily undermine the dog’s reliability. By contrast, if die dog has a very low success rate in a controlled training or certification setting, in which all other explanations for a non-seizure indication can be eliminated, then the dog’s lack of reliability can be more precisely determined.”
We side with the majority of courts that have found that it is immaterial to use a real world-false positive rate'to challenge a K-9’s reliability because a K-9 can detect residual odor even after drugs have been removed from a vehicle. Based on die evidence presented in Brewer’s case that the K-9 was properly cértified at the time of tire exterior air sniff and that the K-9 had undergone the required continued training, we conclude the district court properly relied -on the K-9 alert in finding that Carswell had probable cause to conduct a warrantless vehicle search.
The second factor relied on by the district court was its finding that Carswell had information from other law enforcement officers that Brewer and the vehicle might be involved in drug activity. Kansas caselaw suggests that the collective knowledge of law en forcement may support probable cause to search where that knowledge is based upon reasonably reliable information relayed by a reliable chain of communication. See State v. Ibarra, 282 Kan. 530, 544-46, 147 P.3d 842 (2006) (relying on State v. Clark, 218 Kan. 726, 731-32, 544 P.2d 1372, cert. denied 426 U.S. 939 [1976]). But as Brewer points out, Carswell was unable to name the law enforcement officers from whom he received information that Brewer and the vehicle might be involved in drug activity. Also, there is nothing in the record to indicate the source or reliability of the information held by those unnamed officers. In these circumstances, there were insufficient facts to support a finding that Carswell had reasonably reliable information that Brewer and the vehicle were involved in drug activity. Thus, the district court erred in finding that such information supported probable cause to conduct a warrantless vehicle search.
The third factor relied on by the district court was its finding that Carswell personally observed Brewer s unusual and nervous behavior. Brewer notes that it is not uncommon for most citizens, whether innocent or. guilty, to exhibit signs of nervousness when stopped by police. He argues that courts should be wary of claims that nervousness indicates complicity in criminal activity. Nonetheless, our Supreme Court has found that while nervousness alone is not enough to form reasonable suspicion (and consequently, insufficient to support tire more rigorous standard of probable cause), nervousness may support an inference of criminal activity when combined with other factors. Moore, 283 Kan. at 355-60 (relying on State v. DeMarco, 263 Kan. 727, 952 P.2d 1276 [1998]). As the district court noted, Carswell testified to Brewer’s unusual behavior apart from ordinary nervousness, i.e., his quick exit from the vehicle and reluctance to return to or have anything to do with the vehicle. The district court’s finding that Carswell personally observed Brewer’s unusual and nervous behavior is supported by substantial competent evidence, and this factor supports the district court’s legal conclusion that Carswell had probable cause to conduct a warrantless vehicle search.
Whether probable cause exists to search a vehicle is determined by examining the totality of the circumstances. Sanchez-Loredo, 294 Kan. at 55. As discussed above, a reliable K-9 alert may alone supply the probable cause necessary to conduct a warrantless vehicle search. The K-9 alert in this case, especially when coupled with Brewer’s unusual and nervous behavior, indicated a fair probability tlrat tire vehicle contained drugs. The district court’s factual findings in this regard were supported by substantial competent evidence and supported its ultimate legal conclusion that Carswell had probable cause to conduct a warrantless vehicle search. Thus, we conclude tire district court did not err in denying Brewer’s motion to suppress the evidence.
Motion for Substitute Counsel
Next, Brewer claims the district court erred in denying his motion for substitute counsel during the middle of his jury trial. Brewer argues that the district court improperly focused on whether Brewer wanted to proceed pro se rather than inquiring about whether he was justifiably dissatisfied with his trial counsel. The State argues that the district court allowed Brewer to explain his grievances with counsel and, based on Brewer’s statements, appropriately exercised its discretion in denying Brewer’s motion.
An indigent criminal defendant has a right to be represented by counsel but does not have the right to be represented by a particular counsel. The decision to appoint substitute counsel depends on the circumstances of the case, and the district court possesses broad discretion in determining whether to appoint substitute counsel. An appellate court reviews the district court’s decision on a motion for substitute counsel for abuse of discretion. State v. Sappington, 285 Kan. 158, Syl. ¶ 4, 169 P.3d 1096 (2007). Judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
To warrant substitute counsel, a defendant must show justifiable dissatisfaction with appointed counsel. Justifiable dissatisfaction includes a showing of a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant. State v. Bryant, 285 Kan. 970, 986-87, 179 P.3d 1122 (2008). But not all disagreements between a defendant and his or her counsel constitute irreconcilable conflicts or lead to complete breakdowns in communication. Ultimately, as long as the district court has a reasonable basis for-believing that the relationship has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel. Bryant, 285 Kan. at 986-87. Before determining whether to appoint substitute counsel, the district court must make some inquiry into the defendant’s complaints. State v. Bogguess, 293 Kan. 743, 754, 268 P.3d 481 (2012).
Brewer argues on appeal that the district court failed to make an adequate inquiry into his complaints and then decided his motion for substitute counsel without explicitly applying or making findings under the “justifiable dissatisfaction” test. But it is apparent from the record that the district court heard from Brewer s counsel and then gave Brewer ample opportunity to explain his dissatisfaction, which Brewer repeatedly stated was because counsel was not asldng certain questions of the State’s witnesses on cross-examination. Although the district court did not explicitly deny Brewer’s motion in terms of “justifiable dissatisfaction,” it is evident that the district court found that the reasons Brewer stated were inadequate to warrant the appointment of substitute counsel. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006) (in the absence of an objection, omissions in findings will not be considered on appeal).
As to whether the reasons articulated by Brewer constituted justifiable dissatisfaction, the district court noted that strategic and tactical decisions, including whether and how to conduct cross-examination, are within the exclusive province of counsel after consultation with his or her client. Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972). Consultation does not mean that counsel must ask the client’s permission before making strategic decisions but only implies a general discussion between counsel and client. State v. Bafford, 255 Kan. 888, 895, 879 P.2d 613 (1994).
Here, Brewer acknowledged that he had met with counsel to discuss trial strategy. He cited no issues with his counsel, other than the cross-examination of Carswell, to suggest a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication. Under these circumstances, Brewer failed to show justifiable dissatisfaction with his trial counsel. We conclude the district court did not err in denying Brewer s motion for substitute counsel.
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Malone, C.J.:
Landon Mark Phillips appeals his convictions of one count of possession of methamphetamine and one count of possession of drug paraphernalia. Phillips claims the district court erred in denying his motion to suppress evidence seized as a result of the search of his motel room. Specifically, Phillips argues that his encounter with law enforcement officers prior to the search constituted an illegal detention; thus, his consent to search was granted involuntarily. We conclude that Phillips’ encounter with law enforcement started out as a voluntary encounter but evolved into an investigatory detention without reasonable suspicion of criminal activity. Because Phillips was unlawfully detained, his consent to search his motel room was rendered involuntary. Thus, we reverse the district court’s decision denying Phillips’ motion to suppress. ' ;
Factual and Procedural Background
On the evening of January 25, 2012, Officer James Befort of the Lenexa Police Department was driving through the parking lot of a Comfort Inn while on routine patrol. Befort noticed two men, later identified as Phillips and William Dougherty, walking back and forth in the parking lot between the motel and a parked vehicle. The men had a number of plastic grocery bags lying on the ground near a side door to the motel, and Dougherty appeared to be searching through the bags. Befort later testified that he was curious about what fire men were doing and if they were guests at the motel. He pulled up in his patrol car to the side door where the men were standing and parked approximately 10-15 feet from the motel. Befort did not activate his emergency lights or siren, but tire patrol car s headlights were pointed in the direction of Phillips and Dougherty.
Befort approached Phillips and Dougherty with a flashlight as they stood by the side door. Befort struck up a conversation with the two men, asking what they were doing and what brought them to Lenexa. The men told Befort they were from Wyandotte County, but they had booked a room at the motel in order to get away and design a website. Befort asked for permission to conduct pat-down searches to look for weapons, and both men consented. Befort instructed Phillips to put his hands on his head and placed his hand on Phillips’ back before conducting his pat-down search. Befort then asked for permission to search Phillips’ pockets, which he granted. Befort did not find any weapons or anything illegal on Phillips’ person or in his pockets.
While Befort was searching Phillips, Detectives Grisell and San-derson of the Lenexa Police Department arrived on the scene in an unmarked vehicle with no sirens or emergency lights activated. Upon arrival, Grisell walked up to where Befort, Phillips, and Dougherty were standing by the motel door, while Sanderson remained back about 20-25 feet. Befort then patted down Dough-erty, and after gaining consent, also searched Dougherty’s pockets. Dougherty informed Befort before tire search that he had a poclc-etknife on his person, which Befort removed and placed in his own back pocket. Befort told Dougherty to remind him to return the knife later. Befort did not find anything illegal on Dougherty’s person or in his pockets. By the time Befort completed the search of the men’s pockets, the encounter had lasted approximately 5 minutes.
After he finished searching Dougherty, Befort told him that he wanted to talk to him, and Befort motioned for Dougherty to follow him 5-10 feet away to a grassy area between the motel and the sidewalk. Phillips remained standing by the motel door next to Grisell. Befort inquired whether Dougherty had anything illegal in his vehicle which was parked in the motel parking lot, and Dough-erty said no. Befort then asked Dougherty if he was addicted to anything or did drugs, to which Dougherty responded that he had smoked marijuana when he was younger. Befort asked several times whether Dougherty used any other drugs, to which he responded no. Befort instructed Dougherty to pull up the sleeves of his sweatshirt, apparently to see if there were any signs of needle marks on Dougherty’s arms.
Next, Befort asked permission to search Dougherty’s vehicle, and Dougherty said yes. Befort asked if Dougherty had his car keys on him, and when Dougherty indicated that his keys were in one of the bags by the motel door, Befort told him to go get them. Befort followed Dougherty over to the bags where he retrieved his keys and handed them to Befort. Befort and Sanderson searched Dougherty’s car while Phillips and Dougherty stood by the motel door. The officers did not find anything illegal in the vehicle.
Befort also ran warrant checks on Phillips and Dougherty, which yielded no results for either man. While running the checks, Befort continued to ask Phillips and Dougherty questions. Befort asked again what Phillips and Dougherty were doing at the motel, how the two men knew each other, whether either man had been arrested before, and whether they were meeting anyone else. Befort also asked to search a cell phone, which apparently belonged to Dougherty, and. he did so after receiving permission.
About 18 minutes after Befort first approached Phillips and Dougherty, one. of the detectives asked, “Mind if we just go through your room and onake sure no one else is staying in there with you real quick, and malee sure nothing is going on in there and then well get out of your hair?” Befort later testified that Dougherty said, he had no problem with tire officers searching the motel room. Befort could not recall whether Phillips gave explicit permission for the search, but he testified that Phillips was in “agreeance” with Dougherty. Befort then addressed Dougherty once more, saying, “Hey, don’t let me forget before we get out of here to give you this back—this knife.” Phillips and Dougherty picked up their plastic grocery bags from the ground and entered the motel through the side door, followed by all three officers.
Once inside the motel, Befort again asked if the men minded the officers looking around their motel room. While searching the motel room, the officers opened a drawer in a nightstand and found a black tray with traces of white residue and crystalline white rock on the tray. Based on his training and experience, Befort believed the substance to be methamphetamine. The officers also found a backpack lying on tire floor of the motel room, which Phillips said belonged to him. Befort asked Phillips if he could open the backpack, and Phillips said yes. Inside the backpack, Befort found a plastic straw cut down to a few inches in length, which he believed was drug paraphernalia.
The officers arrested Phillips and Dougherty, and Befort later interviewed Phillips at the Lenexa detention center. Phillips eventually admitted that he had been smoking the methamphetamine found in the motel room. Subsequent lab testing at the Johnson County Sheriff s Office confirmed that the white residue and the white crystalline substance found in the motel room was methamphetamine.
The State charged Phillips with one count of possession of methamphetamine and one count of possession of drug paraphernalia. The State filed the same charges against Dougherty in a separate case. Prior to trial, both defendants filed a motion to suppress the evidence discovered during tire search of the motel room as well as any subsequent statements. In his motion, Phillips argued that he was tire subject of an unlawful detention and claimed drat the officers had seized him without reasonable suspicion of criminal activity. Thus, Phillips argued that his consent to the search of the motel room was involuntaiy. The State responded to Phillips’ motion and argued that Phillips’ entire encounter with the law enforcement officers was consensual and that his consent to the search was voluntary.
The district court held a joint hearing for both defendants on July 12, 2012. The State presented the testimony of Befort and also introduced an audioMdeo recording of the entire encounter at the motel which had been taken from Befort’s patrol car. Phillips also testified at tire hearing, but he did not dispute any of the evidence presented by the State. At the conclusion of the hearing, the district court denied both motions, finding that Phillips’ and Dougherty’s entire encounter with the law enforcement officers was consensual and that the two men voluntarily consented to the search of their motel room. Phillips later agreed to a bench trial conducted on stipulated facts. At trial, Phillips renewed his motion to suppress. The district court found Phillips guilty as charged. Phillips timely appealed his convictions.
Did the District Court Err in Denying Phillips’ Motion to Suppress?
On appeal, Phillips claims the district court erred in denying his motion to suppress. Specifically, Phillips argues that his encounter with the law enforcement officers prior to the search of the motel constituted an unlawful detention without reasonable suspicion of criminal activity. Phillips argues that because he was unlawfully detained, his consent to search the motel room was rendered involuntary. Thus, Phillips argues that the evidence found in the motel room was unlawfully seized and his statements at the detention center must be suppressed as fruit of the poisonous tree.
The State contends that Phillips’ entire encounter with the law enforcement officers was consensual. Thus, the State argues that Phillips was never unlawfully detained and that his consent to the search of the motel room was voluntary.
In reviewing the granting or denial of a motion to suppress evidence, appellate courts use a bifurcated standard. The appellate court reviews the district court’s factual findings to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion is reviewed using a de novo standard. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). The parties agree that the facts in this case are uncontested. When tire material facts to a district court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. 296 Kan. at 485.
The State bears the burden of proof for a suppression motion. The State must prove to the district court the lawfulness of the search and seizure. K.S.A. 22-3216(2); State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009). Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011). Here, the State is asserting Phillips’ consent to the search as the exception to the warrant requirement. The State has tire burden of establishing tire scope and voluntariness of the consent to search. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009).
As a preliminary matter, the State raises two procedural arguments as to why we should not address the merits of Phillips’ claims on appeal. First, the State contends that Phillips is arguing for the first time on appeal that his consent to the search of his motel room was not voluntary. The State asserts that Phillips’ motion to suppress only argued that he was the subject of an investigatory detention and the issue of consent was not presented to the district court and should not be considered for the first time on appeal.
Generally, issues not raised before the district court cannot be raised on appeal. State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). The State is correct in its assertion that Phillips’ written motion to suppress argued that he was the subject of an inves-tigatoiy detention, not a voluntary encounter. However, Phillips’ motion went on to argue that during his encounter with law enforcement, he “did not feel free to leave or decline the officer’s request for search because he was detained by 3 officers for more than 20 minutes.” At the hearing, Phillips’ counsel argued that “[i]f the Court does determine this was an investigatory detention, at any point prior to the police entering the hotel room [tire search] would have been non-consensual and the evidence should be suppressed.” The district court’s ruling on the motion to suppress clearly addressed the issue of consent. Thus, we conclude the issue is properly preserved for appeal.
Second, the State argues that even if Phillips prevails on his consent issue, he is not entitled to any relief because the issue of Dougherty’s consent to search has not been briefed. The State contends that this point is significant because Phillips can only prevail if both his consent and Dougherty’s consent to search are deemed involuntary. The State points out that Dougherty told Be-fort that he had rented the motel room with Phillips and he actually possessed the key; thus, he had apparent authority to consent to a search of the room. The State asserts that under the apparent authority rule, a consent to search is valid when the facts available to the officer would warrant a person of reasonable caution to believe that the consenting party had authority over the premises to be searched. Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990).
The State did not raise the “apparent authority” argument in district court, and thus, we should not consider the argument for the first time on appeal. Johnson, 293 Kan. at 964. In any event, the argument is inapplicable here. The district court held a joint suppression hearing for both Phillips and Dougherty, and both defendants argued that they were unlawfully detained by the law enforcement officers. Phillips and Dougherty were subjected to the same police conduct as part of the encounter in the motel parking lot. If the detention was unlawful as to Phillips, it also was unlawful as to Dougherty, rendering his consent to the search of the motel room involuntary. Thus, we will address the merits of Phillips’ claims on appeal.
We begin by examining the applicable constitutional provisions. The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Section 15 of the Kansas Constitution Bill of Rights contains similar language and “provides protection identical to that provided under the Fourth Amendment to the United States Constitution.” State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003).
Kansas courts recognize four types of police-citizen encounters. The first type is a voluntaiy encounter, which is not considered a seizure under tire Fourth Amendment. State v. Lee, 283 Kan. 771, 774, 156 P.3d 1284 (2007). The second type is an investigatory detention or a Terry stop, in which an officer may detain any person in a public place if the officer reasonably suspects that the person is committing, has committed, or is about to commit a crime. See K.S.A. 22-2402(1); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The third type is a public safety stop, in which an officer may approach a person to check on his or her welfare when the officer can articulate specific facts indicating a concern for the public’s safety. See State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992). The fourth type of encounter between law enforcement officers and citizens is an arrest. See K.S.A. 22-2401.
The only issue on appeal is whether Phillips’ encounter with the law enforcement officers was voluntary as opposed to a detention or a seizure. The delineation between a voluntary encounter and an investigatory detention is narrow and depends on the totality of the circumstances. Both instances involve contact between a law enforcement officer and a citizen, usually precipitated by the law enforcement officer. “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen . . . .” Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).
A voluntary encounter is not considered a seizure and does not require a law enforcement officer .to have reasonable suspicion of criminal activity. Lee, 283 Kan. at 774-75. Conversely, a person is seized when there is a show of authority which, in view of all the circumstances surrounding die incident, would communicate to a reasonable person that he .or she is not free to leave and the person submits to the show of authority. Morris, 276 Kan. at 18-19. A seizure requires a law enforcement officer to have reasonable suspicion of criminal activity. 276 Kan. at 17.
Law enforcement interaction with a person is consensual, not a seizure, if under tire totality of the circumstances the officer s conduct conveys to a reasonable person that he or she is free to refuse the officer’s requests or otherwise end the encounter. State v. McGinnis, 290 Kan. 547, 552, 233 P.3d 246 (2010). There are several objective factors that courts may consider to help determine whether a police-citizen encounter is voluntary or an investigatory detention, including the presence of more tiran one officer, the display of a weapon, physical contact by the officer, use of a commanding tone of voice, activation of sirens or flashers, a command to halt or to approach, and an attempt to control the ability to flee. 290 Kan. at 553. But in applying the totality of the circumstances test in a Fourth Amendment context, no one factor is legally determinative, dispositive, or paramount. 290 Kan. at 553.
Phillips initially argues that his entire encounter with Befort constituted an investigatory detention, relying on our Supreme Court’s decision in Morris. In that case, two sheriffs officers in a patrol car activated the emergency lights and approached Morris as he sat in his pickup, which was legally parked in a public place. The Supreme Court concluded that Morris’ encounter with the sheriff s officers was not voluntary but rather occurred under a show of authority. The Supreme Court pointed to tire officers’ conduct— the activation of the emergency lights in a remote area off a roadway—as a show of authority which would communicate to a reasonable person that there was an intent to intrude upon freedom of movement. 276 Kan. at 20.
While Befort did not activate his emergency lights in the instant case, Phillips argues that Befort parked his patrol car in a way so that his headlights shone on Phillips and Dougherty. Phillips points out that Befort approached with his flashlight on, shining direcdy on the men and their belongings. Phillips argues that Befort’s actions were a show of authority, that Phillips and Dougherty submitted to that show of authority, and that the initial encounter was a seizure.
We reject Phillips’ claim that his encounter with Befort was a detention or seizure at foe outset. A seizure does not occur simply because a law enforcement officer approaches an individual in a public place and asks a few questions, including a request for identification. State v. Moralez, 297 Kan. 397, 405, 300 P.3d 1090 (2013). Here, when Befort approached Phillips, there was no application of physical force or a show of authority which would communicate to a reasonable person that a seizure had occurred. Befort had a right to use a flashlight and to keep his vehicle headlights on because it was night and he wanted to be able to clearly see the two men in foe parking lot. Also, Befort was attempting to activate the equipment in his patrol car to record foe encounter. But Befort did not block or physically restrain the two men from going about their business in the parking lot. Under foe totality of foe circumstances, when Befort initially approached Phillips in foe parking lot, a reasonable person would have felt free to decline Befort’s requests for information or to otherwise end the encounter.
Alternatively, Phillips argues that regardless of whether the encounter began as a detention, it evolved into a detention at some point prior to the time the men were asked for permission to search their motel room. Phillips contends that at foe time foe men were asked for consent to search their room, a reasonable person would not have felt free to decline the officers’ requests or otherwise terminate the encounter. The State responds by arguing that Phillips’ entire encounter with the law enforcement officers was consensual.
The determination of whether a reasonable person would feel free to terminate an encounter or refuse to answer questions is fact driven. McGinnis, 290 Kan. 547, Syl. ¶ 6. But here, both parties agree that foe facts are undisputed. In fact, the entire encounter between Phillips and the law enforcement officers was recorded, and the DVD was presented as evidence at foe suppression hearing and is included in the record on appeal. The ultimate legal conclusion drawn from undisputed facts, i.e., whether a reasonable person would feel free to refuse the officer’s requests or to otherwise terminate the encounter, is reviewed under a de novo standard. 290 Kan. at 552.
As the State points out, there are several factors in this case that weigh in favor of concluding that Phillips’ entire encounter with the law enforcement officers was voluntary. Befort did not activate his emergency lights or siren. None of the officers drew their weapons during the encounter. The audio tape reflects that the officers spoke with Phillips and Dougherty in a conversational tone of voice; they were polite throughout the encounter. The officers never blocked or physically restrained Phillips and Dougherty from trying to leave the parking lot.
But as Phillips counters, there are many factors in this case that weigh in favor of concluding that at some point, the encounter between the two men and the law enforcement officers evolved into an investigatory detention. First, within a few minutes after the encounter was initiated, three officers were on the scene in the parking lot. The presence of more than one officer is a factor in determining whether there was a coercive show of authority. McGinnis, 290 Kan. at 553; Lee, 283 Kan. at 775.
Second, the encounter lasted for about 18 minutes before the officers asked if they could search the motel room. Befort initially approached Phillips and Dougherty in the parking lot, struck up a conversation, patted them down for weapons, and searched their pockets with consent. After 5 minutes, it should have been reasonably clear to Befort that the two men were not engaged in any criminal activity in the parking lot. As the district judge candidly stated in ruling on the suppression motion, “I suppose a lot of officers would have quit at that point.” Although the encounter began as voluntaiy, after 18 minutes of continuous questioning by the officers, it is unlikely that a reasonable person would have felt free to end the encounter without the officers’ permission.
Third, as Phillips argues, the nature of the encounter resembled an investigatory detention. Within a minute of arriving, Befort began questioning the men about illegal activity, including contraband on their persons. Befort patted down both men for weapons, and then he obtained consent to search their pockets and found nothing illegal. Befort examined Dougherty’s arm for needle marks and later searched his cell phone. Befort requested permission to search Dougherty’s vehicle and directed him to obtain the keys from one of the groceiy bags. The officers did not find anything illegal in the vehicle. Befort also ran warrant checks on Phillips and Dougherty, which yielded no results for either man. After about 18 minutes, the officers finally requested permission to search the motel room. Clearly the entire encounter between the law enforcement officers and the two men was investigatory in nature.
Fourth, a reasonable person would not feel free to leave when a police officer had seized personal property, as Befort did with Dougherty’s pocketknife, and held onto it during the entire encounter. In Moralez, 297 Kan. at 408, the court found the defendant was “seized” when a law enforcement officer took possession of his identification and retained it while running a check for outstanding warrants. Here, the district judge observed at the suppression hearing that Befort’s retention of the pocketknife was “not the same as taking someone’s driver’s license.” Nevertheless, the prolonged retention of a person’s personal effects is a factor that weighs in favor of concluding that a person has been seized. State v. Thompson, 284 Kan. 763, 811, 166 P.3d 1015 (2007).
Fifth, Phillips emphasizes that at no point did the officers tell Phillips and Dougherty that they were free to leave, free to refuse to answer questions, or free to refuse consent. While a law enforcement officer is not required to tell a citizen that he or she is free to leave during a voluntary encounter, the officer’s failure to do so is another factor to be considered under the totality of the circumstances. State v. Young, 37 Kan. App. 2d 700, 709, 157 P.3d 644 (2007).
Finally, Phillips focuses on two statements made by the officers during the 18 minutes of questioning. The first statement was when Befort told Dougherty that he would return the pocketknife when the encounter was completed. Phillips asserts that a reasonable person would infer from this statement that the encounter was not completed until Befort returned the pocketknife. Second, the officers asked for consent to search the motel room and stated “then we’ll get out of your hair.” Again, Phillips asserts that a reasonable person would infer from this statement that the officers would not let Phillips and Dougherty go about their business until they consented to the search of their room.
The State bears the burden of proving the lawfulness of any search and seizure. Morlock, 289 Kan. at 985. Here, under the totality of the circumstances, no reasonable person would have felt free to end the encounter or to refuse the officers’ request when they asked for consent to search the motel room. What began as a voluntary encounter between Befort and the two men in the parking lot evolved into an investigatoiy detention prior to the time that the officers asked for consent to search the motel room. The State concedes that the officers had no reasonable suspicion of criminal activity until the drugs and paraphernalia were found inside the motel room; thus, the detention in the motel parking lot was unlawful.
The State makes no attempt to argue that any taint caused by the unlawful detention was purged through attenuation such that Phillips’ consent to the search of the motel room and his later statements to Befort were free and voluntaiy. Because Phillips was unlawfully detained when he allowed the officers to search his motel room, his consent to search was rendered involuntary. See State v. Smith, 286 Kan. 402, 419, 184 P.3d 890, cert. denied 555 U.S. 1062 (2008). We conclude the evidence found in the motel room was unlawfully seized and Phillips’ later statements at the detention center are inadmissible as the “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Thus, the district court erred in denying Phillips’ motion to suppress.
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