text
stringlengths 9
720k
| embeddings
sequencelengths 128
128
|
|---|---|
Leben, J.:
Heather Hilton was put on probation in two separate felony cases, and the district court followed the parties’ agreement by making the two probations—each lasting 12 months—consecutive to one another. A month later, Hilton violated one of the conditions of her probation.
The State asked that probation be revoked in both cases and that Hilton be required to serve the prison sentences for both crimes. Hilton argued that since the probation terms were made consecutive to one another she was only serving the first probation at the time of the violation. As a result, she argued, the court could only revoke the probation for the first offense; meaning that she would only have to serve’ one of the two prison terms. The district court revoked probation in both cases and ordered her to serve both prison terms.
In this appeal, we have a single question to decide: If a district • court has ordered two consecutive probation periods and the defendant violates tire terms of probation during the first probation period, can the judge revoke both probations and order the defendant to serve both prison sentences? We conclude that the judge can revoke both probations in this case, and we therefore affirm the district court.
Factual and Procedural Background
This case has an unusual procedural background, and we need to go through some of that to properly set tire stage to decide the legal issue presented to us. The first of Hilton’s two felony convictions at issue here came in 2006 in case No. 05CR264; she was convicted of criminal damage to property for sinldng someone else’s motorboat. She was placed on probation for 12 months with an underlying 10-month prison sentence that would be served if she didn’t successfully complete probation. A key condition of probation was that she make restitution to the boat owner. When the 12 months of probation was about to end, the court extended it for another 24 months because she still owed $15,484 in restitution. A probation can be extended when the defendant has not paid the full amount of restitution ordered by the court. See K.S.A. 21-4611(c)(7).
While still serving that probation, Hilton committed a new felony—attempted reckless aggravated batteiy—for an incident involving the spanking of a child. In the new case, No. 07CR312, Hilton was granted a 12-month probation with an underlying prison sentence of 8 months that would be served if she didn’t successfully complete the probation.
Hilton and tire State reached a written plea agreement on the new charge, but the written agreement didn’t say what would happen to the probation in the property-damage case. A joint hearing was held to determine the sentence to be imposed in the attempted-reckless-aggravated-batteiy case (the court had the option of either probation or prison) and whether to revoke her probation and send her to prison in the damage-to-property case. By law, since the new felony was committed while Hilton was on a felony probation, the district court was required to make the prison sentences in tire two cases consecutive to one another under K.S.A. 21-4608(c). Concurrent sentences share the same clock, so only the longest sentence is served; the shorter ones tick away alongside the longest sentence. Consecutive sentences run separately and result in longer time in prison. See Wilkinson v. State, 40 Kan. App. 2d 741, 741, 195 P.3d 278 (2008). In Hilton’s situation, though, she might not have to serve the consecutive sentences if she received probation on the new felony, reinstatement of probation for the older felony, and successfully completed the probation terms.
The district court noted that Hilton, then 31 years old, had 22 prior offenses, 11 of them felonies. The court nonetheless determined that Hilton would get another chance at probation in both cases. The court recognized that the prison sentences must be consecutive to one another but initially indicated that the probation terms would be concurrent, with only the prison sentences run consecutively. But the defense attorney told the court that the parties had agreed for the probation terms to be consecutive, and the court accepted that:
The Court: “And Ms. Page, you stipulate that you violated, by this conviction, your prior probation, and you agree under your agreement with [the prosecutor] that your probation in that [earlier] case would be revoked and reinstated and the probation would run concurrently but the sentencing would run consecutive; is that correct, [prosecutor]?”
Prosecutor: “I believe Your Honor can run everything consecutive. It’s your choice. She still owes a considerable sum of money and restitution in the old case as well as this new conviction.”
Defense Attorney: “Our agreement was consecutive, Your Honor.”
The Court: “All right. The court will order that.”
The district court entered written orders in both cases, which were signed by the judge, the prosecutor, and the defense attorney. In the order on the 2005 felony, the court noted that its probation term would run consecutive to the probation on the new felony: “Probation 05CR264 consecutive to probation in 07CR312 (12 + 12 = 24 mos).” In the order on the new felony, the court made a similar note: “Probation of 12 mos consecutive to the Probation of 12 mos in 05CR264, revoked and reinstated. Total of 24 mos probation to begin today. Probation through 1/12/11 total both cases.”
The next month, Hilton admitted to her probation officer that she had been drinking in a bar, which violated the terms of her probation. After a hearing, the district court revoked her probation in both cases and ordered that she serve the underlying, consecutive prison sentences. The district court rejected her argument that it had authority only to revoke die first of the two consecutive probation terms.
Hilton appealed to this court, but there were substantial delays in getting transcripts of court hearings prepared and in the attorneys for each side getting their briefs on file. By the time the case was ready to be heard in our court, Hilton had already served her prison sentence, so our court dismissed the case as moot. But the Kansas Supreme Court reversed that decision, concluding that there was an issue of public importance presented in this case that is capable of repetition, and it remanded the case to us for our consideration. State v. Hilton, 295 Kan. 845, 851-52, 286 P.3d 871 (2012).
Analysis
Hilton contends that the district court could not revoke the probation in both cases because—given the consecutive nature of the probation terms—one of the probation periods had not yet begun. According to Hilton, there is no statutory authority to revoke a probation that has not yet commenced, so the district court could not revoke probation in one of the cases (the one in which the probation was to be served second in time).
The State contends that when probation terms are ordered to run consecutively, they actually are both served together initially. Once the first probation term ends, the State contends that the defendant is only serving probation in the remaining case.
What’s at issue here is a question of law—was the judge’s sentencing order revoking both probations a lawful one? We review that question independently, without any required deference to the district court. See State v. Ross, 295 Kan. 1126, 1130-31, 289 P.3d 76 (2012). We cite to the sentencing statutes that were in place in March 2009 when the district court revoked Hilton’s probation in the two cases.
Before getting to the question we must decide, we note that one question—whether the district court has authority to order probation terms to be served consecutively—-is not before us in this appeal. Hilton’s attorney told the district court that both parties had agreed to make the probation terms consecutive. In addition, in her appellate brief, Hilton has never made the argument that the district court erred by running the probation terms consecutively. Instead, her sole issue on appeal was that the district court erred “by revoking probation in both cases . . . because a court cannot revoke probation for a violation that occurs before the term of probation begins.” Hilton’s appeal is premised on the fact that tire probation terms were consecutive to one another.
Our statutes provide broad authority for the district court to place conditions on the grant of probation but little guidance about the specific question before us. K.S.A. 21-4603 provides that the district court may “release the defendant on probation subject to such conditions as the court may deem appropriate.” Revocation of probation is provided for under K.S.A. 22-3716. That statute provides slightly different language based upon whether the crime was committed before Kansas adopted sentencing guidelines in 1993—a warrant may be issued for the arrest of die defendant for a probation violation “[a]t any time during probation, assignment to a community correctional services program, [or] suspension of sentence” for a pre-July 1, 1993, crime and “at any time during which a defendant is serving a nonprison sanction“ for crimes committed after July 1, 1993. (Emphasis added.) K.S.A. 22-3716(a). The statute provides for procedures under which a warrant may be issued for the defendant’s arrest for an apparent violation of probation conditions, for the potential detention of the defendant pending a hearing, and for revocation of the probation if the violation is established. K.S.A. 22-3716(a), (b).
Ultimately, we do not find the statutory language determinative because, as courts in other states have held, the district court has die inherent power to revoke an order of probation—even though the probation period has not yet begun—if tire defendant has committed misconduct after entry of the order granting probation. See Stafford v. State, 455 So. 2d 385, 386-87 (Fla. 1984) (holding that district court has inherent power to revoke order of probation based on misconduct after entiy of probation order even though probation period had not yet begun); State v. Jacques, 554 A.2d 193, 195 (R.I. 1989) (holding that an implied condition of good behavior attaches to probation from the moment of sentencing even if probation term has not yet formally begun); 24 C.J.S. Criminal Law § 2158 (“Under the exercise of its inherent power to revoke probation, the court can revoke an order of probation, the term of which is not yet commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subsequent to an order of probation.”)- Under its inherent authority, the district court had the power to revoke the probation term that—based on the parties’ agreement and the court’s earlier orders—had not yet begun.
We find nothing inconsistent between this inherent power of the court and the language of K.S.A. 22-3716(a). It allows the issuance of a warrant for arrest when the defendant has violated “any of the conditions of release” while die defendant “is serving a nonprison sanction.”
In one way of looking at our situation under the statute, Hilton was at least serving a nonprison sanction because even she agrees that one of the two probation terms was in effect. Under this way of looking at the case, one might interpret the statute to allow for the revocation of any probation that has been ordered when the offender has violated conditions of release while serving any other probation (“a nonprison sanction”), as Hilton was. Other courts have broadly interpreted their statutes authorizing probation revocation to allow a trial judge to revoke probation—even when the probation term has not yet begun—based on misconduct after the court announced the award of probation and its terms. See United States v. Ross, 503 F.2d 940, 942-43 (5th Cir. 1974) (holding that statute providing for revocation .“at any time within the probation period” allowed revocation for acts that occurred before probation period formally commenced); Enriquez v. State, 781 P.2d 578, 579-80 (Alaska App. 1989) (holding that court has authority to revoke probation before probationary term has commenced under statute allowing revocation “at any time during the probationary term”); Wright v. United States, 315 A.2d 839, 840-41 (D.C. 1974) (holding that statute providing for revocation “ ‘during, -the probationary term’. . . should be construed for revocation purposes as including the term beginning at the time probation is granted”); Brown v. Com., 564 S.W.2d 21, 22-23 (Ky. App. 1977) (rejecting argument that revocation may occur only “during probation” based on statutory language); contra State v. Stiffarm, 359 Mont. 116, 118-20, 250 P.3d 300 (2011) (concluding that statute authorizing revocation of suspended sentence “during the period of suspension” didn’t allow revocation for acts occurring before the suspended sentence begins); State v. Deptula, 34 Conn. App. 1, 9, 639 A.2d 1049 (1994) (holding that a statute authorizing revocation for a violation “[a]t any time during the period of probation” means that misconduct must have occurred while defendant was serving probation).
Another way of looking at our situation would be that K.S.A. 22-3716(a) only authorizes the issuance of a warrant for the defendant’s arrest when there is an alleged violation “of the conditions of release” of the “nonprison sanction” the defendant is presently serving. Under this way of looking at our case, the district court could issue a warrant for Hilton’s arrest for violation of tire probation that all parties agree she was serving, but could not issue an arrest warrant—at least under tire statute—related to the probation Hilton was not yet serving. But the inability to serve a warrant under the statute does not undermine any inherent authority the court may have to revoke a probation in circumstances not covered by the statute. And the statute arguably does not speak to the situation we have, in which the State asks that a probation be revoked before its term has commenced.
In sum, a court might interpret K.S.A. 22-3716(a) broadly, as courts in several states have done with their statute, so that its reference to “serving a nonprison sanction” would apply to Hilton. Or one might conclude that the statute doesn’t cover this situation at all—in which case the court’s inherent authority may remain in place unless contrary to the statute’s commands.
What’s clear from these cases is that there is a strong policy basis for the rule most other courts have applied. The Tennessee Court of Appeals emphasized that allowing a defendant to engage in prohibited conduct after probation has been granted—but before the term technically commences-—would be contrary to the sentencing policies served by probation:
“[A]s noted by a majority of jurisdictions, sound public policy dictates that a defendant who lias been sentenced, and is thereby on notice of any probationary terms, should not be granted free [rein] to violate those terms at will merely because the actual peiiod of probation has not begun. Such an anomaly would be contrary to the express purposes and considerations of sentencing under Tennessee law.” State v. Conner, 919 S.W.2d 48, 51 (Tenn. Crim. App. 1995).
Common sense and public-policy considerations both urge that the trial court should be able to revoke a probation that has been granted—even if it has not yet begun—if the defendant’s conduct calls for revocation. E.g., Ross, 503 F.2d at 943 (“Sound policy requires that courts should be able to revoke probation for a defendant’s [new] offense committed before the sentence commences; an immediate return to criminal activity is more reprehensible than one which occurs at a later date.”); Parrish v. Ault, 228 S.E.2d 808, 809 (Ga. 1976) (“It malees no sense to us to construe these statutes to mean that a convicted felon must begin serving his probated sentence before there can be a revocation of probation.”); Com. v. Wendowski, 278 Pa. Super. 453, 420 A.2d 628 (1980) (concluding that probation may be revoked for misconduct, even though probation term hasn’t yet begun, because allowing defendant to proceed with probation in that circumstance would be contrary to the public interest and the ends of justice).
Given the policy arguments that favor recognizing the inherent authority of a trial court to revoke probation for a defendant in Hilton’s circumstance, we don’t think it’s necessary to parse whether the specific wording of K.S.A. 22-3716 allows revocation of a probation whose term has not yet commenced. A trial court cannot revoke probation based on a defendant’s actions that occur before the defendant is even granted probation. State v. Gary, 282 Kan. 232, 241, 144 P.3d 634 (2006) (holding that probation couldn’t be revoked based on act that occurred 3 days before probation was granted). But under the court’s inherent authority, a defendant’s misconduct after probation has been granted may be the basis for a court to revoke the probation, even if the probation term has not yet begun.
The misconduct at issue here—Hilton’s admission that she had been drinking at a bar—was contrary to the terms of the probation that was in effect. Hilton has not argued, either in the district court or on appeal, that this misconduct was insufficient to justify the revocation of her probation. Her only argument on appeal is that the second of the two, consecutive probation terms could not be revoked because it had not yet begun. We reject that argument, and we therefore affirm the district court’s judgment.
* # # | [
-48,
-23,
-100,
124,
26,
97,
11,
-80,
-14,
-43,
112,
18,
-85,
-58,
1,
57,
-112,
111,
69,
112,
-47,
55,
51,
64,
-89,
-37,
-7,
-45,
-67,
111,
124,
-27,
28,
-78,
-110,
113,
-58,
-109,
-15,
94,
-114,
-121,
-102,
-19,
-47,
-61,
36,
121,
10,
-113,
33,
-116,
-93,
45,
18,
78,
73,
105,
75,
109,
-40,
-73,
-103,
5,
107,
16,
-125,
53,
20,
7,
-6,
-91,
-100,
61,
0,
104,
114,
-106,
-58,
84,
79,
-101,
-92,
2,
118,
-128,
101,
-51,
-84,
-88,
55,
38,
-81,
-125,
-103,
89,
11,
69,
-74,
-36,
70,
-106,
44,
126,
102,
-57,
85,
-32,
1,
-39,
-108,
-79,
73,
95,
-50,
-6,
-25,
33,
-75,
117,
-52,
-26,
84,
118,
81,
-101,
11,
-41
] |
Leben, J.:
Universal Underwriters Insurance Company (“Universal Underwriters”) and Zurich American Insurance Company (“Zurich”), collectively “the insurers,” appeal the district court’s determination that the insurers had the duty to defend an insured against claims made against the insured in a lawsuit. The district court held that the insurers were obligated to defend Central Power Systems & Services, Inc. (“Central Power”) in litigation in stigated by a customer of Central Power. That customer had alleged that Central Power had been negligent and had made negligent misrepresentations regarding the way products Central Power provided would operate. Applying Missouri law, the district court found that the claims asserted against Central Power for negligence and negligent misrepresentation triggered the insurers’ duty to defend under the insurance coverage provided to Central Power.
The insurers contend that the district court erred in three ways: (1) by applying Missouri law; (2) by finding the policy covered negligence and negligent-misrepresentation litigation; and (3) by finding no exclusion in the policy that extinguished tire insurers’ duty to defend Central Power on,these claims. But we find no error:
• Missouri law applies because the insurance contract was made in Missouri when the last act needed for creation of the insurance contract—delivery of the insurance policy—took place at Central Power’s Missouri business location.
• Under Missouri law, claims for negligence and negligent misrepresentation have been held covered under similar insurance policies.
• Under Missouri law, exclusions apply only when their language clearly and unambiguously precludes coverage, and no exclusion cited here by tire insurers does so.
Because the court below appropriately applied Missouri law, and because the plain language of the policy covers and does not exclude coverage for negligence and negligent misrepresentation, we affirm the district court.
Factual and Procedural Background
As part of a single insurance policy, Central Power purchased general-liability coverage (Part 950), personal umbrella coverage (Part 970), and general umbrella coverage (Part 980) from the insurers in July 2005. The contracts were finalized when Universal mailed the policies to Central Power’s principal place of business in Missouri.
This dispute arose when Central Power was sued in the United States District Court for the District of Kansas by Eagle Well Service, Inc. (“Eagle Well”) in April 2008. Eagle Well and Central Power had formed a contract under which Central Power was to furnish Eagle Well with 10 oil-rig engines and 10 oil-rig transmissions. Eagle Well alleged that Central Power had told them that the engines and transmissions would be operational without any additional components.
But the engines could not operate without a wiring harness. Central Power attempted to fashion a wiring harness for the engines, but the first attempt failed, apparently based on miscommunication: The wiring harness produced did not fit the engine because the wrong measurements had either been requested by or submitted to Central Power. Eagle Well then found a third party to make wiring harnesses that would meet their needs; to install the wiring harnesses, Eagle Well had to uninstall the engines from the rigs.
In the suit against Central Power, Eagle Well alleged damages in the form of lost profits for the time it took to make the engines independently operational, as well as money to cover the costs of purchasing the wiring harnesses from the third party and attaching those harnesses to the engines.
Eagle Well’s lawsuit against Central Power alleged five theories of recovery, including breach of contract, fraudulent inducement, negligence, and negligent misrepresentation. The United States District Court for the District of Kansas granted Central Power summary judgment on the fraudulent-inducement claim, finding no intentional fraud in Central Power’s dealings with Eagle Well. Eagle Well Service, Inc. v. Central Power Systems & Services, Inc., No. 08-2184-CM, 2009 WL 2776851, at *2-3 (D. Kan. 2009) (unpublished opinion). The case proceeded on the remaining theories. Shortly before trial, in April 2011, Eagle Well and Central Power reached a settlement and stipulated to dismissal of tire lawsuit.
After Eagle Well had filed its lawsuit, Central Power contacted the insurers asking that they provide the defense to Eagle Well’s lawsuit and coverage for Central Power’s losses (potential damage awards against it in the Eagle Well lawsuit) under the policy. After a year-long investigation, Zurich refused to defend or to indemnify Central Power under the policy.
In August 2009, Central Power filed a petition for declaratory relief in the district court seeking a judgment that it was owed a defense under its policy with the insurers. The parties stipulated to the facts, and the district court, applying Missouri law, concluded that Eagle Well’s negligent-misrepresentation and negligence claims were covered by the policy, thus triggering the insurers’ duty to defend Central Power in the Eagle Well lawsuit.
Central Power brought its claims jointly against both Zurich and Universal Underwriters. The record before us does not explain the relationship between tírese insurers, but we recognize that Zurich is the parent company of Universal Underwriters. See Automax Hyundai South v. Zurich American Ins., 720 F.3d 798, 801 (10th Cir. 2013). The parties stipulated in the district court that the policy was issued by Universal Underwriters, but the insurers agreed in their section of the pretrial order in this case that both insurers shared the insurance obligations arising under the policy. On appeal, the insurers contend that the district court was wrong to apply Missouri law and that even if Missouri law applies, they did not owe Central Power a defense against the claims made by Eagle Well.
Analysis
To resolve this dispute, we must determine (1) which state’s law applies and (2) whether the insurers owed Central Power a defense and indemnification for losses under the insurance policy. In making these determinations, we review the matter independently, without any required deference to the district court, because the parties presented the facts at trial by a list of agreed facts and several written exhibits. Which state’s law applies presents a legal question; we must resolve that question independently, without any required deference to the district court. Foundation Property Investments v. CTP, 37 Kan. App. 2d 890, 894, 159 P.3d 1042 (2007), aff'd 286 Kan. 597, 186 P.3d 766 (2008). As to the merits of the case, tire district court heard no testimony, so we are in as good a position as it was to determine both the factual and legal disputes presented. See Rucker v. DeLay, 295 Kan. 826, 830, 289 P.3d 1166 (2012); American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, Syl. ¶ 4, 545 P.2d 399 (1976). Accordingly, we also resolve the merits of the case without any required deference to the district court.
I. Missouri Law Applies When Determining Whether Insurers Have the Duty to Defend Under an Insurance Contract Made in Missouri.
We apply Kansas choice-of-law rules to determine which state’s law applies. ARY Jewelers v. Krigel, 277 Kan. 464, Syl. ¶ 11, 85 P.3d 1151 (2004). In deciding which state’s law to apply to a contract dispute, Kansas courts apply the Restatement (First) of Conflict of Laws (1934). ARY Jewelers, 227 Kan. 464, Syl. ¶ 10.
Under this approach, the law of the place where the contract was made generally governs “the nature and extent of the duty” of each party to the contract. Restatement (First) of Conflict of Laws § 332(f). But if the dispute involves the manner, method, or legality of the acts required for performance, the law of the place where tire contract was to be performed applies. Restatement (First) of Conflict of Laws §§ 358(a) and (d), 360(1), 361. This appeal centers , on whether the insurers had a duty to defend Central Power in the Eagle Well lawsuit, so resolving the choice-of-law dispute depends on whether an insurer’s duty to defend presents an issue of contract interpretation or contract performance.
Our court has conflicting precedents on this issue. In Layne Christensen Co. v. Zurich Canada, 30 Kan. App. 2d 128, 143, 38 P.3d 757 (2002), our court concluded that the law of the place of contract formation applied when determining whether an insurer owed its insured coverage under an insurance policy. But in an earlier case, Aselco, Inc. v. Harford Ins. Group, 28 Kan. App. 2d 839, 848, 21 P.3d 1011, rev. denied 272 Kan. 1417 (2001), the same three-judge panel had said that determining whether the insurer had a duty to defend under a policy was an issue of contract performance and that the law of the place of performance should apply.
In our view, the second decision, Layne Christensen, is better reasoned, and we follow its rule. We reach this decision for three reasons.
First, this rule best comports with the tests outlined in the First Restatement. Whether a duty to defend exists goes to the heart of the insurance contract, and substantive questions about the meaning of the parties’ contractual agreement are determined by the law of the place of contract formation under the First Restatement. The Restatement’s authors recognized that there would be potential uncertainty between applying the law of the place of contract formation and applying the law of the place of performance: An official comment to the Restatement conceded that “there is no logical line which separates questions of the obligation of the contract . . . from questions of performance.” Restatement (First) of Conflict of Laws § 358, comment b. But here we are dealing with the most basic of substantive questions—did insurers have any duty at all under the contract to provide a defense? The comments to the First Restatement strongly suggest that such a basic substantive question should be governed by the law of the place of contracting: Even when performance is involved, the comment suggests that “regulation of the substance of the obligation” generally is determined by the place of contracting, and the law of the place of performance “is not applicable to the point where the substantial obligation of the parties is materially altered.” Restatement (First) of Conflict of Laws § 358, comment b; see Richman, Reynolds & Whytock, Understanding Conflict of Laws § 66[a] (4th ed. 2013).
In a similar case, the United States District Court for the District of Kansas held that a dispute about the existence of the duty to defend under an insurance policy was so fundamental that it had to be determined under the law of the place of contracting:
“Here, tire dispute between the parties exists as to whether [the insurer] had any duty at all to defend [the insureds], not whether it performed that duty but perhaps did so inadequately. Accordingly, the existence of the duty to defend must be resolved by the law of Kansas, as the place where the contract of insurance was formed.” Collective Brands, Inc. v. National Union Fire Ins. Co. of Pittsburgh, P.A., No. 11-4097-JTM, 2013 WL 66071, at *12 (D. Kan. 2013) (unpublished opinion).
In our case, Zurich and Universal Underwriters did not perform at all under any duty to defend Central Power against die Eagle Well lawsuit. So what’s at issue is mostly whether they were obligated to perform at all, not some specific aspect of how the insurers should have carried out their duty to defend. That’s the very substance of the contractual obligation, which the First Restatement determines under the law of the place of contracting.
Second, applying the law of the place of contract formation to determine whether an insurer has a duty to defend should yield more consistent results when events that might trigger the duty to defend occur in different states. Central Power offers a useful hypothetical—a tourist bus crash in which 75 people are injured or killed, but in which suits are filed in many states (since the tourists came from different states). If the law of the place of contract performance applied to determining whether an insurer had a duty to defend, an insurer could feasibly be required to defend in some locations, but not others, under the same policy for litigation arising from the same incident. Both the insurer and the insured should be able to know what the policy provides for when it is entered into; that’s possible in this hypothetical situation by applying the law of the place of contract formation. By contrast, applying the law of the place of performance would lead to inconsistent results; it also would either prevent the parties from knowing the extent of the contractual obligation at the outset or require that they investigate the law of all states where a suit might conceivably be filed.
Third, we note that the federal trial and appellate courts handling Kansas cases have noted the tension between Aselco and Layne Christensen and have chosen to follow Layne Christensen. Moses v. Halstead, 581 F.3d 1248, 1253-54 (10th Cir. 2009) (concluding that the analysis in Layne Christensen better reflected the First Restatement); Collective Brands, 2013 WL 66071, at *10-12 (same). We also note that, on matters of Kansas state law, federal courts must abide by the rulings of the Kansas Supreme Court, but the decisions of the Kansas Court of Appeals are not binding on the federal court. Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 n.1 (10th Cir. 2013). The federal courts’ choice to follow the Layne Christensen decision supports our decision to do so, and having consistency between the interpretations of the state and federal courts on this point of Kansas law is beneficial in allowing private parties to guide their conduct.
Because the law where the contract was made applies, we must now determine where the insurance contract was made. For choice-of-law purposes, Kansas law considers a contract to be made in die place in which the last act required for contract formation occurs. Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 210, 4 P.3d 1149 (2000). Central Power argues that an insurance contract is made at the place where the policy is delivered to the insured, citing Layne Christensen. Indeed, in that case our court noted that Kansas courts “have repeatedly held the contract is made where the policy is delivered.” 30 Kan. App. 2d at 144 (citing cases). In our case, the insurers have not disputed this point; their argument about the choice-of-law question was primarily that the law of the place of performance, Kansas, should apply. We do not have the entire insurance contract in our record, but the declaration section indicates that the policy was to be mailed to Central Power at its Liberty, Missouri, address. Given this record and the arguments made, we conclude that tire last act necessary to make this policy effective was delivery and that delivery occurred in Missouri. Accordingly, tire contract is deemed to have been made in Missouri, and we will apply Missouri law to determine the substantial obligations of tire parties under the insurance contract.
II. Under Missouri Law, the Insurers Had a Duty to Defend Central Poioer in the Eagle Well Lawsuit.
Having determined that Missouri law applies, we turn to determination of the insurers’ duties under the policy. Under Missouri law, an insurer’s duty to defend exists when either the claims made in the underlying lawsuit or the reasonably discoverable facts show the potential for some type of liability the insurance company has agreed to protect tire insured from. Stark Liquidation v. Florists’ Mut. Ins., 243 S.W.3d 385, 392 (Mo. App. 2007); Truck Ins. Exchange v. Prairie Framing, LLC, 162 S.W.3d 64, 83 (Mo. App. 2005); see Jerry & Richmond, Understanding Insurance Law § lll[c], pp. 798-806 (5th ed. 2012). The presence of some claims falling outside the scope of the policy does not eliminate the insurer s duty to defend the insured so long as at least one claim potentially falls within the policy’s scope. Truck Ins. Exchange, 162 S.W.3d at 79; see Stark Liquidation, 243 S.W.3d at 392.
Central Power and the insurers have addressed three potentially applicable coverage provisions (each set forth in what the policy calls a “Part” of the policy)—Parts 950, 970, and 980. Part 950 provides the general liability coverage, Part 970 provides personal umbrella coverage, and Part 980 provides general umbrella coverage. Umbrella coverage in an insurance policy insures risks that either are not covered at all in an underlying insurance policy or are covered only up to a specific dollar limit. 15 Couch on Insurance 3d § 220:32 (1999).
As the parties have framed the case on appeal, we need only determine whether the insurers had a duty to defend under at least one of these coverages. The district court awarded Central Power its costs of defending the Eagle Well lawsuit, as well as its costs in prosecuting this lawsuit over the insurance coverage. The insurers agreed in the district court that the amounts awarded were reasonable, and the insurers have made no suggestion on appeal that an award of tírese amounts would be in error so long as there was coverage under at least one part.
We will focus on Part 950, which provides the general underlying liability coverage, and Part 980, which provides the general umbrella coverage. Although we don’t have the full policy (not even all the declaration pages are included in the court record), the declaration pages we have for the personal umbrella policy appear to list as “insureds” only specific individuals, not Central Power itself. The Eagle Well lawsuit was brought only against Central Power; none of its individual officers or agents were named as parties to that lawsuit.
We turn, then, to the language of those coverage provisions. We will first look to see whether the coverage provisions are broad enough to trigger a duty to defend the claims made in the Eagle Well lawsuit. If so, we will then look to see whether any of the policy exclusions from coverage eliminate the duty to defend that otherwise would exist.
The separate parts of the policy have slightly different language, but each part requires at least three things for there to be coverage: there must be “damages” because of an “injury” that was caused by an “occurrence.” Each is a defined term under the policy. The insurers agree that Eagle Well’s lawsuit sought damages but contend that the lawsuit claims didn’t allege either an injury or an occurrence as those terms are defined under the policy.
Parts 950 and 980 each have their own sections for definition of terms, but the definition of “injury” in each part includes “damage to or loss of use of tangible‘property.” Eagle Well alleged that its oil-rig engines couldn’t be used without the proper wiring harness. Engines are tangible property {i.e., property with a physical existence), and Eagle Well alleged that it lost the use of the engines until proper wiring harnesses were installed.
Thus, the loss of use of the engines appears to qualify as an “injury” under the policy language. Even so, the insurers malee one other argument that there was no injury as defined under the policy. The insurers first suggest that Eagle Well suffered only economic losses {i.e., lost profits from the inability to use the oil-well rigs but no damage to the rigs themselves). Then, citing primarily Kansas caselaw, the insurers argue that purely economic damages do not constitute an injury under a liability insurance policy. But our case is governed by Missouri law, and purely economic damages resulting from the loss of use of tangible property have been found to constitute an injury under Missouri liability policies with similar language. E.g., Stark Liquidation, 243 S.W.3d at 393; American States Ins. v. Kempker Const. Co., 71 S.W.3d 232, 238 (Mo. App. 2002). So Eagle Well made claims that would constitute an injury under the policy.
We next consider whether the injury resulted from an occurrence. Each part of the policy defines occurrence to mean an “accident” that results in an injury “neither intended nor expected from the standpoint of a reasonably prudent person.” The insurers argue that under the plain meaning of the term “accident,” there wasn’t one—Central Power didn’t accidentally damage the engines or tire wiring harnesses.
But Eagle Well’s claims included ones for negligence (i.e., the failure to exercise ordinary care), specifically negligence in the work performed and negligent misrepresentation about the work that needed to be done. In Missouri, “ when a “liability policy defines occurrence as meaning accident, Missouri courts consider this to mean injury caused by the negligence of the insured.” ’ ” Assurance Co. of America v. Secura Ins. Co., 384 S.W.3d 224, 235 (Mo. App. 2012) (quoting Stark Liquidation, 243 S.W.3d at 393 [citing cases]). Similarly, negligent-misrepresentation claims are deemed occurrences under such policies. Stark Liquidation, 243 S.W.3d at 393; American States Ins., 71 S.W.3d at 236-38.
The insurers argue that Eagle Well’s claim was primarily one for breach of contract, which would not be covered. But as we have already noted, even if some claims aren’t covered, an insurer’s duty to defend is triggered if at least one claim is within the scope of coverage. Truck Ins. Exchange, 162 S.W.3d at 79. Under well-established Missouri law, the negligence and negligent-misrepresentation claims were within the scope of coverage here unless some specific exclusion provides otherwise.
We turn next to the insurers’ argument that coverage for the claims made in the Eagle Well lawsuit was specifically excluded. An exclusion provision in an insurance contract may limit the coverage otherwise available, West v. Jacobs, 790 S.W.2d 475, 478 (Mo. App. 1990), but exclusion provisions are construed in favor of providing coverage. Stark Liquidation, 243 S.W.3d at 394. An exclusion must be clear and unambiguous to be enforced. Todd v. Missouri United School Ins. Council, 223 S.W.3d 156, 163 (Mo. 2007); Stark Liquidation, 243 S.W.3d at 394.
We find no exclusion that clearly and unambiguously eliminates the coverage otiierwise provided by Parts 950 and 980:
• Both Parts 950 and 980 have an exclusion for “liability assumed under any contract or agreement” (with some-additional caveats). As Central Power points out, such exclusions are generally held to apply only to situations in which the insured (here Central Power) agrees to assume the contractual obligations of another party, not to exclude claims related to Central Power’s own obligations. See Ferrell v. West Bend Mut. Ins. Co., 393 F.3d 786, 795 (8th Cir. 2005) (citing Am. Fam. Mut. Ins. Co. v. American Girl, Inc., 268 Wis. 2d 16, 48-49, 673 N.W.2d 65 [2004]); Lapeka, Inc. v. Security Nat. Ins. Co., Inc., 814 F. Supp. 1540, 1550 (D. Kan. 1993); 30 Noce, Mo. Prac., Insurance Law and Practice $ 12:11 (2d ed. 2009). Moreover, the claims for which coverage is available under the policy are not contract claims—they are the claims for negligence and negligent misrepresentation. Central Power didn’t “assume” liability for 'such claims under a contract. Rather, the negligence and negligent-misrepresentation claims are separate, noncontractual claims, and those claims triggered a duty to defend.
• Both Parts 950 and 980 have an exclusion for any injury “caused by any dishonest, fraudulent or criminal acts” of the insured. The insurers argue that even negligent misrepresentation should be considered a dishonest or fraudulent act covered by the exclusion. But the federal court granted summary judgment in Central Power’s favor on the only explicit fraud claim (fraudulent inducement) Eagle Well made against it. Eagle Well Service, Inc. v. Central Power Systems & Services, Inc., No. 08-2184-CM, 2009 WL 2776851, at *2-3 (D. Kan. 2009) (unpublished opinion). Given the mandate that we consider policy exclusions in favor of providing coverage, we conclude that this exclusion does not prevent coverage for merely negligent acts.
• Both Parts 950 and 980 have an exclusion for damages caused by the “loss of use of property not physically damaged” if caused by the insured’s failure to perform under a contract or the failure of the insured’s product “to meet the quality warranted or the level of performance represented.” If only some of Eagle Well’s claims (ones for breach of contract) were considered, this exclusion might apply. But Eagle Well’s negligent-misrepresentation claim alleged that Central Power failed to mention that wiring harnesses would be needed, not that the engines provided By Central Power failed to work. And Central Power claimed in the Eagle Well litigation that it had provided all it was required to provide under the contract. Eagle Well’s negligent-misrepresentation claim was not excluded by this provision.
• Part 980 has an exclusion for claims “arising out of any manufacturer’s warranty.” The insurers argue that this exclusion precludes coverage even for a negligent-misrepresentation claim, but we see no logic to that argument. Breach-of-warranty claims differ from negligence claims, including negligent misrepresentation. This exclusion does not clearly and unambiguously exclude negligence-based claims from coverage.
• Part 980 has a final exclusion for hazards arising from completed products. Under this provision, there is no coverage for damages “resulting from” the product itself; from any “representations or warranties made with respect to fitness, durability, performance or use” of the product; and from “providing or failure to provide warning or instructions” for the product. Once again, because of the negligent and negligent-misrepresentation claims Eagle Well made (i.e., that Central Power failed to say that wiring harnesses were needed), any damages arising from that claim would not be covered by this exclusion. The damages wouldn’t result from the product Central Power provided (the engines); they would result from the lack of a product Central Power did not provide (wiring harnesses). See Stark Liquidation, 243 S.W.3d at 396-98. In any case, an exclusion found only in Part 980 wouldn’t change the outcome here: Coverage would still exist under Part 950, and the insurers’ duty to defend would still have been triggered even if this exclusion to umbrella coverage under Part 980 were to apply.
The district court’s judgment is affirmed. | [
-80,
124,
-4,
-20,
-120,
-31,
50,
74,
127,
-80,
-91,
83,
-3,
-18,
-107,
53,
-30,
51,
117,
114,
21,
-94,
19,
3,
-42,
-101,
57,
-59,
-128,
123,
108,
12,
77,
96,
10,
-43,
-122,
70,
-59,
-104,
-78,
8,
-71,
-24,
57,
65,
116,
120,
84,
71,
81,
-123,
-31,
60,
-103,
-53,
24,
42,
-6,
-95,
-29,
82,
-118,
23,
125,
0,
33,
68,
-104,
35,
-30,
26,
-112,
-71,
41,
-88,
122,
-89,
-122,
53,
119,
-103,
-120,
102,
99,
37,
16,
-17,
-20,
-72,
39,
-51,
31,
-124,
-90,
41,
43,
6,
-73,
-99,
100,
21,
7,
-20,
-10,
20,
30,
45,
23,
-118,
-80,
-94,
-55,
-30,
-98,
-125,
-50,
-57,
-96,
112,
75,
-14,
94,
87,
127,
19,
94,
-82
] |
McAnany, J.:
Between 1969 and 1987, Paul Sykes accumulated an extensive criminal history. In 1987, he broke into a house in Kansas City occupied by Sharita Watson Calhoun and her sister, Charzetta Wesley Kimble. He approached Sharita with his pants open and his penis exposed. He grabbed her and said he wanted to “do something” with her. Sharita resisted, and Sykes struck both women. The women screamed, and their brother arrived and broke down the door. Sykes fled but was later captured and charged. In January 1988, he was convicted of aggravated sexual battery and sent to prison. Aggravated sexual battery is a sexually violent offense as the term is used in K.S.A. 59-29a02, a provision in the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq.
Sykes was scheduled to be released from prison in April 2007. In March 2007, in advance of that release date, the State commenced this civil care and treatment case, seeking to have Sykes committed for treatment as a sexually violent predator under the Kansas Sexually Violent Predator Act.
At the time the State commenced this suit, Sykes was being held by the Kansas Department of Corrections at the Larned State Hospital. Sykes had a long history of treatment for mental illness, primarily paranoid schizophrenia. Pie had been in either the Larned State Hospital or the Osawatomie State Hospital approximately six times before the 1987 events that led to his 1988 conviction. After this conviction, Sykes was in and out of the Larned State Hospital numerous times during the period of his incarceration. During this period he was found to be sexually preoccupied and was found masturbating on the ward, particularly in front of females. He exposed and fondled himself and made inappropriate sexual comments in front of the hospital staff. He threatened female staff members and grabbed them in sensitive areas. He was subject to disciplinary proceedings at the Larned Correctional Mental Health Facility for lewd acts. At one point Sykes was released on parole, but his parole was revoked, and he was returned to prison when he failed to complete a community sex offender treatment program.
After the State brought this current action, Sykes waived the preliminary hearing required by K.S.A. 59-29a05 and stipulated that diere was probable cause to believe that he was a sexually violent predator. The court sent Sykes to Larned for a psychological evaluation. At Lamed, Sykes was evaluated by Dr. John Reid in May 2007. Dr. Reid found that Sykes suffered from paranoid schizophrenia as well as exhibitionism and alcohol dependency. Sykes also had an antisocial personality disorder and borderline intellect. Sykes scored moderate to high on tests for sexual recidivism.
Mark Roberts, a licensed clinical psychotherapist, examined Sykes and concluded that due to Sykes’ schizophrenia, he was incompetent to stand trial in these care and treatment proceedings. He recommended that Sykes be transferred to Larned for treatment.
The district court, acting on Roberts’ recommendation, found that Sykes was not competent to stand trial pursuant to K.S.A. 22-3302, a provision applicable to persons charged with a crime. The court ordered that Sykes be sent to Larned for up to 90 days for evaluation and treatment pursuant to K.S.A. 22-3303, another provision applicable to criminal defendants.
There followed a civil commitment proceeding for the care and treatment of Sykes as a mentally ill patient, but that action was later dismissed for reasons unrelated to this appeal. We need not discuss it further.
Following yet another mental evaluation of Sykes in February 2011, Dr. Roy Daum found Sykes incompetent to stand trial ap plying the standards for evaluating a defendant facing a criminal trial. But at the court’s hearing 2 months later, the court noted that this is a civil, not a criminal, proceeding. In essence, the court determined that Sykes did not have to be mentally competent in order for these civil commitment proceedings to go forward. The case was set for a jury trial in September 2012.
At trial, Sykes waived a juiy, and the matter was tried to the court. Charzetta and Sharita, the victims of Sykes’ aggravated sexual battery, testified to the facts that led to that conviction. Dr. Reid testified that Sykes meets the criteria for a sexually violent predator. On cross-examination, he testified that Sykes’ antisocial personality disorder was driving his behavior, not his schizophrenia. He noted that there is no necessary connection between schizophrenia and sexually violent conduct.
Dr. Barnett testified for Sykes. He conceded that Sykes probably meets the criteria for a sexually violent predator.
Sykes testified on his own behalf. He was taking his medications at the time of his trial and did not display the grossly disordered thinking described earlier in his medical records. He described the events leading to his conviction. He had been drinking, smoking marijuana, and “having a little fun” that night. He broke into the house in order to steal something, not to have sex with the women in the house. When asked about their testimony that he had “hit them and pulled their night clothes,” Sykes responded: “Yeah, I know, I was listening. I didn’t do nothing to them.” He denied having the zipper on his trousers open and his penis exposed. When asked about his failure to complete the sex offender treatment program at Lansing Correctional Facility, Sykes responded, “Because of the simple fact that I just didn’t know no better. If I had known that I would be up in such a degree right now, I would’ve stayed in and took it.”
In closing argument, Sykes’ counsel tacitly conceded that the testimony was sufficient to support a finding that Sykes was a sexually violent predator. “[Fjrom the beginning, I have been against having a trial where tire respondent is not competent, and I plan to appeal on that issue alone . . . .”
The court found that Sykes was a sexually violent predator, and this appeal followed.
On appeal, Sykes claims that the district court erred in not ordering a stay of the final hearing until he was found competent to stand trial. He contends that even in these civil proceedings, because commitment for any purpose is a significant deprivation of liberty, he was entitled to tire due process protection of being competent to stand trial. He seems to take the position that while a mentally ill person who cannot comprehend the commitment process may be committed for care and treatment under our traditional care and treatment statutes, K.S.A. 59-2945 et seq., a sexually violent predator who is similarly mentally ill may not be committed under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq.
We review de novo Sykes’ claim that his constitutional right to due process has been violated. Freedom from physical restraint is at the core of the liberty protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. As a civilly committed resident in Kansas’ sexual predator treatment program, Sykes has foe right to assert a claim of an alleged violation of his liberty interest. Johnson v. State, 289 Kan. 642, 649-50, 215 P.3d 575 (2009).
The State may, consistent with substantive due process requirements, involuntarily commit persons who are unable to care for themselves or are dangerous to others due to their mental impairment. The State’s interest in providing treatment for such persons and protecting foe public prevails over foe individual’s interest in being free from confinement. 289 Kan. at 650. The question here, then, is whether due process requires that Sykes be mentally competent in order for foe State to proceed to have him declared to be a sexually violent predator.
The Kansas Legislature enacted foe Sexually Violent Predator Act to accomplish foe following:
“The legislature finds that there exists an extremely dangerous group of sexually violent predators who have a mental abnormality or personality disorder and who are likely to engage in repeat acts of sexual violence if not treated for their mental abnormality or personality disorder. Because the existing civil commitment pro cedures . . . are inadequate to address tire special needs of sexually violent predators and the risks they present to society, the legislature determines that a separate involuntary civil commitment process for tire potentially long-term control, care and treatment of sexually violent predators is necessary. The legislature also determines that because of the nature of the mental abnormalities or personality disorders from which sexually violent predators suffer, and tire dangers they present, it is necessary to house involuntarily committed sexually violent predators in an environment separate from persons involuntarily committed under K.S.A. 59-2901 et seq. and amendments thereto.” K.S.A. 59-29a01.
The Act’s constitutionality was upheld in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). See In re Care & Treatment of Colt, 289 Kan. 234, 240-41, 211 P.3d 797 (2009).
Under our statutes for the care and treatment of mentally ill persons, K.S.A. 59-2945 et seq., persons who are mentally ill may be involuntarily committed for care and treatment. K.S.A. 59-2946(f)(1). One of. the criteria for a mentally ill person subject to involuntary commitment is the person’s lack of capacity to make an informed treatment decision. This includes a person who, by reason of a mental disorder, cannot understand “the nature and effects of hospitalization or treatment or is unable to engage in a rational decision-making process regarding hospitalization or treatment.” K.S.A. 59-2946(f)(2). Persons who are unable to understand the nature of involuntary commitment proceedings under the Act are frequently the subject of such proceedings. To hold otherwise would create a Catch-22 in which a person widr so severe a mental illness that the person does not understand anything that is going on around him or her could not be committed for care and treatment until the mental illness is cured or ameliorated.
The Court in Hendricks observed that it had “sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a 'mental illness’ or 'mental abnormality.’ ” 521 U.S. at 358. The Court stated: “We have consistently upheld such involuntaiy commitment statutes provided the confinement takes place pursuant to proper procedures and evidentiary standards.” 521 U.S. at 357. In this regard, the Court noted: “The numerous procedural and evidentiary protections afforded here demonstrate that the Kansas Legislature has taken great care to confine only a narrow class of particularly dangerous individuals, and then only after meeting the strictest procedural standards.” 521 U.S. at 364. Further, the Hendricks Court recognized that the purpose of the Kansas Sexually Violent Predator Act is to treat, not punish, the person confined. 521 U.S. at 365-69. Thus, the proceedings are civil in nature, not criminal.
We pause to note that Sykes relies on K.S.A. 22-3302, which provides that any time after a defendant has been charged with a crime and before pronouncement of his sentence, the defendant (or his counsel) may request a determination of his or her competency to stand trial. Here, Sykes was not being charged with a crime. These proceedings are civil in nature. K.S.A. 22-3302 does not apply.
Sykes also argues that these proceedings are comparable to proceedings under the Juvenile Justice Code, under which juveniles have a statutory right to a competency evaluation. But proceedings under Kansas’ Juvenile Justice Code are now viewed as criminal proceedings. See In re P.R.G., 45 Kan. App. 2d 73, 81, 83, 244 P.3d 279 (2010) (stating the Juvenile Justice Code is “akin” to adult criminal proceedings, so that juveniles may be entitled to constitutional protections that are extended to adult offenders).
Returning to Hendricks, the court characterized patients confined and treated under violent sexual predator laws as members of a subclass of the general class of persons confined under our traditional statutes for the care and treatment of mentally ill persons. “It thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty.” 521 U.S. at 357.
All of this begs the question raised by Sykes’ contention on appeal: If persons who are so mentally ill that they cannot understand the nature of their commitment proceedings can be committed for care and treatment under K.S.A. 59-2945 et seq., why should we treat persons believed to be sexually violent predators any differently?
In In re Commitment of Weekly, 2011 IL App. (1st) 102276, 956 N.E.2d 634, which involved a civil commitment action under the Illinois Sexually Violent Persons Commitment Act, counsel was un able to communicate with his clients who suffered from mental health disabilities. Counsel questioned the fitness of each of the five respondents to stand trial and sought court-ordered mental examinations, which the trial court refused to order.
On appeal, the court determined that there was no due process right to an evaluation in these civil proceedings. 2011 IL App. (1st) 102276, ¶ 70. The court noted numerous procedural requirements of the Illinois Act which ensured that the risk of erroneous deprivation of liberty was slight. Respondents were represented by counsel, and the court’s ultimate determination as to whether a person is deemed a sexual predator is mostly based on psychologists’ reports and the person’s prior offenses. Any chance that the respondent’s mental incompetence would significantly impair his contribution to these civil proceeding was minimal.
Examining laws for the commitment and treatment of sexually violent offenders in other states, the court observed that seven out of eight states have determined there is no right to a fitness evaluation under their respective sexually violent predator acts. 2011 IL App. (1st) 102276, ¶¶ 58-69; see e.g., Moore v. Superior Court, 50 Cal. 4th 802, 824-25, 829, 114 Cal. Rptr. 3d 199, 237 P.3d 530 (2010) (holding defendant in a sexually violent predator proceeding lacks due process right to competency, noting the nature of the proceeding limits the defendant’s involvement in the proceeding, there are numerous procedural protections provided for in the act, and the State has a substantial interest in protecting citizens from sexual predators and providing proper treatment for offenders); In re Detention of Cubbage, 671 N.W.2d 442, 444-45, 447-48 (Iowa 2003) (holding respondent does not have statutory or constitutional right to a competency determination under Iowa’s sexually violent predator commitment proceeding, reasoning the proceeding is not criminal); State ex rel. Nixon v. Kinder, 129 S.W.3d 5, 9-11 (Mo. App. 2003) (holding due process , does not require that persons subject to proceedings under Missouri’s sexually violent predator commitment act be competent to understand the proceedings, noting civil commitment for sexually violent predator treatment “shares no parallel” with competency determinations in criminal trials).
Like the Illinois Act, the Kansas Act provides respondents with numerous procedural protections. Sykes was entitled to a hearing on the State’s petition to determine if there was probable cause to believe that he is a sexually violent predator before the case could proceed. See K.S.A. 59-29a05(b) and (c). Sykes was entitled to be represented by counsel, just as would any mentally ill person in a traditional care and treatment case. See K.S.A. 59-29a06(b) and K.S.A. 59-2959(b). Similarly, Sykes had the right to retain experts and demand a jury trial, just as would any mentally ill person in a traditional care and treatment case. See K.S.A. 59-29a06(b) and (c), and K.S.A. 59-2965(b) and (c). If tire State wished to proceed under the Act, it had to meet specific deadlines. Written notice of intent to proceed had to be given to the attorney general and a multidisciplinary team within 90 days of certain events outlined in the statute. K.S.A. 59-29a03(a). Within 30 days of the multidisciplinary team receiving such notice, the team had to make an assessment as to whether tire person met the definition of a sexually violent predator and had to notify the attorney general of its assessment. K.S.A. 59-29a03(d). Once it was determined the person met the definition of a sexually violent predator, the attorney general had 75 days to file a petition. K.S.A. 59-29a04(a).
At trial, the factfinder had to apply the more stringent beyond a reasonable doubt standard in determining whether Sykes was a sexually violent predator. K.S.A. 2012 Supp. 59-29a07(a). Had Sykes insisted on a jury, the jury’s determination would have had to be unanimous. See K.S.A. 2012 Supp. 59-29a07(a). Having been committed under the Act, Sykes is now entitled to an annual review to determine whether his abnormality or disorder has changed so that he is safe for transitional release. K.S.A. 59-29a08(a) and (c).
The Act establishes various procedural safeguards so that persons mentally incompetent to stand trial in a criminal case in which they were charged with a crime of sexual violence can, nevertheless, be found to be sexually violent predators. K.S.A. 59-29a03(a) specifically provides for sexually violent predator commitment proceedings for persons who have been charged with a sexually violent offense but have been found to be incompetent to stand trial; persons who have been found not guilty of a sexually violent offense by reason of insanity; and persons who have been found not guilty of a sexually violent offense because of a mental disease or defect.
K.S.A. 2012 Supp. 59-29a07(g) provides that if a person charged with a sexually violent offense has been found incompetent to stand trial but the State seeks to have such person committed for treatment under the Act based upon that sexually violent conduct, the court must first hear evidence to determine whether the person actually committed the acts charged. The statute provides that all constitutional rights available to defendants at criminal trials shall apply at this evidentiary hearing other than the right to be tried only while competent. After the hearing, the court must make specific findings as to whether the person actually committed die acts charged, the extent to which the person’s incompetence or disability affected the outcome of the hearing (including its effect on the person’s ability to consult with and assist counsel and to testify on his or her own behalf), the extent to which the evidence could be reconstructed without the assistance of the person, and the strength of the State’s case. If the court ultimately finds the person did commit the acts charged, the State may go forward with commitment proceedings under the Act.
Thus, under K.S.A. 2012 Supp. 59-29a07(g), if a person has merely been charged with a sexually violent offense but the underlying facts of the State’s allegations have not been proven beyond a reasonable doubt in a criminal trial, this statute assures that the evidence admitted at the commitment procedure is constitutionally sound.
It is apparent that under the Act’s statutory scheme there are many meaningful procedural safeguards to protect an individual such as Sykes who has been diagnosed with a mental illness at the time of his commitment proceedings under the Act.
Sykes does not challenge the district court’s finding that he is a sexually violent predator. As a sexually violent predator, Sykes is a member of tire subset of mentally ill persons who are subject to involuntary commitment. At trial, the focus of his counsel was not on whether he was in need of treatment, but on the type of setting in which his illness could best be addressed. He argued to tire court, “If his problem is his mental problems, is there something other than a placement at a sexual predator treatment facility that would be better for him?” But the legislature recognized that there should be a different, more secure setting for treatment of sexually violent predators, in contrast to the treatment setting for other mentally ill patients, when the legislature found that “existing civil commitment procedures . . . are inadequate to address the special needs of sexually violent predators and the risks they present to society.” K.S.A. 59-29a01. The legislature found it necessary “to house involuntarily committed sexually violent predators in an environment separate from persons involuntarily committed under K.S.A. 59-2901 et seq.” K.S.A. 59-29a01. This is in keeping with the State’s interest in protecting mentally ill patients confined and treated in traditional care and treatment settings from sexually violent predators. As stated by the Missouri Court of Appeals in Nixon:
“To rule that the [State] must pursue civil commitment under the general civil commitment statutes rather than the sexually violent predator statutes would defeat the purpose of the sexually violent predator determination that a person determined to be a sexually violent predator needs specialized sexually violent predator treatment. To adopt the rationale that [an individual] does not possess the competency to proceed to trial to determine whether he is a violent sexual predator, and if so determined, to subject him to tire specific treatment contemplated for tire condition by the statute would thwart the proper exercise of legislative authority for the health and welfare of the state’s citizens but it would also jeopardize [the individual’s] receipt of proper rehabilitating treatment.” 129 S.W.3d at 10.
Kansas has an interest in ensuring that persons such as Sykes, who are found to be sexually violent predators, are committed in facilities that are designed to manage their special needs—needs which differ from those of persons suffering from other disorders. Committing Sykes for traditional care and treatment of his mental illness under K.S.A. 59-2945 et seq. because he is not competent to stand trial under a criminal law standard would frustrate the legitimate purposes of the Act in view of die many procedural safeguards built into the Act to protect Sykes’ due process rights.
We conclude that the district court did not err in proceeding with commitment proceedings pursuant to Kansas’ Sexually Violent Predator Act notwithstanding Sykes’ mental illness.
Affirmed. | [
-112,
-55,
-103,
-2,
9,
97,
58,
52,
115,
-13,
114,
-13,
-17,
-32,
5,
105,
3,
101,
76,
113,
-67,
-73,
15,
65,
-14,
123,
48,
87,
-77,
79,
-24,
-124,
64,
80,
-46,
57,
-126,
-56,
-3,
-116,
-116,
2,
-88,
-48,
-41,
-126,
46,
47,
-33,
14,
49,
14,
-105,
42,
22,
-17,
9,
18,
1,
-84,
2,
-73,
-7,
21,
108,
86,
-93,
-94,
-100,
5,
-16,
47,
-104,
59,
8,
44,
123,
-90,
-54,
117,
5,
-115,
-92,
99,
-30,
42,
-113,
-57,
-92,
-96,
-81,
-45,
-35,
-90,
-71,
72,
0,
45,
-65,
-99,
100,
-44,
9,
-8,
-27,
102,
53,
100,
-118,
-53,
-124,
-111,
77,
60,
86,
-66,
-5,
45,
32,
49,
-113,
-73,
80,
-41,
122,
-101,
-82,
-13
] |
Bruns, P.J.:
This appeal arises out of a Services Agreement entered into by Alliance Platforms, Inc. (Alliance) and Moxy Solu tions, LLC (Moxy). Alliance sued Moxy and several other defendants in Johnson County District Court. In response, Moxy filed a counterclaim and successfully sought to compel arbitration under the terms of the Services Agreement. At the conclusion of the arbitration, the arbitrator found that neither Alliance nor Moxy were entitled to attorney fees under the “prevailing party” provision of the Services Agreement. Although the district court confirmed the arbitrator s award regarding the substantive claims asserted by the parties, it vacated the arbitrator s decision on attorney fees. Specifically, the district court found that Alliance was the prevailing party in the arbitration and remanded the matter to the arbitrator for a determination of the amount of attorney fees to be awarded. On appeal, we conclude that the district court erred in finding that the arbitrator exceeded his power when he determined that neither party was entitled to attorney fees under the terms of the Services Agreement. Thus, we reverse the district court’s decision regarding attorney fees, and we remand the case to the district court for it to confirm the arbitrator’s original award in its entirety.
Facts and Procedural History
Moxy entered into a Services Agreement with Alliance in September 2008 for variable data printing services. The initial term of the Services Agreement was for 3 years, but it was not exclusive. In addition, the Services Agreement provided that either party could terminate tire agreement due to a material breach, after giving the other party 30 days’ written notice to cure the alleged breach.
In July 2009, Moxy sent an e-mail to Alliance stating that it was terminating the agreement due to an alleged material breach of contract. Although the Services Agreement stated that the parties agreed to arbitrate any disputes arising out of or related to the terms of the agreement, on December 9, 2009, Alliance filed a suit against Moxy—as well as several other defendants who are not parties to this appeal—alleging a variety of claims. In response, Moxy asserted several counterclaims against Alliance and filed a motion to- compel arbitration under the terms of the Services Agreement. But the parties agreed to defer a hearing on the motion to compel arbitration in order to complete discovery.
On March 10, 2011, the district court granted Moxy’s motion to compel arbitration. The arbitrator, Robert W. Cotter, conducted a final hearing from September 13 to 15, 2011. Following posthear-ing briefing by die parties, the arbitrator issued an award on November 3, 2011. The árbitrator concluded that Moxy technically violated the Services Agreement by failing to give Alliance 30 days’ written notice to cure the alleged material breach. But because the agreement did not require Moxy to make minimum monthly purchases-—or any purchases for that matter—the arbitrator concluded that this technical violation of the Services Agreement’s notice provision resulted in no damages to Alliance. Moreover, as to Alliance’s seven other claims against Moxy, the arbitrator decided each of them in Moxy’s favor.
In addition, the arbitrator granted Moxy’s counterclaim seeking an injunction against Alliance for use of Moxy’s contract forms, graphics, and artwork. The arbitrator did, however, deny the other three counterclaims asserted by Moxy. Finally, because the arbitrator found neither Alliance nor Moxy to be the prevailing party in the arbitration, at the end of the award, the arbitrator decided “[e]ach party is to pay their own attorneys’ fees.”
Alliance filed a motion for reconsideration with the arbitrator, contending that the Services Agreement required the arbitrator to award attorney fees. In an order dated December 19, 2011, the arbitrator denied Alliance’s motion. In doing so, the arbitrator explained that he found neither party to be the prevailing party under Section 16.7 of the Services Agreement because no damages were awarded on Alliance’s claims or on Moxy’s counterclaims.
On January 30,2012, the district court confirmed the arbitrator’s award regarding Alliance’s claims and Moxy’s counterclaims. Notwithstanding, the district court found that the arbitrator exceeded his power in determining that neither party had prevailed in the arbitration. The district court also found that the arbitrator should have deemed Alliance the prevailing party and should have awarded attorney fees. Accordingly, the district court vacated the arbitrator’s decision on attorney fees and remanded the case to the arbitrator to determine the reasonable amount of attorney fees to which Alliance was entitled. On remand, the arbitrator concluded that Alliance’s reasonable attorney fees were $51,521.81, and the district court confirmed the supplemental award in a journal entry filed on May 22, 2012.
Analysis
Issue Presented
The sole issue presented in this appeal is whether the district court erred in vacating the arbitrator’s decision to not award attorney fees to either party under a contractual prevailing party provision.
Standard of Review
Because the issue presented involves an interpretation of the Services Agreement entered into between Alliance and Moxy, our standard of review over the district court’s decision to vacate die arbitrator’s award is unlimited. See Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). But in reviewing the arbitrator’s original award, we must give great deference to his factual findings and his legal conclusions. See Rural Water Dist. No. 6 v. Ziegler Corp., 9 Kan. App. 2d 305, 309, 677 P.2d 573 (“[T]he [Kansas Uniform Arbitration] Act does not impose restrictions on this court’s power to review the district court’s decision, but it does restrict the district court’s review of the arbitrator’s decision.”), rev. denied 235 Kan. 1042 (1984). Hence, “[m]aximum deference is owed to the arbitrator’s decision, and the standard of review is among the narrowest known to law.” Moreland v. Perkins, Smart & Boyd, 44 Kan. App. 2d 628, Syl. ¶ 8, 240 P.3d 601 (2010).
A reviewing court must respect that the parties contractually agreed to be bound by an arbitrator’s decision. “Once the parties have decided to settle their dispute through arbitration and once they have chosen a mutually acceptable arbitrator, the courts have only disturbed an award for the most egregious of breaches by the arbitrator.” City of Coffeyville v. IBEW Local No. 1523, 270 Kan. 322, Syl. ¶ 2, 14 P.3d 1 (2000). Even errors of law or fact are insufficient to overturn an award unless it can be shown that tire arbitrator acted in bad faith or took actions “so gross as to amount to affirmative misconduct.” Neighbors Construction Co. v. Woodland Park at Soldier Creek, 48 Kan. App. 2d 33, Syl. ¶¶ 1, 2, 5, 284 P.3d 1057 (2012).
Scope of Arbitrators Power
On appeal, Alliance argues the district court correctly determined that the arbitrator exceeded his power under K.S.A. 5-412(a)(3) by refusing to declare a prevailing party in the arbitration and thereby not awarding attorney fees to either party. On the other hand, Moxy argues the district court erred by failing to give appropriate deference to the arbitrator’s decisions. As tire party arguing for vacating the arbitrator’s award, Alliance bore “the burden of proving a basis for setting aside the award.” Neighbors, 48 Kan. App. 2d 33, Syl. ¶ 6; see also Heartland Surgical Specialty Hospital v. Reed, 48 Kan. App. 2d 237, Syl. ¶ 6, 287 P.3d 933 (2012). We find that the district court failed to give the arbitrator’s award proper deference, and it thus erred in finding that Alliance had met its burden.
The Services Agreement entered into by Alliance and Moxy states:
“In the event of the failure of any such mediation, the dispute shall be submitted to die American Arbitration Association, in Kansas City, MO, in accordance with the then prevailing rules of that Association. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. In any arbitration or litigation under this Agreement, the prevailing party shall be entitled to recover from the other party any and all costs reasonably incurred by the prevailing party in such arbitration or litigation, including, tviihout limitation, reasonable attorneys’ fees.” (Emphasis added.)
In the original award, the arbitrator found that because each party prevailed on one claim and lost all its other claims, neither was the prevailing party in the arbitration. As such, the arbitrator concluded that neither party was entitled to attorney fees. In vacating tire arbitrator’s decision on attorney fees, the district court found that “the arbitrator exceeded his power by failing to determine the prevailing party and award reasonable attorney’s fees and costs.” The district court further found that “the arbitrator must award [Alliance] its reasonable attorneys’ fees and costs as the prevailing party . . . under a theory of breach of the Services Agreement.” Thus, the district court remanded the case to the arbitrator with the specific instruction to determine “a reasonable amount of attorney’s fees and costs to be awarded to [Alliance] with respect to its claim for breach of the Services Agreement.”
A broad arbitration clause in a contract gives the arbitrator an expansive scope of authority to decide the issues involved in a case. Neighbors, 48 Kan. App. 2d at 46. Likewise, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983) (interpreting the federal Arbitration Act that has language similar to K.S.A. 5-401(a), which governs the validity of arbitration in Kansas). Here, the arbitration provision was broad. It had no limitations. And it expressly stated that the arbitrator would decide costs, which included attorney fees. Accordingly, we find the issue of attorney fees to have been within the arbitrator’s power.
Because attorney fees were an issue within the arbitrator’s power to decide, a reviewing court must give tire arbitrator’s decision the appropriate level of deference. In finding that “the arbitrator exceeded his powers by not following the contract,” the district court found that the arbitrator interpreted the contract incorrectly. Yet even if tire arbitrator did commit an error of law in interpreting the contract, an error of law is generally not a sufficient reason to vacate an arbitrator’s decision. Moreland, 44 Kan. App. 2d 629, Syl. ¶ 6.
Only in extraordinary circumstances is an arbitrator’s interpretation of a contract so irrational or unreasonable as to be a sufficient basis to vacate an award. Neighbors, 48 Kan. App. 2d at 51-52. The contract stated that “the prevailing party shall be entitled to recover . . . reasonable attorney fees.” The Services Agreement did not, however, define “prevailing party.” The arbitrator concluded that neither Alliance nor Moxy was a prevailing party because each won one claim and lost all others and, as a result, neither party was entitled to attorney fees. We do not find that decision to be irra tional or unreasonable. Likewise, we do not find that the arbitrator committed an error of law.
We find the Washington Court of Appeals’ decision in Morrell v. Wedbush Morgan Sec., 143 Wash. App. 473, 486, 178 P.3d 387 (2008), to be persuasive and provide guidance in this case. In Mor-rell, the court recognized that “where both parties to an action are afforded some measure of relief, neither party may be entitled to attorney fees” under a prevailing party provision. 143 Wash. App. at 486. Likewise, we find this statement to be consistent with cases from jurisdictions across the United States. See Taylor v. Moutrie-Pelham, 246 P.3d 927, 929-30 (Alaska 2011) (holding, in landlord-tenant case, that the court has discretion to characterize neither party as prevailing where each party prevailed on a main issue); Smith v. Mitton, 140 Idaho 893, 903, 104 P.3d 367 (2004) (noting that “[w]hen both parties are partially successful, it is within the court’s discretion to decline an award of attorney fees to either side”); Purcell v. Smith, 23 Misc. 3d 944, 946, 874 N.Y.S.2d 877 (2009) (setting aside cost award in battery case because both parties partially prevailed, but neither was the prevailing party). Accordingly, we conclude that when both parties obtain some measure of relief, it is within an arbitrator’s power and discretion to conclude that neither party is entitled to attorney fees under similar contractual prevailing party provisions.
In support of its argument that the arbitrator was required to declare a prevailing party, Alliance cites the case of Agnew v. Lacey Co-Ply, 33 Wash. App. 283, 287-88, 654 P.2d 712 (1982). The Agneio case, however, is distinguishable from the present case because one of the parties prevailed on all of its claims. Moreover, Alliance fails to recognize Morrell, which was decided 26 years after Agneio. In its analysis in Morrell, the Washington Court of Appeals specifically found that the reasoning in Agneio was strained because the issue of attorney fees was within the arbitrator’s power to decide—even if he decided it incorrectly. 143 Wash. App. at 487.
Alliance also points us to a Colorado case, Magenis v. Bruner, 187 P.3d 1222, 1224 (Colo. App. 2008), in support of its argument that the arbitrator exceeded his power. Once again, Magenis is distinguishable because the arbitrator in that case resolved all claims in favor of the plaintiff. As such, unlike the present case, there was no question in Magenis regarding which party prevailed. 187 P.3d at 1223-24; see also Agnew, 33 Wash. App. at 287-88. Here, however, both parties won—at most—one claim and lost on all other claims.
We pause to note that although the arbitrator found that Moxy technically violated the contract, Alliance actually failed to prove all of the elements of a breach of contract claim. In Kansas, “[t]he elements of a breach of contract claim are: (1) the existence of a contract between the parties; (2) sufficient consideration to support the contract; (3) the plaintiffs performance or willingness to perform in compliance with the contract; (4) the defendant’s breach of the contract; and (5) damages to the plaintiff caused by the breach.” (Emphasis added.) Stechschulte v. Jennings, 297 Kan. 2, 23, 298 P.3d 1083 (2013). In the present case, Alliance failed to prove tire damages element. In fact, the arbitrator specifically found that Alliance suffered no damage as a result of Moxy’s technical violation of the Services Agreement. Thus, it is questionable whether Alliance prevailed on any of its claims.
In Kansas, K.S.A. 5-412(a) states “tire fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm [an arbitration] award.” Here, in vacating the award, the district court rested its decision—at least in part—on the belief that when faced with a similar provision, it could not have made the same decision as tire arbitrator. Even if that were true, “very odd arbitration awards [that] might cause cold shivers to go down the spines of reviewing; courts” must be confirmed. Moreland, 44 Kan. App. 2d at 636.
Because we do not find that the arbitrator exceeded his power in requiring each party to pay its own attorney fees, we conclude that the district court’s decision partially vacating the arbitrator’s initial award should be reversed. Furthermore, we remand this case to the district court with directions to confirm the original arbitration award entered on November 3, 2011, in its entirety.
Reversed and remanded with directions. | [
-46,
-8,
-32,
12,
12,
32,
48,
30,
73,
35,
101,
-45,
-23,
-21,
24,
115,
-93,
57,
97,
99,
81,
34,
82,
104,
-25,
-109,
-93,
-35,
-71,
-17,
-28,
-44,
72,
113,
-62,
-43,
70,
-45,
77,
92,
66,
0,
-69,
104,
-15,
-121,
16,
59,
84,
79,
49,
-90,
-7,
41,
57,
67,
73,
44,
-79,
57,
-9,
81,
-94,
9,
124,
23,
-111,
36,
-104,
-44,
-40,
14,
-112,
-67,
41,
-24,
114,
-74,
-58,
116,
66,
-103,
-127,
42,
103,
32,
-112,
-17,
-36,
-124,
46,
-102,
-97,
38,
-61,
24,
107,
13,
-74,
-107,
122,
10,
-91,
-2,
-12,
21,
22,
108,
-122,
-81,
-106,
-125,
-81,
70,
-99,
7,
-17,
-106,
48,
117,
-113,
-54,
92,
87,
62,
-45,
111,
-112
] |
Green, J.:
This litigation arises out of a lease agreement and involves the interpretation of the lease agreement. RadioShack Corporation (RadioShack) leased space in a shopping center from Phil G. Ruffin in Wichita, Kansas. A significant provision of the lease provided for abatement of rents in the event that the occupancy of Ruffin’s shopping center dropped below a certain amount. Over tire course of the next several decades, the parties entered into a series of options to extend tire lease and agreed to multiple extension agreements, which allowed RadioShack to remain in possession of the premises. Ruffin and RadioShack’s landlord and tenant relationship proceeded along amicably until November 15, 2011. On that date, Ruffin sent RadioShack a letter seeking to buy out RadioShack’s remaining interest in the lease so that it could demolish the shopping center. When RadioShack requested a higher buyout to relinquish its leasehold, the parties were unable to come to an agreement. Soon after, Ruffin sent RadioShack two separate notices to quit the lease premises, asserting that Radio-Shack had failed to pay the full rent due under the lease. The following month, Ruffin filed a forcible detainer action in Sedgwick County, Kansas, maintaining that RadioShack had failed to “pay rent, taxes, and related damages.”
Ruffin’s forcible detainer action proceeded to a bench trial, and the trial court entered judgment in favor of Ruffin. On appeal, RadioShack raises tire following issues: (1) whether the excessive vacancies clause was still in effect when RadioShack sought to invoke it in 2007; (2) if not, whether the trial court erred when it concluded that Ruffin did not waive his right to receive a rent amount based on the fixed minimum rent provision of the lease extension after he accepted reduced rent payments in accordance with the excessive vacancies clause; (3) whether the trial court erred when it concluded that Ruffin’s phone call to RadioShack constituted a repudiation of RadioShack’s invocation of the excessive vacancies clause; and (4) whether the trial court erred in finding that Ruffin was entitled to possession of the property.
We determine that the trial court erred when it determined that the excessive vacancies clause was no longer in effect in 2007. Because we are reversing the judgment in favor of Ruffin based on contract interpretation, it is not necessary for us to address the trial court’s repudiation ruling. As a result, we determine that the trial court improperly awarded possession of the property to Ruffin. Accordingly, we reverse and remand with directions.
Ruffin owns a substantial amount of real estate throughout the country, including properties in and near Wichita, Kansas. In 1973, Ruffin leased one of his Wichita properties—a space in a shopping center—to RadioShack. The original term of the lease was for 10 years. But the lease agreement included an extension option that allowed RadioShack to extend the lease from its 1983 expiration date until 1988 at an increased rent amount. RadioShack exercised the option, which extended the lease agreement until 1988. Before the expiration of the 1988 lease extension, Ruffin and RadioShack negotiated an extension agreement that extended the lease to June 18, 1995.
In 1994, Ruffin and RadioShack entered into another lease extension (1994 lease extension). This time, the parties agreed to extend the lease through June 18, 2000, with an option for RadioShack to extend the agreement for an additional 60 months. The 1994 extension also contained an incorporation by reference clause, which stated:
“This Lease Extension Agreement shall be upon the same terms, covenants and conditions provided in the Lease, except as the same are hereby modified and supplemented. Wherever there is any conflict between this Lease Extension Agreement (hereinafter referred to as this ‘Agreement’) and the Lease, the provisions of this Agreement are paramount and the Lease shall be construed accordingly.”
Under the 1994 lease extension, the word “Lease” was described as the original lease agreement from 1973 “together with all modifications and extensions thereof.”
Finally, the 1994 lease extension contained three separate rental payment terms that were designed to define the rental payments that were owed to Ruffin based on various economic conditions. The three rental payment terms were as follows:
“2. FIXED MINIMUM RENT: Tenant shall pay to Landlord as ‘Fixed Minimum Rent’ die sum of Two Thousand Seventy-eight and 13/100 Dollars ($2,078.13) per montii during months one (I) Enough sixty (60) of the Extension Term.
“4. PERCENTAGE RENT: In addition to Fixed Minimum Rent, Tenant shall pay to Landlord the amount, if any, by which, in any Fiscal Year of Tenant, two and one half percent (2.5%) of Gross Sales exceeds the Fixed Minimum Rent for die same period. Percentage Rent shall be paid annually, within sixty (60) days after the end of each Fiscal Year. Except as otherwise modified and supplemented herein, the mediods for the determination, reporting and payment of Percentage Rent shall remain as set forth in the Lease. Notwidistanding anytíiing in die Lease or diis Agreement to die contrary, Landlord shall have the right... to inspect Tenant’s records with respect to Gross Sales made from the Demised Premises, within two (2) years after the close of any Fiscal Year. For purposes of Percentage Rent, Tenant’s Fiscal Year is currently Januaiy 1st through December 31st.
“8. EXCESSIVE VACANCIES: If, at any time during the Extension Term, the Gross Leasable Area of the Shopping Center is less than sixty percent (60%) actively occupied by other retail tenants or a major tenant [any tenant that occupies more ffian fifteen percent (15%) of the Gross Leasable Area of the Shopping Center] discontinues its operations and a similar tenant does not replace it within a period of six months, then Tenant shall have the option of (a) terminating this Lease by giving Landlord sixty (60) days prior notice thereof and all rights and obligations of both parties shall cease upon the expiration of the aforesaid sixty (60) day period, or (b) paying Landlord three percent (3%) of Tenant’s monthly Gross Sales, in arrears, within twenty (20) days after the end of each calendar month, in lieu of Tenant’s obligation to pay Fixed Minimum Rent and Percentage Rent as set forth in the Lease. Tenant shall be entitled to pay such percentage of Gross Sales until such time as at least sixty percent (60%) of the Gross Leasable Area of the Shopping Center is actively occupied by other retail tenants, and all major tenants, as defined above, are conducting normal retail operations within the Shopping Center. Notwithstanding Tenant’s election to pay a percentage of sales as described, Tenant shall retain the right to terminate the Lease pursuant to the provisions of this paragraph.”
In 2000, RadioShack exercised its option to extend the lease to June 18, 2005. In 2005, the parties extended the lease again, this time from 2005 to 2008 (2005 lease extension). The 2005 lease extension included two 5-year renewal options. The 2005 extension also modified the rental terms that were included in the 1994 lease extension. Under the 2005 lease extension, RadioShack agreed to pay Ruffin a fixed minimum rent (FMR) of $2,296.88 per month. Moreover, the 2005 lease extension expressly eliminated the percentage rent clause from the parties’ lease agreement. Paragraph 5 of die 2005 lease extension stated the following:
“5. PERCENTAGE RENT: Notwiffistanding anything contained in the Lease to the contraiy, Tenant shall have no obligation to pay Landlord Percentage Rent. The section entitled ‘Percentage Rental’ on Exhibit ‘A’ of the Lease dated the 1st of June, 1973, and Section 4 of the Lease Extension Agreement dated October 27, 1994, and any and all other references to Percentage Rent or Percentage Rental are hereby deemed deleted and of no further force or effect. Gross Sales shall be defined as all merchandise sales credited to the Demised Premises.”
RadioShack continued to pay the FMR until 2007. In Februaiy 2007, RadioShack sent Ruffin a letter stating its intent to invoke the excessive vacancies clause contained in the 1994 lease extension. In response to RadioShack’s letter, Ruffin called RadioShack and demanded that the full FMR be paid. RadioShack refused and continued to pay the reduced amount under the excessive vacancies clause until October 2011.
On November 15, 2011, Ruffin sent a letter to RadioShack informing it of his desire to demolish the shopping center. Ruffin’s letter contained tire following statements:
“As per our conversation [and] your conversation with my real estate manager, Jon Cyphert, RadioShack is occupying our center under a reduced rent due to vacancy. Due to the low vacancy, we would like to demo the shopping center. Ruffin Properties offers Radioshack [sic] a termination fee of $20,000.00. This should cover any costs of relocation. If acceptable please show your acceptance of the offer by signing below. I can be contacted at the number below.”
After RadioShack replied to the November 15, 2011, letter with a request for a higher buyout to relinquish its leasehold, Ruffin sent RadioShack two separate notices to quit the lease premise. Later, Ruffin filed a forcible detainer action against RadioShack in Sedgwick County District Court.
Ruffin’s case proceeded to a bench trial, and the trial court entered judgment in favor of Ruffin. In reaching its decision, tire trial court made the following three conclusions of law:
“1. The Fixed Minimum Rent clause of [the 2005 lease extension], Paragraph 3 directly conflicts with the Excessive Vacancies Clause of the lease.
“2. [Ruffin’s] call to [RadioShack] in March 2007 was a repudiation of [RadioShack’s] assertion that the excessive vacancies clause was then in effect.
“3. Pursuant to the terms of the Lease, [Ruffin’s] receipt of rent under tire Excessive Vacancies Clause was not a waiver or estoppel of [Ruffin’s] right to the Fixed Minimum Rent.”
Was the excessive vacancies clause under the 'parties’ 1994 lease extension still in effect when RadioShack invoked it in 2007?
RadioShack first argues that the trial court erred when it determined that the excessive vacancies clause under the 1994 lease extension was no longer in effect when it sought to invoke it in 2007. Specifically, RadioShack argues that tire trial court erred be cause “the 2005 Extension does not explicitly remove the Excessive Vacancies Clause, as it removes the Percentage Rent Clause. Therefore, the Excessive Vacancies Clause can only be ‘knocked out5 if a term of the 2005 Extension is in conflict with tire Excessive Vacancies Clause.” RadioShack then argues that there are not any clauses in the 2005 lease extension that are in conflict with the excessive vacancies clause. Conversely, Ruffin argues that “the excessive vacancies clause was no longer in effect when RadioShack sought to invoke it.” Ruffin maintains that the excessive vacancies clause was not in effect in 2007 because the “Excessive Vacancies clause has a definite beginning date and definite ending date.”
RadioShack’s first argument on appeal requires this court to interpret the parties5 lease agreement coupled with several lease extensions and option renewal agreements. The legal effect of a written instrument is a question of law. It may be construed and its legal result determined by an appellate court regardless of the construction made by the trial court. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). “The primary rule for interpreting written contracts is to ascertain the parties5 intent. If the terms of the contract are clear, the intent of the parties is to be determined from the contract language without applying rules of construction. [Citation omitted.]” Carrothers Constr. Co. v. City of South Hutchinson, 288 Kan. 743, 751, 207 P.3d 231 (2009).
In this case, both parties agree with the trial court’s finding that tire lease, together with its various renewals and extensions, was not ambiguous. “When a contract is complete, unambiguous, and free from uncertainty, parol evidence of prior or contemporaneous agreements or understandings tending to vary the terms of the contract evidenced by the writing is inadmissible.” Simon v. National Farmers Organization, Inc., 250 Kan. 676, 679-80, 829 P.2d 884 (1992).
The first basic question raised here revolves specifically around the meaning of the lease agreement between RadioShack and Ruf-fin. Do the párties5 lease agreement, renewals, extensions, and option agreements indicate that the excessive vacancies clause in the 1994 lease extension was still in effect in 2007 when RadioShack sought to invoke it?
RadioShack contends that “an examination of the agreements and Extensions, shows that this clause was clearly and unambiguously carried forward into the 2005 Extension.” Ruffin, however, contends that the language “[i]f, at any time during the Extension Term” under the provision governing the “Excessive Vacancies” clause is dispositive. For example, Ruffin contends that because the excessive vacancies clause expressly limits its application to the extension term, this clause was in effect only during that time period. Here, the 1994 lease extension defined the extension term as follows: “1. TERM: The term of the lease is hereby extended for a period of sixty (60) months (’Extension Term’), beginning on the 19th day of June, 1995 and ending on the 18th day of June, 2000.” As a result, Ruffin contends that the plain language of the 1994 lease extension, which limited the excessive vacancies clause to the term of the extension, leads one to conclude that the parties intended for the excessive vacancies clause to be effective only until June 18, 2000. We note, however, that RadioShack exercised a renewal option on January 17,2000, which extended the 1994 lease extension until June 18, 2005. That renewal option states that “[t]he option term shall be under the same terms and conditions as set forth in tire Lease.”
This is highly suggestive of the intention of the parties that the excessive vacancies clause was to be in effect when RadioShack sought to invoke it. Moreover, RadioShack points to the removal of the percentage rent clause from the 2005 extension as additional support for its position. For example, RadioShack maintains that “the fact that parties specifically drafted a Paragraph of the 2005 Extension to remove Percentage Rent bolsters RadioShack’s interpretation that the Excessive Vacancies Clause carried forward, because the parties could have otherwise drafted a similar Paragraph for Excessive Vacancies Rent.”
The paragraph in the 2005 lease extension relied on by RadioShack reads as follows:
“5. PERCENTAGE RENT: Notwithstanding anything contained in the Lease to the contrary, Tenant shall have no obligation to pay Landlord Percentage Rent. The section entitled ‘Percentage Rental’ on Exhibit ‘A’ of the Lease dated die 1st day of June, 1973, and Section 4 of die Lease Extension Agreement dated October 27, 1994, and any and all other references to Percentage Rent or Percentage Rental are hereby deemed deleted and of no further force or effect. Gross Sales shall be defined as all merchandise sales credited to the Demised Premises.”
Because the 2005 lease extension did not expressly eliminate the excessive vacancies clause, RadioShack contends that it was incorporated into the 2005 lease extension and therefore was in effect when it sought to invoke the excessive vacancies clause in 2007.
But RadioShack seems to ignore Ruffin’s earlier argument that the excessive vacancies clause included its own built-in termination date. Nevertheless, several other provisions in the 1994 lease extension used language tied to the extension term or its expiration: Section 5 on alterations grants the tenant the right “at all times during tire Extension Term to make alterations ... to the interior of the Demised Premises . . . .” In the same section, the tenant’s personal property and furnishings are “deemed property of the tenant, and upon expiration of the Extension Term, Tenants shall have the right to remove such items . . . .” In the same section, the tenant is required to return the property “in good repair and condition” at the “expiration of the Extension Term.” Similar language is used in Section 7 concerning signage. So, these provisions are the kind that the parties would have continued upon the exercise of a renewal option absent a specific rejection of them (as was done with the percentage rent clause provision).
Moreover, the 2005 lease extension sheds light in support of RadioShack’s interpretation of the lease. RadioShack maintains that the excessive vacancies clause was incorporated into the 2005 lease extension because it became “subject to the new definition of ‘Extension Term’ contained in the 2005 Extension.”
The 2005 lease extension described the term of the agreement as follows:
“2. TERM: The term of the lease is hereby extended for a period of 36 months (’Extension Term’), beginning on the 19th day of June, 2005 and ending on the 30th day of June 2008, notwithstanding the designation of the Effective Date above. Any reference in the Lease to Lease Term or Extension Term shall include this Agreement and any renewals or extensions thereof.” (Emphasis added.)
Under RadioShack’s interpretation, “the new definition of ‘Extension Term’ in the 2005 Extension breathes new life into the Ex cessive Vacancies Clause.” We note that the excessive vacancies clause does not state that it must be exercised before June 18,2000, to be effective. To the contrary, the excessive vacancies clause contained in the 1994 lease extension mei'ely states that it is limited to “any time during the Extension Term.”
The significant provision of the 2005 lease extension reads as follows: “Any reference in the Lease to Lease Term-or Extension Term shall include this Agreement and any renewals or extension thereof.” As we note, the word “include” is a word of enlargement and not limitation. American Fed. of Television & Radio Artists v. N.L.R.B., 462 F.2d 887, 890 (D.C. Cir. 1972). “[I]nclude[] is used when it is desired to eliminate any doubt as to the inclusion in a larger class of tire particular class specifically mentioned.” United States v. Gertz, 249 F.2d 662, 666 (9th Cir. 1957).
Here, in reference to paragraph 2 of the 2005 lease extension, the larger class is “[a]ny reference in the Lease to Lease Term or Extension Term.” Moreover, the phrase “this Agreement [2005 lease extension] and any renewals or extensions thereof ‘ is a class specifically mentioned and encompassed in the larger class of “[a]ny reference in the Lease to Lease Term or Extension Term.” (Emphasis added.) Thus, the 1994 lease extension term is a specifically mentioned class (“any renewals or extensions thereof’) of the larger class of “[a]ny reference in the Lease to Lease Term or Extension Term.” Moreover, the excessive vacancies clause is included among those things that have “[a]ny reference in the Lease to Lease Term or Extension Term” because it is contained in the 1994 lease extension.
Giving paragraph 2 of the 2005 lease extension a natural and literal interpretation, we determine that the parties intended that the excessive vacancies clause be incorporated into the 2005 lease extension. The excessive vacancies clause simply states that it is limited to “any time during the Extension Term,” which was renewed (on January 17, 2000) before the 1994 lease extension term ended (on June 18, 2000). As stated earlier, this renewal option stated that “[t]he option term shall be under the same terms and conditions as set forth in the Lease.” Moreover, the 1994 lease extension term is a specifically mentioned class (“any renewals or extensions thereof’) and is encompassed in the larger class of “[a]ny reference in the Lease to Lease Term or Extension Term.” Thus, we determine that the excessive vacancies clause contained in the 1994 lease extension term was in effect when RadioShack sought to invoke it in 2007.
Did the trial court err in finding that Ruffin was entitled to possession of the property ?
RadioShack argues that “the trial court erred in finding that Ruf-fin was entitled to possession of the property.” Based on our previous decisions, Ruffin was not entitled to possession of the property. On March 12, 2008, RadioShack provided written notice to Ruffin that it was exercising its right under the 2005 lease extension to extend the lease term for a period of 60 months. Under this option, the lease would expire on June 30, 2013. We note that the 2005 lease extension includes a second extension option that would allow RadioShack to extend the lease for an additional 60 months. Thus, RadioShack is entitled to possession of the premises at least until June 30,2013, and until June 30,2018, if it decides to exercise its renewal option under the 2005 lease extension.
Because we have reversed the judgment on the basis of contract interpretation, we therefore have no need to address the question whether the trial court erred in rejecting RadioShack’s waiver contention.
Reversed and remanded with directions that all monies paid into the court as fixed minimum rent or as supersedeas bond or both should be recalculated. The excessive vacancies rent amount should be deducted from these monies, and the balance, if any, should be returned to RadioShack for the period in question. | [
-112,
-6,
-40,
-52,
-102,
-24,
26,
-98,
123,
-95,
39,
93,
-27,
-45,
0,
123,
-10,
95,
80,
121,
7,
-77,
2,
98,
-42,
-77,
91,
85,
-79,
111,
-15,
86,
-52,
36,
-126,
-43,
-62,
-62,
-51,
92,
10,
1,
-102,
96,
-11,
65,
52,
123,
0,
15,
65,
-52,
-13,
44,
49,
-49,
-56,
58,
79,
77,
113,
-15,
-71,
12,
-1,
19,
33,
5,
-102,
-121,
88,
78,
-98,
57,
3,
-88,
115,
54,
-58,
116,
7,
-101,
-84,
-93,
99,
2,
41,
-17,
-4,
-104,
14,
-102,
-113,
-90,
-80,
120,
42,
73,
-74,
-98,
112,
21,
13,
-2,
-26,
-107,
31,
-20,
-117,
-50,
-106,
-63,
15,
-4,
-106,
27,
-1,
-57,
-95,
112,
-113,
-122,
124,
71,
115,
-101,
94,
-110
] |
Green, J.:
Donald Thomas appeals from the trial court’s decree of divorce. As part of the divorce decree, Donald was ordered to pay his former spouse, Lisa Thomas, $315 per month in child support. On appeal, Donald argues that the trial court erred in calculating child support because it failed to reduce or eliminate his support obligation based on a monthly adoption subsidy that Lisa received from the State of Kansas.
Donald’s argument is misplaced. The plain language of the Kansas Child Support Guidelines (guidelines) shows that adoption subsidies should be excluded from a custodial parent’s domestic gross income when calculating child support. Accordingly, we affirm.
Donald and Lisa were married on February 14, 1997. During the marriage, Donald and Lisa adopted one minor child, M.W. Citing incompatibility, Donald petitioned for divorce from Lisa on April 5, 2012. That same day, Donald moved for an issuance of temporary orders. In part, Donald requested physical custody of M.W. and child support from Lisa. Lisa answered Donald’s divorce petition and moved for temporary orders on April 11,2012. Similar to Donald’s motion, Lisa asked for physical custody of M.W. and child support. Specifically, Lisa requested $355 per month in child support beginning May 1, 2012.
The trial court ruled in a temporaiy order that “neither party should pay child support to the other based on the equal parenting time arrangement of the parties.” Lisa later moved for child support in the amount of $456 per month.
Following a hearing before a hearing officer, Donald was ordered to pay $592 per month in child support effective September 1, 2012. Donald appealed from the hearing officer’s order. At a pretrial conference, Donald’s counsel maintained that the hearing officer miscalculated the child support amount because she had failed to consider the $500 per month adoption subsidy that Lisa received from the State of Kansas. Donald argued that when the monthly adoption subsidy was attributed to Lisa’s income, his child support obligation should have been only $8 per month.
Later, relying on Gambill v. Gambill, 2006 OK CIV APP 73, 137 P.3d 685, the trial court ruled that the $500 per month adoption subsidy was not attributed to Lisa as income and therefore did not reduce Donald’s child support obligation. The trial court reasoned:
“[T]he underlying intent of the child support statute is best seived by declining to offset a noncustodial parent’s support obligation by die amount of adoption subsidy or to consider die subsidy as a factor that may diminish the child’s basic needs witiiin the meaning of the child support laws. ... The subsidy is in no sense attributable to either parent. It’s paid for die benefit of the children and not a substitute for die parent’s income.”
The trial court ordered Donald to pay $315 per month in child support.
Whether Lisa’s Receipt of a Monthly Adoption Subsidy Should Be Offset Against Donald’s Child Support Obligation or Included as Income in Computing Child Support
On appeal, Donald’s principal argument is that his obligation to pay child support should be reduced or eliminated because Lisa receives a $500 per month adoption subsidy for M.W. Lisa contends that this court should refrain from reaching the merits of Donald’s argument because he has failed to provide a sufficient record to establish error and because Donald has failed to object to the trial court’s findings of fact and conclusions of law. In the alternative, Lisa argues that the adoption subsidy should not reduce Donald’s obligation to pay child support. Because Lisa’s alternative contention is dispositive of this matter, we will address it first.
“The standard of review of a district court’s order determining the amount of child support is whether the district court abused its discretion, while interpretation and application of the Kansas Child Support Guidelines are subject to unlimited review.” In re Marriage of Leoni, 39 Kan. App. 2d 312, 317, 180 P.3d 1060 (2007), rev. denied 286 Kan. 1178 (2008).
“ ‘Use of the guidelines is mandatory and failure to follow tire guidelines is reversible error. [Citations omitted.] Any deviation from the amount of child support determined by the use of the guidelines must be justified by written findings in the journal entry. [Citations omitted.] Failure to justify deviations by written findings is reversible error. [Citation omitted.]’ ” In re Marriage of Cox, 36 Kan. App. 2d 550, 553, 143 P.3d 677 (2006).
When the facts of a case fall outside the guidelines, however, the guidelines do not limit the power of the trial court, and review is strictly one of abuse of discretion. Cox, 36 Kan. App. 2d at 553. A judicial action constitutes an abuse of discretion if the action: (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). The party asserting that the trial court abused its discretion bears the burden of showing this abuse of discretion. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009).
The trial court correctly pointed out that no Kansas case has addressed the treatment of adoption subsidies when calculating child support. Even so, the Kansas Child Support Guidelines and the Kansas Adoption Support Act of 1972 are broad enough to encompass the treatment of adoption subsidies. The Kansas Adoption Support Act of 1972, K.S.A. 38-319 et seq., provides adoptive parents financial assistance to adopt children with special needs. K.S.A. 38-324 contains the eligibility requirements for prospective parents seeking adoption support:
"A prospective parent seeking adoption support hereunder shall be a person who has the character, judgment, sense of responsibility and disposition which makes him or her suitable as an adoptive parent under the provisions of K.S.A. 59-2101 et seq., and who lacks the financial means fully to care for such child. Factors to be considered by tire secretary in setting the amount of any payment or payments to be made pursuant to this act shall include: The size of the family, including the adoptive child; the usual living expenses of the family; the special needs of any family members; and the family income. Whenever it appears to the secretary that the adoptive parents are no longer in need of adoption support, such support shall be terminated.”
Under the guidelines, gross income is defined as follows:
“The Domestic Gross Income for the wage earner is income from all sources, including that which is regularly or periodically received, excluding public assistance and child support received for other children in the residency of either parent. For puiposes of these guidelines, the term ‘public assistance’ means all income, whether in cash or in-kind, which is received from public sources and for which the recipient is eligible on the basis of financial need. It includes, but is not limited to, Supplemental Security Income (SSI), Earned Income Credit (EIC), food stamps, Temporary Assistance for Needy Families (TANF), General Assistance (GA), Medicaid, Low Income Energy Assistance Program (LIEAP), Section 8, and other forms of public housing assistance.” Kansas Child Support Guidelines § II.D. (2013 Kan. Ct. R. Annot. 123.)
Based on the definition of domestic gross income, adoption subsidies are excluded from a parentis income when calculating child support. Indeed, the guidelines expressly exclude public assistance from domestic gross income. Here, the State provided Lisa with a $500 monthly adoption subsidy as financial assistance to care for M.W. Although the record is unclear as to M.W.’s special needs, the State determined that Lisa was eligible to receive tire subsidy under K.S.A. 38-324 because she lacked “the financial means fully to care for such child.” Because public assistance—income received from public sources based on financial need—is excluded from domestic gross income, Lisa’s $500 monthly adoption subsidy from the State could not be included as part of her income. Thus, the trial court properly excluded the $500 monthly adoption subsidy as income to Lisa.
Moreover, several other states have held that an adoption subsidy is not attributed to the parents as income. Instead, the subsidy is attributed to the child. Below, the trial court relied on Gambill in reaching its decision. The trial court’s reliance on Gambill was sound, and we find Gambill persuasive. In Gambill, Mother and Father adopted two children during the course of their marriage, M.A.G. and G.W.G. Father filed a petition for divorce. At trial, Father testified that Mother received an adoption subsidy of $300 per month per child from the State of Oklahoma. Following trial, the court divided the marital estate, awarded sole legal custody of the minor children to Mother with visitation to Father, and ordered Father to pay $1,165.93 monthly for child support. In determining the amount of income attributable to Mother for the purpose of computing child support, the trial court did not include the adoption subsidy. On appeal, Father contended that the trial court erred in computing child support.
The Gambill court held that the trial court properly refused to consider an adoption subsidy when calculating child support payments. Gambill, 2006 OK CIV APP 73, ¶¶ 1, 34. In reaching its decision, the Gambill court relied on several decisions from other jurisdictions that had held that “an adoption subsidy is income attributable to the child,” not the parent. See, e.g., Hamblen v. Hamblen, 203 Ariz. 342, 54 P.3d 371 (App. 2002); In re Marriage of Bolding-Roberts, 113 P.3d 1265 (Colo. App. 2005); Strandberg v. Strandberg, 664 N.W.2d 887 (Minn. App. 2003); In re Hennessey-Martin, 151 N.H. 207, 855 A.2d 409 (2004); see also Martin v. Martin, 303 P.3d 421, 427 (Alaska 2013) (“We consider the adoption subsidies to be similar to child support received for other children and conclude they should not be included in a parent’s income . . . .”) The Gambill court reasoned that “the subsidy is in no sense attributable to either parent. It is paid for the benefit of the children and is not a substitute for a parent’s income.” Gambill, 2006 OK CIV APP 73, ¶ 21.
Similarly, Kansas law describes the purpose of child support as follows:
“The purpose of child support is to provide for the needs of the child. The needs of the child are not limited to direct expenses for food, clothing, school, and entertainment. Child support is also to be used to provide for housing, utilities, transportation, and other indirect expenses related to the day-to-day care and well-being of the child.” Kansas Child Support Guidelines § II.A.
We determine the adoption subsidy is income attributable to the child, M.W., and it is paid for the benefit of M.W. and is not a substitute for a parent’s income for child support purposes. Moreover, the adoption subsidy could not be considered income attributable to Lisa for the purpose of calculating child support.
Affirmed. | [
-112,
-20,
-91,
124,
-66,
32,
-117,
-116,
125,
-85,
119,
81,
-17,
-18,
20,
121,
-126,
9,
97,
120,
85,
-77,
6,
64,
-4,
-14,
-71,
-36,
-79,
85,
100,
-44,
77,
120,
-126,
-11,
102,
-62,
-121,
80,
-114,
-126,
-87,
96,
81,
-58,
32,
101,
90,
11,
49,
-121,
-73,
40,
56,
120,
108,
14,
-39,
121,
-64,
-14,
-21,
7,
95,
71,
-79,
20,
-110,
-89,
-40,
46,
-108,
57,
96,
-24,
-13,
38,
-110,
116,
65,
-103,
9,
116,
98,
0,
-68,
-3,
-7,
-116,
78,
-35,
-99,
-58,
-102,
112,
10,
79,
-74,
60,
100,
84,
15,
126,
124,
5,
47,
-20,
2,
-113,
-36,
-86,
-116,
-4,
-114,
-126,
-9,
-32,
-112,
97,
-53,
-30,
92,
71,
56,
-101,
-65,
-36
] |
Powell, J.:
In this appeal, we are faced with the unenviable task of imposing a hard lesson—that a party is bound by the con tract lie or she signs even if it creates (in the eyes of’some) an unfair or harsh result. We are also called upon to answer what appears to be a question of first impression—whether, in a divorce proceeding, a prior oral separation agreement, put on the record, assented to by the parties under oath, and approved by the court controls over a subsequent written separation agreement, signed by the parties, approved by the court, and filed with the clerk. Because we hold that an unambiguous written separation agreement incorporated into a journal entry and decree of divorce controls over a prior oral separation agreement placed on the record, we must reverse the district court and remand for further proceedings.
Factual and Procedural History
Thomas Edwin McLeish (Edwin) and Lois McLeish (Lois) were married in 1950 and had two sons: Edwin McLeish (Eddie) and William McLeish (Bill). On August 16, 2006, Lois filed for divorce from Edwin in Ness County, Kansas, case number 2006 DM 19. During the divorce proceedings, attorney John Bird represented Lois and attorney John Lindner represented Edwin. On the eve of their divorce trial, the parties and their respective attorneys participated in several telephone conversations in efforts to resolve their divorce. During the telephone negotiations, Edwin and son Eddie were at John Lindner s office; Lois and son Bill were at John Bird’s office. After several telephone conversations, the parties believed they reached an agreement. On May 20, 2008, Lindner announced the parties’ agreement to tire district court on the record, stating, “[W]e have agreed that the house on Section 19, the home place plus 40 acres, . . . [wjill go to Ed in fee simple subject to a right of first refusal to Lois. ... All other land Ed and Lois will hold in a life estate with their children as remaindermen.”
After inquiry by the court, Lindner and Bird confirmed that the remainder and retention of the life estate would include full rights to all mineral income. Lois testified that the couple started with nothing and acquired a significant amount of property during their marriage through inheritance, gift, and purchase. Lois also testified that her primary goal during settlement negotiations was to pass her estate to her sons. Lindner stated the right to continue farming was priceless to Edwin and made up for everything he was giving up. At the conclusion of the hearing, the court found that there had been full and open disclosure between the parties as to all assets and liabilities of the marriage; that they had full knowledge of these assets and liabilities; that each of them was capable of arriving at this agreement; that they had made an independent decision and in doing so arrived at a property settlement agreement which was fair, just, and equitable to each of them.
On May 22, 2008, Bird sent Lindner a proposed journal entry attempting to memorialize the parties’ property settlement agreement. The journal entry identified specific tracts of land, “including minerals, will be held by the parties as tenants in common as owners of a joint life estate” with the remainder to go to Eddie and Bill, or their issue, per stirpes.
On July 15, 2008, Lindner responded to Bird’s proposed journal entry, stating:
“[0]ur understanding of the agreement on the minerals is that the parties would each own half of the minerals unconditionally in fee simple. I thought that was clear from the fact that they were delt [sic] with separately in negotiations and the agreement as read into the record provided that the oil and gas would be divided evenly between the parties and each would be responsible for their own share of all taxes thereon.”
Lindner suggested the language concerning the minerals should read: “Each will own 50% of the minerals to be divided by mineral deed and on the producing minerals, followed by a division order.” On August 21, 2008, Lindner sent Bird a letter enclosing a draft journal entry that Lindner signed and indicated that Edwin had a copy and approved it.
On September 9, 2008, Bird sent Lindner a letter enclosing the executed journal entry which Bird and Lois signed, indicating: “Now that we have the parties’ agreement reduced to writing, could you please provide me with an accounting for the oil proceeds that your client has received since May 20,2008?” Additionally, on September 9, 2008, Bird sent Judge Bruce T. Gatterman a letter enclosing the executed journal entry, advising: “The final Journal Entry in this matter is just awaiting the Respondent’s signature and it should be coming to you shortly.”
On September 16, 2008, the district court executed the journal entry, which was “Approved by:” John T. Bird, Lois M. McLeish, John M. Lindner, and Thomas Edwin McLeish. The journal entiy stated:
“[T]he parties announce to the Court that they have reached a full and complete agreement resolving all issues in this case which they announce to the Court and which the Court finds to be valid, just and equitable and approves the same to be incorporated into this divorce decree as follows:
“Mineral Interests:
“Petitioner shall hereafter be the sole and separate owner of 50% of the mineral interests and Respondent shall hereafter be the sole and separate owner of 50% of the mineral interests. These interests shall be divided by mineral deed and by division order as well as any other document reasonably necessaiy to divide the interests of the parties effective May 20, 2008.”
On January 26, 2009, Edwin executed an attested Last Will and Testament. The Will specifically disinherited his sons, Eddie and Bill, left his entire estate to Michelle Lee Stephen (Michelle), and appointed Michelle as Executor of his Estate. Edwin died on December 2, 2009.
On January 13, 2010, Michelle filed a Petition for Probate of Will and Issuance of Letters Testamentary. Eddie subsequently filed a Petition for Appointment of Special Administrator on February 9, 2010, contesting the validity of Edwin’s Will and alleging incapacity and undue influence of Michelle. Lois, Bill, and Eddie all filed Petitions for Allowance and Classification of Demand, claiming they had valid demands against the Estate pursuant to the property settlement agreement reached in 2006 DM 19. Other motions were also filed.which are not relevant to the discussion here.
On July 27, 2010, the district court held a hearing on the written defenses to the Petition for Probate of Will and Issuance of Letters Testamentary. The court found Edwin had the capacity to execute his Will and that he was not unduly influenced by Michelle and admitted Edwin’s Will to probate. On October 19, 2010, the court issued Letters Testamentary to Michelle.
On April 22, 2011, the court held a hearing on Lois’, Bill’s, and Eddie’s Petitions and admitted, over Michelle’s objection, Bird’s deposition, tire transcript from the divorce hearing, and Lindner’s notes from the oral pronouncement of the parties’ settlement agreement. Further, the court heard argument from counsel and testimony from Eddie, Lois, and Lindner. The district court determined that the parties’ oral proffer was their settlement agreement.
On September 14, 2011, the district court issued a memorandum decision and order concerning the pending claims of Eddie, Lois, Bill, and Michelle. The court concluded the oral property settlement agreement reached in Lois and Edwin’s divorce case was ambiguous as a matter of law. The court determined Lois and Edwin’s oral property settlement agreement created a joint life estate, as tenants in common, and included their interests in the oil, gas, and other minerals owned by them in their life estate, with tire remainder equally to Eddie and Bill. The court directed Lois’ counsel to prepare a journal entry incorporating the decision and setting forth the oral agreement of the parties reflecting ownership of the mineral interest.
On October 18,2011, the district court entered the parties’ journal entry allowing Lois’, Bill’s, and Eddie’s (the Appellees) Petitions for Allowance and Classification of Demand and Lois and Bill’s Petition to Terminate Life Estate and Joint Tenancy based on the oral property settlement reached in Lois and Edwin’s divorce case.
On November 7, 2011, Executor Michelle appealed.
On January 6, 2012, Michelle filed a Petition to Stay, which the court granted without a supersedeas bond. The oil and gas proceeds received since Edwin’s death continue to be held by the National Cooperative Refining Association (NCRA).
Did the District Court Err in Finding the Oral Property Settlement Controlled Distribution of Mineral Interests?
Michelle argues that the written separation agreement (which provided for a 50/50 split of the mineral rights) agreed to by the parties, incorporated into the divorce decree, approved by the district court, and filed widr the clerk controls. Conversely, Lois, Bill, and Eddie argue that the prior oral separation agreement (which provides for a joint tenancy life estate with both sons as remain-dermen over the mineral rights) announced on tire record and to which both Lois and Edwin agreed under oath controls. Both sides assert that the separation agreement they rely upon is unambiguous, unlike the district court, which examined the oral separation agreement and found it to be ambiguous.
For the reasons more fully set forth below, we hold: (1) the oral separation agreement merged into the journal entry and decree of divorce by operation of statute; (2) the oral separation agreement merged into the journal entry and decree of divorce by application of contract principles; and (3) Lois is bound by her signature on the written journal entiy and decree of divorce.
A. Oral Separation Agreement Merged into Journal Entry and Decree of Divorce by Operation of Statute
Michelle contends that the oral separation agreement merged into the written journal entry and decree of divorce pursuant to K.S.A. 60-1610(b)(3). (Note: All statutory references to the divorce code will be to the then applicable statutes, as the divorce statutes are now codified in Chapter 23.) We agree.
Standard of Review
The “[interpretation of a statute is a question of law over which an appellate court has unlimited review.” In re Marriage of Hall, 43 Kan. App. 2d 392, 393, 225 P.3d 764 (2010). 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 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).
Analysis
K.S.A. 60-1610(b)(3) has codified the doctrine of merger of a separation agreement into the final decree as follows:
“Separation agreement. If the parties have entered into a separation agreement which the court finds to be valid, just and equitable, the agreement shall be incorporated in the decree. . . . The provisions of the agreement on all matters settled by it shall be confirmed in tire decree .... Matters settled by an agreement incorporated in the decree, . . . shall not be subject to subsequent modification by die court except: (A) As prescribed by die agreement or (B) as subsequentiy consented to by die parties.”
This statute had the effect of regulating separation agreements and eliminating the question of when such agreements merged with the divorce decree. Fiske v. Fiske, 218 Kan. 132, 134, 542 P.2d 284 (1975); see also Lewis v. Lewis, 4 Kan. App. 2d 165, 166, 603 P.2d 650 (1979) (property settlement agreement approved by the trial court merged into divorce decree). The benefit of this rule is that it made separation agreements—unlike other contracts— self-enforceable as part of the divorce judgment as opposed to requiring a separate judgment. Fiske, 218 Kan. at 135.
This doctrine was later reinforced by the Kansas Supreme Court in the case of In re Marriage of Wilson, 245 Kan. 178, 180, 777 P.2d 773 (1989),which held that until a divorce decree was put into writing and filed, it was of no effect. In Wilson, on the day the parties were set for trial, they reached a verbal agreement on issues relating to child support, visitation, property division, and maintenance. The court orally granted the parties a divorce and accepted the parties’ stipulation as to their agreement. One of the parties was directed to prepare the journal entry. However, the husband died hours before the decree was filed. Relying on K.S.A. 60-258, which provided that no judgment is effective until a journal entry is signed and filed, our Supreme Court held that the parties were still lawfully married at the time of the husband’s death. 245 Kan. at 180; see also Valadez v. Emmis Communications, 290 Kan. 472, 482, 229 P.3d 389 (2010) (jury verdict awarding defamation damages abated at time of plaintiffs death because journal entry not yet approved and filed); In re Marriage of Harvey, No. 100,524, 2009 WL 929721, at *1 (Kan. App. 2009) (unpublished opinion) (maintenance orders not effective until contained in journal entry, approved by court, and filed), rev. denied 289 Kan. 1278 (2010); In re Marriage of Fulton, No. 94,482, 2006 WL 3589798, at *9 (Kan. App. 2006) (unpublished opinion) (district court’s oral pronouncement at divorce trial granting interest on lien vitiated by journal entry which stated lien to be without interest).
Also significant, however, was the court’s treatment of the husband’s estate’s argument that the marital status of the parties and the division of properly were divisible aspects of the divorce action, making the property settlement agreement portion of the decree still valid. The Supreme Court adopted the Court of Appeals’ rationale that such a position was “ ‘untenable.’ ” Wilson, 245 Kan. at 181. Stated the court:
“ ‘Although separation agreements are authorized by statute, K.S.A. 1988 Supp. 60-1610(b)(3), division of property and apportionment of debt are not necessary where the parties are not divorced. K.S.A. 60-258 renders the divorce decree ineffective in this case; therefore, the agreement incorporated therein must also be ineffective. If there is no divorce, there is no division of marital property.’ [Citation omitted.]” 245 Kan. at 181 (quoting In re Marriage of Wilson, 13 Kan. App. 2d 291, 294, 768 P.2d 835 [1989]).
See also Nicholas v. Nicholas, 277 Kan. 171, 179, 83 P.3d 214 (2004) (where diere is no divorce, there is no division of property); Wear v. Mizell, 263 Kan. 175, 180, 946 P.2d 1363 (1997) (same). But see In re Estate of Loughmiller, 229 Kan. 584, 592, 629 P.2d 156 (1981) (written postnuptial agreement executed in anticipation of divorce still valid even with deatii of spouse prior to completion of divorce); King v. Mollohan, 61 Kan. 683, 691, 60 Pac. 731 (1900) (same).
Lois, Bill, and Eddie argue, however, relying on In re Marriage of Takusagawa, 38 Kan. App. 2d 401, 166 P.3d 440, rev. denied 285 Kan. 1174 (2007), drat Edwin and Lois entered into an unambiguous and binding oral agreement which was placed on the record and approved by the trial court. It is true that Kansas law allows for oral separation agreements. 38 Kan. App. 2d at 405. We believe Takusagawa to be inapplicable here.
First, unlike in the present case, there was no written agreement in Takusagawa that had been approved by the trial court and filed with the clerk. Second, the district court had already approved and filed a bifurcated divorce decree granting the parties a divorce and setting the matters relating to the division of property for trial. Third, the wife refused to sign the proposed journal entry memorializing the parties’ separation agreement, claiming her assent to tire agreement had been made under duress or coercion; that its terms were unfair, unjust, and inequitable; and that it violated the statute of frauds as to those portions transferring land title. Fourth, she never denied the contents of the agreement. 38 Kan. App. 2d at 401-02, 407.
In light of the clear language of K.S.A. 60-1610(b)(3) and the authorities cited above, we hold that the written separation agreement, memorialized in the journal entiy and decree of divorce, approved by the district court, and filed with the clerk constitutes the controlling agreement governing the disposition of the mineral rights at issue here. The district court erred in not so finding. To hold otherwise would be contraiy to K.S.A. 60-1610 and K.S.A. 60-258 and would undermine the value of the certainty and finality of judgments entered by our courts. It is critical that journal entries accurately reflect the orders of our courts. Parties to litigation and, perhaps even more importantly, third parties who may be called upon to act in conformity with such court orders must have confidence in the written orders that are issued and presented to them. They should not be required to delve into the record in order to devine what an order really means. A lack of confidence would create endless and expensive litigation, such as in the present case, which would not serve the parties or the public interest. If a party questions the accuracy of a proposed journal entiy, he or she always has the right to object and ask the court to correct any inaccuracies contained therein. Supreme Court Rule 170 (2012 Kan. Ct. R. Annot. 267). Additionally, should a party mistakenly approve a journal entry, that party always has the right after the fact to seek relief, provided it is done in a timely manner. K.S.A. 60-260(b)(l).
B. Oral Separation Agreement Merged into Journal Entry and Decree of Divorce by Application of Contract Principles
Even if we accepted Takusagawa as applicable to this case and found that a valid oral separation agreement existed between the parties at the time it was made, the application of contract principles supports the same conclusion we have already reached.
Standard of Review
“ The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. 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.’ ” In re Marriage of Gurganus, 34 Kan. App. 2d 713, 717, 124 P.3d 92 (2005) (quoting Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 [2001]).
Analysis
It is a long-held rule of law in our state that “[a] property settlement agreement incorporated into a divorce decree is ‘a hybrid in the law having the characteristics of a judgment and retaining the contractual rights of the parties.’ ” In re Marriage of Wessling, 12 Kan. App. 2d 428, 430, 747 P.2d 187 (1987) (quoting In re Estate of Sweeney, 210 Kan. 216, 224, 500 P.2d 56 [1972]). “The fact that a separation agreement is incorporated into a divorce decree does not extinguish those contractual aspects.” In re Marriage of Hudson, 39 Kan. App. 2d 417, 426, 182 P.3d 25, rev. denied 286 Kan. 1178 (2008). Like any other contract, the intent of the parties to a separation agreement governs. Hudson, 39 Kan. App. 2d at 427; Wessling, 12 Kan. App. 2d at 430.
“The intent of the parties to a separation agreement must be determined from the agreement alone if the terms are unambiguous.” Wessling, 12 Kan. App. 2d at 430; see also Drummond v. Drummond, 209 Kan. 86, 91, 495 P.2d 994 (1972) (“The true intent of the parties must be determined from the contract itself.”). “The language in a contract is ambiguous when tire words used to express the meaning and intention of the parties are insufficient, in the sense that the contract may be understood to reach two or more possible meanings.” Gurganus, 34 Kan. App. 2d at 717. Moreover, “[n]o doctrine is better established or more frequently applied than the one that where parties have carried on negotiations, and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written agreement constitutes the contract between them and determines their rights.” Arensman v. Kitch, 160 Kan. 783, 789, 165 P.2d 441 (1946); see also In re Estate of Goff, 191 Kan. 17, 32, 379 P.2d 225 (1963) (Schroeder, J., dissenting) (oral negotiations which lead to execution of written contract are merged into written instrument); Villines v. General Motors Corp., 324 F.3d 948, 952 (8th Cir. 2003) (citing to Kansas law). “Thus, ‘[w]hen a contract is complete, unambiguous, and free from uncertainty, parol evidence of prior or contemporaneous agreements or understandings tending to vary the terms of die contract evidenced by the writing is inadmissible.’ ” Villines, 324 F.3d at 952 (quoting Simon v. National Farmers Organization, Inc., 250 Kan. 676, 679-80, 829 P.2d 884 [1992]); see also Prophet v. Builders, Inc., 204 Kan. 268, 272, 462 P.2d 122 (1969) (general rule is that subsequent written agreement embodies all prior understandings and agreements).
On May 20, 2008, the parties through their attorneys announced tiieir property settlement agreement on die record. Following the hearing, on May 22, 2008, Bird sent a proposed journal entiy to attorney Lindner covering the “ ‘meat’ ” of the parties’ agreement. Bird’s cover letter stated: “Would you please review the language that I have so far regarding the real estate and let me know if you see any problems with it or have any changes to suggest?”
On July 15, 2008, Lindner responded to Bird’s letter:
“I have reviewed your partial initial draft of the Journal Entry of Divorce and I have the following comments and requests:
“On the first page and the second page, you have attempted to set forth the basic agreement between the parties as to how their land will be held. It is generally accurate as to the surface but our understanding of the agreement on the minerals is that the parties would each own half of the minerals unconditionally in fee simple. I thought that was clear from the fact that they were delt [sic] with separately in negotiations and tire agreement as read into the record provided that oil and gas would be divided evenly between the parties and each would be responsible for their own share of all taxes thereon. ... It is our understanding that the minerals would be divided evenly between the parties by mineral deed and then by appropriate division order on the producing minerals.”
On August 21, 2008, Lindner sent Bird a letter enclosing a draft journal entiy that Lindner signed and indicating that Edwin also had a copy and approved it. On September 9, 2008, Bird sent a letter to Lindner enclosing' an executed copy of Lindner’s August 21, 2008, journal entiy, which Bird and Lois signed. Bird indicated: “Now that we have the parties’ agreement reduced to writing, could you please provide me with an accounting for the oil proceeds that your client has received since May 20,2008?” Additionally, on September 9, 2008, Bird sent Judge Gatterman a letter enclosing the executed journal entry, stating: “The final Journal Entry in this matter is just awaiting the Respondent’s signature and it should be coming to you shortly.”
On September 16, 2008, the district court executed tire journal entry, which was “Approved by:” John Bird, Lois McLeish, John Lindner, and Thomas Edwin McLeish. The journal entry stated:
“[T]he parties announce to the Court that they have reached a full and complete agreement resolving all issues in this case which they announce to the Court and which the Court finds to be valid, just and equitable and approves the same to be incorporated into this divorce decree as follows:
“Mineral Interests:
“Petitioner shall hereafter be the sole and separate owner of 50% of the mineral interests and Respondent shall hereafter be the sole and separate owner of 50% of tire mineral interests. These interests shall be divided by mineral deed and by division order as well as any other document reasonably necessary to divide the interests of the parties effective May 20, 2008.”
The district court found, and on appeal Lois, Bill, and Eddie allege, that the oral property settlement agreement entered on the record controls the distribution of Lois and Edwin’s mineral interests. We disagree. The subsequent writing, which by review we find to be clear and unambiguous, merges all prior negotiations, understandings, and agreements into it. The written journal entry agreed to by the parties, approved by the court, and filed with the clerk controls. As it is also unambiguous as to its terms concerning the mineral interests at issue here, it was error for tire trial court to admit parol evidence of possible contrary meanings.
C. Lois Bound by Her Signature
Finally, Lois also contends that she
“did not make a free, calculated and deliberate choice to amend any terms of the settlement agreement as announced and approved by the trial judge on May 20, 2008, and as memorialized in the transcript which is now part of the record on appeal. [Citation omitted.] Had the trial judge conducted a subsequent hearing on the matter, and approved amended separation agreement terms regarding the mineral interests of Edwin and Lois in particular, only then would Lois have had the opportunity to make a free, calculated and deliberate choice .... Instead, Appellees are faced with Edwin’s attorney’s own post-hearing idea of what the parties had agreed to on May 20, 2008, regarding mineral interests
Lois’ argument is without merit. “[A] party who signs a written contract is bound by its provisions regardless of the failure to read or understand the terms, unless the contract was entered into through fraud, undue influence, or mutual mistake.” Albers v. Nelson, 248 Kan. 575, 579, 809 P.2d 1194 (1991). Lois was represented by counsel and signed the journal entry. The written journal entry controls.
Are Appellees Entitled to Relief from the Journal Entry?
On appeal, Lois, Bill, and Eddie alternatively argue that if this court determines the oral property settlement agreement did not constitute the separation agreement of the parties, relief from the journal entry is appropriate under K.S.A. 60-260(b)(4) and/or K.S.A. 60-260(b)(6). Michelle argues that modification of the journal entry is barred by K.S.A. 60-260(b). We agree with Michelle.
Standard of Review
“A ruling on a motion for relief from judgment filed pursuant to K.S.A. 60-260(b) rests within the sound discretion of the trial court. The trial court’s ruling will not be reversed in the absence of a showing of abuse of discretion. [Citations omitted.]” In re Marriage of Leedy, 279 Kan. 311, 314, 109 P.3d 1130 (2005).
Analysis
K.S.A. 60-260(b) provides six grounds for relief from a final judgment: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; an earlier judgment has been reversed or vacated; or applying it prospectively is no longer equitable; (6) any other reason that justified relief. If a party seeks relief under grounds (1), (2), or (3), the party must file a motion within 1 year after the court entered judgment.
a. Appellees Did Not Request Relief Pursuant to K.S.A. 60-260(b)(4)
Issues not raised before the trial court cannot be raised on appeal. In re Care & Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009). In Lois and Bill’s brief to the trial court, they urged the district court to grant relief under K.S.A. 60-260(a) or 60-260(b)(6). Their brief then stated: “Lois and Bill do not claim relief under any of the other provisions of K.S.A. 60-260(b).”
Accordingly, Lois, Bill, and Eddie’s claim for relief under K.S.A. 60-260(b)(4) is not properly before this court as it was not raised before the district court.
b. Relief Is Not Appropriate Under K.S.A. 60-260(b)(6)
Under K.S.A. 60-260(b)(6), a district court may relieve a party from a final judgment for “any other reason justifying relief.” Motions filed under K.S.A. 60-260(b)(6) are not subject to the 1-year statute of limitations but must be filed within a reasonable time. The district court found K.S.A. 60-260(b)(6) not applicable because of the nature of the construction of the agreement.
Lois, Bill, and Eddie argue that the journal entry fails to give effect to the mutual intention of Lois and Edwin. They rely on Neagle v. Brooks, 203 Kan. 323, 328, 454 P.2d 544 (1969), in which the court found the broad language of K.S.A. 60-260(b)(6) authorizes the court “ ‘to vacate judgments whenever such action is appropriate to accomplish justice. Of course, this power is not provided in order to reheve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests.’ ”
Michelle argues that the Appellees’ real basis for granting relief falls under K.S.A. 60-260(b)(l)—mistake, inadvertence, surprise, or excusable neglect—or (b)(3)—fraud; misrepresentation, or mis conduct by an opposing party—both of which are time barred by the 1-year statute of limitations. Michelle is correct.
Relief cannot be granted under K.S.A. 60-260(b)(6) if the real reason for granting relief falls under one listed in (b)(1) to (3) and more than a year has gone by since the entry of the judgment. In re Marriage of Reinhardt, 38 Kan. App. 2d 60, 62, 161 P.3d 235 (2007). Lois, Bill, and Eddie cannot invoke subsection (b)(6) to circumvent the 1-year statute of limitations. Lois was represented by counsel and made a free and calculated decision when she signed the journal entiy. Accordingly, Lois has not established that she is entitled to relief under K.S.A. 60-260(b)(6).
c. Unreasonable Delay
Even if we were to decide that K.S.A. 60-260(b)(6) applies, Lois’ request for relief was not filed within a reasonable time. To determine whedrer the movant’s request for relief was filed in a reasonable time, the court measures the time from when the movant came into possession of facts justifying the relief to the time he filed his motion seeking relief. Also relevant to determine reasonableness is whether the movant provides good reason for failing to file his motion earlier and whether such delay has prejudiced any of the other parties. Wilson v. Wilson, 16 Kan. App. 2d 651, 660-61, 827 P.2d 788, rev. denied 250 Kan. 808 (1992).
Lois, Bill, and Eddie argue that Michelle is not prejudiced by their request for relief from the written journal entiy because a mineral deed was never prepared to transfer Lois and Edwin’s mineral interests and the oil proceeds are currently being held in suspense. However, as Michelle points out, Lois, Bill, and Eddie have not presented evidence to indicate a valid reason for delay.
The court approved the parties’ journal entry on September 16, 2008; Edwin died on December 2, 2009; and Lois, Bill, and Eddie filed their claims against the estate seeking to enforce the oral property settlement agreement on May 20, 2010, approximately 20 months after the journal entry was entered. As noted above, Lois signed the journal entiy, which divided their mineral interests 50/ 50 in fee simple. If she disagreed with the journal entry, she should not have signed it. Nevertheless, after the court entered the parties’ journal entry, she possessed facts which allowed her to seek relief under K.S.A. 60-260(b)(l) or (3). Perhaps most significantly, Lois had the benefit of competent legal counsel during this entire time. Lois, Bill, and Eddie have not alleged any facts that would demonstrate a good reason for failing to file their motions for relief within a reasonable time after the court entered the journal entry. Therefore, Lois, Bill, and Eddie are not entitled to relief under K.S.A. 60-260(b)(6).
In light of our holding that the written journal entry and decree of divorce—agreed to by the parties, approved by the district court, and filed with the clerk—controls the resolution of this case, which granted Lois and her late ex-husband, Edwin, a 50/50 share of the mineral interests of their property, the remaining issues on appeal are moot. The judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded. | [
-112,
124,
-39,
125,
-120,
-96,
42,
-40,
120,
1,
101,
83,
-1,
90,
16,
123,
-29,
75,
65,
105,
83,
-77,
22,
0,
-12,
-77,
-39,
93,
-67,
79,
-3,
87,
76,
2,
-126,
85,
98,
-118,
-123,
20,
-114,
6,
9,
99,
-64,
-126,
52,
107,
82,
77,
117,
-106,
-13,
42,
61,
98,
-120,
44,
15,
104,
-48,
112,
-85,
14,
95,
2,
-109,
4,
-2,
37,
88,
78,
-104,
57,
9,
-24,
50,
54,
-106,
118,
15,
41,
41,
102,
118,
32,
85,
-4,
-24,
28,
14,
-78,
93,
-90,
-14,
88,
46,
111,
-76,
-72,
117,
68,
47,
120,
-22,
13,
31,
-28,
2,
-5,
-44,
-111,
-99,
60,
-100,
15,
-21,
-93,
37,
113,
-61,
-96,
92,
-62,
58,
-69,
-34,
-78
] |
Arnold-Burger, J.:
Keith Lumry, a former employee of the Kansas Bureau of Investigation (KBI), sued the KBI as well as three of his former supervisors in their individual capacities for violating his rights under the Fair Labor Standards Act (FLSA) and for retaliatory discharge in violation of the Kansas Minimum Wage and Maximum Hours Law (KMWMHL). Because the undisputed facts lead us to the conclusion that two of the supervisors named in this action do not meet the definition of “employer” under the FLSA, his claims against them necessarily fail. As to the remaining supervisor, who does fit the definition of employer under the FLSA, the undisputed facts fail to establish that Lumry made an unequivocal claim under the FLSA for which the supervisor may have retaliated. Finally, Lumiy’s claim under the KMWMHL fails because the KMWMHL does not apply to any employer that is subject to the FLSA and the KBI is subject to the FLSA. Accordingly, we affirm the district court’s grant of summary judgment in favor of the defendants.
Factual and Procedural History
Lumry began working as a Special Agent for the KBI in October 2001. He was stationed in southwest Kansas and worked on narcotics investigations from 2002 through 2008. During this time, Lumry’s direct supervisor was Special Agent in Charge Kelly Ral-ston.
In January 2008, Lumry joined the newly formed Southwest Kansas Drug Task Force (Task Force). While working on the Task Force, Lumry’s direct supervisor was Senior Special Agent Clint Hawkins. As manager of the Task Force, Hawkins reported to Ral-ston. Ralston reported to KBI Assistant Director Lariy Thomas. Throughout Lumry’s employment with the KBI, Robert Blecha was the Director of the KBI. As the Director, Blecha had the authority to place Lumry on administrative leave and to terminate his employment.
When Lumry began working for the KBI, he was provided training on and copies of the agency’s policies and procedures. He received the KBI’s policy on how to fill out timesheets, and he understood that the policy required that “ ‘timesheets will accurately reflect time worked, leave taken and earning codes charged.’ ” The policy further provided that “ ‘[ejmployees are responsible for continually monitoring the accuracy of the information on the payroll “stub,” including compensation, accrued leave balances, deductions, and leave accrual rates.’ ”
While working for the KBI, Lumry submitted his timesheets electronically to Ralston through e-mail. Lumry placed an electronic signature on the timesheets attesting to their accuracy.
Lumry understood that the KBI policy regarding overtime for agents was to either pay overtime compensation or to provide compensatory time off at a rate of one and one-half times the base hourly rate for each hour worked in excess of 80 hours in a 2-week pay period. Lumry testified, however, that he routinely worked overtime without being compensated for it and that he understood it was expected of him. Hawkins testified that it was common for a Special Agent to work 80 hours in a week.
Lumiy stated that he “ ‘negotiated’ ” his overtime with his former supervisor, Ralston, every 2 or 3 months and was often encouraged not to report his overtime. It is undisputed that shortly before joining the Task Force, Lumiy told his new supervisor, Hawkins, that he would “work an extra 5 hours a week and give you that extra time; but I’m not going to work 10 and 20 hours a week anymore, or more, of unclaimed overtime.”
One month into the Task Force’s work, Hawkins first became aware of a concern regarding Lumiy’s timesheets when Lumry told Hawkins that he was already over on hours for the 2-week period. This raised a red flag in Hawkins’ mind because he had a general idea of how many hours Lumiy should have worked. Hawkins asked Ralston for Lumry’s timesheet, which Ralston provided.
In order to evaluate the accuracy of Lumiy’s timesheets, Hawkins asked Special Agent Shane Finley and Special Agent Jason Diaz to log all of their work activities so he could compare their logs to Lumry’s timesheets. Hawkins used the logs to verify entries on Lumiy’s timesheets for time claimed on cases involving Finley or Diaz.
During this investigation, Hawkins discovered that Lumry was claiming hours for operations involving other agents when the other agents were not present and not claiming time. Hawkins checked to make sure that Lumiy had not accidentally written the wrong case number on his timesheet since two case targets were located near each other, but Hawkins determined that he had not.
On Hawkins’ review of Lumiy’s timesheets, he noted that Lumiy claimed time for operations where Hawkins was personally present but Lumry was not and that he claimed time for operations where both he and Hawkins were present, but that Lumry claimed a larger amount of time than the operation actually lasted. Hawkins noted that some of Lumiy’s timesheet entries were incorrect and were false based on Hawkins’ personal knowledge from having been there at tire time.
Hawkins discovered that Lumry’s timesheet for February 11, 2008, claimed time on a “dead” case that agents were no longer working on, so Hawkins asked Lumry to log his activities for that week. Lumry’s log did not mention time on the dead case that he claimed on his timesheet. Hawkins further noted that there were other discrepancies between Lumiy’s timesheet and his activity log.
On February 27, 2008, after concluding that Lumry’s timesheets were falsified, Hawkins sent his supervisor, Ralston, an e-mail explaining his observations. Ralston was concerned that if Lumry had falsified his timesheets it would affect his credibility as a government witness. Prosecutors are required to disclose evidence about the credibility of government witnesses, including law enforcement officers, to defense counsel in criminal prosecutions, and such information may jeopardize those prosecutions. See Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). Because of the Giglio issue, and his concern about the possibility of false writings, Ralston determined Hawkins’ report about Lumiy needed to be moved up the chain of command to the Assistant Director Thomas.
On February 28, 2008, Director Blecha ordered an administrative inquiry regarding the allegations about Lumry’s timesheets and assigned Special Agent in Charge Randy Ewy of the Wichita Region to conduct the inquiry.
Ewy interviewed Lumry and wrote a report that stated that Lumry told him that he did not falsify or “ pad’ ” his timesheets and that Lumry also stated that he works more hours than he claims and that he often “ ‘shaves’ ” hours from his timesheets. Ewy further noted that it was difficult for him to assess die root causes of the concerns and noted drat a polygraph might be a viable additional option if deemed appropriate. Ewy testified that he did not know if the timesheet issues were caused by deliberate falsification or mistake.
During the investigation, Lumry requested a polygraph to demonstrate that he did not forge any documents; however, Lumry was never given a polygraph. Director Blecha testified that he did not even consider giving Lumry a polygraph because he was satisfied with the investigation. ;
On May 22, 2008, Director Blecha sent Lumry a letter advising him that he had been placed on administrative leave. Director Ble-cha testified that he took the complaints against Lumry veiy seriously because if a law enforcement officer falsifies documents, the officer cannot proceed in the profession because he would have no credibility in future court proceedings.
Two weeks later, Director Blecha sent a letter to Lumry advising him of his proposed termination. The letter stated that the reason for the termination was because Lumry “knowingly and willfully” falsified his timesheets.
Shortly thereafter, Assistant Director Thomas e-mailed Director Blecha to inform him of his recent communications with Lumry. Thomas’ e-mail stated that Lumry had told him that throughout his entire KBI career, with the knowledge of his supervisors, including Ralston and Hawkins, he had shaved hundreds, possibly thousands of hours off of his timesheets.
Lumry met with Director Blecha and the Kansas Organization of State Employees (KOSE) representative Don Dooley to appeal his termination. At the appeal, Dooley raised arguments about the number of days allowed to administer discipline but failed to mention the issue of falsified timesheets.
A few days later, Director Blecha sent Lumry a letter informing him that he was being terminated from his employment. In the letter, Director Blecha stated that it was undisputed that Lumry falsified his timesheets. Director Blecha specifically pointed out tire fact that neither Lumry nor Dooley made any attempt to refute the fact that Lumry falsified his timesheets.
The letter further informed Lumry of his right to appeal the termination to the Kansas Civil Service Board within 30 days. Lumry timely initiated an appeal to the Civil Service Board, but he later dismissed it, therefore failing to challenge the ultimate conclusion that he falsified his timesheets by overreporting his hours.
Over a year later, Lumry filed suit against the State of Kansas, the KBI, and Ralston in the United States District Court for the District of Kansas. Lumry sought damages from the KBI for violations of his rights under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 (2006) et seq. He also sought reinstatement from the KBI and damages from Ralston for violations of his rights under the First Amendment to the United States Constitution and 42 U.S.C. § 1983 (2006). The federal court dismissed all claims on July 13, 2010.
Then, on June 4, 2010, Lumry filed this suit in Shawnee County District Court. In this suit, Lumry alleged that the KBI and Hawkins, Ralston, and Director Blecha terminated his employment with the KBI in violation of the retaliation provisions of the FLSA for his complaints about working uncompensated overtime. He sought reinstatement from the KBI and damages from Hawldns, Ralston, and Director Blecha. Lumiy further alleged that Hawldns, Ralston, and Director Blecha retaliated against him in violation of the First Amendment and 42 U.S.C. § 1983. And finally, Lumry brought a claim of retaliatory discharge against the KBI for violation of the KMWMHL. The KBI, Hawldns, Ralston, and Director Blecha (the defendants) moved for summary judgment, which the district court granted. Lumry timely appealed, but he chose to abandon some of his previous arguments on appeal. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011) (issue not briefed by the appellant is deemed waived and abandoned).
On appeal, Lumiy argues the district court erred in granting summary judgment to the defendants. Lumry maintains that the case should have been submitted to the jury because reasonable minds could differ as to the conclusions to be drawn from the evidence. Lumiy contends that the district court erred in granting summary judgment on three separate issues: (1) whether Ralston and Hawkins meet tire definition of an “employer” under the FLSA; (2) whether Lumry engaged in protected activity under the FLSA; and (3) whether Lumry may pursue a claim for retaliatory discharge under the KMWMHL even though the KBI is not an “employer” under the FLSA. Each of these issues will be discussed separately below, but first we examine our standard of review.
Standard of Review
Questions of law, “including those at the heart of summary judgment decisions,” are subject to unlimited review on appeal. Thomas v. Board of Shawnee County Comm’rs, 293 Kan. 208, 221, 262 P.3d 336 (2011). “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.” Law v. Law Company Building Assocs., 295 Kan. 551, 561, 289 P.3d 1066 (2012). 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 prevent summaiy judgment, the facts subject to the dispute must be material to the conclusive issues in the case. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). On appeal, the same rules apply. Therefore, this court looks at the evidence in a light favorable to Lumry and requires Lumry to come forward with evidence to establish a dispute as to a material fact. Summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus, 291 Kan. at 768.
The FLSA Claim
Lumiy s first claim centers on his assertion that the KBI, Hawkins, Ralston, and Director Blecha terminated his employment with the KBI in retaliation for his complaints about working uncompensated overtime in violation of the FLSA. This is a statutory claim under the antiretaliation provisions of the FLSA. See 29 U.S.C. § 215(a)(3) (2006). On appeal, Lumiy abandons any claim against the KBI, which the federal district court found to be immune from suit under the doctrine of sovereign immunity. But Lumiy argues, as he did below, that Ralston, Hawkins, and Director Blecha can be held liable in their individual capacities for several reasons. We begin by examining Lumiy’s assertion regarding the individual liability of agency employees.
An individual may be liable in his or her individual capacity for FLSA violations if the individual is acting in the interest of the agency and meets the definition of an employer.
Under the FLSA, a person must be an “employer” within the meaning of the statute to be held liable for violating an employee’s rights under the Act. See 29 U.S.C. § 203(d) (2006). The FLSA defines an employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” (Emphasis added.) 29 U.S.C. § 203(d). The United States Supreme Court has instructed courts to construe tire terms “employer” and “employee” expansively under the FLSA. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S. Ct. 1344, 117 L. Ed. 2d 581 (1992).
There are no Kansas cases addressing individual employee liability for violations under the FLSA, so we turn to federal jurisprudence. See Purvis v. Williams, 276 Kan. 182, 188, 73 P.3d 740 (2003) (state courts should seek direction from federal courts when interpreting federal statutes). Because there are no Tenth Circuit Court of Appeals cases on point, we must turn to other federal circuit courts, which are split. Some federal circuits suggest that a public employee cannot be held liable for violation of the FLSA in his or her individual capacity because the official acts in the interest of an employer only in the context of his or her official capacity. See Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999) (citing Welch v. Laney, 57 F.3d 1004, 1011 [11th Cir. 1995]) (drawing parallel between FLSA and Family and Medical Leave Act [FMLA]).
But other courts, in fact a majority, have found that, based on the plain language of the FLSA, public officials may be held liable in their individual capacities for violations of the Act if they are acting in the interest of the agency and meet the definition of an employer. Darby v. Bratch, 287 F.3d 673, 680-81 (8th Cir. 2002) (equating definitions under the FMLA and the FLSA and finding that the language clearly includes persons other than the employer itself); Luder v. Endicott, 253 F.3d 1020, 1022 (7th Cir. 2001); Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965-66 (6th Cir. 1991). Likewise, federal regulations highlight the fact that “[a]s under the FLSA, individuals such as corporate officers "acting in the interest of an employer’ are individually liable for any violations of the requirements of the FMLA.” 29 C.F.R. § 825.104(d) (2012); see Saavedra v. Lowe’s Home Centers, Inc., 748 F. Supp. 2d 1273, 1282-84 (D.N.M. 2010) (noting that although Tenth Circuit has not addressed whether supervisors may be held individually liable as employers under the FLSA, majority of courts have found individual liability possible); see also 29 U.S.C. § 203(d).
We find no reason to depart from the majority of federal courts that have addressed this issue and find that, based upon the plain language of the FLSA, public officials may be held liable in their individual capacities for violations of the Act if they are acting in the interest of the agency and meet the definition of an employer.
We turn to whether Ralston, Hawkins, and Director Blecha meet the definition of employers under the FLSA.
Neither Ralston nor Hawkins meets the definition of an 7employer’ under the FLSA.
Lumiy contends that Ralston and Hawkins meet the definition of employers because they both had substantial control over the terms and conditions of Lumry’s work, they both maintained Lumry’s employment records, and they both had supervisory authority over Lumiy and were partly responsible for the alleged violation of the FLSA. Ralston and Hawkins contend that they do not meet the definition of employers under the FLSA because they did not have substantial control over the terms and conditions of Lumiy’s employment, and they did not have the ability to fire Lumry.
Although Lumry argues that summary judgment was not appropriate because ‘"reasonable minds could differ as to whether Mr. Ralston and Mr. Hawkins meet the definition of an ‘employer’ under the FLSA,” when the facts are undisputed, whether a party is an employer within the meaning of the FLSA is a question of law. See Patel v. Wargo, 803 F.2d 632, 634 (11th Cir. 1986); Karr v. Strong Detective Agency, Inc., 787 F.2d 1205, 1206 (7th Cir. 1986); Donovan v. Brandel, 736 F.2d 1114, 1116 (6th Cir. 1984) (“[T]he determination of whether a particular factual setting gives rise to coverage under the FLSA is a matter of law.”)- The facts in this case are not in dispute nor does Lumiy identify any disputed facts. It is simply the application of the undisputed facts to the law to which Lumiy objects. So we will next examine whether Ralston and Hawkins meet the definition of an “employer” under the FLSA as a matter of law.
To determine whether a person meets the definition of an employer or an employee under tire FLSA, courts apply the “economic reality” test. Baker v. Flint Engineering & Const. Co., 137 F.3d 1436, 1440 (10th Cir. 1998). “The economic reality test includes inquiries into whether the alleged employer [1] has the power to hire and fire employees, [2] supervises and controls employee work schedules or conditions of employment, [3] determines die rate and method of payment, and [4] maintains employment records.” Baker, 137 F.3d at 1440. The test is based on the totality of the circumstances, and no one factor alone is dispositive. Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 570 (10th Cir. 1994).
In this case, the district court applied the economic reality test to conclude that Ralston and Hawkins did not meet the definition of an “employer” under the FLSA. The district court explained:
“[T]he Court cannot hold Hawkins and Ralston liable in their individual capacities because only Blecha had the authority to act in the interest of the KBI. The total economic reality of the relationship between Lumry and both Hawkins and Ral-ston did not create an employer-employee relationship. Hawkins and Ralston did not (1) fire Lumiy or (2) control the conditions of his employment. While Hawkins and Ralston supervised Lumiy and reported to their supervisors that Lumiy s timesheets were intentionally falsified, they did not recommend any discipline for Lumry. Only Blecha appeared to have the authority, as a director, to place Lumry on administrative leave and terminate him. Therefore, Hawkins and Ralston are entitled to judgment as a matter of law
When applying the economic reality test to this case, we find factors that weigh in favor of qualifying them as employers and factors that weigh against finding them as employers. First, we know that Ralston anti Flawkins supervised and controlled Lumry’s work schedule, they maintained his employment records, and they investigated whether Lumry had been falsifying his timesheets without first obtaining Director Blecha’s approval to conduct this investigation. On the other hand, we also know that Ralston and Hawkins did not have the power to fire Lumiy or to place him on administrative leave, and they did not determine Lumiy’s rate and method of payment. The fact that Ralston and Hawkins began the investigation into Lumry’s timesheets on their own certainly looks like they were acting like an employer; however, once they completed the investigation, they reported the results of the investigation up the chain of command leading us to conclude that they did not have the authority to handle the issue themselves. And although Ralston and Hawkins did not make any disciplinary recommendations regarding Lumry, they certainly knew that any adverse information they discovered about Lumry on this point would cause him to be fired.
To support his argument that these facts support a finding that Ralston and Hawkins were “employers,” Lumry points to a number of cases where individuals have been found to be employers under the FLSA; however, each of those cases found such individuals had the authority to hire and fire employees. See Herman v. RSR Sec. Services Ltd., 172 F.3d 132, 140 (2d Cir. 1999) (chairman of the board found to be an employer because of operational control over employees and had authority to hire employees); Lee v. Coahoma County, Miss., 937 F.2d 220, 226 (5th Cir. 1991) (sheriff found to be an employer because of managerial responsibilities and substantial control over the terms and conditions of the employees’ work such as hiring and firing); Saavedra, 748 F. Supp. 2d at 1295 (court denied motion to dismiss finding that individual had managerial capacity with the authority to hire and fire employees and supervised and controlled work schedules or conditions of employment to a degree). Courts have placed some emphasis on this factor, finding liability in cases where the defendants have the power to hire and fire. See Saavedra, 748 F. Supp. 2d at 1293. This is one key factor that is missing in this case. Therefore, these cases do not support Lumiy’s argument, they simply support the notion that an individual can be individually liable as an employer under the FLSA, especially if the individual has the authority to hire and fire employees.
Instead, Kansas federal cases that have addressed the issue seem to suggest that an individual must have more than just managerial responsibilities to be considered an “employer.” The FLSA, and the similarly worded FMLA, envisions someone with a corporate role beyond mere managerial responsibilities. Mondaine v. American Drug Stores, Inc., 408 F. Supp. 2d 1169, 1186 (D. Kan. 2006) (citing Williamson v. Deluxe Fin. Services, No. 03-2358-KHV, 2005 WL 1593603, at *9 [D. Kan. 2005] [unpublished opinion]) (supervisor and HR manager did not have sufficient responsibility or stature within company to warrant imposition of personal liability under FMLA); see also Al-Dahir v. Hamlin, No. 10-CV-2571, 2011 WL 2580110, at *2 (D. Kan. 2011) (unpublished opinion) (defendant was “merely a manager” and because there was no indication he had any corporate role or position, he could not be individually liable for retaliatory discharge tort claim); 29 C.F.R. § 825.104(d) (2012) (indicating that under the FLSA, individuals such as “corporate officers” acting in the interest of an employer are individually liable for violations under the Act).
Applying the economic reality test established in Baker, and considering the totality of the circumstances, we conclude that Ralston and Hawkins do not meet the definition of employers under the FLSA. Therefore, Lumry’s FLSA claim against Ralston and Hawkins in their individual capacities fails as a matter of law.
Director Blecha meets the definition of Lumias “employer” under the FLSA.
Unlike Ralston and Hawkins, Director Blecha had the authority to act in tire interests of the KBI. Only Director Blecha had the authority, as director, to place Lumry on administrative leave and terminate him. He clearly had a corporate role at the agency, serving as the equivalent of its chief executive officer. Therefore, the Baker economic reality test weighs in favor of finding that Director Blecha is an employer who a jury could potentially find individually liable under the FLSA, and the district court did not err in so finding.
So we will next examine whether the district court was correct to find, as a matter of law, that Director Blecha could not be found hable for retaliation against Lumry under the facts of this case.
Lumry’s statements did not place Director Blecha on notice that Lumry toas asserting a claim under the FLSA.
The FLSA sets forth employment rules concerning minimum wages, maximum hours, and overtime pay. 29 U.S.C. § 201 et seq. The Act contains an antiretaliation provision that forbids employers
“to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” (Emphasis added.) 29 U.S.C. § 215(a)(3).
Lumry maintains that the district court erred in granting summary judgment on his FLSA retaliation claim against Director Ble-cha. Lumry argues that his complaint about uncompensated overtime clearly suggested to his employer that he was asserting rights protected by the FLSA and, because reasonable minds could differ as to whether this constituted a complaint under the FLSA, the district court erred in granting summary judgment in favor of Director Blecha.
The defendants assert that Lumry’s complaint was equivocal and did not explicitly invoke the protections of the FLSA. The defendants further argue that Lumry agreeing to still work some uncompensated overtime, just not as much as before, does not suggest a claim under the FLSA for overtime compensation.
Again, there is no dispute regarding Lumry’s sole oral statement concerning working uncompensated overtime made prior to his termination. There is no credibility determination to be made; everyone agrees to tire statement as quoted, to wit: Lumry stated he would “work an extra 5 hours a week and give you that extra time; but I’m not going to work 10 and 20 hours a week anymore, or more, of unclaimed overtime.” The only issue is whether this statement gives rise to a retaliatory discharge claim under the FLSA.
In this case, no written claim was made to the KBI or Lumry’s supervisors prior to his termination and no actual wage payment claim was filed with the United States Department of Labor (DOL) under the FLSA until after Lumiy was terminated. But recently, in Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S. Ct. 1325, 179 L. Ed. 2d 379 (2011), the United States Supreme Court addressed when a retaliatory discharge claim might exist before a wage-payment claim has been filed. In Kasten, an employee brought a retaliatory discharge claim based on the assertion that the employer had fired him for making a claim under the FLSA. Kasten had made numerous oral complaints about the unlawful placement of time clocks, including threatening a lawsuit.
The Kasten Court interpreted the “ ‘filed any complaint’ ’’ language in 29 U.S.C. § 215(a)(3) and held that oral complaints should also be considered. 131 S. Ct. at 1333-35. The Kasten Court concluded that either an oral or written complaint could be sufficient, but “[t]o fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” 131 S. Ct. at 1335. The Supreme Court heeded the concern expressed by the employer that oral complaints might leave employers “in a state of uncertainty about whether an employee (particularly an employee who seems unusually angry at the moment) is in fact making a complaint about [a FLSA] violation or just letting off steam.” 131 S. Ct. at 1334. The Court pointed out that while a filing could be written or oral, it is a serious occasion and does require some degree of formality to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns. 131 S. Ct. at 1334-35.
Our court applied die holding in Kasten in Deeds v. Waddell & Reed Inv. Management Co., 47 Kan. App. 2d 499, 280 P.3d 786 (2012), to determine whether Deeds’ complaint about a new compensation policy qualified as evidence of a valid retaliatory discharge claim so as to avoid the granting of summary judgment against him. Deeds complained when his employer changed its compensation policy. Deeds told his employer that he would be satisfied if his employer either returned to the prior compensation policy or if it instituted some other fair compensation , plan. Our court held that the employer was not put on notice by the complaint because the employer would not recognize tire request for some “fair compensation plan” as a claim under the Kansas Wage Payment Act. Deeds, 47 Kan. App. 2d at 508. Accordingly, sum-maiy judgment was proper. The Deeds court stated:
“Deeds’ statements were too equivocal to place a reasonable employer on notice that Deeds was making some claim under the Kansas Wage Payment Act or that he intended to do so. Without some clear indication that Deeds was invoking any of tire protections provided under the Kansas Wage Payment Act, there can be no claim against the employer for retaliation in response to the employee’s exercise of his rights under that statute.” 47 Kan. App. 2d at 508.
The Deeds decision is consistent with federal courts that have addressed the issue of the sufficiency of an employee’s oral statements concerning FLSA violations since Kasten. See Manfield v. Alutiiq Intern. Solutions, Inc., 851 F. Supp. 2d 196, 206 (D. Me. 2012) (applying Kasten standards, employee’s statements pointing out discrepancies on two occasions between overtime worked and paycheck, without voicing an opinion regarding the legality of the discrepancy, insufficient to put employer on notice of his intentions); Robillard v. Board of County Com’rs of Weld County Colorado, No. 11-CV-03180-PAB-KMT, 2012 WL 4442822, at *4 (D. Colo. 2012) (unpublished opinion) (applying Kasten standard, plaintiff s allegation that he “voiced concerns regarding compensation for on-duty time and the application of the Comp Time Agreement” was too sparse and conclusory to establish a plausible claim under the FLSA retaliation provision); Hawks v. Forest River, Inc., No. 3:09-CV-532-CAN, 2011 WL 5434241, at *8 (N.D. Ind. 2011) (unpublished opinion) (applying Kasten standards, employee’s statement to her supervisor that she “ was aware that the guys in our group were making 3 to 400 dollars more a week than [the women] were’ ” not sufficiently clear to indicate she was asserting rights protected by the statute); Courtright v. Board of County Com’rs of Payne County, Okla., No. Civ-08-230-D, 2011 WL 2181954, at *11 (W.D. Okla. 2011) (unpublished opinion) (applying Kasten standard, employee’s statement that he did not want to attend a training session on his day off without pay insufficient to be understood by a reasonable employer as making an overtime wage complaint or otherwise asserting FLSA rights).
In this case, the district court relied on Deeds to reach its conclusion that Lumry had failed to assert his rights under the FLSA. The district court explained:
“[Lumry] failed to assert his rights under the FLSA’s prohibition on uncompensated overtime when he refused to work ten to twenty hours of uncompensated overtime but also stated that he would work five hours of uncompensated overtime per week. 29 U.S.C. 207. Because Luxury's willingness to work some amount of uncompensated overtime is contrary to intending to file a FLSA complaint for uncompensated overtime, Lumry s statements did not adequately place Hawkins and the KBI on notice that he was asserting his rights under the FLSA.”
The facts of this case are similar to the facts in Deeds. Here, Lumry’s complaint about uncompensated overtime offered his employer an alternative rather than an outright demand. As in Deeds, Lumry allowed his employer to continue to allegedly violate his rights by agreeing to still work some uncompensated overtime. Lumry’s complaint, the facts of which are undisputed, failed to explicitly invoke the protections of the FLSA and it failed to put his employer on notice that he was filing such a claim or that he intended to file a claim.
Therefore, based on the standards set out in Kasten and the cases to date interpreting it, we find that Lumry failed to allege sufficient facts to support a valid retaliatory discharge claim. Lumry failed to claim the protections of the FLSA and failed to notify the KBI that he was invoking those protections before he was fired. Moreover, the sole and undisputed statement Lumry made to his employer was equivocal with regard to a potential claim under the FLSA— while he complained about the uncompensated overtime, he said that he would continue to work some uncompensated overtime, just not as much as before. The option to continue working some uncompensated overtime does not suggest a claim under the FLSA. Therefore, even looking at the evidence in the light most favorable to Lumry, his claim fails. Consequently, the district court did not err in granting summary judgment on this claim.
The Kansas Minimum Wage and Maximum Hours Law (KMWMHL) Claim
The KBI is not an “employer” under the KMWMHL, therefore the provisions of the KMWMHL do not apply to any action taken by the KBI.
Under the KMWMHL, K.S.A. 44-1201 et seq., ah employers must pay their employees overtime wages for hours worked in excess of 46 hours per week. K.S.A. 44-1204(a). The KMWMHL, however, explicitly excludes from its definition of employer, “any employer who is subject to the provisions of the [FLSA].” K.S.A. 2012 Supp. 44-1202(d). In this case, die district court held that it was uncontroverted that the KBI is a FLSA regulated employer because Lumiy conceded that point in his petition. In rejecting Lumiy s argument, the district court stated:
“The Court cannot recognize a retaliatory discharge claim in violation of the KMWMHL in Lumry’s case because the public policy underlying the KMWMHL was not undermined by Lumry’s termination. The KMWMHL states that employers under the KMWMHL ‘shall not include any employer who is subject to the provisions of the fair labor standards act,’ and only employers are required to pay overtime compensation under the KMWMHL. [Citations omitted.] Because the KBI is subject to the FLSA as conceded by Lumiy in Count I of the Petition, the KBI is not an employer under the KMWMHL. Thus, the KBI could terminate Lumry for complaining about overtime compensation without violating the KMWMHL.”
Nevertheless, Lumry argues that his claim should survive because the court has found that the KBI is immune from lawsuits for damages under the FLSA, based on the Eleventh Amendment to the United States Constitution. See Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999) (finding state cannot be subject to suit in its own court for violations of FLSA and declaring provisions to the contrary at 29 U.S.C. § 216[b] unconstitutional); Aaron v. State of Kansas, 115 F.3d 813 (10th Cir. 1997).
Recently, in Brown v. Ford Storage & Moving Co., 43 Kan. App. 2d 304, 224 P.3d 593 (2010), our court addressed a similar argument. In Brown, the plaintiff, a truck driver, asserted a KMWMHL overtime claim against his former employers, a business engaged in interstate commerce. In their defense, the defendants argued they were exempt from the KMWMHL because they were subject to the FLSA. The plaintiff responded by arguing that because the defendants were exempt from the FLSA’s overtime provisions, as they qualified for the Motor Carrier Act exemption, they should not also be exempt from the KMWMHL’s overtime provisions. The Brown court relied on the plain language of K.S.A. 44-1202(d) to reject the plaintiff s argument. The court stated that because the defendants were subject to the FLSA (for example, the defendants still could not pay a driver lower wages based on gender nor could they employ underage drivers), the KMWMHL did not apply to them, irrespective of the fact that the defendant was exempt from the FLSA’s overtime provisions. Brown, 43 Kan. App. 2d at 317-18. This analysis and reasoning was recently applied by the United States District Court for the District of Kansas in Vanartsdalen v. Deffenbaugh Industries, Inc., No. 09-2030-EFM, 2011 WL 1002027, at *4-5 (D. Kan. 2011) (unpublished opinion) (employer, although exempt from the FLSA overtime requirements based on motor carrier exception, was still subject to FLSA and thus not covered by the KMWMHL).
Moreover, regardless of the KBI’s immunity from tort liability, it is clearly subject to the provisions of the FLSA. In fact, Lumry asserts in his brief that following his termination he filed a formal complaint with die United States Department of Labor (DOL), which concluded that overtime pay had not been properly paid to Lumry and nine other employees. According to Lumry, the KBI, through Director Blecha, agreed to comply with the findings of the DOL. See also K.A.R. 1-5-24 (“[Ejmployees of the state who are eligible to receive overtime compensation under the [FLSA], as amended, shall be compensated for overtime as provided in that act.”). We note that in Alden the United States Supreme Court did not suggest that the FLSA does not apply to state employees but suggested that while a state employee cannot bring a private suit against a state, the FLSA authorizes the United States to bring suit on such an employee’s behalf:
“The difference between a suit by the United States on behalf of the employees and a suit by the employees implicates a rule that the National Government must itself deem the case of sufficient importance to take action against die State; and history, precedent, and the structure of the Constitution make clear that, under the plan of the Convention, the States have consented to suits of tire first land but not of the second.” Alden, 527 U.S. at 759-60.
The reasoning in Brown also applies to this case. Here, Lumry argues that his claim should survive because the court has found that the KBI is immune from lawsuits for damages under the FLSA based on the Eleventh Amendment. Based on the plain language of K.S.A. 2012 Supp. 44-1202(d) and the Brown and Vanartsdalen decisions, the KBI is still subject to the FLSA, even though enforcement by way of a private action against the State may be foreclosed. Accordingly, die KBI is exempt from the provisions of the KMWMHL and Lumry’s claim to the contrary fails.
The Common-Law Tort of Retaliatory Discharge
Finally, Lumry asserts that the KBI misunderstands his claim and that he is really making a common-law tort claim of retaliatory discharge based on the public policy exception to the Kansas employee-at-will doctrine. He contends that even if his employment with the KBI is not included within the statutory language of the KMWMHL, this court should look to the KMWMHL as evidence of a well-established legislative public policy against retaliation targeted at employees who exercise dieir right to lodge complaints over fair compensation for overtime worked. He claims die public policy is “embedded” in the KMWMHL. In response, the KBI contends that it is exempt from coverage under the KMWMHL and, accordingly, it is exempt from any claims arising under it, whether they be statutorily prohibited or embedded in die public policy of the KMWMHL. The KBI points out that Lumry’s claim in his amended petition was based entirely on the state statute. The district court considered the common-íaw tort claim but held that because the KMWMHL does not apply to the KBI “the cause of action could not create a right to overtime compensation under the KMWMHL that Lumry never had.” We first examine whether Lumry properly preserved a common-law tort claim of retaliatory discharge.
Lumry’s claim is not barred by his failure to specifically plead a cause of action for the common-law tort of retaliatory discharge.
The KBI asserts that Lumry failed to plead a common-law tort claim of retaliatory discharge, but instead made only a statutory claim. Whether a pleading is sufficient to state a cause of action is a question of law. Unruh v. Purina Mills, 289 Kan. 1185, 1191, 221 P.3d 1130 (2009).
As the KBI points out, Lumry s sole claim in Count III of his amended petition was stated as one for “retaliation under the Kansas Minimum Wage and Maximum Hours Law” and he references K.S.A. 44-1201 et seq. Even when confronted with a motion to dismiss, Lumry did not assert a tort claim but continued to allege a statutoiy claim under the KMWMHL. Through the final case management order, Lumry did not list or even allude to a common-law action in tort for retaliatory discharge but simply claimed that the KMWMHL provided a private cause of action. In other words, claims under the statute were not limited to prosecution solely by the Kansas Secretary of Labor. See K.S.A. 2012 Supp. 44-1202(a); K.S.A. 44-1210(b). The deadline for discovery had passed. It was not until responding to the KBI’s summary judgment motion, after the case management order deadline had long passed for filing any amended pleadings and discovery had closed, that Lumry first alluded to a common-law tort claim as part of his cause of action. See K.S.A. 2012 Supp. 60-216(b)(l)(H). Although he did file at least one amended petition, he did not amend his petition to assert anything other than a statutory claim under the KMWMHL. Clearly, this began as a statutory claim.
But Kansas adheres to notice pleading. In other words, a pleading is sufficient if it contains “[a] short and plain statement of the claim showing that the pleader is entitled to relief’ and “a demand for the relief sought.” K.S.A. 2012 Supp. 60-208(a). Substance will prevail over form. Baska v. Scherzer, 283 Kan. 750, 755, 156 P.3d 617 (2007). A plaintiff is not required to categorize causes of action or cite statutory authority or common-law bases for the suit. Golden v. Den-Mat Corporation, 47 Kan. App. 2d 450, 461, 276 P.3d 773 (2012). In fact, when faced with a motion to dismiss for failure to state a claim, the court must decide whether facts state a claim as espoused by the plaintiff or on any other possible theory the court can divine. Nungesser v. Bryant, 283 Kan. 550, 559, 153 P.3d 1277 (2007). A rule of liberal construction applies when judging whether a claim has been stated. Montoy v. State, 275 Kan. 145, 148, 62 P.3d 228 (2003). The petition is not intended to govern the entire course of the case. Berry v. National Medical Services, Inc., 292 Kan. 917, 918, 257 P.3d 287 (2011).
Moreover, a pleader is permitted to shift the theory of his or her case as the facts develop, as long as he or she has fairly informed the opponent of the transaction or operative facts involved in the litigation. “The determination of whether a party’s claim is a late shift in the thrust of the case which prejudices the opponent is left to the sound discretion of the trial court.” Montoy, 275 Kan. at 149-50; see generally Viernow v. Euripides Development Corp., 157 F.3d 785, 790 n.9 (10th Cir. 1998) (issues raised for the first time in a plaintiff s response to a motion for summary judgment may be considered a request to amend the complaint, pursuant to Fed. R. Civ. Proc. 15); Evans v. McDonald’s Corp., 936 F.2d 1087, 1090-91 (10th Cir.1991) (a plaintiff should not be prevented from pursuing a valid claim just because he or she did not include it in his or her complaint, provided that a late shift in the case will not prejudice the other party in maintaining his or her defense).
In this case the district court apparently found that there was no surprise or prejudice because it considered the claim. We do not find this to be an abuse of discretion. The KBI actually first raised the issue of the common-law tort of retaliatory discharge in its summary judgment motion by contending that such a claim also failed as a matter of law. So it clearly anticipated tire claim. All the relevant facts are the same, and it does not appear additional discovery would be needed. The case management order makes several general claims of retaliatory discharge even though it does not label the cause of action. There was no pretrial order yet that would have defined and locked in the issues. See Montoy, 275 Kan. at 149 (once a pretrial order is made it supercedes the pleadings and controls the subsequent course of the .action).
Accordingly, we find that under these facts it was not an abuse of discretion for the district court to allow Lumry to allege a common-law tort claim of retaliatory discharge for the first time in his responsive pleading to the KBLs motion for summary judgment. So we next turn to the legal and factual substance of his claim.
The KMWMHL supplies the framework to support a common-law retaliatory discharge claim, but Lumry has failed to allege that the remedies provided under the FLSA are inadequate.
Although Kansas has long adhered to an employment-at-will doctrine, which holds that absent an express or implied contract employees and employers may terminate an employment relationship at any time for any reason, our appellate courts have found that limited exceptions are warranted when necessary to “protect a strongly held state public policy from being undermined.” Campbell v. Husky Hogs, 292 Kan. 225, 229, 255 P.3d 1 (2011). These exceptions center around situations in which employees have been fired or had their employment adversely affected when they exercised certain statutoiy or constitutional rights. Such actions have been allowed to proceed under a common-law tort theory for retaliatory discharge. To date, the Kansas Supreme Court has recognized public policy exceptions to the employment-at-will doctrine in five circumstances: (1) filing a claim under the Kansas Workers Compensation Act, K.S.A. 44-501 et seq.; (2) whistle-blowing; (3) filing a claim under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 (2006) et seq.; (4) exercising a public employee’s First Amendment right to free speech on an issue of public concern; and (5) making a claim under the Kansas Wage Payment Act. 292 Kan. at 228, 236-37. Lumry asks us to add to that list, (6) making a claim under the FLSA. So we next turn to how the court determines if a public policy exists which requires protection under a common-law tort theory.
In Husky Hogs, tire Supreme Court recognized three situations courts are faced with when determining whether the legislature has declared a public policy: (1) The legislature has clearly declared the state’s public, policy; (2) the legislature enacted statutory provisions from which public policy may reasonably be implied, even though it is not directly declared; or (3) the legislature has not made a clear statement of public policy, nor can it be reasonably implied. It went on to acknowledge that while public policy may be determined by both the legislature and the courts, courts must respect legislative expressions when ascertaining whether a public policy exists. 292 Kan. at 230.
The KMWMHL contains a specific provision that prohibits any employer from discharging an employee for making a complaint against the employer under the KMWMHL. K.S.A. 44-1210(b). We do not have to guess at the public policy. Employers, as defined by the Act, are prohibited from taking action against an employee who has complained regarding wages and hours. The language is clear. The legislature was clear. But does this mean that the legislature, by specifically excluding FLSA-covered employers from the reach of the KMWMHL is also excluding FLSA-covered employers from the reach of any common-law tort claims for retaliatory discharge as argued by the KBI and as the district court held? In other words, the KBI argues that the legislature did not fail to provide a statutory claim for retaliatory discharge; it provided a statutoiy claim and specifically excluded FLSA-covered employees from its reach. Accordingly, must we consider that its omission expresses the opposite legislative intent to that stated in the KMWMHL? We believe the answer is no.
This situation is indistinguishable from that faced in Hysten v. Burlington Northern Santa Fe Ry. Co., 277 Kan. 551, 85 P.3d 1183 (2004). In Hysten, our Supreme Court was asked to respond to the following certified question from the 10th Circuit Court of Appeals:
“Independent of the Kansas alternative remedies doctrine, does Kansas law— [citations omitted]—recognize an action in tort based on an employer’s discharge of an employee in retaliation for the employee’s exercise of rights under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 et seq. (2000)? In other words, will die Kansas Supreme Court extend the public policy exception to die at-will employment doctrine to authorize a state tort action [for] retaliation for filing a FELA claim?” 277 Kan. at 551-52.
We note that the FELA gives railroad workers, not covered by state workers compensation laws, the right to sue their employer for damages if injured on the job. Burlington Northern argued that recognition of a wrongful discharge claim for FELA retaliation would not further the purpose of the Kansas Workers Compensation Act because FELA is a federal rather than a state statute. In addition, Burlington Northern argued that the Kansas Workers Compensation Act expressly excluded claims arising under FELA. 277 Kan. at 556; see K.S.A. 44-506. The Supreme Court rejected this argument as “unconvincing.” 277 Kan. at 556.
“Regardless of whether FELA or the Kansas Workers Compensation Act supplies the framework to support an injured worker’s pursuit of recovery, the public policy underlying that framework would be undermined if the worker could be fired for the exercise of his or her statutory right. Such a situation effectively releases an employer from the obligation of the statute. [Citation omitted.]
“In addition, the mere fact that the Kansas Workers Compensation Act is designed to govern claims not governed by FELA tells us nothing about the nature of the policy underlying either statute. It tells us only that the Kansas Legislature was careful not to duplicate protections for on-the-job injuries already provided certain Kansas citizens because of their dual status as employees covered by FELA.” 277 Kan. at 556-57.
This is the heart of Lumry’s argument. Just as the Kansas Workers Compensation Act supplies the framework to support a retaliation claim under the FELA, so the KMWMHL supplies the framework to support a retaliation claim under the FLSA. The district court’s finding that Lumry’s common-law “cause of action could not create a right to overtime compensation under the KMWMHL that Lumry never had” misinterpreted his argument. The cause of action he asserts is a state common-law tort claim for seeking to exercise his FLSA rights, not his KMWMHL rights. Furthermore, our Supreme Court’s analysis in Hysten certainly supports a similar public policy claim under the FLSA.
But that does not end our inquiry. As in Hysten, the next question that must be examined is whether the statutory remedy under the FLSA is adequate, thereby precluding tire common-law remedy. This is commonly referred to as the alternative remedies doctrine.
“ ‘Under the alternative remedies doctrine, a state or federal statute would be substituted for a state retaliation claim if tire substituted statute provides for an adequate alternative remedy. [Citations omitted.] The question to ask in resolving recognition of a state tort claim for retaliatory discharge is whether the statutory remedy is adequate and thus precludes the common-law remedy. [Citation omitted.]’ [Citation omitted.]” 277 Kan. at 561.
In other words, in order for this court to find that a claim for retaliatory discharge for violation of the FLSA exists under Kansas common law, we must find not only that a public policy exists to support such an action, but also that a claimant has no adequate alternative remedy under state or federal statutory law. Lumry makes no such claim here, arguing only the public policy prong of the analysis.
There is some support in federal jurisprudence for finding that a state common-law tort claim is precluded by the alternative statutory remedy provided in the FLSA. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1399 (10th Cir. 1997); Conus v. Watson's of Kansas City, Inc., No. 11-CV-2149-JAR/KGG, 2011 WL 4348315 (D. Kan. 2011) (unpublished opinion). But in Flenker v. Willamette Industries, Inc., 266 Kan. 198, 202, 967 P.2d 295 (1998), decided after Conner, our Supreme Court made it clear that the decision as to whether an adequate alternative remedy exists is to be based on Kansas Supreme Court precedent, “not on federal rulings interpreting Kansas law.” Because we have no Kansas Supreme Court precedent regarding whether the FLSA provides an adequate alternative remedy and because Lumry presents no argument on appeal that the FLSA remedy which is available to him through his retaliatory discharge claim against Director Ble-cha is inadequate, he has waived any such claim. See Superior Boiler Works, 292 Kan. at 889 (issue not briefed by the appellant is deemed waived and abandoned). Accordingly, we are unable to conclude, on the present showing, that Kansas recognizes a common-law tort for retaliatory discharge in violation of the FLSA.
Lumry is unable to establish a prima facie case for any common-law retaliatory discharge claim.
But even if Kansas were to recognize a common-law retaliatory discharge claim for violations of the FLSA, Lumry is still unable to avoid summary judgment.
The elements of a prima facie case of a state retaliatory discharge claim generally include: (1) Plaintiff exercised a statutoiy or constitutional right recognized as a basis for a retaliatory discharge claim; (2) the employer had knowledge of plaintiff s exercise of that right; (3) the employer terminated the plaintiff s employment; and (4) a causal connection existed between tire protected activity and the termination. Husky Hoggs, 292 Kan. at 235 (Kansas Wage Payment Act retaliation claim); Goodman v. Wesley Med. Center, 276 Kan. 586, 590,78 P.3d 817 (2003) (whistleblower retaliation claim); Rebarchek v. Farmers Co-op Elevator & Mercantile Ass’n, 272 Kan. 546, 554, 35 P.3d 892 (2001) (workers compensation retaliation claim). Only an employer is hable for the common-law tort of retaliatory discharge. Rebarchek, 272 Kan. at 562.
Kansas cases upholding a cause of action for the common-law tort of retaliatory discharge involve the actual filing of a written complaint or document prior to termination. See, e.g., Husky Hogs, 292 Kan. at 226; Goodman, 276 Kan. at 588; Rebarchek, 272 Kan. at 548; Palmer v. Brown, 242 Kan. 893, 894-95, 752 P.2d 685 (1988). We do not need to decide here whether the Kasten rule— that clear and detailed oral complaints are sufficient—also applies to any state common-law tort claim Lumry may have because even if it does, for the same reasons that Lumiy cannot establish a prima facie case for retaliation against Director Blecha under the FLSA, he cannot meet the first two elements of a common-law tort claim against the KBI. Lumry’s complaint regarding working more than 5 hours of uncompensated overtime failed to explicitly invoke the protections of the FLSA, and it failed to put his employer on notice that he was filing such a claim or that he intended to file a claim.
Accordingly, even though it reached the same conclusion, albeit for different reasons, the district court did not err in finding that Lumry’s common-law tort claim for retaliatory discharge also fails. See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008) (district court’s correct result may be upheld for alternative reasons).
For the above and foregoing reasons, we affirm the grant of summary judgment in favor of the defendants.
# # * | [
16,
-32,
-19,
-3,
8,
97,
62,
36,
75,
-125,
101,
81,
-25,
-64,
77,
121,
-29,
37,
88,
105,
-6,
-73,
83,
106,
-30,
51,
-24,
-59,
-78,
79,
-4,
-36,
77,
16,
10,
-43,
-26,
74,
-115,
26,
-120,
5,
58,
-5,
-40,
-127,
40,
-1,
-84,
15,
49,
-98,
-77,
56,
24,
-50,
76,
126,
122,
-81,
-16,
-16,
-77,
-123,
127,
17,
-78,
5,
-72,
15,
-8,
31,
-110,
58,
-96,
-24,
58,
-74,
-62,
-28,
55,
-103,
5,
98,
98,
38,
-99,
-89,
-20,
-68,
-66,
58,
-97,
-123,
-103,
41,
107,
8,
-108,
-100,
84,
21,
6,
-8,
-26,
85,
31,
36,
-50,
-49,
-44,
-111,
13,
84,
-42,
-85,
-1,
1,
1,
101,
-35,
102,
77,
35,
114,
27,
111,
-111
] |
The opinion of die court was delivered by
Beier, J.:
This is a $550,000 price dispute arising out of plaintiff s right of first refusal to purchase a Wichita waste transfer station from defendant. The catalyst was a third-party’s agreement to buy the transfer station and an adjoining landfill as a package deal or to buy the landfill alone.
The district court judge granted summary judgment to defendant Ritchie Corporation (Ritchie). A panel of our Court of Appeals reversed the summary judgment in Ritchie’s favor, ruled that summary judgment should have been granted to plaintiff Waste Connections of Kansas, Inc. (Waste Connections), and ordered remand to the district court for determination of attorney fees. Waste Connections of Kansas, Inc. v. Ritchie Corp., 43 Kan. App. 2d 655, 228 P.3d 429 (2010). We granted Ritchie’s petition for review.
Ritchie now argues that the Court of Appeals erred by discounting the role of Ritchie’s business judgment when evaluating Waste Connections’ breach of contract claim for violation of the implied duty of good faith and fair dealing, by holding that Waste Connections is not contractually obligated to pay $2 million for the station, and by disregarding controverted facts that should prevent judgment as a matter of law in Waste Connections’ favor.
Our review of the record and analysis of the legal issues leads us to reverse the judgment of the district court, reverse the decision of the Court of Appeals, and remand the entire case to the district court for further proceedings.
Factual and Procedural Background
On December 29, 1998, Ritchie conveyed title to a 16.8-acre tract of land in Sedgwick County to BFI Waste Systems of North America, Inc. (BFI). On the same day, Ritchie and BFI entered into an Escrow Agreement that entitled BFI to operate the property as a nonhazardous waste transfer station. BFI was required to make quarterly payments to Ritchie based on a per-ton amount of waste material processed at the transfer station. Under the Escrow Agreement, BFI had the right to operate the transfer station for an initial period of 35 years.
The Escrow Agreement provided that an escrow agent would redeliver a deed from BFI to Ritchie conveying title to the property back to Ritchie at the end of BFFs right to use the transfer station (Ritchie’s “reversionary interest”). Ritchie granted BFI a right of first refusal with respect to Ritchie’s entire interest, including Rit-chie’s reversionary interest in the property. The Right of First Refusal, set forth in Paragraph 21(m) of the Escrow Agreement, provided:
“Right of First Refusal. At all times this Escrow Agreement is in effect, Buyer shall have a right of first refusal with respect to Seller’s interest in this Escrow Agreement, including without limitation Seller’s reversionary interest in the property, however designated, to the effect that upon receipt by Seller of any offer to purchase Seller’s interest in this Agreement or the Property by a third party, Seller shall give written notice to Buyer of die fact and terms of such third party offer. Buyer shall have forty-five (45) days after its receipt of such notice to notify Seller in writing of its election to purchase such interest(s) on such financial terms (the ‘Election Term’). In the event Buyer does not notify Seller of its election to purchase such interest(s), then Seller may sell such interest(s) on such identical terms to such third party so long as such sale is consummated within ninety (90) days after such Election Term. If such sale to die diird party is not consummated within such period, then the Buyer shall again have die right of first refusal to purchase such interest(s) prior to any sale to any third party. This right of first refusal shall specifically not apply to any transfer or assignment by Seller to an affiliate of Seller or to any stockholder of Seller or any of dieir affiliates.” (Emphasis added.)
Paragraph 21(i) of the Escrow Agreement provided:
“Attomeyfs’l Fees. In the event of any controversy, claim or dispute between the parties arising out of tiiis Escrow Agreement or the breach diereof, the prevailing party shah be entitled ... to recover its costs and expenses, including without limitation, reasonable attorneys’ fees, expert witness fees and investigators’ fees, which shall be determined by the court if the matter is litigated or otherwise in a. separate action brought for that purpose.”
Paragraph 21(g) of the Escrow Agreement contained an integration clause.
On May 12, 2000, BFI assigned all of its rights, title, and interest in and to the Escrow Agreement to Waste Connections. After that date, Waste Connections operated the transfer station.
On December 17, 2001, Ritchie and Waste Connections amended the Escrow Agreement to increase the amount of the quarterly payments for which it provided. In consideration for the increased payments, Ritchie agreed not to file a petition for annexation or consent to annexation by the City of Wichita with respect to adjacent property and agreed to exert its best efforts to maintain use of the adjacent property as “Land Devoted to Agricultural Use” or a buffer zone under K.S.A. 12-519(f).
Ritchie also owned a controlling interest in C & D Recyclers of Kansas, Inc. (C & D). Hale Thompson (Tom) Ritchie II was the President and CEO of Ritchie, as well as the representative of Ritchie and C & D, who had responsibility for the transfer station and an adjoining landfill. He had the authority to make any decisions that needed to be made on behalf of Ritchie and C & D.
At some point, Cornejo & Sons (Cornejo) approached Ritchie regarding the purchase of C & D assets or stock. After discussions, on June 22, 2007, Ritchie and C & D entered into an Asset Purchase Agreement with Cornejo. Pursuant to the Asset Purchase Agreement, Ritchie and C & D agreed to sell the landfill, certain option rights to purchase additional property adjacent to the landfill, and all of Ritchie’s rights and obligations under the Escrow Agreement.
The Asset Purchase Agreement specified the following:
“2.1. Purchase Price Payment. The purchase price for the entirety of the Assets shall be Four Million Nine Hundred Fifty Thousand Dollars ($4,950,000) . . . , of which Two Million Dollars ($2,000,000) will be allocated and paid to Ritchie Corporation for the purchase of its rights and the assumption of its obligations under the Escrow Agreement.
“In the event that Waste Connections of Kansas, Inc.[,] shall, upon receipt of due and proper notice from Sellers, elect to exercise its right of first refusal under the Escrow Agreement, the parties agree that the purchase price for the remaining assets shall be Three Million Five Hundred Thousand Dollars ($3,500,000.00).”
The Asset Purchase Agreement also included an integration clause in its Section 12.3.
On June 27, 2007, Terry Pilgreen, counsel for Ritchie, sent a letter to Waste Connections. The letter stated in part:
“Ritchie Corporation has received an offer to acquire its interest in the Escrow Agreement for $2,000,000.00 cash as specified in the attached Asset Purchase Agreement. Waste Connections of Kansas, Inc.[,] holds a Right of First Refusal pursuant to Section 21(m) of the Escrow Agreement, and on behalf of my client, Ritchie Corporation, this correspondence shall serve as notice of the facts and terms of the referenced third-party offer. Should Waste Connections of Kansas, Inc.[,] not exercise its Right of First Refusal within forty-five (45) days after receipt of this notice, you are hereby advised that Ritchie Corporation will sell its interest in the Escrow Agreement for $2,000,000.00 cash as specified in tire Asset Purchase Agreement.”
Robert Epstein, counsel for Waste Connections, testified in a deposition that he called Pilgreen on August 2, 2007, and advised him that Waste Connections believed it should have to pay Ritchie only $1.45 million for the transfer station, not $2 million. He then sent a letter to Pilgreen on August 3, 2007. In the letter, Epstein stated in relevant part:
“The purpose of this letter is to advise you that Waste Connections of Kansas, Inc.[,] has elected to exercise its option to purchase Ritchie Corporation's interest in the Wichita Transfer station property pursuant to the provisions of the Escrow Agreement.
“Please advise your client that Waste Connections of Kansas has exercised its option to purchase. There are certain matters with respect to the contract which I believe we need to discuss in greater detail. Please contact me upon your receipt of this letter so that we may proceed to complete this purchase and sale. We would like to schedule a conference call to discuss certain matters relating to this transaction.”
Pilgreen forwarded Epstein’s letter to Chuck Hill, Director of Regulatory Affairs at Cornejo, on August 6, 2007, and talked to Hill by telephone the same day about Waste Connections’ position on the appropriate price for the transfer station. Hill’s email response, dated the same day, stated:
“Terry: I have discussed this matter with Ron [Cornejo] and Dave Royce. Our position is as follows:
“We have a contract by which we agreed to purchase the Ritchie transfer station interest and the C & D Landfill for a combination price of $4,950,000, of which it was agreed $2 million would be allocated to and paid to Ritchie for the transfer station interest.
“Alternatively, if [Waste Connections] exercises its right of first refusal to purchase the Ritchie transfer station interest, we have agreed to pay 3.5 million for the landfill as a stand-alone purchase.
“It seems to us that any dispute as to the effect of the Comejo/Ritchie purchase agreement on the Ritchie/fWaste Connections] escrow agreement is a matter to be resolved between Ritchie and [Waste Connections], and that we really have no particular rights to enforce as to [Waste Connections] at this time.
“As you will recall, we really had no initial desire to purchase anything other than tire landfill, but Ritchie determined that because of the requirement for the agricultural buffer around the landfill, that you could not practically separate the two.
“I guess our bottom line position is that if Ritchie determines that the combined reading of the Comejo/Ritchie purchase agreement with die Ritchie/fWaste Connections] escrow agreements is diat [Waste Connections] must be allowed to purchase the transfer station interest for $1,450,000, diat is okay widi us, as long as we get the landfill for 3.5 million.”
Epstein also testified in his deposition that he asked Pilgreen during an August 9, 2007, conference call whether Cornejo would be willing to allow Waste Connections to purchase the transfer station for $1.45 million while it paid $3.5 million for the landfill. Pilgreen did not respond.
On August 10, 2007, Epstein sent another letter to Pilgreen, which stated in part:
“The purpose of diis letter is to advise you, again, diat Waste Connections of Kansas, Inc. [,] has elected to exercise its right of first refusal pursuant to Paragraph 21(m) of the Escrow Agreement to purchase Ritchie Corporation’s interest in die Wichita Transfer Station Property.
“I understand that you have already advised your client that Waste Connection of Kansas has elected to exercise its right of first refusal under the Escrow Agreement. Please provide me witii your written confirmation of your client’s timely receipt of my client’s election. As we have made you aware, diere are certain matters with respect to the contract which require ongoing discussion. We look forward to proceeding to complete this purchase and sale.”
On August 15, 2007, Pilgreen sent a letter in response to Epstein:
“I am in receipt of your two pieces of correspondence dated August 3 and August 10,2007, respectively, concerning the above referenced matter. I acknowledge that both pieces of correspondence were received within forty-five (45) days of your receipt of my June 27, 2007[,] notice to you and your client.”
On August 16, 2007, Pilgreen and Epstein spoke by telephone. Epstein then again wrote to Pilgreen:
“Thank you for your letter of August 15, 2007[,] acknowledging that you have received my two previous letters. In our telephone conversation today you indicated that you are unclear as to whether my client had properly exercised its right of first refusal pursuant to the provisions of the Escrow Agreement. To malee things abundantly clear, yet again, please be advised that my client is exercising its right of first refusal to purchase Ritchie Corporation’s interest in the transfer station property pursuant to Paragraph 21(m) of the Escrow Agreement and pursuant to the terms set forth in Ritchie Corporation’s Agreement with Cornejo to sell the transfer station and the C & D Landfill. Please understand further that my client exercises its right of first refusal and reserves all of its rights and remedies at law or in equity.”
On September 13, 2007, Steven Gough, local counsel working with Epstein, sent a letter to Pilgreen. The letter stated in part: “This letter will serve to reaffirm drat Waste Connections has elected to exercise its right of first refusal to purchase all of Rit-chie’s interest in the Escrow Agreement, including Ritchie’s re-versionary interest, pursuant to the provisions of the Escrow Agreement as applied to the Asset Purchase Agreement.” The letter also explained Waste Connection’s position as to the price of the transfer station. Referencing the second paragraph of Section 2.1 of the Asset Purchase Agreement, Gough wrote:
“The above-referenced provision establishes, in our view, the true intent of the parties under the Asset Purchase Agreement, namely, that the Seller agreed to sell the Wichita Transfer Station and the Landfill with option rights for a total of $4.95 million with $3.5 million allocated to the Landfill and $1.45 million allocated to the Wichita Transfer Station. We believe that a Court will review the above provision as a mechanism to inflate the price of the Wichita Transfer Station by $550,000.00 (to $2,000,000.00) in violation of Paragraph 21(m) of the Escrow Agreement!),] which defines the Right of First Refusal for Waste Connections to purchase under the ‘fact and terms of such third party offer.’ ”
Gough’s letter continued: “There is a bona fide dispute between Ritchie Corporation and Waste Connections concerning the price that must be paid under the Right of First Refusal.” Gough advised that Waste Connections had “delivered to the Escrow Agent a certified check payable to Ritchie in the amount of $2 million . , . subject to its express reservation of its rights to determine the proper price payable for its exercise of the Right of First Refusal” and that Waste Connections had filed a petition for declaratory judgment. Gough also advised that Waste Connections had “enclosed a revised agreement for this transaction, the ‘Right of First Refusal Exercise and Release of Escrow,’ ” and, “[wjhether the purchase price for the Wichita Transfer Station is ultimately determined to be $2 million or $1.45 million, Waste Connections has exercised its Right of First Refusal and is entitled to close this transaction without delay.”
Waste Connections’ petition sought determination of “whether the proper price owed under Paragraph 21(m) of the Escrow Agreement, as applied to the Asset Purchase Agreement, was $1.45 million rather than $2 million,” claiming that tire pricing provision of the Asset Purchase Agreement was “a mechanism used by Rit-chie to improperly inflate die price to be paid by Waste Connections for the Wichita Transfer Station.” As a result, Waste Connections asserted, Ritchie owed it $550,000 plus interest, attorney fees and expenses. Waste Connections also asserted entitlement to specific performance of the Escrow Agreement and an injunction to prevent Ritchie’s transfer of its interest to any third parly, including Cornejo.
Ritchie filed its answer and counterclaim. Its counterclaim sought declaratory judgment in its favor that (a) the Asset Purchase Agreement constituted a “bona fide third-party offer to purchase” its rights under the Escrow Agreement for $2 million; (b) Ritchie properly informed Waste Connections of the offer; and (c) Waste Connections accepted Ritchie’s offer to sell and exercised its Right of First Refusal to purchase the transfer station at a price of $2 million. Ritchie also sought attorney fees, costs, and expenses.
The day after Ritchie Filed its answer and counterclaim, on September 28, 2007, Waste Connections and Ritchie executed a Right of First Refusal Exercise and Release of Escrow. Its Paragraph 1 provided:
“By timely written notice Waste [Connections] elected to exercise its Right of First Refusal pursuant to Paragraph 21(m) of the Escrow Agreement to acquire Ritchie’s interest in the Escrow Agreement and Ritchie’s reversionary interest in the property subject to die Escrow Agreement. On September 13, 2007, Waste [Connections] delivered a certified check to the Escrow Agent in the amount of $2,000,000.00, payable to Ritchie, with a reservation ofWaste [Connections’] right to seek a determination that Waste [Connections] is actually required to pay only $1,450,000.00 under Paragraph 21(m) of the Escrow Agreement when applied to the Purchase Agreement to exercise its Right of First Refusal, which reservation includes all remedies available in the event such a determination is made. The parties acknowledge that Waste [Connections] has filed a Verified Petition for Declaratory Judgment in a case styled Waste Connections of Kansas, Inc. v. Ritchie Corporation, Cornejo & Sons, Inc., and O’Rourke Title Company, Case No. -, District Court, Sedgwick County, Kansas (‘Lawsuit’) to determine the proper price owed under Waste [Connections’] Right of First Refusal and for other remedies.”
On the same date, Waste Connections and Ritchie also executed a Reservation of Rights. In it, Ritchie and Waste Connections acknowledged and agreed:
“[T]he following rights are expressly reserved and shall survive the closing of the sale of the land identified in the pending action referenced below: Ritchie Corporation expressly reserves all rights it has to pursue Waste Connections of Kansas, Inc., as provided in Paragraph 21(i) of tire Escrow Agreement dated December 29,1998, for attorney’s fees, expenses and costs in connection with fees, expenses and costs incurred in the lawsuit known as Waste Connections of Kansas, Inc., v. Ritchie Corporation, et al., Sedgwick County, District County Case No. 07 CV 3308 in which Ritchie Corporation has been named as a party by Waste Connections of Kansas, Inc. Waste Connections of Kansas, Inc., also reserves all of its rights against Ritchie Corporation as provided in Paragraph 21(i) of said Escrow Agreement, including remedies asserted in the pending lawsuit, which reservation shall survive the closing date of the sale of the land identified in tire pending lawsuit referenced above.”
Also on the same date, counsel for Ritchie formally acknowledged that Ritchie had received $2 million from Waste Connections on September 12, 2007. The events of September 28, 2007, rendered Waste Connections’ original prayer for specific performance and injunction moot. All that remained for resolution was identification of the correct transfer station price.
Waste Connections filed its answer to Ritchie’s counterclaim, requesting that “Ritchie be denied any relief whatsoever on its purported Counterclaim, be required to refund $550,000.00 to Waste Connections!,] . . . and be required to bear the full cost of this action.”
Discoveiy depositions eventually revealed additional relevant information.
Douglas Sommers, an employee of Ritchie and later General Manager of C & D, worked for C & D until December 2007. He testified that Ritchie believed it could insert a provision into a sale contract for the landfill that would require the buyer to maintain the buffer zone, but it then might be forced to institute a court action against a third party to enforce the obligation if it was not honored by the buyer. Because this was undesirable, Sommers advised Tom Ritchie that Ritchie could require both assets to be sold together, relieving itself of the obligation to maintain the buffer zone.
David Buchholz, Ritchie’s Chief Financial Officer, testified that he provided Tom Ritchie with a discounted cash flow analysis for valuation of the transfer station. The goal was to predict a stream of royalties attributable to the Escrow Agreement as amended, and to discount those royalties to present value. Buchholz testified that he told Tom Ritchie that the transfer station was worth well in excess of $2 million. Buchholz also testified that Ritchie’s counsel “was of tire opinion that it would be better, for purposes of assuring that we handled the right of first refusal properly!,] ... if there were two separate contracts with Cornejo,” and that he agreed with counsel. But it was his understanding that Cornejo would not have allowed the deal to be structured in such a manner.
Tom Ritchie insisted that any sale to Cornejo had to include both the landfill and the transfer station. He testified that the assets were to be sold “all or none” because the interest in the transfer station carried obligations related to operation of the landfill. He also testified that Cornejo told Ritchie it had no opinion how the $4.95 million was allocated in a package sale, as long as it could buy the landfill for $3.5 million. Tom Ritchie explained that it was Ritchie’s idea to allocate $2 million of the purchase price to the transfer station. He further testified: “I thought the transfer station was worth at least $2 million, and I have a duty to my company to attempt to get the best deal I can for the shareholders of th[e] company.” Although Ritchie would have been willing to accept $1.45 million for the transfer station and $3.5 million for the landfill as a package deal, “what [Ritchie] actually agreed is fully contained in its entirety within the Asset Purchase Agreement.”
Ronald Cornejo, tire Chief Executive Officer of Cornejo, mentioned in Hill’s email, testified that he had the authority to make the deal with Ritchie. Ritchie initially attempted to get $5,500,000 from Cornejo for a purchase of the landfill and transfer station as a package deal. Cornejo was unwilling to pay that amount for both assets and would pay a total of only $4.95 million. Ronald Cornejo further testified that he did not suggest the $2 million allocation of the purchase price for the transfer station; Ritchie suggested it during negotiations. At no time, Ronald Cornejo said, did his company believe that the transfer station was worth $2 million to it. Initially it believed that the transfer station was worth only $850,000. To reach this number, Ronald Cornejo testified, his company compared risk to revenue generated. The risk involved with the transfer station arose out of Waste Connections’ right under the Escrow Agreement to terminate and shut down the royalty stream with 90 days’ notice. Ronald Cornejo testified that his opinion on the worth of the transfer station changed as he acquired additional information. But $3.5 million was Cornejo’s “highest and best offer” for the landfill, and Cornejo “didn’t care” if it ended up with the transfer station as well. It had no objection to the sale of the transfer station to Waste Connections for $1.45 million, and it was willing to pay that amount for the transfer station.
Charles David Royce, the Chief Financial Officer of Cornejo, also mentioned in Hill’s email, testified that Cornejo was unwilling to pay $2 million for the transfer station. He confirmed that Ritchie sought $5,500,000 for the transfer station and landfill together, but Cornejo would not pay that price. Cornejo “want[ed] the landfill, period” and would pay $3.5 million. Cornejo did not believe that the transfer station was worth $2 million but agreed to pay $1.45 million. Cornejo “didn’t care” how the package total of $4.95 million was allocated between the landfill and the transfer station.
Sommers was present during two conference calls among Buch-holz, Pilgreen, and Epstein. During those calls, he said, Epstein stated that Waste Connections wanted to exercise its right of first refusal, but at a price other than $2 million. Waste Connections asserted that it should pay only $1.45 million. Pilgreen told Epstein that Pilgreen was unsure whedier Waste Connections had exercised its right of first refusal effectively because of the parties’ dispute over price.
James Little, Vice President of Waste Connections, testified that Waste Connections relied upon Ritchie’s acknowledgements in the Right of First Refusal Exercise and Release of Escrow, as well as the Reservation of Rights, when it agreed to release $2 million to Ritchie rather than deposit die disputed amount into court.
On June 18, 2008, Waste Connections filed a motion to amend its petition. The motion argued that the original petition had stated a claim for breach of the duty of good faith and fair dealing by Ritchie, and it listed further evidence from depositions to demonstrate support for that claim. According to Waste Connections, the amended petition merely clarified “that Ritchie’s bad faith and unfair dealing was involved in the manipulation of the Right of First Refusal price to be paid.” The amended petition again sought declaratory relief. It also set forth a second count for breach of the Escrow Agreement, incorporating the allegations made in support of the declaratory judgment count and further stating that “Ritchie has acted in bad faith and dealt unfairly with Waste Connections.” The district court granted Waste Connection’s motion to amend.
Ritchie filed its answer to Waste Connections’ amended petition and renewed its original counterclaim.
In the Pretrial Conference Order filed September 3, 2008, Waste Connections’ contentions included (1) that Ritchie breached the Escrow Agreement by violating its duty to act in good faith and to deal fairly by manipulating the price allocated to the transfer station; (2) that Ritchie acted in bad faith and dealt unfairly with Waste Connections by failing to require Cornejo, which had purchased tire landfill, to maintain the buffer zone around it, “destroying the contractual benefit that [Waste Connections] bargained for ... in the Amendment to Escrow Agreement”; and (3) that Ritchie failed to inform Waste Connections that Cornejo was willing to pay and Ritchie was willing to accept $1.45 million for the transfer station in Pilgreen’s June 27, 2007, letter—facts that “should have been disclosed and would have been disclosed but for [Ritchie’s] desire to act in bad faith and to deal unfairly” with Waste Connections—an independent breach of the right of first refusal in the Escrow Agreement. Ritchie’s contentions denied that it acted in bad faith; asserted that Waste Connections waived or was estopped from asserting its right to the $550,000 difference between $2 million and $1.45 million by its August 3 and 10, 2007, letters; and reiterated its request for declaratory judgment. Ritchie also specifically denied that it had any obligation under the amendment to the Escrow Agreement to require Cornejo to maintain a buffer zone.
Shortly after the filing of tire Pretrial Conference Order, the parties filed cross-motions for summary judgment in the district court.
Waste Connections argued in its motion that it was entitled to judgment as a matter of law because the uncontroverted evidence showed that “Cornejo was at all times willing to agree to an allocation for the purchase of both assets and that Ritchie was willing to accept payment from Cornejo for both assets under the following price allocation: Transfer Station for $1.45 million and the landfill for $3.5 million for a total of $4.95 million.” In its memorandum in support of its motion, Waste Connections argued that “although Ritchie tried to establish an artificial value of $2 million for the transfer station, $1.45 million was the true value placed upon the transfer station by Cornejo and was a price Ritchie was willing to accept for the asset, thereby establishing the purchase price of the transfer station for Waste Connections.” Waste Connections argued that Ritchie breached its obligations under the right of first refusal by breaching the duty of good faith and fair dealing and by failing to disclose to Waste Connections the existence and terms of the contemplated sale to Cornejo.
Waste Connections further argued that Ritchie could not defeat summary judgment by arguing waiver, estoppel, or offer and acceptance. Waste Connections argued that “Ritchie’s defense of of fer and acceptance fails because Waste Connections acted consistent with its rights in accepting the bona fide offer price of $1.45 million.” According to Waste Connections, Ritchie was barred from raising equitable defenses because it had unclean hands and failed to show that the elements of waiver or estoppel had been met.
Ritchie’s response to Waste Connection’s motion argued that “[a]iter accepting an explicit offer made by Ritchie on unambiguous and particular terms pursuant to a right of first refusal, Waste Connections is now attempting to improperly restructure the deal.” Ritchie took the position drat none of the evidence Waste Connections had gathered “demonstrate[d] collusion or manipulation of tire price terms” but was “merely evidence of negotiation and discussions over pricing and terms . . . between Cornejo and Rit-chie.”
In its own summary judgment motion, Ritchie argued that “undisputed facts establish[ed] that Waste Connections accepted an explicit written offer from Ritchie pursuant to a right of first refusal.” According to Ritchie, Waste Connections was “improperly attempting to have [the district court] restructure a binding contract” and Waste Connections “failed to demonstrate a genuine issue of material fact regarding its claim that Ritchie breached the implied duty of good faith and fair dealing.” In its memorandum in support of its motion, Ritchie argued that the case turned on a “pure question of contract law,” tire consequences of accepting an unambiguous offer. Ritchie argued that Waste Connections’ right of first refusal “was triggered only upon the happening of two preconditions: the receipt by Ritchie of a bona fide offer to purchase the transfer station and the decision by Ritchie to sell the transfer station property to the third party,” two preconditions that did not occur until “the execution of the Asset Purchase Agreement [by Ritchie and Cornejo,] which contained the offer from Cornejo to purchase tire transfer station for $2 million.” Pursuant to its right of first refusal, Waste Connections “was entitled to purchase Rit-chie’s interest in the transfer station on the same financial terms offered by Cornejo[—$2 million, as] set forth clearly and unambiguously in the Asset Purchase Agreement.”
Ritchie further argued that the doctrines of equitable estoppel and waiver precluded relief for Waste Connections because “Waste Connections accepted the offer, and it cannot now be permitted to pursue divergent positions regarding the agreement with Rit-chie.” In Ritchie’s view, “Waste Connections could have pursued injunctive relief to prevent die sale of die transfer station interest until the price was determined,” but it chose to go through with the sale and tender payment instead.
Ritchie also argued that Waste Connections failed to come forward with evidence to support its claim that Ritchie breached its duty of good faith and fair dealing. Ritchie maintained that it had “no independent contractual obligation” to disclose precontract negotiations to Waste Connections, that there was “no evidence that Ritchie prevented Waste Connections from exercising its right of first refusal,” and that there was “no evidence that Ritchie’s actions injured or destroyed Waste Connections’ rights under the Escrow Agreement” because Ritchie “fully conveyed the facts and terms of the bona fide third-party offer from Cornejo.” Ritchie further argued that it “was entitled under the law to act in a manner that is in the best interest of Ritchie’s business,” and, therefore, “must be free to obtain the highest offer for its asset.”
Waste Connections responded to Ritchie’s motion for summary judgment by arguing that Ritchie “completely ignore[d] its duty of good faith and fair dealing” and that “[i]n breach of this duty, Ritchie manipulated the price allocated to the Transfer Station in its negotiations with Cornejo.” Waste Connections acknowledged that “a right of first refusal is framed by a bona fide offer and an intent to sell,” but it argued that “Ritchie improperly ignore[d] the caveat that the offer and intent to sell must not be subject to collusion or bad faith manipulation.” Waste Connections also argued that the Asset Purchase Agreement, read in light of the “well recognized rale of contract interpretation requiring provisions within a writing to be reconciled when possible,” constituted an ambiguous writing.
The district judge denied Waste Connections’ motion for summary judgment and entered judgment in favor of Ritchie, holding that Ritchie was entitled to the declaratory judgment it sought as well as judgment in its favor on Waste Connections’ claim for breach of contract for violation of the implied duty of good faith and fair dealing. The district judge also ruled that, “pursuant to Section 21(i) of the Escrow Agreement, Ritchie, as the prevailing party, is entitled to recover its costs, expenses and reasonable attorneys fees related to the current action,” totaling $108,972.15.
In reaching his decision, the district judge said that paragraph 21(m) of the Escrow Agreement entitled Waste Connections to “step into the shoes of a third-party purchaser and purchase Rit-chie’s interest in the Transfer Station for the same price offered or agreed by a bona fide third-party purchaser.” He continued:
“2. The Court notes specifically that from the beginning Ritchie required Cor-nejo to buy the landfill as a package and wanted to allocate $3.5 million to the landfill and $2 million for the transfer station. As the Court looked through the facts, it finds nothing to suggest that Ritchie in any way tried to manipulate with Cornejo the price Ritchie was seeking for the transfer station, nor did Ritchie [waver] in dealing with Cornejo in making a contract with Cornejo that deviated from that desire to obtain $2 million for the transfer station. The Court finds that Ritchie as seller has die right to establish die value for its property absent some land of bad faidi or collusion and the Court finds no evidence that suggests there was bad faith or collusion on the part of Ritchie in arriving at a contract, which it did in this case, which established a $2 million value for die transfer station. The acceptance of diat offer by Cornejo established a $2 million dollar value for die transfer station property. The acceptance of diat offer by Cornejo established die contract and triggered the right of first refusal in the escrow agreement which die plaintiff has now exercised. The plaintiff now wishes the Court, in the Court’s opinion, to reform the original contract to sometiiing more acceptable to the plaintiff.
“3. Package sale transactions which include a parcel of property burdened by a right of first refusal with another piece of property diat is not so burdened must be examined very carefully in order to protect die holder of the right of first refusal from a collusive effort or bad faidi dealing on the part of one to arbitrarily or capriciously set a price too high to extort or get from a person a value that they would not otherwise have to pay if diere was a willing buyer and a willing seller. The willing seller must have the right to say ‘I’m not selling this piece of property other tiian for diis price.’ Clearly die evidence establishes that $2 million was the price diey set out to get and there is no evidence diat die Court can find diat would suggest diere was bad faith or unfair dealing in diis case to establish that price. Pursuant to die Asset Purchase Agreement, Cornejo agreed to pay $2 million for Ritchie’s interest in the Transfer Station. Waste Connections was entided to step into the shoes of Cornejo and purchase the Transfer Station from Ritchie for $2 million.”
Waste Connections appealed, and a panel of our Court of Appeals reversed the summary judgment for Ritchie, granted judgment to Waste Connections, and ordered remand to the district court for reconsideration of attorney fees. The essence of the panel’s merits holding was that a presumption arose in favor of Waste Connections as the holder of the right of first refusal on a component in a package deal, and any upward fluctuation in price on that component that was dependent upon exercise of Waste Connections’ right meant that Ritchie did not act in good faith as a matter of law. Waste Connections of Kansas, Inc. v. Ritchie Corp., 43 Kan. App. 2d 655, 667-70, 228 P.3d 429 (2010).
In its opinion, the panel first agreed with Waste Connections that it had preserved its opportunity to challenge the purchase price, i.e., that it had executed the right of first refusal under protest on the terms. Waste Connections of Kansas, Inc., 43 Kan. App. 2d at 663, 665. The panel also concluded that the Asset Purchase Agreement’s price for the transfer station was ambiguous, because the price fluctuated based on whether Waste Connections exercised its right of first refusal. Waste Connections of Kansas, Inc., 43 Kan. App. 2d at 666-67.
In order to determine the actual sale price for the transfer station, the Court of Appeals examined Waste Connections’ allegation of bad faith. The Court of Appeals reviewed the evidence and found that “[t]he only thing Cornejo agreed to was a package purchase price of $4.95 million.” Waste Connections of Kansas, Inc., 43 Kan. App. 2d at 668. Holding that “any doubt in the amount [of tire purchase price] should be resolved to protect the right of first refusal,” the Court of Appeals concluded that Ritchie had acted in bad faith by attempting to maximize its profits at Waste Connections’ expense, and that Waste Connections was entitled to summary judgment in the amount of $550,000. Waste Connections of Kansas, Inc., 43 Kan. App. 2d at 667-68, 670.
Although the panel reasoned that right of first refusal holders face special risks in package deals and need special protection, the panel cited no authority for the presumption upon which its analysis relied.
Discussion
Ritchie’s petition for review places all of the parties’ contentions recited in the Pretrial Conference Order, with the exception of their dispute over tire buffer zone, in play. We ultimately decide that neither party is entitled to summaiy declaratory judgment in its favor; that the case must be remanded to the district court for trial on the merits of Waste Connections’ breach of contract claim, including its allegation of Ritchie’s bad faith, because genuine issues of material fact persist; that an award of costs, expenses, and attorney fees incurred in the district court litigation is premature; and that neither party is entitled to attorney fees incurred on this appeal at this time.
Standards of Review
The standard governing cases that arise on appeal from summaiy judgment is often recited:
“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 summaiy judgment, the facts subject to die dispute must be material to the conclusive issues in the case. On appeal, we apply die same rules and where we find reasonable minds could differ as to die conclusions drawn from die evidence, summaiy judgment must be denied. [Citations omitted.]” Gaumer v. Rossville Truck & Tractor Co., 292 Kan. 749, 751-52, 257 P.3d 292 (2011).
In this case, both parties sought summaiy declaratory judgment in the district court, seeking a court statement of their “rights, status, and other legal relations” under two written contracts, the Escrow Agreement between them and the Asset Purchase Agreement between Ritchie and Cornejo. See K.S.A. 60-1701 (purpose of declaratory judgment action); K.S.A. 60-1704 (person having interest under written contract may seek declaratory judgment on “any question of construction” arising under contract, “declaration of rights, status or other legal relations thereunder”); K.S.A. 60-1705 (court in declaratory judgment action may construe contract “in tire event of an actual or threatened breach thereof’)- Kansas statutes authorizing declaratory judgment actions are remedial and meant to be liberally construed “to settle and provide relief from uncertainty and insecurity” with respect to disputed “rights, status and other legal relations.” K.S.A. 60-1713. Nevertheless, a court may decline to render or enter a declaratory judgment if it will not “terminate the uncertainty or controversy giving rise to the proceeding.” K.S.A. 60-1708.
“The primary rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent’ of the parties is to be determined from the language of the contract without applying rules of construction.” Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011) (citing, e.g., Anderson v. Dillard’s, Inc., 283 Kan. 432, 436, 153 P.3d 550 [2007]). If, on the other hand, the court determines that a written contract’s language is ambiguous, extrinsic or parol evidence may be considered to construe it. See Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 452, 827 P.2d 24 (1992); Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 838-40, 508 P.2d 889 (1973). In addition,
“ ‘[a]n interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four comers. The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. [Citation omitted.]’ Johnson County Bank v. Ross, 28 Kan. App. 2d 8, 10, 13 P.3d 351 (2000).” Levin v. Maw Oil & Gas, 290 Kan. 928, 939, 234 F.3d 805 (2010).
In general, parties may contract to any terms so long as they are neither illegal nor contrary to public policy. See Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 670-71, 876 P.2d 1362 (1994); Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 757, 549 P. 2d 903 (1976); Hill v. Perrone, 30 Kan. App. 2d 432, 435, 42 P.3d 210 (2002).
A written contract is amenable to interpretation as a- matter of law by the court. See, e.g., McGinley v. Bank of America N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005). But, if the language of a contract is ambiguous and the intent of the parties cannot be ascertained from undisputed extrinsic or parol evidence, summary declaratory judgment is inappropriate. See Mobile Acres, 211 Kan. at 838-40 (written lease ambiguous; extrinsic evidence conflicting; summary declaratory judgment reversed); contra Wulf v. Schulz, 211 Kan. 724, 731, 508 P.2d 896 (1973) (when no genuine issue of fact remains, lease unambiguous; lease can be construed upon motion for summary judgment in declaratory judgment action) (citing Mays v. Middle Iowa Realty Corp., 202 Kan. 712, 719, 452 P.2d 279 [1969]).
The question of whether the language in a written contract is ambiguous is one of law for the court. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 264, 225 P.3d 707 (2010); Mobile Acres, 211 Kan. at 839. And the parties’ agreement or lack of agreement on the existence of ambiguity does not compel the court to arrive at the same conclusion. See Mobile Acres, 211 Kan. at 836-37, 839 (“On appeal, both sides vigorously assert that contract is not ambiguous. However, they disagree violently as to what is meant by or included within the [contract language]. This difference of opinion might tend to indicate that each side considers the lease agreement as being unambiguous only in its own favor. . . . While we respect the views and opinions of eminent counsel, we are not bound by agreement on their part that the [subject contract] is unambiguous.”).
Whether a contract has been formed by an exchange of writings is a question of law. See U.S.D. No. 446 v. Sandoval, 295 Kan. 278, 283, 286 P.3d 542 (2012); Nungesser v. Bryant, 283 Kan. 550, 566, 153 P.3d 1277 (2007). Whether a contract has been breached is a question of fact. Bank of America v. Narula, 46 Kan. App. 2d 142, 168, 261 P.3d 898 (2011); Wichita Clinic v. Louis, 39 Kan. App. 2d 848, 868, 185 P.3d 946 (citing Dutta v. St. Francis Regional Med. Center Inc., 18 Kan. App. 2d 245, 257, 850 P.2d 928 [1993], affd 254 Kan. 690, 867 P.2d 1057 [1994]), rev. denied 287 Kan. 769 (2008); see also 17 B C.J.S. Contracts § 1034, p. 482 (question of whether facts established by party constitutes breach of contract one of law, but whether facts sufficient to constitute breach of contract have been established ordinarily question of fact; thus, when facts in dispute, when reasonable persons could differ on inferences to be drawn from facts, question must be determined by trier of fact; summary judgment improper).
In this case, one of Ritchie’s alleged breaches of the Escrow Agreement is the violation of the duty of good faith and fair dealing inherent in all Kansas contracts, except employment-at-will contracts. See Estate of Draper v. Bank of America, 288 Kan. 510, 525, 205 P.3d 698 (2009); see also Nungesser, 283 Kan. at 560 (action alleging breach of duty of good faith sounds in contract) (citing Glenn v. Fleming, 247 Kan. 296, 311-13, 799 P.2d 79 [1990]; Spencer v. Aetna Life & Casualty Ins. Co., 227 Kan. 914, 920, 611 P.2d 149 [1980]). Whether the duty of good faith and fair dealing has been violated raises a question of fact. See Hill, 30 Kan. App. 2d at 437 (motivation of party who failed to perform raises question for jury); St. Catherine Hospital of Garden City v. Rodriguez, 25 Kan. App. 2d 763, 765, 971 P.2d 754 (1998) (whether contract’s good-faith standard met raises question for jury).
We have previously described the requirements of the duty of good faith and fair dealing in this way:
“ ‘Every contract implies good faith and fair dealing between the parties to it, and a duty of co-operation on the part of both parties. . . . [T]here is an implied undertaking in every contract on the part of each party that he will not intentionally and purposely do anything to prevent the other party from carrying out his part of the agreement, or do anydiing which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Ordinarily if one exacts a promise from another to perform an act, the law implies a coun-terpromise against arbitrary or unreasonable conduct on die part of the promisee. However, essential terms of a contract on which the minds of die parties have not met cannot be supplied by die implication of good faith and fair dealing.’ (Citations omitted).” Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 (1987).
Waste Connections’ Continuing Ability to Challenge Transfer Station Price
The threshold question we must answer is the second posed by Ritchie on its petition for review: Did Waste Connections successfully preserve its ability to challenge the purchase price paid for the transfer station?
Ritchie has repeatedly argued that Waste Connections waived or is estopped from pursing its claim that it should have to pay only $1.45 million for the transfer station because Epstein’s August 3 and 10, 2007, letters accepted Ritchie’s offer to sell the transfer station for $2 million. In Ritchie’s view, a binding contract was formed no later than the time of the second letter, and the Right of First Refusal Exercise and Release of Escrow and the Reservation of Rights executed by it and Waste Connections on September 28, 2007, “more than a month after Waste Connections’ acceptance ... at most . . . only allow[ed] Waste Connections to preserve its right to file suit through closing and prevented] bar under the doctrine of merger.”
Waste Connections has consistently argued in response that it always disputed Ritchie’s attempted $2 million allocation to the transfer station in the Asset Purchase Agreement and that it properly and promptly reserved the right to seek a determination of the correct price and a refund of any overpayment.
On examination of the Pilgreen letter and enclosure of June 27, 2007, and of the Epstein letters of August 3 and 10, 2007, we conclude that no binding $2 million contract for sale of the transfer station was formed. As between these parties, the primary function of the Asset Purchase Agreement sent with Pilgreen’s letter was to fill in the essential price term omitted from the right of first refusal in the Escrow Agreement. But, as further discussed below, the Asset Purchase Agreement was ambiguous on this point. Reasonable people could—and have—read it to set a transfer station price of either $2 million or $1.45 million. The return letters from Epstein did not resolve this ambiguity. They were silent on price, with the exception of what Waste Connections has now described as its intended inclusion of price in the letters’ vague allusions to matters yet to be discussed. The resulting indefiniteness on the essential term of any agreement is fatal to contract formation. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 488, 15 P.3d 338 (2000); Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 60, 643 P.2d 100 (1982); Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 414, 479 P.2d 875 (1971).We cannot supply tire essential price term, because we have no evidence before us to establish a meeting of the minds on that integral point. See Dougan, 270 Kan. at 488.
Moreover, in the Right of First Refusal and Release of Escrow, signed by both Waste Connections and Ritchie on September 28, 2007, the parties explicitly agreed that Waste Connections had timely exercised its right of first refusal and paid $2 million to the Escrow Agent for Ritchie, subject to its reservation of its right to dispute price:
“On September 13, 2007, Waste [Connections] delivered a certified check to the Escrow Agent in the amount of $2,000,000.00, payable to Ritchie, with a reservation of Waste [ Connections’] right to seek a determination that Waste [Connections] is actually required to pay only $1,450,000.00 under Paragraph 21(m) of the Escroto Agreement when applied to the Purchase Agreement to exercise its Right of First Refusal, which reservation includes all remedies available in the event such a determination is made. The parties acknowledge that Waste [Connections] has filed a Verified Petition for Declaratory Judgment.” (Emphasis added.)
The Reservation of Rights, also executed by the parties on September 28, 2007, also made their mutual understanding of the continuing existence of a price dispute abundantly clear:
“The parties to this ‘Reservation’ hereby expressly agree that the following rights are expressly reserved and shall survive the closing of the sale of the land identified in die pending action referenced below .... Waste [Connections] . . . reserves all of its rights against Ritchie Corporation as provided in Paragraph 21(i) of said Escrow Agreement, including remedies asserted in the pending lawsuit, which reservation shall survive the closing date of the sale of the land identified in the pending lawsuit referenced above.” (Emphasis added.)
If Ritchie’s execution of the Right of First Refusal Exercise and Release of Escrow and of the Reservation of Rights means anything, it is that the waiver and estoppel arguments it advances are completely without merit. Ritchie fully and clearly acknowledged in writing the existence and postsale survival of a dispute between it and Waste Connections over the price Waste Connections was required to pay upon exercise of its right of first refusal. Waste Connections’ payment of the $2 million was made under the protest die September 28, 2007, documents plainly conveyed. See Juneau v. Stunkle, 40 Kan. 756, 757, 20 Pac. 473 (1889) (“[T]he defendant showed that at the time of making the payments there was some controversy about the amount due, and it was agreed between himself and the plaintiff that, if it was finally discovered that the amount claimed by the plaintiff exceeded the amount of the plaintiff s claim at final settlement, plaintiff was to repay tire defendant such excess.”)- Ritchie cannot now treat its express written agreements in these documents as though they never had any force or effect, claiming that the question they explicitly left open had already been irrevocably settled as a matter of law more than a month earlier.
The Propriety of Judgment as a Matter of Law on Price
The terms of the right of first refusal at issue here, specified in Paragraph 21(m) of the Escrow Agreement, gave Waste Connections the right to exercise the right if and when Ritchie received “any offer to purchase [Ritchie’s] interest ... by a third party.” (Emphasis added.) Under the same provision, Waste Connections contracted for the opportunity to exercise its right “on such financial terms” as the third-party offer.
In a right of first refusal situation, each party gives up something in exchange for increased certainty of opportunity to make a deal. The seller gives up its chance to negotiate with the holder of the right of first refusal for a price higher than the one a third party is willing to offer. The holder of the right of first refusal gives up its chance to negotiate with the seller for a price lower than one the seller is willing to accept from a third party. See Uno Restaurants, Inc. v. Boston Kenmore Realty Group, 441 Mass. 376, 382-83, 805 N.E.2d 957 (2004) (right holder runs risk that third-party may offer more than holder willing to pay) (citing Miller v. LeSea Broadcasting, Inc., 87 F.3d 224, 226 [7th Cir. 1996]). The key to activation of a holder’s right of first refusal is mutual willingness to enter into a sale at a specific price satisfactory to both the third party and the seller. The seller may not force a purchase by the holder of the right of first refusal at a higher price. The holder of the right of first refusal may not force a sale to it at a lower price. Room to dicker is effectively circumscribed on both sides of the table by the necessity for price acceptability to the third party. See Miller, 87 F.3d at 226; In re Adelphia Communications Corp., 368 B.R. 348, 352-53 (Bankr. S.D.N.Y. 2007); Uno Restaurants, Inc., 441 Mass. at 383. The nature of a right of first refusal agreement means that neither the seller nor the right holder remains free to exercise unfettered business judgment to use the sale of the subject property or other asset to maximize profit or shareholder value. Each has voluntarily constrained such judgment and taken on obligations to the other. See Navasota Resources v. First Source Texas, 249 S.W.3d 526, 537-39 (Tex. App. 2008) (no unreasonable restraint on alienation on holding seller to right of first refusal limits).
The inability of the right of first refusal holder, sometimes called a right of pre-emption holder in Kansas, to force a sale by an unwilling seller differentiates a right of first refusal from an option.
“A right of pre-emption differs from an option in that a pre-emption does not give to the pre-emptioner the power to compel an unwilling owner to sell,- but merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to tire pre-emption at the stipulated-price, and upon receiving such an offer, the pre-emptioner may elect whether he will buy, and if he elects not to buy, then the owner of the property may sell to a third party.” Anderson v. Armour & Company, 205 Kan. 801, Syl. ¶ 1, 473 P.2d 84 (1970).
See also Miller v. Alexander, 13 Kan. App. 2d 543, 551-52, 775 P.2d 198, rev. denied 245 Kan. 785 (1989).
Because Waste Connections contracted for a right of first refusal, not an option, it did not have the right to force Ritchie to sell if Ritchie was unwilling to sell under the terms of a third-party offer. A seller must form the “ ‘specific intention to sell’ ” in order for the right of first refusal to ripen into an “ ‘enforceablé contract right’ ” or option eqúivalent. Anderson, 205 Kan. at 805 (preemptive right merely requires' owner, when and if owner decides to sell, to offer property first to person entitled to preemption); see also Barnhart v. McKinney, 235 Kan. 511; 522-23, 682 P.2d 112 (1984) (right of preemption document made property owner’s decision to sell trigger of enforceable right); Bergman v. Commerce Trust Co., 35 Kan. App. 2d 301, 306-07, 129 P.3d 624 (2006) (absurd to find that owner ’unwilling to sell could nevertheless be forced to do so merely because of receipt of offer; when conditions met for exercise of preemptive right, it becomes,- in effect, option) (quoting Miller, 13 Kan. App. 2d at 552); M & M Oil Co. v. Finch, 7 Kan. App. 2d 208, 210-11, 640 P.2d 317 (1982) (sellers’ acceptance of third-party offer needed to activate right). But, here, language in the Escrow Agreement bound Ritchie to convey “any” offer it was willing to accept from Cornejo or another third party to Waste Connections. The offer did not need to be reduced to writing by the third party or set forth in an executed Asset Purchase Agreement to trigger Ritchie’s obligation to communicate it in writing and then accept the specified amount in a purchase of the transfer station by Waste Connections.
There is no dispute here that Cornejo made an offer for the transfer station. There also is no dispute about whether Ritchie at some point formed a specific intention to sell the transfer station to Cornejo. There is no dispute whether, at least by the time the Asset Purchase Agreement was signed, Waste Connections’ right of first refusal was activated. The fact that tire Asset Purchase Agreement was structured in the alternative—either as a package deal for $4.95 million to include both the transfer station and the landfill or as a stand-alone deal for $3.5 million to include only the landfill—does nothing to alter these settled points. Kansas has not previously treated package status as a barrier to activation of a right of first refusal on a portion of the package. See Anderson, 205 Kan. at 805 (lessee’s preemptive right of purchase for 13.75 acres ripened into enforceable contract right to purchase when lessor found buyer for 30-acre tract including 13.75 acres). And neither party asserts that it should be such a barrier in this case. The only dispute centers on the price at which Waste Connections could purchase only the transfer station. Was that price $2 million or $1.45 million? See Pantry Pride Enterprises v. Stop & Shop Companies, 806 F.2d 1227, 1231-32 (4th Cir. 1986) (essential issue in package case to determine actual price offered by third party for encumbered property).
To determine whether this question was properly answered in either party’s favor as a matter of law, we look first to the four comers of the Escrow Agreement, the instrument creating the right of first refusal. See Anderson, 205 Kan. at 805 (court focuses on language of written right of refusal first); Bergman, 35 Kan. App. 2d at 304-05 (same); M & M Oil, 7 Kan. App. 2d at 209-10 (same); see also In re Adelphia Communications Corp., 368 B.R 348 (contract provides for exercise of right of first refusal at price matching third-party offer; court does not interpret contract to call for exercise at fair market value). The Escrow Agreement is silent about price, except to say that the right of first refusal exercise will be “on such financial terms” as the third-party offer. It also is silent about the specific alternative circumstance that arose here, the proposed sale of the transfer station as part of a package deal with the landfill. It gives no hint of the parties’ intentions about a package deal’s effect or lack of effect on the price Waste Connections must have a chance to match. It malees no allocation and neither authorizes nor prohibits either party’s participation in an allocation. Standing alone, the Escrow Agreement entitles neither party to summary judgment.
We turn next to the four comers of the Asset Purchase Agreement between Ritchie and Cornejo, which could have filled in the specific price term not included in the right of first refusal of the Escrow Agreement. Again, the critical passage reads:
“2.1. Purchase Price and Payment. The purchase price for the entirety of the Assets shall be Four Million Nine Hundred Fifty Thousand Dollars ($4,950,000), payable in cash or certified funds at Closing, of which Two Million Dollars ($2,000,000) will be allocated and paid to Ritchie Corporation for the purchase of its rights and the assumption of its obligations under the Escrow Agreement.
“In the event that Waste Connections of Kansas, Inc. shall, upon receipt of due and proper notice from Sellers, elect to exercise its right of first refusal under the Escrow Agreement, the parties agree that the purchase price for the remaining assets shall be Three Million Five Hundred Thousand Dollars ($3,500,000.00), payable in cash or certified funds at closing.”
This passage speaks clearly to only three aspects of price. First, it says that Cornejo was willing to pay and Ritchie was willing to accept $4.95 million for the landfill and transfer station package. Second, if that package deal was consummated, Cornejo and Rit-chie agreed that $2 million of the package purchase price would be “allocated and paid” for the transfer station. Third, if, instead, Waste Connections exercised its right of first refusal to purchase the transfer station, Cornejo was willing to pay and Ritchie was willing to accept $3.5 million for the landfill alone.
This passage does not speak clearly about the amount Cornejo was willing to pay and Ritchie was willing to accept for the transfer station alone, if Waste Connections did not exercise its right of first refusal. The amount may be the same as the $2 million “allocated and paid” in the package deal, but it may also be the same as the $1.45 million difference between tire package price of $4.95 million and the stand-alone landfill price of $3.5 million. Without knowing more, we cannot be sure which price Waste Connections must match to exercise its right of first refusal under the Escrow Agreement. Because the Escrow Agreement plus the Asset Purchase Agreement do not settle the matter, despite their integration clauses, we must turn to extrinsic or parol evidence. See Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 452, 827 P.2d 24 (1992); Mobile Acres, Inc. v. Karata, 211 Kan. 833, 838-40, 508 P.2d 889 (1973). If such evidence is uncontroverted, it may resolve the ambiguity and still enable judgment as a matter of law for one side or the other. See Mobile Acres, 211 Kan. at 840.
At least some of the transcribed deposition testimony of the Cor-nejo and Ritchie witnesses tends to show that Cornejo was not interested in acquiring the transfer station at all, that it was willing to do so only because Ritchie insisted that the transfer station be packaged with the landfill, and that Cornejo did not care how Rit-chie allocated the package purchase price as long as Cornejo did not pay more than $3.5 million for the landfill. It is unclear from the testimony exactly when these various positions were arrived at, how much common ground there was between Cornejo and Rit-chie, or if and when that common ground crystallized into “any” offer at $1.45 million or $2 million that had to be communicated under the Escrow Agreement to Waste Connections. Meanwhile, as Ritchie points out, other evidence tends to support the existence of a business justification for its demand for $2 million for the transfer station, as well as an explanation for why the landfill was worth more to Cornejo as a stand-alone acquisition than as part of a package deal. All of this conflicting evidence must be considered by a factfinder in arriving at the correct right of first refusal exercise price.
In summary, unlike the district judge and our Court of Appeals panel, we do not think the evidence marshaled by tire parties in support of their cross-motions for summary declaratory judgment compels only one legal outcome. Rather, we see genuine issues of material fact for trial, making summary declaratory judgment for either party error. See Mobile Acres, 211 Kan. at 840. This case must be remanded to the district court so that a factfinder can determine when there was a price for the transfer station that Cor-nejo was willing to pay and Ritchie was willing to accept; whether that price was $2 million or $1.45 million; and whether Pilgreen’s June 27, 2007, letter enclosing the Asset Purchase Agreement was a sufficient and timely communication of the correct offer to Waste Connections. See Pantry Pride, 806 F.2d at 1231-32 (remand necessary to determine allocation). If the factfinder decides that the correct transfer station price was $2 million, and that Ritchie’s communication of that price to Waste Connections complied with the Escrow Agreement, it will be left with only the question of whether Ritchie nevertheless violated its duty of good faith and fair dealing in some other way that caused damages to Waste Connections. If it decides that the correct price was $1.45 million and/or that Rit-chie even innocently failed to communicate that offer properly, there was a breach of contract causing Waste Connections $550,000 in damages; and the further allegation of bad faith need not be addressed.
The Duty of Good Faith and Fair Dealing
Because the question of good faith and fair dealing may arise on remand, a few comments on the role and requirements of the duty in this case are necessary.
Up to this point, the parties and the lower courts have focused almost exclusively on whether either party is entitled to summary declaratory judgment on the issue of whether Ritchie abided by its duty of good faith and fair dealing under the Escrow Agreement. We believe this approach has shed more heat than light on the path to resolution of this case for at least two reasons.
First, the allegation that Ritchie breached the Escrow Agreement by acting in bad faith is only one of the breaches alleged by Waste Connections. The Amended Petition and Waste Connections’ contentions in the Pretrial Conference Order also allege breach of contract generally and in other specific ways independent of the bad faith theoiy. Not only is Ritchie’s good or bad faith not irrevocably central to this case; it may turn out to be irrelevant. A breach is a breach is a breach, even if it occurs with the best of intentions. If, for example, the factfinder determines on remand that Ritchie breached the Escrow Agreement by failing to communicate a $1.45 million Cornejo offer that Ritchie was willing to accept before Pilgreen sent the June 27,2008, letter, then Ritchie’s good or bad faith in delaying notice will not matter. The delay itself will constitute a breach. Waste Connections will not also have to prove that Ritchie intentionally or purposely did something to prevent Waste Connections from exercising its right of first refusal, that it intentionally or purposely did something that had the effect of destroying or injuring Waste Connections’ right to receive the fruits of tire right of first refusal, or that Ritchie acted arbitrarily or unreasonably. See Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 (1987). These hallmarks of bad faith will not provide further useful benchmarks leading to resolution of the parties’ dispute.
Second, we emphasize that the fact question of the existence of good or bad faith is peculiarly inappropriate for summary judgment. See 88 C.J.S. Trial § 358 (whether party acted in good faith typically question of fact). This is especially true here, when we have ambiguity in the Asset Purchase Agreement price term needed to fill in the Escrow Agreement’s right of first refusal, and when the record is full of conflicting extrinsic evidence. This state of affairs makes summary judgment on the general breach of contract claim, as well as summary judgment on any subsidiary theory, impossible. We also further note that, even on remand, it is doubtful this case will be a suitable candidate for declaratory judgment to settle the “legal” rights of the parties under the Escrow Agreement. See K.S.A. 60-1701; K.S.A. 60-1704; K.S.A. 60-1713. In essence, the legal rights of the parties are already known: Waste Con nections had a right to demand that Ritchie sell the transfer station to it for the same price Cornejo was willing to offer and Ritchie was willing to accept. Again, the remaining question is what the correct match price was, and the parties have narrowed the fact-finder’s choices to two: $2 million or $1.45 million. Although factual questions may be answered in a declaratory judgment action, see K.S.A. 60-1710, a court also may decline to enter a declaratory judgment when it is ill-suited to the task at hand. See K.S.A. 60-1708. It appears ill-suited here. See K.S.A. 60-1701; K.S.A. 60-1704; K.S.A. 60-1713.
Should the factfinder reach the duty of good faith and fair dealing on remand, we emphasize that the inherently factual question of whether Ritchie breached the Escrow Agreement by violating the duty is not dependent upon the mere existence of the package deal alternative in the Asset Purchase Agreement or even upon Ritchie’s involvement in setting the portion of the package price attributable to the transfer station. None of the cases cited to us by tire parties supports either the district court’s decision that judgment on good faith must flow to Ritchie as long as it did not engage in arbitrary behavior or collusion with Cornejo or the Court of Appeals panel’s decision that judgment in favor of Waste Connections was necessary because an unrebutted presumption of Rit-chie’s bad faith arose out of the $550,000 difference in the two possible purchase prices.
Uno Restaurants, 441 Mass. 376, is an example of a cited case that cannot support the pressure placed upon it by the parties or the lower courts. Ritchie urges us to rely on Uno Restaurants for the proposition that a seller must engage in bad faith or collusion with a third party to inflate the price of the property or asset subject to a right of first refusal before a right holder can ever succeed on a breach of contract claim. But this is a substantial overstatement of the Uno Restaurants holding.
In that case, a third party made an unsolicited package offer that included allocation of the total sales price to units in the same building, only one of which was encumbered by the right of first refusal. The court rejected the right holder’s bad faith-based challenge to the allocated price for the encumbered unit, noting that there was no evidence tire seller influenced the offer total or its allocation while there was evidence of the third party’s genuine desire for ownership of die burdened unit and its willingness to outbid the right holder to obtain it. See Uno Restaurants, 441 Mass. at 384-87. The court’s ultimate conclusion that the right holder did not meet its burden of showing bad faith or collusion in the case before it is a far cry from an edict that such bad faith or collusion is a required component of every attack on price allocation in a package deal. See also In re Adelphia Communications Corp., 368 B.R. at 353 (no allegation that seller manipulated price; evidence that offer price was determined without any consideration given to right of first refusal unrebutted); Rappaport v. Estate of Banfield, 181 Vt. 447, 456, 924 A.2d 72 (2007) (court observes no evidence seller influenced third party on amount offered for property burdened by right of first refusal; “[wjhile [seller] may have wanted a certain total price for all of tire land[, including the burdened parcel], there is no evidence that she and [third party] discussed how much should be offered for each parcel; [t]o tire contrary, the undisputed evidence shows that [third party] made this decision himself’); compare M & M Oil, 7 Kan. App. 2d at 210 (court mentions no allegation of bad faith; nevertheless, court observes sellers did not solicit third-party offer, allocation dictated by nothing other than third parly’s business judgment). Good or bad faith may come into play in such a case, but they may not. As here, other bases for breach of contract may be alleged.
In this case, of course, there is evidence that Ritchie not only influenced the allocation in the Asset Purchase Agreement but may have arrived at it without any meaningful input from Cornejo. And there can be little question that, if the factfinder determines that Ritchie was attempting to thwart Waste Connections’ right of first refusal by padding the price of the transfer station, no matter how it achieved that end, there was a breach of the duty of good faith inherent in the Escrow Agreement. We are far from blind to our sister courts’ recognition that package deals in which a portion of the subject property is subject to a right of first refusal have the potential for artificial allocations to defeat or promote exercise of the right. See, e.g., Pantry Pride, 806 F.2d at 1230-31. But whether the allocation in the Asset Purchase Agreement before us was artificial and whether Ritchie’s role in arriving at it amounted to breach of the Escrow Agreement because it constituted violation of the duty of good faith and fair dealing are just two possibilities for breach, just two among several genuine issues of material fact remaining for trial in this case.
Costs, Expenses, and Reasonable Attorney Fees
The parties have correctly observed that the Escrow Agreement provides for an award of costs, expenses, and reasonable attorney fees to the party prevailing in any dispute arising out of it. As there is no such party at this point, the district judge’s award of $108,972.15 to Ritchie is premature and must be reversed.
Both parties also seek attorney fees incurred on this appeal, pursuant to Supreme Court Rule 7.07(b) (2012 Kan Ct. R. Annot. 66). We may award such fees when “the district court had authority to award” them. Because the district court did not yet have such authority, the parties’ cross-motions for fees on this appeal are denied on current showing.
Conclusion
In our view, the legal rule that should govern this case on remand and future similar cases demands more than the district judge appears to have demanded from a seller in Ritchie’s position and more than the Court of Appeals panel appears to have demanded from a right of first refusal holder in Waste Connections’ position. Ritchie must have abided by the terms of the Escrow Agreement’s right of first refusal in all respects, not just by observing its implied duty of good faith and fair dealing. Behavior short of arbitrary or collusive, even innocent behavior, may have constituted breach. Because Ritchie voluntarily surrendered its unfettered judgment when it signed the Escrow Agreement containing the right of first refusal, it does not inevitably escape liability simply by invoking its business judgment and profit maximization goals. Waste Connections also must have abided fully by the Escrow Agreement; it does not get the benefit of a presumption of Ritchie’s breach or bad faith from ambiguous price language in the Asset Purchase Agree ment. Such a presumption fails to recognize the legitimate role of a seller s intention to sell in activation and exercise of a right of first refusal. If package deal configuration or the lack of it or some other aspect of a third-party’s offer makes it unacceptable to the seller, that does not necessarily mean that the seller breached the right of first refusal by violating the duty of good faith and fair dealing or otherwise. In short, ordinary contract principles govern, and all facts are to be taken into account in determining the correct price for the transfer station.
Because genuine issues of material fact remain on Waste Connections’ breach of contract action against Ritchie, summary judgment for either party is inappropriate. This case must be returned to the district court for further proceedings.
The decision of the Court of Appeals is reversed. The judgment of the district court is reversed. This case is remanded to the district court for further proceedings consistent with this opinion.
Moritz, J., not participating.
Patricia Macke Dick, District Judge, assigned. | [
-44,
-4,
-39,
76,
60,
-32,
58,
-103,
73,
-79,
36,
95,
45,
-54,
5,
43,
-25,
125,
100,
122,
-61,
-77,
23,
-45,
-42,
-14,
-47,
-59,
-69,
-51,
100,
-60,
77,
1,
-62,
21,
98,
-62,
126,
-38,
-114,
20,
-104,
96,
-35,
66,
62,
107,
22,
78,
117,
8,
-77,
44,
25,
-61,
73,
46,
-67,
-19,
80,
-103,
-29,
-123,
91,
23,
-95,
84,
-112,
69,
-40,
46,
-112,
57,
8,
-24,
115,
54,
-122,
-12,
3,
-71,
-84,
34,
-29,
0,
5,
-17,
-4,
-104,
38,
-34,
-97,
-90,
-110,
88,
19,
105,
-100,
-65,
68,
22,
37,
-2,
-26,
5,
95,
-20,
0,
-50,
-112,
-45,
15,
20,
-119,
31,
-1,
-125,
49,
116,
-113,
-32,
94,
71,
122,
27,
-113,
-66
] |
The opinion of the court was delivered by
Luckert, J.:
This appeal raises the issue of whether a defendant’s presentation of evidence that he was on probation at the time the current crime was committed opens the door to rebuttal evidence regarding a prior crime that may be admitted independent of K.S.A. 60-455. In State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), this court held that evidence of a prior crime or civil wrong could not be admitted independent of K.S.A. 60-455, could not be admitted to prove a defendant’s propensity to commit the crime charged, and could only be admitted if the evidence is relevant to prove a material fact. In this case, evidence of the prior crime was not material to any issues to be decided by the jury, even after tire defendant presented evidence regarding his probation. Evidence of the prior crime was merely relevant to prove propensity, which is not a permissible basis for admission. Under tire facts of this case, the evidence of the prior crime was sufficiently prejudicial to require reversal of the defendant’s conviction.
Factual and Procedural Background
Francis Everett was charged with one count of manufacturing a controlled substance in violation of K.S.A. 65-4159(a), after Tear-esa Holmes, who had been granted transactional immunity, told law enforcement officers that she had manufactured methamphetamine with Everett in March or April 2006.
At Everett’s trial, Holmes testified the two of them manufactured methamphetamine sometime in March, April, or possibly May 2006. According to Holmes, Everett approached her at home on a weekday, told her he had some pills, and asked if she wanted to “whip up a batch.” Holmes described the steps they took and the location of their manufacturing process, indicating they drove into the country in Everett’s car. Holmes also testified she and Everett returned to her house after they completed the manufacturing, she split the methamphetamine in half, put each half into a bag, and let Everett choose a bag. They both smoked some of the methamphetamine and Everett shot some in his arm. She claimed Everett said they had “done a good job.”
There were some discrepancies between Holmes’ trial testimony and her earlier statements to law enforcement officers and testimony at Everett’s preliminary hearing. Significantly, she had previously stated the manufacture occurred in either March or April 2006; she had made no mention of May. This testimony led the State to seek an amendment to the complaint to include the month of May as a possible time period during which the crime had been committed. Even though this motion was not made until after the close of all evidence, including the defense’s case-in-chief, the court allowed the amendment.
In his defense, Everett called Rex Moubry, his employer in 2006. Moubry testified that Everett worked for him for approximately 2 years. During March and April 2006, Everett never missed a full day of work, in fact, “he never missed a day in all two years.” There was, however, a week during March and April 2006 that Everett did not work a full 40 hour week because Moubry sent Everett home a few hours early one day when Everett was sick. Similar evidence regarding Everett’s work history in the month of May was presented by written stipulation after the court allowed the State to amend the complaint.
Everett also called a private investigator to testify that his car was not in drivable condition. The investigator testified that Everett’s wife reported the car was damaged in 2005 in a collision with a deer. The investigator also testified the car’s registration tag expired on May 31, 2005.
Finally, John Tremblay, the director of the Northwest Kansas Community Corrections and Parole, testified that at the time of the alleged events Everett was part of the community corrections program. As part of the program, Everett was required to take random drug tests for eight or nine different drugs, including methamphetamine. Everett was tested 22 times in March and April 2006 without a positive result for methamphetamine. Tremblay testified that methamphetamine will stay in your system for approximately 72 hours after use. In addition, Everett participated in a methamphetamine treatment program that met on Tuesdays and Thursdays. As part of that program, he was subject to random testing at each treatment session. After the complaint was amended, a written stipulation was presented to the jury that established that Everett did not test positive for methamphetamine during the month of May.
The State started its cross-examination of Tremblay by asking, without objection from the defense: “Now, community corrections is a program for people that have committed some crime, is that correct?” Tremblay answered: “Felony crimes only, sir.” The State then asked, again without objection from the defense: “And so that means that [Everett] was there because he’d committed a crime?” Tremblay responded: “Yes, sir.” Then the State asked to approach the bench with defense counsel. In a bench conference outside the hearing of the juiy, the trial judge modified a pretrial order in which the judge had prohibited evidence regarding Everett’s prior conviction and his previous involvement in manufacturing methamphetamine. In modifying the order, the judge noted that defense counsel had mentioned Everett’s probation during voir dire and had asked Tremblay questions about Everett’s involvement in a methamphetamine treatment program. Defense counsel objected to the modification of the order and the admission of the evidence because “the information as to what he was actually convicted of has not been brought forward. The actual crime would be very prejudicial against him.” The court responded:
“I’m going to conclude that the . . . prejudicial effect of the testimony is outweighed by its probative value. It would seem to me that the jury would justifiably have questions regarding how he may have gotten into this program, and my guess is based upon what the witness has already indicated, they have inferred he’s involved with some type of drug treatment program as a result of a felony conviction.”
The State then asked Tremblay, before the juiy, about Everett’s prior conviction, and Tremblay replied that the crime was possession of drug paraphernalia to manufacture methamphetamine.
The jury convicted Everett of one count of manufacture of methamphetamine in violation of K.S.A. 65-4159(a). Everett was sentenced to 162 months’ imprisonment.
Court of Appeals’ Decision
Everett appealed his conviction and raised five issues before the Court of Appeals. Everett contended: (1) Evidence of the prior conviction was erroneously admitted; (2) a late amendment to the complaint should not have been allowed; (3) an improper answer was given when the juiy asked about the consequences of a hung jury; (4) jurors should have been recalled to determine if there had been juror misconduct; and (5) cumulative error deprived him of a fair trial. A majority of tire court affirmed Everett’s conviction; Judge Greene dissented. State v. Everett, No. 100,529, 2010 WL 922571 (Kan. App. 2010) (unpublished opinion).
In ruling on whether the trial court improperly admitted evidence of Everett’s prior conviction, the majority determined that Everett opened the door to the admission of the evidence by mentioning Everett’s prior criminal activity during voir dire and by asking Tremblay about Everett’s participation in community corrections and related drug abuse testing and treatment programs. The majority also reasoned that defense counsel should have objected to the State’s questions that allowed the jury to learn that Everett had been previously convicted of a felony. Everett, 2010 WL 922571, at *7. Finally, the majority determined the trial court did not abuse its discretion because it gave clear consideration to the prejudicial effect of the evidence. Based on these considerations, the majority concluded the trial court did not err in admitting evidence of Everett’s prior conviction. Everett, 2010 WL 922571, at *8.
Judge Greene, in his dissent, cited State v. White, No. 94,716, 2007 WL 1964865 (Kan. App.) (unpublished opinion), rev. denied 285 Kan. 1177 (2007), and federal cases for the view that “the consequences of opening ihe door should be commensurate with the degree it has been opened.” Everett, 2010 WL 922571, at *24 (Greene, J., dissenting). Judge Greene concluded that Everett’s “record of reporting and drug testing did not open the door to the nature of his conviction that led to probation in the first place because there was no nexus between the nature of the conviction and the results of drug testing.” Everett, 2010 WL 922571, at *24 (Greene, J., dissenting). He also disagreed with the trial judge’s conclusion that the probative value of the prior conviction outweighed the prejudicial affect, arguing that this type of propensity evidence tends to have a significant and undue prejudicial impact on the jury. Everett, 2010 WL 922571, at *25 (Greene, J., dissenting).
Following the Court of Appeals’ decision affirming his convictions, Everett filed a petition for review raising the same five arguments-as he-argued before the Court of Appeals. This court granted Everett’s petition for review and has jurisdiction under K.S.A. 20-3018(b). Because we find the admission of Everett’s prior conviction was reversible error, we do not address the four other issues because they are unlikely to arise on remand.
Analysis
A multistep analysis applies to issues regarding the admission of evidence and separate standards of appellate review apply to each analytical step. State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010). Initially, a court must determine if the evidence is relevant. Then the court must determine the rules of evidence that may apply to the admission of the evidence and decide if the evidence is admissible under those rules and if its probative value is substantially outweighed by the potential for prejudice. Shadden, 290 Kan. at 817-18.
In this appeal, the State attempts to circumvent these analytical steps by arguing evidence of Everett’s prior conviction was admissible under the “open the door” rule. The “open the door” rule applies “when a defendant opens an otherwise inadmissible area of evidence during the examination of witnesses.” Under the rule, “the prosecution may then present evidence in that formerly forbidden sphere.” State v. Johnson, 258 Kan. 475, 481, 905 P.2d 94 (1995) (defense counsel “opened the door” to otherwise inadmissible hearsay by waiving constitutional confrontation rights when questioning witnesses about existence of phone calls and a note). In essence, through this rule, the State seeks to admit evidence of a prior crime in a manner that is independent of the rules of evidence, including K.S.A. 60-455, which relates to the admission of evidence regarding other crimes or civil wrongs.
The State’s arguments ignore our decision in Gunby in which we ended a prior practice of admitting evidence of other crimes or civil wrongs on any grounds independent of K.S.A. 60-455. Gunby, 282 Kan. at 48-57. We clearly stated that “[t]he practice of admitting evidence independent of K.S.A. 60-455 also is unnecessary and carries the potential to violate a criminal defendant’s fundamental right to a fair trial.” Gunby, 282 Kan. at 49.
Before the decision in Gunby, there were decisions in which this court allowed the admission of prior crime evidence based on the “open the door” rule. See, e.g., State v. Chatmon, 234 Kan. 197, 203, 671 P.2d 531 (1983) (during cross-examination, defendant mentioned prior criminal charges; court stated that “when tire testimony of the defendant goes beyond those bounds of the statutory protection and makes reference to specific prior incidents, he forgoes tire protection of tire statutes”); State v. Stokes, 215 Kan. 5, 8, 523 P.2d 364 (1974) (The defendant’s mention of prior arrest and elicitation of testimony regarding criminal record “interjected into the case an incident from her past which it then left dangling. The door had been opened by the defense; the prosecution was free to enter and explore.”); State v. Pappan, 206 Kan. 195, 196, 477 P.2d 989 (1970) (allowing the State to elicit over objection evidence that defendant was on parole for “armed robbery and "uttering,’ ” because the defendant chose to reveal that he was on parole during direct examination).
At tire time of these decisions, however, evidence of prior crimes was allowed for reasons independent of K.S.A. 60-455. Our decision in Gunby refined that analysis and announced that “admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60-455.” (Emphasis added.) Gunby, 282 Kan. at 57. Consistent with that decision, we hold that evidence admitted in rebuttal to other evidence under an “open the door” rule is not an exception permitting evidence of other crimes or civil wrongs to be admitted independent of K.S.A. 60-455. As the Tenth Circuit Court of Appeals has stated: "‘Rebuttal evidence is not any evidence an aggrieved litigant may wish to admit in response to a topic introduced by his opponent.” (Emphasis added.) Tanberg v. Sholtis, 401 F.3d 1151, 1166 (10th Cir. 2005).
Accordingly, even after Everett opened tire door, the trial court should have conducted an analysis under K.S.A. 60-455 before admitting evidence of the nature of Everett’s prior conviction. The version of K.S.A. 60-455 in effect at the time of the alleged crimes and during Everett’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 ór her disposition to commit another 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.
In Gkmby, we confirmed a three-part test a trial judge must use in determining whether to admit evidence of a defendant’s prior crimes or civil wrongs under K.S.A. 60-455, as well as the appropriate standards of appellate review. In State v. Torres, 294 Kan. 135, 273 P.3d 729 (2012), we summarized the test as follows:
“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 the 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, then 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 jury the specific purpose for which the evidence has been admitted (and reminding them that it may only be considered for that purpose).” Torres, 294 Kan. at 139-40 (citing State v. Inkelaar, 293 Kan. 414, 424, 264 P.3d 81 [2011]).
Under this framework, we first consider whether evidence of the specific nature of Everett’s prior conviction for possession of drug paraphernalia to manufacture methamphetamine is material, meaning whether the fact has some bearing on the decision the jury had to make. Here, before trial, the trial judge entered an order in limine prohibiting the State from introducing evidence regarding any other attempts by Everett to manufacture methamphetamine. The State does not question that pretrial ruling. Consequently, we focus on the two facts that were introduced by the defense that caused the judge to revisit that pretrial ruling. Those were that (1) Everett had committed a felony and (2) he was on probation with community corrections.
The State does not dispute the veracity of that evidence, which is another way of saying that it does not seek to impeach Everett’s testimony. If it did, the impeachment evidence might be material rebuttal evidence. Rather, the State seeks to open the door wider and add evidence regarding the specific nature of the prior conviction.
The only relevance articulated by the trial judge was the jurors’ curiosity. Mere curiosity is not equivalent to materiality. The evidence must be material to the issues the jury must decide or to the rebuttal of the evidence the defense introduced. See Tanberg, 401 F.3d at 1166 (to be admissible rebuttal evidence must meet the initial proof); United States v. Stitt, 250 F.3d 878, 897 (4th Cir. 2001) (“[Wjhen otherwise inadmissible, rebuttal evidence must be reasonably tailored to the evidence it seeks to refute .... [Tjhere must be a nexus between the purported rebuttal evidence and the evidence . . . [it] seeks to rebut.”). In this case, the prior conviction is not an element of the offense, and it does not have a legitimate and effective bearing on the decision of whether Everett unlawfully manufactured a controlled substance. See State v. Myrick, 181 Kan. 1056, 1058, 317 P.2d 485 (1957) (A well recognized principle of law is that “evidence of an unrelated prior conviction is irrelevant to prove the offense charged.”).
The only potential materiality of the prior conviction is to prove that Everett had the tools to manufacture methamphetamine in the past and probably manufactured methamphetamine tins time, i.e., Everett had a propensity to commit the crime. This is precisely the harm K.S.A. 60-455 was designed to prevent, and Gunby clarified that evidence is not admissible if its only purpose is to establish a propensity to commit a crime. Gunby, 282 Kan. at 50 (recognizing the general rule that prior conviction evidence is inadmissible to prove propensity and is based on the principle that a prior conviction is irrelevant and unduly prejudicial).
The evidence that Everett had been convicted of possession of drug paraphernalia with intent to manufacture methamphetamine was not material, and it was error to admit the evidence even in rebuttal.
Some of the trial judge’s comments suggest he had doubts about the admissibility of the evidence, even in rebuttal, but he felt any claim of error had been waived by the defense presenting information regarding tire probation. We disagree. General information that a defendant has committed a previous crime is far different from evidence of the exact nature of the prior crime, at least under the specific facts of this case. Granted, the defense’s evidence portrayed Everett in a bad light. But the State’s rebuttal evidence went further and informed the jury that Everett had planned to manufacture methamphetamine on a prior occasion. This additional evidence was like putting a neon sign over Everett that read, “propensity to manufacture methamphetamine.” The difference is significant, distinct, and more prejudicial than simply soiling Everett’s character. For the same reasons, Everett’s failure to object to the preliminary questions regarding the general nature of community corrections and the fact that Everett was on probation because he had committed an unspecified felony does not preclude our review of this question under K.S.A. 60-404.
Hence, tire error was preserved and was not waived by Everett. Because we determine the first step of the three-step Gunby analysis was not satisfied, we need not address the remaining steps. Instead, we must next examine whether the error requires us to reverse Everett’s conviction. State v. Wells, 289 Kan. 1219, 1232-33, 221 P.3d 561 (2009).
Magnitude of Error
The conclusion that the evidence of Everett’s prior conviction was inadmissible under K.S.A. 60-455 does not automatically lead to reversal. Instead, we must determine whether the admission of that evidence was harmless under K.S.A. 2012 Supp. 60-261. Wells, 289 Kan. at 1232-33; State v. Boggs, 287 Kan. 298, 318, 197 P.3d 441 (2008). K.S.A. 2012 Supp. 60-261 provides:
“[N]o error in admitting or excluding evidence, or any other error by the court or a party, is ground for granting a new trial, for setting aside a verdict or for vacating, modifying or odierwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.”
Under this standard, the State—as the party benefitting from the error—carries the burden of demonstrating there is no reasonable probability the error affected the trial’s outcome in light of the entire record. State v. McCullough,.293 Kan. 970, 983, 270 P.3d 1142 (2012); State v. Ward, 292 Kan. 541, 569-70, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
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 State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Even if the State had briefed the issue, however, we could not find this error harmless. There was no physical evidence against Everett. Rather, the only evidence linking Everett to the crime charged was Holmes’ testimony, and there were substantial credibility issues related to her testimony.
The juiy was informed that Holmes had been given immunity by the State in exchange for her cooperation that led to charging Everett. Before charges were brought against Everett, Holmes faced criminal charges of her own, including aggravated arson, manufacturing or attempting to manufacture methamphetamine, and two counts of distribution of a controlled substance. As a result of the pending charges, Holmes was facing substantial prison time and had lost custody of her daughter. According to Holmes, while in jail awaiting trial on the pending charges, she gained a new perspective on life and realized that what she had done was wrong. She wrote letters to the sheriff and her lawyer expressing her desire to make a deal so she could get out of jail. Holmes and the Smith County Attorney reached an oral agreement that she would help law enforcement in any way that she could, and she specifically agreed to write statements implicating those with whom she had manufactured methamphetamine in the past 2 years. The State granted Holmes transactional immunity from those crimes.
In May 2007, Holmes provided a handwritten 7-page narrative of an incident of making methamphetamine with Everett in March or April 2006. On June 20, 2007, the State dropped the pending charges against Holmes; the State indicated the charges were dropped because the witness against Holmes failed a he detector test. In addition to providing the handwritten statement, Holmes testified at Everett’s preliminary hearing and trial. There were discrepancies between Holmes’ trial testimony and her previous statements and testimony. Even without these discrepancies, as the jury was instructed, her accomplice testimony should be viewed with caution. See PIK Crim. 3d 52.18 (testimony of an accomplice).
In addidon, Everett presented evidence that cast doubt on Holmes’ testimony. He established he did not have a working car to drive her into the country where she alleged the manufacture occurred; he worked on weekdays even though that is when she said they manufactured methamphetamine; and he did not test positive for methamphetamine when randomly tested over the 3-month period referred to by Holmes even though she said he used the manufactured product. As a result, Holmes’ testimony, which should be viewed with caution, was impeached by contrary evidence.
In light of these various circumstances, we conclude there is a reasonable probability that the prior conviction evidence, which failed to meet the requirements of K.S.A. 60-455, could have affected the jury verdict. Everett was undoubtedly prejudiced by evidence that he had been convicted of possessing paraphernalia used to manufacture methamphetamine. Further, this prejudice was not ameliorated by tire limiting instruction that informed the jury the prior conviction could be considered to prove opportunity, intent, plan, knowledge, and absence of mistake or accident. The evidence was not admitted for any of these purposes, and this type of a shotgun approach to a limiting instruction has been deemed to be error. See State v. Magallanez, 290 Kan. 906, 919, 235 P.3d 460 (2010). If anything, this instruction created more confusion; it certainly did not prevent prejudice from the admission of the evidence.
Hence, we hold the error of admitting evidence of the nature of Everett’s prior conviction was not harmless. Because we reverse Everett’s conviction on this grounds, we need not address Everett’s remaining claims as they arise from circumstances that are not likely to arise again on remand.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed. | [
49,
-22,
-4,
63,
11,
100,
58,
56,
99,
-25,
38,
115,
-27,
-34,
5,
59,
-65,
125,
80,
123,
-59,
-73,
7,
75,
-14,
-73,
-72,
-45,
121,
-53,
-84,
-116,
76,
112,
-61,
117,
-26,
90,
119,
90,
-114,
12,
-72,
-61,
80,
-62,
44,
43,
58,
14,
49,
-106,
-69,
62,
23,
-49,
9,
40,
11,
-68,
88,
-15,
-109,
71,
107,
20,
-93,
52,
-75,
5,
-8,
47,
-106,
-71,
0,
40,
115,
-74,
-128,
-48,
105,
-101,
68,
96,
98,
33,
61,
-19,
-83,
-128,
63,
103,
29,
-89,
-7,
73,
75,
44,
-108,
-99,
103,
22,
38,
-8,
-1,
20,
21,
108,
3,
-42,
-80,
-111,
25,
32,
70,
91,
-21,
33,
-76,
113,
-59,
98,
84,
52,
114,
91,
-114,
-105
] |
On November 25, 2009, the court suspended the respondent, Kevin Peter Shepherd, from the practice of law in the state of Kansas for a period of 3 years. See In re Shepherd, 289 Kan. 1116, 220 P.3d 359 (2009). On May 2, 2011, the court granted the respondent’s motion to suspend the remaining 2 years of suspension from the practice of law in Kansas and placed the respondent on probation for the remainder of the suspension term, subject to specific terms and conditions. See In re Shepherd, 292 Kan. 189, 254 P.3d 1262 (2011). On February 29, 2012, the court modified the terms of the respondent’s probation. In re Shepherd, 293 Kan. 927, 271 P.3d 731 (2012).
The respondent has now 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 confirms the respondent has fully complied with all conditions imposed upon him by the court and offers no objection to the respondent being 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. | [
-108,
-23,
-108,
-113,
11,
97,
-70,
22,
-45,
-77,
103,
83,
-19,
-64,
5,
107,
64,
109,
-47,
105,
65,
-78,
119,
-55,
38,
-5,
-48,
-60,
-71,
79,
-12,
-107,
93,
48,
10,
53,
-122,
-119,
-47,
92,
-122,
7,
-104,
-11,
-47,
-125,
-80,
107,
19,
15,
53,
28,
-77,
43,
57,
-25,
9,
40,
121,
109,
-48,
-79,
-103,
5,
-21,
35,
-77,
-123,
60,
67,
80,
63,
-104,
57,
32,
-24,
115,
50,
-126,
-12,
111,
-119,
-87,
102,
98,
33,
21,
-20,
-67,
-56,
63,
30,
-99,
103,
-103,
88,
67,
12,
-76,
-68,
84,
52,
35,
-4,
100,
-116,
29,
-20,
3,
-54,
-112,
-109,
79,
53,
-50,
-104,
-2,
-96,
48,
69,
-59,
-26,
92,
115,
114,
-103,
-118,
-9
] |
Denied. ..
Unpublished | [
29,
105,
77,
62,
-88,
-79,
49,
62,
82,
-113,
103,
119,
-49,
-30,
-116,
-39,
-83,
103,
-76,
91,
79,
18,
127,
-27,
98,
-37,
-94,
-11,
113,
111,
-6,
56,
76,
56,
-102,
69,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-112,
-63,
36,
35,
72,
15,
17,
-44,
-15,
-114,
30,
65,
-64,
102,
-59,
-83,
-62,
-35,
-111,
23,
-65,
84,
-64,
85,
-48,
73,
-64,
110,
20,
-80,
37,
-24,
114,
102,
-121,
85,
15,
-7,
-76,
32,
10,
32,
-84,
-19,
40,
-68,
79,
94,
45,
-124,
-5,
40,
75,
121,
-101,
-3,
0,
-43,
39,
56,
34,
-124,
47,
-88,
46,
-17,
-28,
-93,
31,
40,
12,
9,
-13,
-10,
16,
53,
-49,
-9,
-52,
-78,
53,
-102,
-122,
52
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
51 Kan. App. 2d 92 | [
-107,
107,
-19,
62,
-116,
-32,
3,
15,
65,
-75,
117,
83,
-17,
-46,
4,
125,
78,
47,
49,
122,
-55,
-74,
63,
72,
82,
91,
-37,
-35,
-8,
111,
-11,
-76,
76,
112,
-54,
-43,
-58,
-54,
-83,
88,
-100,
5,
25,
77,
17,
-117,
62,
-25,
122,
7,
53,
-124,
-13,
44,
26,
-64,
-63,
44,
-37,
-67,
-31,
-79,
-103,
-105,
-68,
84,
-32,
84,
-104,
65,
64,
126,
-112,
17,
33,
-24,
115,
38,
-122,
116,
103,
-101,
-91,
-19,
98,
35,
44,
-17,
116,
-82,
30,
90,
13,
-122,
-109,
9,
106,
9,
-42,
-67,
97,
20,
15,
-6,
107,
-124,
95,
124,
-118,
-18,
-16,
-77,
-33,
57,
-124,
9,
-17,
-108,
-112,
49,
-33,
-15,
78,
-42,
49,
-37,
70,
-80
] |
The opinion of the court was delivered by
Luckert, J.:
Joshua Quested appeals, contending the sentencing judge imposed an illegal sentence by ordering the sentences in this Saline County case be served consecutive to a previously imposed Dickinson County sentence. He argues no Kansas statute explicitly authorizes consecutive sentences for convictions arising in separate cases prosecuted in different counties. Although the State does not dispute this assertion, it urges us to follow the 20-year-old holding in State v. Chronister, 21 Kan. App. 2d 589, 903 P.2d 1345 (1995), which recognized the power of a sentencing judge to order that a sentence be served consecutive to a sentence previously imposed in a different county. We agree with this precedent, and we hold that Quested’s sentences conformed to Kansas law and are not illegal. We, therefore, affirm his sentences.
Facts and Procedural Background
Pursuant to a plea agreement, Quested pleaded guilty in the Saline County District Court to nonresidential burglaiy and possession of stolen property in case number 07 CR 249. He also pleaded guilty to possession of marijuana and possession of stolen property in case number 07 CR 47. Under the terms of the plea agreement, Quested agreed that his sentences in Saline County would run consecutive to a yet-to-be-imposed sentence for another recent conviction in Dickinson County case number 07 CR 15. The Dickinson County crimes were factually related to the crimes in one of the Saline County cases.
After being convicted in the three cases, Quested first received his sentence in the Dickinson County District Court. The next day, Quested proceeded to sentencing for his Saline County convictions. The State, consistent with the plea agreement, requested that Quested’s Saline County sentences run consecutive to the Dickinson County sentence imposed the previous day. The Saline County sentencing judge adopted this recommendation when imposing sentence. The judge suspended execution of the sentence, however, and granted Quested a dispositional departure to probation.
Nearly 1 year later, the judge revoked Quested’s probation after Quested attempted to escape from Labette Correctional Conservation Camp. The judge ordered Quested to serve his underlying prison sentence. Quested then filed a motion to correct an illegal sentence, claiming that the sentencing judge had no statutory authority to malee his Saline County sentences run consecutive to his Dickinson County sentence. After a hearing, the Saline County sentencing judge denied Quested’s motion. Quested timely appealed to the Court of Appeals, which affirmed. We granted Quested’s petition for review. See State v. Quested, No. 106,805, 2012 WL 3000385, at *1-2 (Kan. App. 2012) (unpublished opinion), rev. granted 298 Kan. 1207 (2013).
Analysis
Issue: Did the sentencing judge have the authority to order Quested’s Saline County sentences he served consecutive to Quested’s previously imposed Dickinson County sentenceP
1.1. Preservation
Initially, the State contends that we lack jurisdiction to review Quested’s Saline County sentences because the judge imposed sentences Quested bargained for in his plea agreement. Under K.S.A. 2014 Supp. 21-6820(c)(2), an “appellate court shall not review . . . any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.”
While K.S.A. 2014 Supp. 21-6820(c)(2) would appear to support the State’s position, another statute—K.S.A. 22-3504(1)—provides that a “court may correct an illegal sentence at any time.” This court has reconciled the two statutes by holding that an appellate court has jurisdiction to correct an illegal sentence even if it was agreed to in a plea. See State v. Cullen, 275 Kan. 56, 60-61, 60 P.3d 933 (2003); cf. State v. Morningstar, 299 Kan. 1236, Syl. ¶ 1, 329 P.3d 1093 (2014) (appellate courts have jurisdiction to determine the authority to impose a consecutive sentence even when a defendant receives a presumptive sentence, which is generally not appealable). Quested invoked K.S.A. 22-3504(1) and its authorization to raise a legality challenge at any time by filing a motion to correct an illegal sentence and arguing his Saline County sentences do not conform to Kansas law. See State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012) (defining an “illegal sentence” to include one that fails to conform to law).
Hence, Quested’s plea agreement does not waive his right to attack his sentence on the basis it was not authorized by statute.
1.2. Kansas’ sentencing statutes and consecutive sentences
Quested’s motion for illegal sentence and his appellate arguments focus on the lack of statutory authority empowering the Saline County sentencing judge to impose sentences consecutive to the Dickinson County sentence. He argues there is no statute addressing consecutive sentences under tire circumstances of his case; i.e., when a sentence is imposed on different dates, in courts of different Kansas counties, for separate crimes arising from different charging documents. He notes that Kansas statutes address the issue of consecutive sentences in some circumstances, just not his. The State does not argue that any statute authorizes the sentencing judge’s order. Instead, it relies on Chronister, 21 Kan. App. 2d 589, which served as the basis for the Court of Appeals’ decision. Quested, 2012 WL 3000385, at *1-2.
As Quested suggests, K.S.A. 2006 Supp. 21-4720—a provision of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., which became effective in 1993—discusses consecutive sentencing but does not cover the circumstances of his case. K.S.A. 2006 Supp. 21-4720 states:
“(a) The provisions of subsections (a), (b), (c), (d), (e) and (h) of K.S.A. 21-4608 and amendments thereto regarding multiple sentences shall apply to the sentencing of offenders for crimes committed on or after July 1, 1993, pursuant to the sentencing guidelines system as provided in this act. The mandatory consecutive requirements contained in subsections (c), (d) and (e) shall not apply if such application would result in a manifest injustice.
“(b) The sentencingjudge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases. The sentencingjudge shall state on the record if the sentence is to be served concurrently or consecutively.” (Emphasis added.) K.S.A. 2006 Supp. 21-4720(b).
At first glance, the plain language of K.S.A. 2006 Supp. 21-4720(b) appears to be a broad grant of discretion to impose consecutive sentences. But in lieu of a statutory definition for the phrase “multiple conviction cases,” this court—in a context different from that presented today—has held the term in K.S.A. 2006 Supp. 21-4720(b) is solely a reference “to sentencing on multiple convictions from one charging document.” State v. Koehn, 266 Kan. 10, 17, 966 P.2d 63 (1998); State v. Roderick, 259 Kan. 107, 113-14, 911 P.2d 159 (1996). Moreover, that “definition applies for all provisions of K.S.A. 21-4720(b).” State v. Bolin, 266 Kan. 18, Syl. ¶ 2, 968 P.2d 1104 (1998). Because Quested’s multiple convictions did not arise from a single charging document, the judicial construction of the term “multiple conviction cases” means that K.S.A. 2006 Supp. 21-4720(b) did not provide the Saline County sentencing judge with the authority to order Quested to serve his Saline County sentences consecutive to his Dickinson County sentence.
The other subpart of this statute—K.S.A. 2006 Supp. 21-4720(a)—refers back to several subsections of K.S.A. 21-4608, which was part of the 1969 codification of the criminal law. L. 1969, ch. 180, sec. 21-4608. Under K.S.A. 21-4608(a), a sentencing judge has discretion to impose consecutive sentences when sentencing a defendant on the same day for different crimes. This provision applied to Quested’s two Saline County convictions but not to his Dickinson County sentence. Subsection (b) grants discretion for a consecutive sentence when a defendant commits a crime while on various forms of release for a prior misdemeanor conviction. Additionally, subsections (c), (d), and (e) mandate a consecutive sentence when a defendant commits a crime while either incarcerated or on some form of release for a prior felony conviction. See also K.S.A. 2006 Supp. 21-4603d(f). But Quested did not commit a subsequent crime while incarcerated or on release; he committed additional crimes prior to being arrested for the first crimes. Thus, he is correct that subsections (b), (c), (d), and (e) do not apply to his case.
In addition, the State and Quested both accept that K.S.A. 21-4608(h) does not apply to his situation. This provision states:
“When a defendant is sentenced in a state court and is also under sentence from a federal court or other state court or is subject to sentence in a federal court or other state court for an offense committed prior to the defendant’s sentence in a Kansas state court, the court may direct. . . that such state sentences as are imposed may run concurrently with any federal or other state sentence imposed.” (Emphasis added.) K.S.A. 21-4608(h).
The Court of Appeals panel deciding Chronister interpreted this provision to apply only if tire prior sentence had been imposed in the court of another state or a federal court. Chronister, 21 Kan. App. 2d at 593. Under this interpretation of K.S.A. 21-4608(h), no statutory provision would expressly apply in Quested’s situation. The panel in this case did not analyze the statutes; instead it merely cited Chronister. Quested, 2012 WL 3000385, at *1-2.
We are not totally convinced the Chronister panel’s reading of K.S.A. 21-4608(h) is correct. The first few words of K.S.A. 21- 4608(h)—“[wjhen a defendant is sentenced in a state court”—apparently refers to the court imposing the new sentence, which obviously would be a court in Kansas. This suggests the subsequent references to a “state court” that imposed a prior sentence also include state courts in Kansas—whether in a different county or even the county of die current conviction. Quested’s situation is arguably contemplated by the statute: He was sentenced in Saline County (in a state court) while also under sentence or subject to sentence in Dickinson County (other state court) for an offense committed prior to his sentence in Saline County (a Kansas state court). At a minimum, the statute does not expressly require that the “other state court” sentence be issued by the court of another state.
Nevertheless, the statute does not specifically authorize the imposition of a consecutive sentence. Instead, it states that “such state sentences as are imposed may run concurrently with any federal or other state sentence.” K.S.A. 21-4608(h). Although there is no reference to a consecutive sentence, the provision implies that the standard order would be to run the sentences consecutively. The statute arguably clarifies that need not always be the case; the provision allows the court to use discretion in determining whether to impose consecutive or concurrent sentences. See Chronister, 21 Kan. App. 2d at 593.
We hesitate to resolve the ambiguities of this provision, for there are many, in an appeal where its meaning has not been argued by the parties, especially since we agree with the remainder of the Chronister opinion. Moreover, even if we were to sort through the ambiguities of K.S.A. 21-4608(h), we would walk the same path as did the Chronister court in trying to determine the legislature’s intent. See State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014) (court’s first task in construing the statutory language is to ascertain legislative intent through an analysis of the language employed, giving ordinary words their ordinary meaning).
We, therefore, will analyze Quested’s case based on his premise—which is true even if K.S.A. 21-4608(h) applies—that no Kansas statute expressly authorizes a sentencing judge from ordering a sentence to run consecutive to a sentence previously imposed in a different county. But we point out that it is equally true that no Kansas statute expressly prohibits a sentencing judge from ordering a sentence to run consecutive to a sentence previously imposed in a different county. Quite simply, no statute expressly addresses this situation.
This legislative silence creates an ambiguity. When faced with an ambiguity, courts must attempt to ascertain legislative intent and in doing so may look to canons of construction, legislative history, the circumstances attending the statute’s passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. See In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014); Phillips, 299 Kan. at 495. The Chronister panel employed some of these considerations in reaching its holding.
1.3. Chronister
In Chronister, as here, a defendant received sentences on different dates for crimes occurring in different counties. The second sentencing judge ordered Chronister to serve that sentence after he completed the earlier sentence. Chronister, 21 Kan. App. 2d at 590-91. On appeal, Chronister argued the sentencing judge lacked authority to order the sentences be served consecutively, noting that no statute explicitly authorized consecutive sentences under circumstances like his.
The Chronister Court of Appeals panel concluded that no statute covered the situation and discounted the applicability of K.S.A. 21-4608(h) by limiting it to apply when a defendant is under sentence or subject to sentence in “other jurisdictions.” 21 Kan. App. 2d at 593. Nevertheless, the Chronister panel held the sentencing judge had discretion to order Chronister to serve his sentence consecutively to the sentence previously imposed in a different county. The panel did so by noting that die statutes allowed for consecutive sentencing if the earlier sentence had been imposed in either “another state” or in federal court and properly determining that it would be “illogical” to conclude the legislature intended a sentencing benefit to defendants who committed more tiran one offense in Kansas. 21 Kan. App. 2d at 593.
In addition, the Chronister court noted that “[p]rior to 1982, the imposition of concurrent or consecutive sentences in all criminal cases was placed within the sound discretion of the trial court” even though no statutory provisions mandated consecutive sentences. 21 Kan. App. 2d at 593 (citing State v. Reed, 237 Kan. 685, 703 P.2d 756 [1985]). Then, in 1982, the legislature limited judicial discretion by mandating consecutive sentences in certain cases “in response to public concern.” 21 Kan. App. 2d at 593. “Given the impetus behind the 1982 amendment, it is doubtful that the legislature also intended to strip courts of the power to impose consecutive sentences in cases such as the present one” where crimes were committed in two different Kansas counties. 21 Kan. App. 2d at 593-94.
Although this court has not previously addressed the issue in Chronister since the KSGA became effective in 1993, the State urges us to recognize that the Chronister holding has guided sentencing in Kansas for 20 years, including in this case, and to adopt its reasoning. While the Chronister panel read K.S.A. 21-4608(h) differently than we do, the panel’s reasoning supports our interpretation of the legislature’s intent. In addition, we agree that the doctrine of stare decisis justifies our adoption of Chronister.
1.4. Following precedent
Indeed, following precedent—especially such long-standing precedent—-promotes system-wide stability and continuity. Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004). We recognize that we are not bound by the Court of Appeals’ decision, but it has guided sentencing judges for 20 years. And no other decision has clearly instructed sentencing judges to do anything but follow Chronister—the only appellate decision specifically addressing die circumstances of this case. See Crist, 277 Kan. at 715 (“ ‘It is recognized under the doctrine of stare decisis that, once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised.’ ”).
Nevertheless, Quested argues we should not adopt Chronister because it was wrongly decided. Certainly, even if we were bound by a Court of Appeals decision, which we are not, “[t]he doctrine of stare decisis [would] not compel us to perpetuate an incorrect analysis of a statute enacted by the legislature.” Hall v. Dillon Companies, Inc., 286 Kan. 777, 787, 189 P.3d 508 (2008). But, as Quested himself takes pains to point out, this is not a situation where the Chronister court ignored or modified the plain language in a statute. Rather, tire Chronister court seemingly held that in lieu of a direct statement by the legislature abrogating a judge’s common-law authority to impose a consecutive sentence, the judge retained the authority to decide whether a sentence should be concurrent or consecutive, especially since recognizing that authority furthered the legislative policy. Chronister, 21 Kan. App. 2d at 593-94. Although the discussion of this point in Chronister is implicit and brief, other cases provide context and support for the proposition that a judge’s common-law authority to impose consecutive sentences is not abrogated unless the legislature enacts a statute that does so or otherwise expresses a contrary intent.
1.5. United States Supreme Court decisions
Decisions of the United States Supreme Court illustrate the point. The Court documented the history of a judge’s common-law power to impose consecutive sentences in Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009). The Ice Court cited two general authorities supporting the longstanding recognition of a judge’s power to exercise discretion and to order a sentence to run either concurrent with or consecutive to another sentence. 555 U.S. at 168-69 (quoting 1 J. Bishop, Criminal Law § 636, pp. 649-650 [2d ed. 1858] [ “ ‘(W)hen there are two or more convictions, on which sentence remains to be pronounced; the judgment may direct, that each succeeding period of imprisonment shall commence on the termination of the period next preceding.’ ”]; A. Campbell, Law of Sentencing § 9:22, p. 425 [3d ed. 2004] [“ ‘Firmly rooted in common law is the principle that the selection of either concurrent or consecutive sentences rests within the discretion of sentencing judges.’ ”]).
The Ice Court also cited several English cases to show that a judge’s authority to impose a consecutive sentence had been rec ognized before the “founding of our Nation” and to establish that the “historical record further indicates that a judge’s imposition of consecutive, rather than concurrent, sentences was the prevailing practice.” 555 U.S. at 169 (quoting Lee v. Walker, [1985] 1 Q.B. 1191, 1201 [1984] [“ ‘(T)he High Court has always had inherent jurisdiction to impose consecutive sentences of imprisonment in any appropriate case where the court had power to imprison.’ ”]; Queen v. Cutbush, 2 L.R.Q.B. 379, 382, 10 Cox Crim. Cas. 489, 492 [1867] [“ ‘(R)ight and justice require (that) when a man has been guilty of separate offences,... that he should not escape from the punishment due to the additional offence, merely because he is already sentenced to be imprisoned for another offence”; also noting that it had been the practice to impose consecutive sentences “ ‘so far as living judicial memory goes back’ ”]; and citing King v. Wilkes, 19 How. St. Tr. 1075, 1132-1136 [K.B. 1769]).
The Ice Court did note, however, that a legislature is free to “rein in the discretion judges possessed at common law to impose consecutive sentences at will.” 555 U.S. at 171. The effect of such an attempt to rein discretion was tested 3 years later in Setser v. United States, 566 U.S. _, 132 S. Ct. 1463, 182 L. Ed. 2d 455 (2012).
In Setser, the United States Supreme Court considered whether a statute passed by Congress limited the authority to such an extent that it was totally abrogated under the circumstances underlying the case. The federal sentencing statutes in question—much like Kansas’—addressed some, but not all, multiple sentencing situations. In light of those federal statutes, the question in Setser was whether a federal judge had the authority to order a defendant to serve his federal sentence consecutive to a yet-to-be-imposed state sentence. Federal statutes regarding consecutive or concurrent sentences addressed only multiple sentences imposed at the same time or a sentence imposed on a defendant who was already subject to an undischarged term of imprisonment. Neither circumstance applied, but the Court held the federal sentencing judge had the discretion to impose a consecutive sentence.
The Setser Court reasoned that the federal sentencing statutes had to be construed in light of “ ‘the common-law background against which the statutes . . . were enacted.’ ” 132 S. Ct. at 1468. Under that approach, the Court recognized: “Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings.” 132 S. Ct. at 1468. The Court observed there must be a mechanism to determine whether two or more sentences are concurrent or consecutive, and Congress had done nothing to foreclose the exercise of judges’ commonly recognized authority to make the determination. 132 S. Ct. at 1468.
The Court also rejected the defendant’s argument that Congress’ grant of authority to impose consecutive sentences in “scenario A and scenario B [means] there is no such discretion in scenario C.” 132 S. Ct. at 1469. The points made by the Court in rejecting this argument apply equally to Kansas’ statutory scheme:
“The Latin maxim on which Setser relies—expressio unius est exclusio alter-ius—might have application here if the provision in question were a conferral of authority on district courts. Giving sentencing authority in only specified circumstances could be said to imply that it is withheld in other circumstances. Section 3584, however, is framed not as a conferral of authority but as a limitation of authority that already exists (and a specification of what will be assumed when the exercise of that authority is ambiguous). It reads not ‘District courts shall have authority to impose multiple terms of imprisonment on a defendant at the same time, etc.’ but rather ‘If multiple terms of imprisonment are imposed on a defendant at the same time, [etc.]’—quite clearly assuming that such authority already exists. The mere acknowledgment of the existence of certain pre-existing authority (and regulation of that authority) in no way implies a repeal of other pre-existing authority. And that is especially true when there is an obvious reason for selecting die instances of pre-existing authority that are addressed—to wit, that they are the examples of sentencing discretion most frequently encountered.” 132 S. Ct. at 1469.
The United States Supreme Court is not alone in reaching the conclusion that the common-law authority to impose a consecutive sentence continues in situations where there is not a legislative directive otherwise. Several state courts have reached the same conclusion. E.g., State v. Leak, 297 Conn. 524, 537-39, 998 A.2d 1182 (2010) (courts have “inherent common-law power to stay the execution of their own judgments and thereby order that confine ments run consecutively”; power continues in lieu of clear legislative mandate to alter the common law even in the absence of an express statutory conferral of authority); Schamber v. State, 152 Ga. App. 196, 198, 262 S.E.2d 533 (1979) (finding sentencing statute not applicable and not “a limitation upon the discretion of the trial court, derived from tire common law, to set sentences ... to commence at the termination of all sentences previously imposed”); State v. Calley, 140 Idaho 663, 665, 99 P.3d 616 (2004) (holding that while no sentencing statute permitted a court in one county to impose a sentence consecutive to probation from another county, “[u]nder the common law, the courts in Idaho have discretionary power to impose cumulative sentences”); Duquette v. Warden, New Hampshire State Prison, 154 N.H. 737, 743-44, 919 A.2d 767 (2007) (statutory silence regarding authority to impose consecutive sentence did not limit common-law authority; inherent discretionary authority was only limited by certain situations where consecutive sentences were mandated); State v. Trice, 159 Or. App. 1, 4-5, 976 P.2d 569 (1999) (“nothing in the language of the statute . . . limits the court in the exercise of its discretion from imposing partially consecutive sentences and concurrent sentences”).
1.6. Kansas decisions predating Chronister
These cases—both of the United States Supreme Court and of other state courts—are not binding on'us. They are merely persuasive support for the holding in Chronister. Although not addressing these cases, Quested argues that any reliance on common-law authority, as articulated in State v. Chronister, 21 Kan. App. 2d 589, 903 P.2d 1345 (1995), is contraiy to the reasoning in another Court of Appeals decision, State v. Crawford, 39 Kan. App. 2d 897, Syl. ¶¶ 2-3, 185 P.3d 315 (2008). He argues that under Crawford, a judge lacks the authority to impose consecutive sentences unless specifically authorized by statute.
To better understand the Chronister panel’s decision and the cases relied upon by the Crawford panel, some historical context is helpful. Cases predating Chronister generally support the Chronister panel’s reasoning and, more specifically, the conclusion that a sentencing judge retains the common-law power to impose consecutive sentences in any circumstance where the Kansas Legislature has not restricted the authority or stated a contrary legislative policy. In other words, as stated in one such decision, the common-law rule “should be applied, in the absence of a statute governing the subject, thus recognizing that the statute, if enacted, is controlling.” (Emphasis added.) Beck v. Fetters, 137 Kan. 750, 752, 22 P.2d 479 (1933); see K.S.A. 21-5103(a) (recognizing the criminal code did not entirely displace common law; “where a crime is denounced by any statute of this state, but not defined, the definition of such crime at common law shall be applied”). Kansas cases predating Chronister largely reflect this reasoning.
The historical context begins as early as 1855 when the Kansas Territorial Legislature curbed judicial sentencing discretion, requiring a judge to impose consecutive sentences if the defendant had been “convicted of two or more offences before sentence shall have been pronounced upon him for either offense.” 1855 Laws of the Kansas Territory, ch. 54, sec. 9. The statute was otherwise silent about the power to impose consecutive sentences.
In 1907, in State v. Finch, 75 Kan. 582, 89 P. 922 (1907), this court considered tire effect of such a legislative silence. The version of the statute then in place required consecutive sentences if a defendant had been convicted of two offenses during the same court term. A defendant objected when a sentencing judge imposed consecutive terms of imprisonment for convictions entered in different court terms, arguing a consecutive sentence could only be imposed under the circumstances specifically covered by the statute. Noting the statutory silence about his situation, the defendant argued that at common law only a concurrent sentence would be allowed.
The Finch court did not accept this interpretation of the common law and, despite the lack of statutory authority for the consecutive nature of the sentence, affirmed the sentencing judge’s order of consecutive sentences. The court reasoned that the statute reflected “the legislative policy and the justice of adapting the punishment to the number as well as to the enormity of crimes committed by one person, and, without regard to strict technicality, it is incumbent upon the courts of the state so to conform the pro cedure as to make the purpose of the law effective.” Finch, 75 Kan. at 584; see Beck, 137 Kan. at 752; see also K.S.A. 21-4601 (“This [sentencing] article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics . . . [and] dangerous offenders shall be correctively treated in custody for long terms as needed.”). Hence, although the statute addressed only a limited circumstance—one that did not apply to the defendant’s case—the court extended the legislative policy of using consecutive sentences to fit the enormity of the criminal acts and, in doing so, implicitly recognized a judge’s common-law authority.
In 1923, the legislature enacted R.S. 62-1512, which mandated consecutive sentences when a defendant had been “convicted of two or more offenses before sentence shall have been pronounced upon him for either offense.” In Beck, 137 Kan. at 752, this court explained that this statute modified the common-law rule that had provided “that if several sentences of imprisonment are imposed upon a person, covering the same period of time, they will run concurrently unless the court expressly directs that they be served consecutively.” The court held a “court must render judgment in conformity with the statutory policy” and impose consecutive sentences as required by the statute. 137 Kan. at 752-53. Nevertheless, the court expressly recognized the common law would have applied in the absence of statute.
Then, in 1969, the legislature adopted K.S.A. 21-4608. L. 1969, ch. 180, sec. 21-4608. As with its predecessor statutes, it did not address all sentencing situations where cumulative punishment might be considered. Where the previous statutes had mandated cumulative punishment in some circumstances, the 1969 version reinstated a judge’s discretion to impose either concurrent or cumulative punishments when a sentence was imposed on the same day. In effect, this clarified that the mandate of the statutes at issue in Finch and Beck had been repealed. As in this case, the statute did not address tire power to impose consecutive sentences in cases where sentencing occurred on different days. K.S.A. 21-4608.
Despite this silence, in Burns v. State, 215 Kan. 497, 500, 524 P.2d 737 (1974), this court recognized “[t]he authority of the court in ordering consecutive or concurrent sentences for convictions of two or more offenses at the same time or separate times is discre-tionaiy with the court.” (Emphasis added.) 215 Kan. at 500 (citing K.S.A. 1973 Supp. 21-4608). This statement seems to continue the longstanding recognition that a judge retains discretion to impose a consecutive sentence in situations where a statute is silent, as long as that authority is consistent with the legislative policy reflected in the sentencing statutes. Indeed, in State v. Reed, 237 Kan. 685, 687, 703 P.2d 756 (1985), this court recognized that during this time period, “the imposition of concurrent or consecutive sentences in all criminal cases was placed within the sound discretion of the trial court.” (Emphasis added.)
In 1982, the legislature turned to a middle ground regarding judicial discretion, enacting several provisions codified in subsections of K.S.A. 21-4608 that require a judge to impose a consecutive sentence in specific situations—e.g., when a defendant commits a new crime while incarcerated or on probation, assignment to a community corrections program, parole, or conditional release. K.S.A. 21-4608. The 1982 amendments also contained provisions requiring judges to impose a consecutive sentence if a defendant committed a new crime while on bond in certain specified circumstances. These are the provisions discussed in Chronister, 21 Kan. App. 2d at 593 (citing Reed, 237 Kan. 685, and pre-1982 K.S.A. 21-4608), and, although somewhat modified, that apply in this case.
These provisions were “somewhat ambiguous and . . . neglected to explicitly include” the situation that arose in Reed, 237 Kan. at 688-89. Reed was released on bond prior to trial. While released, Reed committed a theft and a burglary, and the district court held the statute mandated consecutive sentences. This court affirmed, even though the statutes did not explicitly refer to pretrial bond situations. In reaching this decision, this court concluded that the legislature intended to “cover the waterfront” of situations where a defendant committed a crime while temporarily released from custody. 237 Kan. at 688. The court held that the legislative scheme mandated a consecutive sentence even though the mandate was not explicit. 237 Kan. at 688-90. Logically, Reed supports Chron-ister: Statutoiy silence as to a unique circumstance does not mean a sentencing judge does not have consecutive sentencing authority. In Reed, as in Finch, this court considered a judge’s common-law authority to impose a consecutive sentence when it would further legislative policy. In Reed, this meant the legislature had restricted the judge’s authority whereas in Finch it meant the legislature had not limited discretion.
As Chronister and these other cases recognize, nothing suggests the Kansas Legislature ever intended to strip sentencing judges of their common-law power to impose a consecutive sentence. At most, the histoiy suggests the legislature has at times directed a sentencing judge to impose a consecutive sentence in certain circumstances. But the common-law power to impose a consecutive sentence has been abrogated only when a statute addressing a situation has been adopted, and no such statute applies here. Even if K.S.A. 21-4608(h) is interpreted as applying, it does not require a concurrent sentence; it merely indicates the judge “may” impose one.
1.7. Post-Chronister cases supporting Quested’s position are distinguishable
As previously noted, Quested relies on Crawford, decided 13 years after Chronister. In Crawford, a Court of Appeals panel addressed a different situation and held that there was no statutory authority to impose an adult sentence consecutive to a juvenile adjudication. Crawford, 39 Kan. App. 2d 897, Syl. ¶ 2. The panel relied heavily on this court’s decision in In re W.H., 274 Kan. 813, 817-18, 57 P.3d 1 (2002), in which we declined to find any common-law power to order consecutive sentences in juvenile cases given that “[njowhere in [the Kansas Juvenile Justice Code (KJJC), K.S.A. 38-1601 et seq.] did the legislature provide for consecutive sentencing.” 274 Kan. at 822. In rejecting common-law power, we spoke in broad terms about a Kansas judge’s sentencing authority, noting: “From its early beginnings, Kansas relied upon statutory authority to impose consecutive sentencing even though Kansas may recognize that a court had the common-law authority to impose consecutive sentences.” 274 Kan. at 817.
To take this broad statement at face value and view it in isolation could lead to a misunderstanding of the degree of reliance on statutory authority. As our discussion of past cases reflects, the reliance has not meant that there must be explicit statutory authorization to impose a consecutive sentence. Rather, it has often meant that the power to impose a consecutive sentence continues to exist as long as its exercise is consistent with legislative enactments.
Further, the In re W.H. court itself noted its reasoning was limited to the situation involving a young adult offender and, in doing so, expressly distinguished that case from the situation currently before us. The court distinguished the juvenile sentencing scheme, which in large part had no common-law counterpart, from the adult scheme. Specifically, the court acknowledged that in adult sentencing situations the legislature had recognized consecutive sentences, at least in some situations. 274 Kan. at 814-15. And the court did not reverse or question past decisions such as State v. Reed, 237 Kan. 685, 703 P.2d 756 (1985), where this court had mandated the use of consecutive sentences despite legislative silence. Moreover, the In re W.H. court was particularly persuaded by another fact that makes Quested’s case distinguishable: “Kansas has ... no histoiy of court decisions with legislative acquiescence supporting an implied power to impose consecutive [juvenile] sentences where the statute is silent.” 274 Kan. at 818. The court in In re W.H. had no case that recognized any authority, common law or otherwise, for imposing consecutive juvenile sentences.
Here, we have at least 20 years of legislative acquiescence since Chronister, 21 Kan. App. 2d 589, and nearly or over a century’s since Beck, 137 Kan. at 752, and Finch, 75 Kan. at 584. The doctrine of stare decisis is particularly compelling in cases where, as here, the legislature is free to alter a statute in response to court precedent with which it disagrees but declines to do so. Indeed, in Beck this court acknowledged the legislature’s power to curb judicial sentencing discretion through explicit statutes. Beck, 137 Kan. at 752. But beginning with Finch, the court recognized that a legislative restriction on sentencing authority in one situation did not foreclose the continued exercise of discretion in another, un less, as in Reed, exercising discretion would be against legislative policy.
The legislature’s continued, long-term acquiescence is a strong indication that the Chronister court effected legislative intent when it determined the legislature meant for Kansas judges to have the discretion to impose consecutive sentences when a defendant commits crimes in multiple counties. See State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014); Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. _, 134 S. Ct. 2398, 2411, 189 L. Ed. 2d 339 (2014); but see U.S.D. No. 501 v. Baker, 269 Kan. 239, 246-47, 6 P.3d 848 (2000) (recognizing that legislative inaction is not always indicative of legislative intent).
Hence, our situation is distinguishable from juvenile offender situations in In re W.H. and Crawford, and those cases do not compel us to reject Chronister or its reasoning. Quested has not persuaded us we should abandon that precedent.
1.8. Osbey and legislative history
Although not cited by Quested, the dissent points us to a line of cases beginning with State v. Osbey, 238 Kan. 280, 288, 710 P.2d 676 (1985), in which this court, without citation to any authority, announced that “[i]n Kansas, sentencing of an individual is strictly controlled by statute.” That statement seems contrary to the cases we have discussed today where a judge’s common-law authority has filled gaps in legislation. Moreover, the legislature has itself declared: “The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state.” K.S.A. 77-109. Because statutory silence confronted both the sentencing court and this court, the sentencing statutes stand in need of the aid of common-law rules. See Setser v. United States, 566 U.S. _, 132 S. Ct. 1463, 1467, 182 L. Ed. 2d 455 (2012) (recognizing that someone must answer the question of whether a defendant’s multiple sentences will be served consecutively or concurrently and there must be some source for the authority to make that decision).
Thus, Osbey’s statement that sentencing is strictly controlled by statute is suspect insofar as its simplicity fails to expose nuance. Even so, the intent of that statement remains valid because, as our discussion illustrates, we have measured the common-law rule against legislative policy. Common-law rules can only apply when consistent with other sentencing statutes. Statutory policy has always controlled. And where a statute covers a subject, these cases illustrate that a judge may not rely on the common law for contrary authority.
These principles are consistent with the outcome and the general rationale of this court’s decisions in those cases where we have stated diat sentencing is strictly controlled by statute. Often these cases dealt with statutes that explicitly covered a sentencing issue. For example, in Osbey and many of the other cases, the issue related to whether a disposition was legal, a subject Osbey correctly noted was covered by statute. See State v. McCarley, 287 Kan. 167, 176, 195 P.3d 230 (2008) (sentence for a level 8 person felony does not conform to the statutoiy provision for a level 5 person felony, the offense of conviction, and is therefore illegal); State v. Martin, 285 Kan. 735, 738-39, 175 P.3d 832 (2008) (K.S.A. 2005 Supp. 21-4716 controls procedure for departing from presumptive sentence); State v. Campbell, 273 Kan. 414, 421, 44 P.3d 349 (2002) (K.S.A. 2001 Supp. 21-4603d dictates allowable dispositions at time of sentencing and does not allow a judge to “intentionally or inadvertently fail to impose one of the statutory dispositions”); Osbey, 238 Kan. at 287 (same).
The other cases deal with a sentencing court’s power to modify sentences. In those cases, the court reasoned statutes limited the court’s power, allowing only the correction of arithmetic and clerical errors. Also, the legislative background of the current sentence-modification statute revealed the legislature’s intention to repeal and not replace statutes that had allowed a modification within a specified time of the sentence’s imposition. See State v. Anthony, 274 Kan. 998, 1000-02, 58 P.3d 742 (2002); see also State v. Guder, 293 Kan. 763, Syl. ¶ 1, 267 P.3d 751 (2012) (following Anthony); State v. McKnight, 292 Kan. 776, 781-83, 257 P.3d 339 (2011) (at probation revocation hearing, sentencing judge had statutory au thorily to modify original sentence and impose shorter sentence with no postrelease supervision); State v. Saft, 244 Kan. 517, Syl. ¶ 1, 769 P.2d 675 (1989) (statute in effect set a temporal cutoff for modifying sentence and limited court’s ability to do so outside that time frame); State v. Vanwey, 262 Kan. 524, Syl. ¶ 4, 941 P.2d 365 (1997) (same).
The rationale of these decisions is largely consistent with the rationale of our decision today. If a statute covers a subject matter, it controls. Further, any common-law rule contrary to legislative policy is invalid even if a statute is silent on the subject matter— e.g., in a situation such as in Beck, 137 Kan. 750, or Anthony, 274 Kan. 998. But to say that statutes control sentencing to the total exclusion of common law is contrary to the cases we have discussed, to K.S.A. 77-109, and, as we will next discuss, to the legislative history and background of K.S.A. 21-4608 and the sentencing guidelines.
Speaking of the 1969 codification of the criminal law that included K.S.A. 21-4608, Professor Paul E. Wilson, who was on the Judicial Advisory Committee that worked on the codification, explained the common law’s influence in the new criminal code:
“The legislature alone has the power to prohibit and provide penalties for conduct that is deemed inimical to the best interests of the State. At the same time, the common law has played an important role in determining the substance of the criminal law of Kansas. While the legislature has the exclusive power to prohibit conduct, the prohibitions are often stated in terms of common law concepts. Thus, reference must often be made to the common law in order to understand legislative intent.” Wilson, New Bottles for Old Wine: Criminal Law Revision in Kansas, 16 Kan. L. Rev. 585 (1968).
With respect to sentencing, Professor Wilson observed: “The view has been taken that the fixing of sentence is a judicial function over which the court should have the ultimate control, within the limits fixed by the legislature.” (Emphasis added.) 16 Kan. L. Rev. at 603. As applicable to Quested’s case, the legislature has not stated a limit on the cumulative length of his multiple sentences.
To suggest the common law has no role in sentencing, the dissent cites a 1972 law review article in which the author, Barkley Clark, observed: “The comprehensiveness of the state Criminal Code, coupled with the elaborate procedural safeguards given to defendants by the equally comprehensive Code of Criminal Procedure, suggests that the legislature has preempted the criminal law field, except for matters such as minor traffic violations.” State Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L. Rev. 631, 672 (1972). But this article spealcs to an issue that has no bearing on our analysis—the power of cities to enact ordinances that might conflict with state criminal law. In context, the comment does not suggest the legislature intended for the 1969 criminal code to leave no place for the common law nor does it purport to rebut the legislative history and comments of Professor Wilson, one of the bill’s drafters.
Further, the legislative history surrounding the existence of the Kansas Sentencing Guidelines reinforces that statutoiy law does not strictly control sentencing to the exclusion of a judge’s discretion when that discretion is not limited by a statute; a sentencing court can, and sometimes must, do more than simply look to the statutes. Granted, the legislature clearly expressed the intent to curtail some judicial discretion, which had resulted in sentencing disparity. See Minutes, Senate Judiciary Committee, S.B. 479, January 14, 1992 (Attachment 1); see also Minutes, Senate Judiciary Committee, S.B. 479, January 16, 1992 (Attachment 1 [Gottlieb, A Review and Analysis of the Kansas Sentencing Guidelines, 39 Kan. L. Rev. 65, 67 (1991)]); Minutes, House Judiciary Committee, March 18, 1992 (Attachment 2) (noting it is well known that a crime committed in some counties will receive a harsh punishment while the same crime will get probation in another county).
At the same time, however, there was much debate about how strictly a sentencing judge’s discretion should be curbed and how much legislative “control” should be exercised over a sentence. Those in favor of the guidelines argued: “The existence of definite sentencing standards eliminates unstructured judicial discretion which, it is argued, produces unwarranted disparity.” Gottlieb, 39 Kan. L. Rev. at 67. On the other hand, “[i]t will be a mistake . . . to eliminate judicial discretion.... [I]f sentencing is to be humane, it will continue to require human judgment.” 39 Kan. L. Rev. at 89.
In the end, although the legislature considered exercising complete control over sentencing, it decided to alleviate opponents’ concerns by assuring that sentencing discretion remained—sentences were not subject to absolute statutory control. Indeed, on January 24, 1992, the Senate Judiciary Committee made it a point to add language to the minutes (possibly in response to a request for a clear statement of legislative intent) indicating: “[T]he Committee recognizes that the guidelines are designed to regulate judicial discretion, not to eliminate it.” (Emphasis added.) Minutes, Senate Judiciary Committee, S.B. 479, January 24, 1992. This understanding also permeated the later hearings before the House Judiciary Committee. Minutes, House Judiciary Committee, S.B. 479, March 20, 1992 (Attachment 1, p. 5.) (“The sentencing function of the court was intended to be discretionary. . . . Certainly the legislature must give guidance to the courts by establishing the public policy and perimeters on sentences. However, when those perimeters become too restrictive to adapt the sentence to the characteristics of an individual case, substantial injustices will occur.”).
Although we find no clear legislative history discussing the legislature’s intent regarding whether a judge retained the authority to impose consecutive sentences in situations not controlled by the statute, courts generally presume that the legislature acts with full knowledge of existing law. State v. Reese, 300 Kan. 650, 656, 333 P.3d 149 (2014). That law includes the common-law rule recognizing that a sentencing judge has the discretion to decide whether to impose a concurrent or a consecutive sentence and the caselaw of this court in which we have filled the gap in previous statutes by allowing the exercise of that common-law authority when doing so was consistent with the legislative policy. Further, as this court recognized in State v. Chronister, 21 Kan. App. 2d 589, 593-94, 903 P.2d 1345 (1995), it is doubtful that the legislature intended to strip courts of the power to impose consecutive sentences in cases such as the present one where crimes were committed in two different Kansas counties. This result would indeed be unreasonable or absurd, and “ ’the legislature is presumed to intend that a statute be given a reasonable construction.’ ” 21 Kan. App. 2d at 593; see State v. Murdock, 299 Kan. 312, 320, 323 P.3d 846 (2014) (Rosen, J., dissenting) (explaining that part of the reason tire legislature later enacted the KSGA was “to address concerns regarding disparity in sentencing practices across the state”). This is especially true under the facts of this case where Quested’s criminal acts in Dickinson and Saline counties were related and as part of one crime spree. If convicted in one case for all the crimes, the sentencing judge would have had express authority under K.S.A. 2006 Supp. 21-4720(b) to impose either concurrent or consecutive sentences.
Significantly, K.S.A. 2006 Supp. 21-4720(b) of the KSGA incorporates a few provisions from tire 1969 law, including K.S.A. 21-4608. And when enacting the KSGA, the legislature did not repeal K.S.A. 21-4601, which provides: “This [sentencing] article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics . . . [and] dangerous offenders shall be correctively treated in custody for long terms as needed.” While most provisions of the KSGA do not fall within the scope of this provision, K.S.A. 21-4608 does. And as we have discussed, that provision was applicable at the time of this court’s decisions in Burns v. State, 215 Kan. 497, 500, 524 P.2d 737 (1974), and Reed, 237 Kan. 685.
Arguing for a contrary result, the dissent would hold that a sentencing judge can only impose a concurrent sentence since no statute explicitly authorizes a consecutive sentence. Yet, no statute or prior caselaw directly supports that conclusion. With no statute to construe in Quested’s favor, the rule of lenity—a rule of statutory construction the dissent invoices—plays no part. Even when it does, it is “subject to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” See State v. Coman, 294 Kan. 84, 96, 273 P.3d 701 (2012). That design is furthered by allowing a judge to exercise discretion to impose consecutive sentences when a defendant engages in a crime spree in multiple counties, the same as if the defendant were to have committed all the crimes in one county where the case could have been treated as a multiple conviction case under K.S.A. 2006 Supp. 21-4720(b). Moreover, if we were to simply mandate a concurrent sentence when no statute compels that result, we would necessarily have to supply words the legislature did not write. The dissent’s solution thus falls subject to its own criticism, as we would again be at fault for recognizing sentencing authority not “strictly controlled by statute.” See McCarley, 287 Kan. at 176.
1.9. Conclusion
We choose, in the absence of a statute directly speaking to the issue, to rely on over a century of this court’s caselaw regarding adult criminal sentencing in which this court has recognized that Kansas judges have the discretion to order either a consecutive or concurrent sentence as long as doing so is consistent with legislative policy. Historical perspective and practical necessity compel us to rely on common law in this limited and unique circumstance.
We hold that a sentencing judge in one Kansas county has the authority to order a sentence to be served consecutive to a sentence previously imposed by a sentencing judge in another Kansas county. We, therefore, agree with the Court of Appeals’ decision to affirm the district court’s denial of Quested’s motion to correct an illegal sentence.
Affirmed.
Michael J. Malone, Senior Judge, assigned. | [
84,
-24,
-107,
-97,
8,
96,
27,
24,
81,
-1,
-26,
83,
-27,
-52,
5,
123,
-65,
127,
20,
121,
85,
-73,
103,
-63,
-94,
-5,
-13,
-44,
-70,
91,
-12,
-50,
74,
-16,
-118,
85,
-122,
-56,
103,
-36,
-114,
15,
-120,
-31,
82,
0,
60,
103,
26,
11,
49,
30,
-13,
46,
16,
-54,
-87,
44,
75,
-67,
1,
-111,
-5,
-113,
105,
1,
-125,
-123,
-102,
-122,
88,
46,
-104,
57,
0,
-24,
115,
6,
-126,
-76,
77,
-101,
-123,
46,
66,
33,
60,
-18,
-88,
-88,
14,
127,
-115,
-90,
-104,
88,
106,
4,
-106,
-99,
116,
118,
43,
-6,
-25,
36,
91,
124,
-127,
-34,
-80,
-111,
77,
117,
-126,
-8,
-5,
32,
33,
97,
-49,
-26,
92,
-57,
112,
87,
-54,
-75
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied.
50 Kan. App. 2d 375 | [
23,
107,
-19,
28,
-116,
-96,
-119,
30,
25,
-69,
101,
115,
-19,
-42,
4,
123,
-50,
111,
-75,
123,
-49,
-74,
127,
72,
82,
122,
-53,
-35,
-71,
111,
-12,
-76,
76,
-16,
-118,
87,
-58,
-54,
-115,
88,
-116,
4,
-103,
-51,
17,
-109,
56,
-29,
122,
7,
17,
-124,
-13,
44,
26,
-63,
-127,
108,
-53,
-67,
-55,
-7,
-71,
-107,
-4,
84,
-30,
20,
-108,
-63,
84,
126,
-112,
-112,
33,
-24,
115,
38,
-122,
117,
67,
-103,
-95,
-28,
98,
35,
40,
-19,
108,
-90,
14,
28,
13,
-90,
-45,
8,
75,
25,
-106,
-67,
121,
22,
11,
-6,
107,
-124,
47,
108,
-118,
-1,
-8,
-77,
-115,
49,
12,
17,
-1,
-104,
-112,
49,
-33,
-16,
78,
-57,
-79,
-37,
-10,
-80
] |
On January 27, 1998, petitioner, Gaiy W. Long, II, surrendered his license to practice law in Kansas. Under Supreme Court Rule 217 (2014 Kan. Ct. R. Annot. 403), on March 6, 1998, this court disbarred petitioner from tire practice of law in Kansas. See In re Long, 264 Kan. 2, 957 P.2d 1105 (1998).
Following a hearing, a hearing panel of the Kansas Roard for Discipline of Attorneys recommended to the court that petitioner s license to practice law be reinstated, conditioned on petitioner first taking and passing the Kansas bar examination. After careful consideration, tire court accepted the recommendation of the hearing panel. Petitioner took and passed the July 2015 Kansas bar examination.
It Is Therefore Ordered that petitioner be reinstated to die practice of law in 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. Upon proof provided to the Clerk of the Appellate Courts that petitioner 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 petitioner s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order be published in the official Kansas Reports. | [
20,
-21,
-42,
92,
11,
-64,
50,
-100,
89,
-15,
101,
83,
-19,
-102,
5,
121,
-110,
109,
84,
123,
-59,
-73,
118,
-55,
4,
-1,
-103,
-52,
-72,
95,
-12,
-67,
92,
48,
2,
-43,
6,
-55,
-63,
92,
-82,
6,
9,
-44,
81,
-127,
54,
9,
2,
11,
117,
30,
-15,
42,
31,
-123,
-23,
108,
27,
-83,
89,
-112,
-101,
-105,
126,
81,
49,
4,
28,
-121,
88,
-65,
-116,
-39,
8,
-19,
115,
54,
-122,
-12,
77,
-103,
13,
102,
98,
35,
25,
-19,
-72,
-88,
78,
16,
13,
-94,
-109,
88,
67,
10,
-106,
-33,
127,
16,
39,
124,
102,
4,
29,
108,
14,
-113,
-44,
-77,
79,
119,
-58,
-103,
-1,
71,
-80,
101,
-105,
-10,
66,
67,
113,
19,
-114,
-12
] |
The opinion of the court was delivered by
Beier, J.:
Robert Martin Haberlein appeals his convictions for first-degree premeditated murder, aggravated kidnapping, and aggravated robbery. He argues: (1) the district judge erred by failing to instruct tire juiy on second-degree intentional murder; (2) the State failed to present sufficient evidence to prove what he claims are two sets of alternative means of committing aggravated kidnapping; (3) the district judge erred in issuing an instruction on aggravated robbery that was broader than the language in the information; (4) the district judge erred in certifying him as an adult without having a jury malee that determination; (5) cumulative error deprived him of a fair trial; and (6) the Kansas hard 50 sentencing scheme is unconstitutional. We affirm.
Factual and Procedural History
The State charged Robert Martin Haberlein with first-degree murder, premeditated, or, in the alternative, felony murder with the underlying felony of aggravated robbery; aggravated kidnapping; and aggravated robbery, in the November 2005 death óf Robin Bell.
Bell was a manager at a Dollar General store in Bonner Springs. On the night of the crimes, Bell’s husband woke up about 1 a.m. and discovered that Bell was not home from work. He drove from Tonganoxie to Bonner Springs and arrived at the store about 1:30 a.m. He saw his wife’s car still parked at the store and called the police from across the street. Police responded to the scene and located a deceased female, later identified as Bell, in die back room of the store.
Several police officers and crime scene investigators testified about their response to the scene and their subsequent investigation. Officers forced their way into the Dollar General, checked the front of the building, and then exited and re-entered through the back door. Just inside of the back door, officers located the body of Bell with “serious injuries about her head and face” and saw “a tremendous amount of blood on the floor.” Bell had suffered severe trauma from “[bjlunt force items,” including a step ladder, a tripod, and a shovel, which had “blood all over them.”
Officers did not know until a later autopsy that Bell also had been shot, once through her right cheek and once just under the skin on her scalp. An officer who attended the autopsy described Bell’s injuries as follows:
“[S]he had a broken finger. She had three broken ribs. Her upper and lower jaw [were] broken. The step stool that went through eye, her eye wasn’t there. The cap was recovered from the rear of her skull.... She had—she was badly bruised, numerous contusions. She had—the best way I can describe it, he said divots, like little, in her skull from being hit, you know, a little divot. She had several cuts on her face from her—her injuries. We know when she was hit with the tripod, we can correspond the injuries to around her arms because, you know, it’s a tripod. And she just—she suffered greatly.”
Forensic pathologist Erik Mitchell also testified regarding Bell’s injuries. Mitchell noted the “dramatic evidence” of a “tremendous number of physical injuries.” Mitchell identified several injuries to Bell’s face and head, as well as two gunshot wounds. Bell also had a broken finger on each hand, abrasions and bruises on her legs and arms, and broken ribs. Mitchell identified 48 separate injuries on Bell’s body, but he could not tell the order in which they occurred. Bell had two injuries to the brain that would result in death if not treated, and Mitchell noted other injuries also capable of causing death. Mitchell ultimately said Bell's cause of death was “extensive crush injuries,” and he identified the case as a homicide.
At tire crime scene, officers also found the cash register drawer in the front of tire store open, and it showed an incomplete sale time stamped 20:23:01. A telephone in a back office was pulled out of the wall; a money bag was lying on a desk in tire office; and cash drawers were lying on the floor of a safe. Roughly $2,000 was missing from the store.
Officers also observed a bloodstain on the floor of the store and on the inside of the back door leading to the outside. The landing area outside of the door showed more blood. A blood trail led from the back door toward the rear of a Goodwill Store to the north.
The State called Detective Victoria Fogarty of the Bonner Springs Police Department as a witness about the investigation. In September 2007, Fogarty was still working on the case when she received a report about a runaway named Christa Lewis. Haberlein called the police station to talk about the report and said that Lewis was his girlfriend. Lewis and Haberlein then came to the police station.
Lewis, who was 18 years old at the time of Habeidein’s trial, testified about her relationship with Haberlein and her knowledge of the robbery. She was friends with Haberlein, John Backus, and A.R. during high school. Lewis testified that the four talked about the robbery for a few days before it happened and that she participated in the search for a place to rob. Lewis did not end up going to the Dollar General with her friends, but she gave the three others the keys to another friend's car for use in the robbery. The three came back to Lews' house the day after the crimes to watch the news for a story about tire robbery and murder. Backus and Haberlein threatened Lewis and said they would hurt her if she told anyone. Lewis also got money from Backus a few days later in exchange for providing the car.
When Lewis and Plaberlein came to the police station, another officer initially spoke with Haberlein but then requested assistance from Fogarty. After being read his Miranda rights, Haberlein brought up the Bell homicide. Haberlein initially said that he acted only as a lookout and implicated others, but the police recognized that Haberlein shared details of the crime that had not been released to the public.
The officers took Haberlein to the Kansas City Police Department to videotape a formal statement. After the statement, Ha-berlein was transported to Wyandotte County Detention Center, where he was held while officers spent several days attempting to corroborate Haberlein’s original account of the events. Officers then interviewed Haberlein again, and he began to change his story.
After interviewing Haberlein, officers contacted A.R., who had been Haberlein’s 15-year-old girlfriend at the time of the crime. When A.R. and her parents arrived at the police station, officers told them that they were attempting to get background information on Haberlein. After about 20 minutes, Fogarty spoke with A.R. alone. A.R. explained that she was at the Dollar General at the time of the crimes, and Fogarty read A.R. her Miranda rights. Fogarty later said that A.R. acted afraid and said she had been told by Backus and Haberlein that she would get hurt if she revealed what she knew. After A.R. talked about her version of what happened in the store, officers took her to the crime scene, and then to the Kansas City Police Department for a videotaped statement. She also was placed in detention.
After A.R.’s interview, officers arrested Backus and took him to jail. At that point, they returned to Haberlein for another interview. Again, Haberlein changed his previous story and implicated Backus and A.R.
A.R. ultimately testified against Haberlein in exchange for prosecution as a juvenile. She said that she first met Haberlein in the ninth grade, and eventually the two became a couple. Before that, she had dated Backus, who also knew Haberlein. A.R. was also friends with Lewis. About the time of the crime, Haberlein was living with A.R.’s family. She, Haberlein, and Backus went to Lewis’ house to plan the robbery, which was motivated by A.R.’s knowledge of her family’s financial problems. The four looked for a business in Bonner Springs that would be easy to rob and decided on the Dollar General. On the night of the crime, A.R., Haberlein, and Backus went to Lewis’ house. Lewis decided not to go with them, but the three were able to obtain keys to a car.
According to A.R., when she, Haberlein, and Backus arrived in a parking lot near Dollar General, Haberlein told her: “[T]here’s something more serious that’s about to happen, and if you tell anybody, I’m going to kill you.” A.R. was aware that Haberlein had a gun.
Once inside tire store, A.R. and Haberlein pretended to shop while Backus positioned himself near the back. When A.R. and Haberlein took the items they had collected to a cash register at tire front of the store, Haberlein pulled out a gun, pointed it at Bell’s forehead, and told her to give him all the money from tire register. Bell started to give Haberlein the money, but he went behind the register, put Bell’s hands behind her back, and took her to the back of the store. A.R. saw Backus follow Haberlein and Bell to a back office.
A.R. was standing by the front counter when she heard screams and two or three gunshots. She ran to the back and saw Bell standing in front of a safe with Haberlein pointing a gun at her and telling her to open it. Bell had been shot and was bleeding, but she opened the safe and put tire money in a bag. Haberlein handed the money to Backus, and Backus put the money by the inside door. Bell then ran out of the store through its back door. Haber-lein and Backus chased her, and A.R. held the door open for them as they pulled Bell back inside. Bell asked A.R. for help, but A.R. said she could not help.
Haberlein and Backus tiren took Bell to a storage room, pushed her to the ground, and started beating her with things from the room. Backus beat her with a broom, and Haberlein beat her with a bucket, stuck a chair leg through her face, and beat her with a stool. A.R. stood silent in the doorway while the beating continued for what she estimated to be up to 10 minutes. Bell stopped moving when she was shot again by Haberlein.
Backus or Haberlein then tried to clean up dre area in the storage room. Backus picked up the money, and the three went out tire store’s back door and returned to the car. Backus or Haberlein put the money in the trunk; Haberlein threw the gun on the floor of the back seat; and the three drove to a McDonald’s to eat.
The three then went to Backus’ house, where Backus and Ha-berlein changed clothes. They put their old clothes in the trunk of the car, and they dropped tire car back off at Lewis’ house. Ha-berlein and A.R. went to her house with the clothes and money. A.R. told her mother, Yvette, about die robbery the next day, and Yvette drove her daughter and Haberlein to a bridge to dump the gun. According to A.R., the money from the robbery went to her mother. A.R. said she and Haberlein burned the bloody clothes.
Yvette’s testimony at Haberlein’s trial corroborated her daughter’s testimony in part. On the morning after the crimes, Backus and Haberlein came to her house. Yvette overheard them talking about the robbery with her daughter and thought they were, joking because Haberlein was laughing. Yvette followed her daughter into her bedroom, and A.R. showed her mother Haberlein’s gun. Yvette admitted that she knew the gun was tire murder weapon. She did not want it in the house and went with her daughter to dispose of it. When Yvette took the gun out of the trunk, she said, she found a bag of bloody clothes as well. Yvette said she threw it all over tire side of a bridge because she was “trying to protect” her daughter. Yvette said she received $400 from her daughter for helping to get rid of the gun. Yvette did not tell the police of her involvement until after her daughter gave her account of the crimes to the police. Yvette pleaded guilty to aiding a felon and received 18 months’ probation in exchange for her testimony.
A.W., a friend of A.R.’s who was 16 years old at the time of trial, testified that A.R. told her about a woman who had been killed in Bonner Springs. A.W. also testified that A.R. admitted involvement in the crimes, and said Haberlein and his best friend also were involved.
No physical evidence from the crime scene tied Haberlein to die crime, and the murder weapon was not introduced into evidence. Letters that Haberlein allegedly sent to two other jail inmates were admitted into evidence. The'State also introdúced and played for the jury three videotaped statemerits- made by Haberlein andoneby A.R.
The defense called Haberlein as its sole witness. Haberlein testified that he was at his mothers house on the day of the crimes. He also said that he had been taking cocaine and was off his prescribed medication for mental problems when he spoke with Fo-garty for the first time. Haberlein said that he received information about the details of the crime from Fogarty and was still under the influence of cocaine and was given more details of the crime when he gave his first videotaped statement.
During his interview with officers a few days later, Haberlein said, he explained that he was still recovering from his drug use and was still off of his prescribed medication. Haberlein said he told the police what he did because he was trying to protect A.R. and her mother. Haberlein acknowledged that he wrote a letter discussing the crime while in jail, but he said that some of the content was untrue. Haberlein said he did not meet A.R. until after the robbery and did not move in with A.R.’s family until January 2006, when A.R. told him that she had participated in the crimes. Haberlein denied any involvement in the Dollar General robbery and Bell’s murder.
Haberlein did not seek a lesser included offense instruction on second-degree intentional murder. He had been charged with aggravated kidnapping under K.S.A. 21-3421. The statute provides: “Aggravated kidnapping is kidnapping, as defined in K.S.A. 21-3420 and amendments thereto, when bodily harm is inflicted upon the person kidnapped.” K.S.A. 21-3420 provides:
“Kidnapping is die taking or confining of any person, accomplished by force, threat or deception, widi die intent to hold such person:
“(a) For ransom, or as a shield or hostage;
“(b) to facilitate flight or die commission of any crime;
“(c) to inflict bodily injury or to terrorize the victim or another; or
“(d) to interfere witii the performance of any governmental or political function.”
The district judge instructed the jury:
“The defendant is charged in Count II with the crime of Aggravated Kidnapping. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant, or another for whose conduct he was criminally responsible, took or confined Robin Bell by force, threat or deception;
“2. That it was done with the intent to hold such person to facilitate flight or the commission of any crime, to-wit: Aggravated Robber)';
“3. That bodily harm was inflicted upon Robin Bell; and
“4. That this act occurred on or about the 11th day of November, 2005, in Wyandotte County, Kansas.”
The jury convicted Haberlein of first-degree premeditated murder, aggravated kidnapping, and aggravated robbery.
Haberlein filed two unsuccessful motions for new trial. Haber-lein received a hard 50 sentence for the first-degree premeditated murder conviction, a 253-month sentence for the aggravated kidnapping conviction, and a 59-month sentence for the aggravated robbery conviction. All of the sentences were ordered to run consecutively.
Failure to Instruct on Second-Degree Murder
Haberlein did not object to the district judge’s failure to give an instruction on die lesser included offense of second-degree intentional murder. He now argues that the failure to give the instruction was clearly erroneous.
This court has recently clarified the analytical steps and corresponding standards of review for juiy instruction issues on appeal:
“(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Thus, to determine whether it was clearly erroneous to fail to give an instruction, the reviewing court necessarily has to first determine whether it was erroneous at all. Only after determining that the district judge erred in failing to give a particular instruction does a reviewing court engage in a reversibility inquiry. During this reversibility portion of the analysis, the burden to show clear error under K.S.A. 22-3414(3) remains on the defendant. State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012).
K.S.A. 21-3401(a) defines first-degree premeditated murder as the killing of a human being committed intentionally and with premeditation. In contrast, second-degree intentional murder is the killing of a human being committed intentionally; no premeditation is required. K.S.A. 21-3402(a). The instruction about which Haberlein complains would have been legally appropriate here, because second-degree intentional murder is a lesser included offense of first-degree premeditated murder. See State v. Scaife, 286 Kan. 614, 620-23, 186 P.3d 755 (2008).
The next question the court must consider is whether the instruction for second-degree intentional murder would have been factually supported on the record before us. Plummer, 295 Kan. 156, Syl. ¶ 1. While the evidence of premeditation in this case was extremely strong, there also was at least some evidence of each of the other elements of first-degree premeditated murder, and these elements are identical to the elements of second-degree intentional murder. Thus, at least in theory, the jury could have chosen to convict Haberlein of second-degree intentional murder without having its verdict subject to reversal for insufficient evidence. This means the instruction was factually supported.
Because the second-degree intentional murder instruction was factually and legally supported, it was error for the district judge not to give it. See K.S.A. 22-3414(3) (judge shall give instruction on lesser included crime when some evidence would reasonably justify conviction).
But our determination that the omission of this instruction was erroneous does not answer the question of whether the failure to give the unrequested instruction was clearly erroneous. Haberlein bears the burden of firmly convincing us that the jury would have convicted him of second-degree intentional murder rather than first-degree premeditated murder had the error not occurred. Plummer, 295 Kan. 156, Syl. ¶ 1 (citing State v. Ward, 292 Kan. at 565).
Haberlein argues that “[although premeditation can happen in a very short amount of time, a reasonable juror could require a longer time” and “there is a real possibility the jurors in this case would have had a more expanded definition of premeditation.” The State responds that the evidence at trial excluded Plaberlein’s position and that no jury could have reasonably convicted Haberlein of second-degree intentional murder.
This court has explained premeditation as follows:
“ ‘ “Premeditation means to have thought the matter over beforehand, in other words, to have formed tire design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.” ’ State v. Martis, 277 Kan. 267, 301, 83 P.3d 1216 (2004) (quoting State v. Hebert, 277 Kan. 61, 88, 82 P.3d 470 [2004]). Several factors may give rise to an inference of premeditation, including: (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant’s conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, and (5) tire dealing of lethal blows after the deceased was felled and rendered helpless. State v. Scott, 271 Kan. 103, 109, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). Moreover, premeditation and deliberation may be inferred from the established circumstances of a case, provided the inference is a reasonable one. State v. Scott, 271 Kan. at 108; see also State v. Jones, 279 Kan. 395, 404, 109 P.3d 1158 (2005).” State v. Morton, 283 Kan. 464, 474-75, 153 P.3d 532 (2007).
Haberlein’s jury was given the following definition: “Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.”
The evidence of premeditation in this case was peculiarly abundant. It is rare for there to be testimony that an armed defendant announced before a planned robbery that “something more serious was about to happen.” A.R. also testified that Bell had been shot and was bleeding by tire time she reached tire back office. After the safe was emptied, when Bell momentarily escaped, Haberlein and Backus chased after her, caught her, and forced her back inside the store. Bell’s request for help from A.R. was in vain. Instead, Haberlein and Backus subjected Bell to a merciless and prolonged beating, converting several objects to weapons, and tiren again shot Bell. Finally, she stopped moving. She had 48 separate injuries. On this grisly record, and in light of Haberlein’s shifting stories and trial defense of categorical denial, we are not firmly convinced there was a real possibility tire jury would have convicted him of second-degree intentional murder, had it been given that option. The district judge’s failure to instruct sua sponte on second-degree intentional murder was not clearly erroneous.
Alternative Means of Aggravated Kidnapping
Haberlein’s second claim on appeal challenges his aggravated kidnapping conviction on the ground that the evidence was insufficient to support a finding of guilt on each of the alternative means for committing the crime on which the jury was instructed. Our recent decision in State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), established a framework for considering whether statutoiy language creates alternative means demanding independently sufficient proof beyond a reasonable doubt. The first step to determine whether use of an “or” in a statute separates alternative means requires interpretation or construction. Brown, 295 Kan. 181, Syl. ¶ 4. Issues of statutoiy interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal. See State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012); see also State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005) (court exercises de novo review over jury unanimity issues). Only if statutoiy language is ambiguous do we move from interpretation to construction and rely on any revealing legislative histoiy or background considerations that speak to legislative purpose, as well as the effects of application of the canons of statutory construction. See Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009).
In Brown, we set die following guideposts to determine whedier a statute sets out alternative means:
“In examining legislative intent, a court must determine for each statute what the legislature’s use of a disjunctive ‘or’ is intended to accomplish. Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it to merely describe a material element or a factual circumstance that would prove the crime? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction. See [State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010)] (‘[State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994)] required sufficiency of evidence to support each alternative means upon which a jury is instructed, in order to protect a criminal defendant’s right to a unanimous juiy verdict.’ [Emphasis added.]); see also [State v. Peterson, 168 Wash. 2d 763, 769, 230 P.3d 588 (2010)] (focus of the alternative means rule is on the jury instructions).” 295 Kan. at 194.
We noted in Brown that the legislature will typically signal its intent to state alternative means through structure, separating intended alternatives into distinct subsections. The legislature also may list additional alternatives or options within one alternative means of committing the crime. “But these options within an alternative do not constitute further alternative means themselves if they do not state additional and distinct ways of committing die crime, that is, if they do not require proof of at least one additional and distinct material element,” i.e., mens rea, actus reus, or causation. Brown, 295 Kan. at 196.
“An option within a means scenario is anodier important clue to legislative intent because such options signal secondary status rather than an intent to create a material, distinct element of the crime. Options within a means—that is, the existence of options that do not state a material, distinct element—do not demand application of the super-sufficiency requirement. [Citations omitted.].” Brown, 295 Kan. at 197.
Haberlein argues that force, threat, and deception are alternative means of committing the crime of aggravated kidnapping, that each was instructed upon, and that there was no evidence to support deception. He also argues that facilitation of flight and facilitation of the commission of the crime of aggravated robbery are alternative means that were instructed upon and that there was no evidence supporting the intention to hold Bell to facilitate the perpetrators’ flight.
In its brief, submitted well before Brown was filed, the State conceded that force, threat, and deception were alternative means but argued that there was sufficient evidence to support each. In the State’s view, Haberlein “deceived” Bell when he pretended to shop and approached the register in “order to get close enough to her to hold and confine her.” The State met Haberlein’s argument on flight and commission in the same fashion, arguing there was sufficient evidence that the holding of Bell facilitated flight in that “the continued confinement (and eventual murder) of [Bell] in the back room after she begged for her life substantially lessened [Ha-berlein’s] risk of detection or made it easier for [him and Backus and A.R.] to escape without a single witness to identify them.” Because Brown has intervened, we must analyze whether the governing statutory language and the jury instruction that repeated it actually created two sets of alternative means. In other words, the State’s concessions may have been premature.
Force, Threat, or Deception
Haberlein does not challenge the phrase “taking or confining” in this appeal. Those two terms set out two alternative means of carrying out the crime of kidnapping and thus aggravated kidnapping. “Taking” and “confining” each denotes a distinct actus reus and they are, therefore, alternative means. But the phrase “force, threat, or deception” addresses secondary matter, merely describing ways in which the actus reus can be accomplished. In other words, under our Brown analysis, each is an option within the means of taking or confining. Each merely sets out factual circumstances that may prove the distinct, material element of taking or confining. Force, threat, and deception are not alternative means of committing a kidnapping or aggravated kidnapping, and we need not reach the question of whether sufficient proof of each was presented to Haberlein’s jury. See Brown, 295 Kan. 181, Syl. ¶ 11; cf. State v. Wright, 290 Kan. 194, 207, 224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 290, 875 P.3d 242 (1994).
Facilitation of Flight or Facilitation of Commission of Aggravated Robbery
Haberlein next points to the following language in subsection (b) of K.S.A. 21-3420: “to facilitate flight or the commission of any crime.” When we examine the language of the entire statute, it appears the legislature did signal through structure an intent to define alternative means of proving the mens rea for kidnapping and aggravated kidnapping. It did not stop with “intent to hold” but listed several motivations for that intent to hold. Each of the subsections that follows states an additional and distinct way of committing the crime, and proof of one of these additional and distinct material elements must be shown in order to support a conviction. Thus, tire different subsections create alternative means of committing a kidnapping.
But the language on which Haberlein relies is within subsection (b). Facilitation of flight and facilitation of the commission of a crime are mere options within a means. The members of the legislature grouped certain potentially distinct and potentially overlapping items, which must mean they did not want jurors to have to split hairs over whether a kidnapping or aggravated kidnapping was committed to facilitate flight or the commission of any crime. Again, we need not reach the question of whether the evidence was sufficient on each.
Accordingly, Haberlein is thus not entitled to reversal of his aggravated kidnapping conviction. This was not an alternative means case on either of the bases he asserts.
Aggravated Robbery Instruction
Count III of the information charged Haberlein with aggravated robbery as follows:
“[0]n or about November 11th, 2005, defendant John William Backus, Robert Haberlein, and another did unlawfuEy, feloniously and -willfully take property, to-wit: money, from the presence of another, to-wit: Robin Bell, by force, while the said John William Backus was armed with a dangerous weapon, to-wit: handgun, in violation of K.S.A. 21-3427.” (Emphasis added.)
At Haberlein’s trial, in contrast, the jury was instructed:
“The defendant is charged in Count III with the crime of Aggravated Robbery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant, or another for whose conduct he was criminally responsible, intentionally took property, to-wit: money, from the person or presence of Robin Bell;
“2. That the taking was by force;
“3. That the defendant, or another for whose conduct he was criminally responsible, was armed with a dangerous weapon, to-wit: a handgun OR inflicted bodily harm upon Robin Bell in the course of such conduct; and
“4. That this act occurred on or about the 11th day of November, 2005, in Wyandotte County, Kansas.” (Emphasis added.)
Haberlein did not object to the giving of this instruction at trial, but he now argues that it was impermissibly broader than the language in the information. He thus claims his conviction must be vacated. As explained in relation to the lesser included offense instruction discussed above, on appeal, Haberlein must demonstrate that the aggravated robbery instruction he challenges for the first time on appeal was clearly erroneous; i.e., he must firmly convince us that the jury would have reached a different verdict if it had been instructed as he now insists it should have been. See Plummer, 295 Kan. 156, Syl. ¶ 1.
It appears that this issue, as set out in Haberlein’s brief, raised two distinct objections: The instruction should not have included “the person” in the phrase “from the person or presence,” and it should not have included “OR inflicted bodily harm.” Haberlein asserted that “[h]ad the district court properly instructed the jury, there is a real possibility the verdict would have been different” because the evidence indicated “that [Haberlein] took the bag from the person of Robin, not merely in her presence.” Haberlein did not likewise elaborate on how the inclusion of “OR inflicted bodily harm” was reversible error, and we therefore will not address that objection.
With regard to the “person or presence” objection, tire State concedes that instructions generally should not be broader than the charges contained in the information. The State is bound by the wording of its complaint and limits itself to pursue only that “version of the offense” or “theory” of the case at trial. State v. Trautloff, 289 Kan. 793, 802-03, 217 P.3d 15 (2009). A defendant must be informed of the nature of the accusation against him or her and “the prosecution and the court must exercise caution in conforming jury instructions to the charges.” State v. Jones, 290 Kan. 373, 384, 228 P.3d 394 (2010); see also Trautloff, 289 Kan. at 802 (citing Russell v. United States, 369 U.S. 749, 767, 770, 82 S. Ct. 1038, 8 L. Ed. 2d 240 [1962]); State v. Wade, 284 Kan. 527, Syl. ¶ 3, 161 P.3d 704 (2007); State v. Hemby, 264 Kan. 542, 548, 957 P.2d 428 (1998); State v. Booker, 197 Kan. 13, 15, 415 P.2d 411 (1966).
The State nevertheless contends that this rule does not apply here because the questioned jury instruction, although different from the information, was no broader. A taking from Bell’s person necessarily also constituted a taking from her presence. Thus the addition of that word in the instruction added nothing not already covered in the information. We agree. See State v. Robinson, 27 Kan. App. 2d 724, 728, 8 P.3d 51 (2000) (“Personal property can be taken from a victim’s presence’ without being taken from his or her person,’ but it cannot be taken from his or her ‘person’ without being taken in his or her ‘presence.’ ”); see also Walker v. State, No. 105,373, 2012 WL 1237890, at *2 (Kan. App. 2012) (unpublished opinion) (citing State v. Verge, No. 92,562, 2005 WL 2076503, at *3 [Kan. App. 2005] [unpublished opinion], rev. denied 280 Kan. 991 [2005]) (taking from victim’s person necessitates taking from victim’s presence). Because the information required the jury to find that Haberlein took money from the presence of Bell, the broader concept, it also permitted the jury to find that Haber-lein took money from the person or presence of Bell, the narrower concept. The inclusion of both concepts in the instruction was neither factually nor legally erroneous and thus not clearly erroneous.
Adult Certification
Haberlein claims, for the first time on appeal, that the decision to authorize adult prosecution substantially increased the maximum penalty he faced, and he was therefore entitled to have a jury make the determination rather tiran a district judge, citing Ap- prendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Constitutional grounds for reversal asserted for the first time on appeal are not properly before us for review. State v. Perez, 292 Kan. 785, 789, 261 P.3d 532 (2011). Haberlein provides no explanation as to why we should apply cited exceptions recognized by caselaw, and we therefore decline to do so. See Perez, 292 Kan. at 789 (declining to reach defendant’s same argument under the same circumstances); State v. Kunellis, 276 Kan. 461, 465, 78 P.3d 776 (2003).
Cumulative Error
Haberlein asserts that the cumulative error doctrine necessitates reversal, but we detect only one error—the failure to give a lesser included offense instruction. One error cannot support application of the doctrine. See State v. Miller, 293 Kan. 535, 582, 264 P.3d 461 (2011) (citing State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 [2009]).
Constitutionality of Hard 50 Sentencing Scheme
Following the jury verdict, the district judge sentenced Haber-lein to the enhanced hard 50 life sentence, plus 312 months for the other offenses. Haberlein did not object to the constitutionality of the hard 50 sentencing scheme below, but he now argues that it is unconstitutional because it imposes additional punishment, a minimum of 50 years in prison rather than 25 years, based on factors not submitted to the jury and proven beyond a reasonable doubt. Again, we will not consider tire merits of the argument because Haberlein provides no explanation of why the issue should be considered for the first time on appeal. See Perez, 292 Kan. at 789.
Conclusion
We conclude that defendant Robert Martin Haberlein has pursued only one meritorious appellate argument: that the district judge should have given a juiy instruction on the lesser included offense of second-degree intentional murder. His failure to object or otherwise call the judge’s attention to this error in the district court places upon him a burden he cannot bear. We are not firmly convinced that the instruction would have affected the verdict. The judgment of the district court is therefore affirmed. | [
-48,
-24,
-23,
-66,
27,
-30,
26,
58,
83,
-13,
-27,
83,
-19,
-53,
1,
123,
-14,
93,
85,
113,
-109,
-73,
39,
-32,
-14,
-13,
-111,
-59,
-78,
91,
-76,
-43,
9,
-48,
-54,
85,
102,
10,
97,
86,
-118,
2,
-7,
-14,
-53,
0,
32,
126,
102,
14,
-79,
-116,
-13,
43,
26,
-61,
73,
44,
90,
-3,
-48,
-15,
-21,
-97,
77,
20,
-125,
-96,
-102,
3,
88,
62,
-40,
57,
10,
-24,
83,
-106,
-126,
84,
77,
-85,
-116,
102,
-30,
1,
29,
-51,
-28,
-95,
47,
85,
-105,
-89,
-104,
88,
65,
44,
-106,
-97,
116,
55,
6,
-4,
-9,
47,
95,
-20,
-116,
-34,
-112,
-111,
-51,
116,
-110,
-6,
-21,
7,
33,
113,
-113,
-30,
84,
71,
122,
19,
-53,
-12
] |
The opinion of the court was delivered by
Moritz, J.:
This court granted Timothy Burch’s petition for review of the Court of Appeals’ decision affirming the district court’s denial of his petition for release or discharge or transitional release pursuant to K.S.A. 2011 Supp. 59-29a08. Burch contends the district court erred in finding he failed to show probable cause that his mental abnormality had changed to the extent that he is safe to be placed in transitional release.
We conclude that we apply a de novo standard of review to the district court’s denial of a petition for discharge or transitional release under K.S.A. 2011 Supp. 59-29a08. Further, we hold that the petitioner bears the burden of proof on such a petition and is entitled to have the facts viewed in a light most favorable to the petitioner. Finally, applying that de novo standard and considering the facts in a light most favorable to Burch, we conclude Burch failed to establish the requisite probable cause entitling him to a full evidentiary hearing on his petition for discharge or transitional release under K.S.A. 2011 Supp. 59-29a08. Accordingly, we affirm tire Court of Appeals’ decision affirming the district court’s probable cause determination.
Factual and Procedural Background
In 1989, Burch was convicted of three counts of aggravated sodomy, five counts of indecent liberties with a child, and two counts of sexual exploitation of a child. In December 2001, while Burch was still imprisoned on these convictions, the State instituted proceedings against him under the Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq.
Burch stipulated that he was, and the court found him to be, a sexually violent predator under the SVPA, and he began treatment at the Lamed State Hospital in June 2002. As required by K.S.A. 2011 Supp. 59-29a08(a), a State physician reported annually on Burch’s treatment progress. In each report, the physician opined that Burch remained a sexually violent predator.
In November 2005, Burch filed a petition for discharge or transitional release in the district court requesting appointment of, and evaluation by, an independent expert. The district court appointed an expert, Steven E. Peterson, M.D., who met with Burch and prepared a psychological report.
The Court of Appeals panel summarized the State physician’s annual reports from 2005 to 2008 and Dr. Peterson’s report as follows:
“In 2005, 2006, and 2007, Dr. Austin T. DesLauriers, clinical director of the Sexual Predator Treatment Program (SPTP), provided written reports authored by Dr. Mayda Nel Strong to the Secretary of SRS concerning Burch’s mental condition'in accordance with the annual review procedures'. In 2005, Strong suggested that Burch’s future progress would depend on his motivation and stated that Burch was maintaining his stage three status in the seven stage rehabilitation program. In 2006, Strong opined that Burch had made remarkable progress and had moved from stage three to stage four. Subsequently, Burch was approved for stage five because of further progress. In 2007, Strong opined that Burch’s progress over the preceding year was mixed and that the SPTP staff feedback reflected his up and down progress. Strong concluded at the end of each evaluation from 2005 through 2007, that Burch remained a sexually violent predator who suffered from a mental abnormality making him likely to engage in further acts of sexual violence, and his mental abnormality had not changed to such an extent that it would be safe to place him in transitional release.
“The 2008 annual report was completed by DesLauriers, who had treated Burch since 2002. DesLauriers noted that Burch had a difficult year and failed to follow his treatment plan, resulting in his return to stage four. DesLauriers concluded that Burch remained a sexually violent predator who suffered from a mental abnormality making him likely to engage in further acts of sexual violence, and his mental abnormality had not changed to such an extent that it would be safe to place him in transitional release.
“Peterson’s report was also submitted to the district court. Peterson noted that Burch had been sexually abused as a child and that Burch now understood why he had developed a sexual disorder. Peterson suggested that Burch’s up and down progress was partially attributable to a treatment impasse as opposed to a resistance to treatment. Peterson concluded that Burch was unlikely to engage in further acts of sexual violence. However, Peterson’s report failed to expressly recommend that it would be safe to place Peterson in transitional release.” In re Care & Treatment of Burch, No. 102,468, 2010 WL 3324271, at *1-2 (Kan. App. 2010) (unpublished opinion).
Following a hearing in April 2008, the district court denied Burch’s November 2005 petition for discharge or transitional release. The Court of Appeals affirmed the district court’s decision, and this court granted Burch’s petition for review.
Analysis
Before considering the merits of this appeal, we find it helpful to first describe the unique statutory process at issue here.
Statutory background
The legislature enacted the SVPA to provide for long-term control, care, and treatment of sexually violent predators, as needed, as well as the public’s protection. K.S.A. 59-29a01. Under the SVPA, once an individual is deemed a sexually violent predator, the person “shall be committed to the custody of the secretary of social and rehabilitation services for control, care and treatment until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.” K.S.A. 2011 Supp. 59-29a07(a).
As part of that commitment, the detainee receives treatment in a seven-phase program. See In re Care & Treatment of Twilleger, 46 Kan. App. 2d 302, 308-09, 263 P.3d 199 (2011) (discussing the program phases). In Johnson v. State, 289 Kan. 642, 646-47, 215 P.3d 575 (2009), we summarized the SVPA treatment program:
“The first four phases comprise the intensive inpatient treatment portion of the program. . . .
“Before a resident can move to the final three phases of tire program—the transition phases—the resident must appear before a transition panel. The panel may either accept or reject tire recommendations of the treating staff. Once it is determined by the transition panel that the resident is ready to enter the phases of transition treatment, the resident enters Phase 5 where he or she is escorted at all times and introduced to a graduated series of experiences on the grounds of Osawatonrie State Hospital. From there, in Phases 6 and 7, the resident gradually becomes more independent by living in a cottage house on the grounds of Osawatomie, obtaining a job, attending outpatient therapy, and gaining conditional release for a minimum of 5 years.”
The final step of the program, phase seven, is transitional release. In this phase, die committed person remains in SRS custody but lives independently or in a hallway house under State supervision. See K.S.A. 2011 Supp. 59-29a02(i); In re Twilleger, 46 Kan. App. 2d at 308.
Under K.S.A. 2011 Supp. 59-29a08(a), the State has several obligations to anyone committed under the SVPA, including (1) to conduct an annual examination of the person’s mental condition; (2) to provide an annual written notice of the person’s right to petition the court for release over the Secretary’s objection, which shall contain a waiver of rights; and (3) to forward the annual report, as well as the annual notice and waiver form, to the court that committed the person. The committed individual also has rights under this section, including (1) the right to retain or, if indigent, to have appointed a qualified professional person to examine such person; and (2) to have such expert or professional person have access to all records concerning the person.
Once these obligations are met, K.S.A. 2011 Supp. 59-29a08(a) further provides that the court that committed the person must conduct an annual review of the status of the committed person’s mental condition. At this hearing, the committed person has the right to attorney representation but the person is not entitled to be present at the hearing.
Although the hearing provided under K.S.A. 2011 Supp. 59-29a08(a) is not an evidentiary hearing, subsections (c)(1) and (c)(2) outline two scenarios that warrant a further evidentiary hearing— one mandatory, the other discretionary. First, under 59-29a08(c)(l), if at the annual review hearing the court determines “probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release, then the court shall set a hearing on the issue.” (Emphasis added.) K.S.A. 2011 Supp. 59-29a08(c)(l).
In contrast, under 59-29a08(c)(2), the court may order a hearing if:
“(A) There is current evidence from an expert or professional person that an identified physiological change to the committed person, such as paralysis, stroke or dementia, that renders the committed person unable to commit a sexually violent offense and this change is permanent; and (B) the evidence presents a change in condition since the person’s last hearing.” (Emphasis added.) K.S.A. 2011 Supp. 59-29a08(c)(2).
If the court finds under either 59-29a08(c)(l) or (2) that the committed individual is entitled to a hearing, then the individual is granted an evidentiary hearing as described in K.S.A. 2011 Supp. 59-29a08(c)(3). “At either hearing, the committed person shall be entitled to be present and entitled to the benefit of all constitutional protections that were afforded the person at the initial commitment proceeding.” K.S.A. 2011 Supp. 59-29a08(c)(3). Further, at that hearing the State, represented by the attorney general, has the right to a jury trial and to have the committed person evaluated by the State’s chosen experts. Similarly, the committed person has the right to have his or her own experts evaluate the person or, if indigent, to have an expert appointed. Finally, the statute specifically provides that the burden of proof at this evidentiaiy hearing— regardless if it is warranted under either subsection (c)(1) or (2)— “shall be upon the state to prove beyond a reasonable doubt that the committed person’s mental abnormality or personality disorder remains such that the person is not safe to be placed in transitional release and if transitionally released is likely to engage in acts of sexual violence.” K.S.A. 2011 Supp. 59-29a08(c)(3).
Here, because Burch sought transitional release under 59-29a08(c)(l), the issue for the court at the annual review hearing was whether probable cause existed to believe Burch’s mental abnormality or personality disorder had so changed that he was safe to be placed in transitional release. Notably, even if the court had found such probable cause, Burch would not necessarily have been discharged or transitionally released. Instead, he would have been provided an evidentiary hearing under K.S.A. 2011 Supp. 59-29a08(c)(3).
Burch argues the district court erred in finding a lack of probable cause to believe his mental abnormality or personality disorder had so changed that he was safe to be placed in transitional release and the Court of Appeals panel erred in affirming that determination.
The district court properly found a lack of probable cause to believe Burch’s mental abnormality had changed to the extent that he was safe to be placed in transitional release.
Before considering the merits of Burch’s appeal, we must preliminarily determine (1) the standard of review to be applied to a district court’s finding of no probable cause under K.S.A. 2011 Supp. 59-29a08(c)(l), and (2) which party bears the burden of proof to show probable caitse at that hearing.
The panel properly concluded that a district courts probable cause determination under K.S.A. 2011 Supp. 59-29a08(c)(1) is subject to de novo review.
The Court of Appeals panel noted the absence of any caselaw determining the standard of review to be applied in reviewing “a district court’s denial of a full evidentiaiy hearing pursuant to an annual review petition under K.S.A. 2009 Supp. 59-29a08.” In re Burch, 2010 WL 3324271, at *3. The panel, however, concluded that a de novo standard of review applied. 2010 WL 3324271, at *3. Both parties appear to agree with that conclusion.
As the panel noted, the review of the probable cause determination under 59-29a08(c)(1) can be analogized to a K.S.A. 60-1507 proceeding in which a prisoner challenges his or her sentence. When the district court summarily dismisses a movant’s 60-1507 motion and thus denies the movant an evidentiaiy hearing, this court applies a de novo standard of review. See Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
Additionally, after the panel issued its opinion in this case, another Court of Appeals panel considered this same issue in In re Care & Treatment of Sipe, 44 Kan. App. 2d 584, 239 P.3d 871 (2010). There, as here, the petitioner argued the district court erred in concluding at his annual review hearing under 59-29a08(c)(1) that he had not established probable cause to believe that his mental abnormality or personality disorder had so changed that he was safe to be placed in transitional release.
The Sipe panel concluded that the probable cause determination made in a SVPA proceeding is comparable to the probable cause determination made at the preliminaiy hearing stage in a criminal proceeding, which an appellate court also reviews de novo. Further, the panel reasoned that because the district court’s probable cause determination at an annual review hearing under 59-29a08(c)(1) is based on expert reports and arguments of counsel, an appellate court is in the same position as the district court to determine whether the evidence is sufficient to establish probable cause. In re Sipe, 44 Kan. App. 2d at 590-91; see also In re Care & Treatment of Miles, 47 Kan. App. 2d 429, 434-35, 276 P.3d 232 (2012) (adopting Sipe panel’s reasoning regarding de novo review of probable cause determination under SVPA); In re Tioilleger, 46 Kan. App. 2d at 312 (same). Thus, the Sipe panel applied a de novo standard of review to its review of the district court’s probable cause determination under 59-29a08(c)(1).
We agree with the analysis of the Court of Appeals panel in this case as well as in Sipe, and therefore we will apply a de novo standard of review to the district court’s probable cause determination under K.S.A. 2011 Supp. 59-29a08(c)(1).
In petitioning for transitional release, Burch bore the burden to shoio probable cause that his mental abnormality had changed to the extent that he toas safe to be placed in transitional release.
K.S.A. 2011 Supp. 59-29a08(c)(1) does not explain who bears the burden of proof when the district court considers a committed person’s petition for discharge or transitional release at the annual review hearing, and the Court of Appeals did not consider which party bore the burden of proof. Instead, it simply concluded: “Considering the fact that the State’s four expert reports each specifically concluded that it would not be safe to place Burch in transitional release and Peterson’s report contained no explicit recommendation that it would be safe to do so,” the district court did not err in finding insufficient probable cause to grant Burch a full evidentiary review. In re Burch, 2010 WL 3324271, at *4.
However, in a Rule 6.09(b) (2011 Kan. Ct. R. Annot. 49) letter to this Court, Burch points out that the Court of Appeals panel in Sipe concluded the burden of proof at a 59-29a08 annual review hearing lies with the person seeking transitional release. Burch contends the district court and the panel erred in this case by failing to take the burden of proof into account in reviewing the evidence. Pie specifically suggests that as the person seeking transitional release, die burden of proof should be on him, and the court was thus required to view the evidence in a light most favorable to him. We agree.
As the Sipe panel pointed out, in a criminal proceeding the State bears the burden to prove it has probable cause to prosecute and, in considering the evidence, the district court reviews the evidence in the light most favorable to the State. 44 Kan. App. 2d at 592; see State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 (2000) (noting that a trial court must draw inferences favorable to the prosecution from the evidence presented at a preliminary hearing); State v. Bell, 268 Kan. 764, 765, 1 P.3d 325 (2000) (noting that a preliminary hearing judge faced with conflicting testimony “must accept the version of the testimony which is most favorable to the State”). Further, when the State appeals from a district court’s dismissal of a criminal prosecution for lack of px-obable cause, an appellate court reviews the evidence de novo, applying the same standards as did the district court. See State v. Fredrick, 292 Kan. 169, 171, 251 P.3d 48 (2011); Berg, 270 Kan. at 238.
Similarly, in an SVPA proceeding, the State initially must prove probable cause that the respondent is a sexually violent predator. See K.S.A. 59-29a05 (discussing initial probable cause determina tion under SVPA). And we have previously found the initial probable cause determination under the SVPA to be comparable to the probable cause determination in a criminal proceeding. In re Care & Treatment of Hay, 263 Kan. 822, 834, 953 P.2d 666 (1998).
But Burch has already been committed as a sexually violent predator and now seeks a finding from the district court that his mental abnormality or personality disorder has changed to the extent that he should be placed in transitional release. Because Burch seeks the affirmative of the issue—i.e., that the court find probable cause—it is logical to require him to bear the burden to prove his petition. See, e.g., In re K.E., 294 Kan. 17, 23, 272 P.3d 28 (2012) (noting that a movant generally bears the burden of proof on a motion); Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 412, 681 P.2d 1038 (1984) (citing “the general rule that the burden of proof is upon the party asserting the affirmative of an issue”).
Again, we agree with the Sipe panel which reasoned that “because a sexually violent predator bears the burden to establish probable cause at an annual review hearing, the district court must consider the evidence in the light most favorable to the committed person and resolve all conflicting evidence in that person’s favor.” In re Sipe, 44 Kan. App. 2d at 592. See also Berg, 270 Kan. at 238; Bell, 268 Kan. at 764-65.
Burch failed to show probable cause that his mental abnormality or personality disorder had changed to the extent that he was safe to be placed in transitional release.
Having determined that our standard of review is de novo and that Burch bore the burden to prove at his annual review hearing that probable cause existed to believe that his mental abnormality had so changed that he was safe to be placed in transitional release, we next consider the merits of Burch’s appeal.
The district court reviewed three reports—the 2007 State report, die 2008 State report, and Dr. Peterson’s report. Dr. Peterson’s report concluded, in part, that “Burch has a relevant mental disorder (mental abnormality) over which he must remain vigilant so as not to reoffend,” that Burch had a reduced likelihood of reoffending based on his new understanding of his own history of being sexually abused, and that Burch’s “new understanding means he has become so changed that he is unlikely to engage in acts of sexual violence.”
The State’s 2007 report generally stated that Burch had progressed through the program and had moved to phase five of the seven-phase program. The State’s 2008 report, however, noted Burch had withdrawn from some of his therapy and, as a result, he had been returned to phase four of the program. And in contrast to Dr. Peterson’s report, each of the two State reports concluded Burch remained a sexually violent predator who suffered from a mental abnormality, making him likely to engage in further acts of sexual violence.
In finding Burch failed to establish probable cause, the Court of Appeals panel emphasized that Dr. Peterson’s report did not explicitly recommend that Burch was safe to be placed in transitional release. In re Burch, 2010 WL 3324271, at *4. Instead, Dr. Peterson’s report concluded Burch had recently reached a “new understanding” of the relationship between his childhood sexual abuse and his adult sex crimes. Because of this new understanding, the report concluded Burch had “become so changed that he is unlikely to engage in acts of sexual violence.”
But contrary to the panel’s implication, a finding of probable cause does not necessarily require that the petitioner proffer a recommendation containing the exact words used by the statute. Instead, in order to establish probable cause, Burch was required to show that when viewed in the light most favorable to him, the facts presented at the hearing were sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that Burch’s mental abnormality or personality disorder had so changed that he was safe to be placed in transitional release. See In re Sipe, 44 Kan. App. 2d at 592-93.
Nevertheless, even viewing the evidence under this standard, we agree with the panel’s conclusion that the evidence was insufficient to show probable cause with respect to both of the statutory requirements. Specifically, our examination of Peterson’s report reveals that it fails to establish probable cause that (1) Burch’s mental abnormality or personality disorder had changed; and (2) it had changed to such a degree that he was safe to be placed in transitional release.
Peterson’s report concluded that Burch’s actions were consistent with the clinical definition of pedophilia, although he opined that his actions “are more consistent with Paraphilia NOS [not otherwise specified].” In addition, Peterson diagnosed Burch with po-lysubstance dependence in “Sustained Full Remission”; “Personality Disorder NOS ... with Antisocial, Borderline, and Dependent features”; and a “developmental Reading Disorder.”
In the final section of his report, entitled Relevant Mental Disorder, Peterson concludes that “Burch has a relevant mental disorder (mental abnormality) over which he must remain vigilant so as not to reoffend.” He also suggests that Burch’s understanding of the contributions of his childhood sexual'abuse “reduces the likelihood that he will reoffend.’-’ Finally, he suggests that “[e]ven in view of [Burch’s] obstreperous style, that new understanding means he has become so changed that he is unlikely to engage in acts of sexual violence.” (Emphasis added.)
While Burch would like this court to equate Peterson’s opinion that he is unlikely to engage in acts of sexual violence with an opinion that he is “safe to be placed in transitional release,” we simply cannot do so in light of significant omissions in Peterson’s opinion. Specifically, Peterson’s report fails to specify if Peterson’s diagnosis of pedophilia or paraphilia or any other “mental abnormality or personality disorder” has changed such that Burch is safe to be placed in transitional release. See K.S.A. 2011 Supp. 59-29a08(c)(3). Instead, Peterson simply concludes “he has become so changed.” (Emphasis added.)
We find Peterson’s failure-to mention any change in Burch’s primary diagnosis significant, particularly when contrasted with evidence presented in other cases. For instance, in Miles the Court of Appeals concluded there was probable cause for a transitional release hearing because two expert reports stated that Miles no longer met tire definition of a pedophile. In re Miles, 47 Kan. App. 2d at 440-41. And in Sipe, the report stated that the petitioner had “no "significant psychological disorder’ ” and- included an explicit recommendation for transitional release. In re Sipe, 44 Kan. App. 2d at 594. Unlike die expert reports in Miles and Sipe, Peterson’s report concludes that Burch still suffers from a psychological disorder.
Moreover, Peterson’s report not only fails to indicate Burch is “safe” to be placed in transitional release, the remainder of the report seems to steer away from such a conclusion. For instance, Peterson opines that Burch must “remain vigilant so as not to reof-fend” and that Burch “does not appear currently predisposed to commit acts of sexual violence.” (Emphasis added.) Additionally, Peterson’s report recognizes that Burch had reached an impasse in treatment.
Burch points out that Peterson’s report also cautioned that a treatment impasse “is not the same as resisting treatment.” Nevertheless, Burch fails to recognize that Peterson confirmed this treatment impasse could “lengthen [Burch’s] lack of eligibility to Transition House.”
Under these circumstances, we must conclude that Peterson’s report, even when viewed in a light most favorable to Burch, would not cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that Burch’s mental abnormality or personality disorder had so changed that he was safe to be placed in transitional release. Therefore, as the Court of Appeals concluded, the district court did not err in concluding Burch was not entitled to an evidentiary hearing under K.S.A. 2011 Supp. 59-29a08(c)(l).
Finally, we note that in his pro se petition for review, Burch argues the district court should have granted him an evidentiary hearing under K.S.A. 2011 Supp. 59-29a08(c)(2)(B). But it appears Burch misreads that section to permit the court to conduct an evidentiary hearing if there is any evidence that “presents a change in condition since the person’s last hearing.” See K.S.A. 2011 Supp. 59-29a08(c)(2)(B). As discussed above, a thorough reading of the statute reveals that K.S.A. 2011 Supp. 59-29a08(c)(l) requires the court to conduct an evidentiary hearing if the requirements of that subsection are met. In contrast, K.S.A. 2011 Supp. 59-29a08(c)(2) permits tire district court to conduct an evidentiary hearing if two conditions are met: “(A) There is current evidence from an expert or professional person that an identified physiological change to the committed person . . . renders the committed person unable to commit a sexually violent offense . . . ; and (B) the evidence presents a change in condition since the person’s last hearing.” (Emphasis added.)
It appears that Burch interprets K.S.A. 2011 Supp. 59-29a08(c)(2)(B) as a separate, stand-alone provision permitting the district court to order an evidentiary hearing when there is any change in condition since the person’s last hearing. But because Burch fails to suggest that the condition set forth in (c)(2)(A) applies, we conclude the district court had no discretion to grant a hearing under K.S.A. 2011 Supp. 59-29a08(c)(2).
For all of tírese reasons, we affirm the Court of Appeals’ decision affirming the district court’s determination that Burch failed to show probable cause to believe his mental abnormality or personality disorder had so changed that he was safe to be placed in transitional release.
Affirmed. | [
17,
-20,
-35,
-82,
27,
97,
10,
124,
73,
-125,
101,
115,
-91,
98,
4,
123,
-62,
125,
109,
113,
-35,
-73,
71,
-63,
-2,
-6,
96,
87,
-13,
79,
-12,
-108,
90,
-16,
-110,
117,
98,
-118,
-99,
-40,
-114,
7,
-104,
-48,
-47,
65,
32,
107,
90,
7,
53,
127,
-109,
46,
92,
-49,
105,
44,
91,
-83,
-48,
-79,
-87,
21,
73,
36,
-93,
-96,
60,
4,
80,
47,
-98,
57,
0,
-23,
115,
22,
-126,
117,
67,
29,
-123,
103,
98,
33,
13,
-28,
-84,
-32,
-113,
31,
-97,
-90,
-103,
88,
67,
101,
-122,
-67,
124,
54,
47,
120,
-25,
-42,
63,
-20,
-100,
-122,
-34,
-109,
-49,
53,
-114,
-15,
-9,
-83,
0,
37,
-97,
-28,
84,
-41,
120,
-101,
-2,
-74
] |
The opinion of the court was delivered by
Biles, J.:
This is a medical malpractice case challenging jury instructions used at trial. Keely Foster, a minor, and her parents, Kim and Kevin Foster, sued Dr. Michelle Klaumann, a pediatric orthopedic surgeon, for injury to a nerve in Keely’s leg during a surgery to remove tumors. The jury unanimously found Klaumann not at fault. A divided Court of Appeals panel reversed, and remanded for a new trial. We consider: (1) whether it was error to instruct the jury on both a general physician standard of care and a specialist standard of care when the parties do not dispute Klau-mann is a specialist; and (2) whether the “best judgment” instruction improperly suggests that a physician’s subjective beliefs should be considered when establishing negligence because it states the physician has a right to use his or her best judgment when determining the course of treatment.
Although we suggest improvements should be made to the standard PIK instructions from which those instructions were taken, we hold that reversal is not required. We reverse tire Court of Appeals and affirm the district court based on the jury’s verdict for the doctor.
Factual and Procedural Background
Keely has multiple hereditary exostosis, a condition causing os-teochondromas or bone tumors to grow around the ends of the long bones. The osteochondromas stop forming once a child matures, and most tumors are benign. But they can cause permanent conditions such as pain, loss of motion, deformity, or joint alignment problems.
Klaumann began treating Keely in 1999 when Keely was 5 years old. For the first 6 years, the doctor monitored Keely’s condition with periodic examinations and X-rays to track the size and location of any osteochondromas.
In March 2005, Klaumann recommended surgery because-Keely was experiencing consistent pain in an area .without much soft tissue and those symptoms could relate to a bursa deformity or nerve irritation. Keely’s mother; Kim Foster, agreed to surgeiy. But the parties disputed which tumors she and the doctor agreed would be removed.
Klaumann testified she planned to excise four tumors with two incisions—Two tumors on the distal femur, the hook-shaped osteo-chondroma between the tibia and the fibula, and one on the prox imal fibula. But Keely s mother testified that she agreed only to removing two tumors, which she described as “one on top of her leg and then one on the inside of her leg, just below the knee.” A note from KlaumamTs office in March 2005 summarized the surgery as: “[Kim] would like to have the femoral and proximal fibular osteochondromas removed. This will be done after school is out in late May.”
On the day of surgery in May, Klaumann met with Keely’s parents, and the scope of the surgery changed. But again the two sides dispute what tumors the parties agreed were to be removed. The Fosters contend the incision endangering the nerve was added tire day of surgery, while Klaumann claims the incision added could not have caused the nerve damage that occurred.
After the procedure, Keely experienced foot drop in her left foot. She could not extend her left toes and had numbness. In the following weeks, Keely was still unable to move her foot up (dorsi-flexion) or out (eversion). Dorsiflexion is controlled by the deep peroneal nerve, and eversion is controlled by the superficial per-oneal nerve. Keely underwent a second surgery with Dr. Rahul Nath, a surgeon specializing in complex nerve injuries, to attempt to restore function in her foot. Keely’s peroneal nerve function had not improved 1 year after the second surgery. According to Nath, it is unlikely to return.
Keely s parents filed suit individually and on behalf of their daughter, alleging Klaumann committed medical malpractice. In the pretrial conference order, the Fosters alleged Klaumann violated the applicable standard of care by: (1) failing to.give and document an appropriate informed consent; (2) failing to document there was an appropriate indication for surgical removal of the osteochondromas removed during surgery; (3) failing to comply with the standard of care by not identifying the neurovascular structures in order to avoid nerve injury during surgery; (4) transecting the deep peroneal nerve and injuring her superficial and/ or common peroneal nerve; (5) failing to recognize and/or report that she transected and injured the nerve during surgery so that Keely could receive prompt specialty consultation; and (6) failing to properly and timely diagnose and treat Kelly s postoperative neurologic injury and to refer Keely to a specialist.
The Jury Instructions
During trial, both parties agreed regarding the surgical claims that Klaumann held herself out as a specialist, so the specialist standard of care instruction, PIK Civ. 4th 123.12, should be issued. But at the juxy instruction conference, the parties disputed whether the general physician standard of care instruction from PIK Civ. 4th 123.01 and best judgment instruction from PIK Civ. 4th 123.11 also should be given. The Foster s argued neither was appropriate, while Klaumann argued both were required.
The district court agreed with the doctor. It held the general physician standard of care instruction should be issued because the Fosters’ informed consent claim was a general duty as a matter of law. The district court judge further stated, “I think the courses of treatment in this case [are] a . . . gray area mixed between both [the specialist and the general physician standards of care] and that there is sufficient evidence in order to argue that there’s been the [applicable] standard presented by both sides.”
Regarding the best judgment instruction, the district court held that it should be given because there was testimony on different courses of treatment. It defined those as the expansion of the surgery and “the recommendation as to whether to do one incision, two incisions, each of those variations is a course of treatment.” After further argument, the court stated that it might not have given the instruction if the only issue was whether to do the surgery or not, but “the evidence that [the Fosters] presented has to do [with] and was directed toward the change between what [the Fosters] thought was going to happen ... in March and what the defendant came in and said let’s do in May.” The district court explained further that the jury should be given the best judgment instruction because Klaumann went from two incisions to three.
Verdict and Posttrial Motions
The Fosters’ claims were submitted to the jury, which unanimously found the doctor was not at fault. The Fosters argued for new trial based on numerous claimed errors, including the district court’s issuing the general physician standard of care and best judgment instructions. The district court denied tire motion.
Regarding the two claimed jury instruction errors, the court observed the PIK Notes on Use approve instructing the jury on both the general physician and specialist standards of care when both are appropriate. (See PIK Civ. 4th 123.11, Notes of Use: “If there is a dispute as to which standard is applicable in light of tire evidence in tire case, both instructions should be given, with the appropriate modifications ... if necessaiy to avoid confusion for the jury;” PIK Civ. 4th 123.01, Notes on Use [similar statements].). The court also reiterated the best judgment instruction was appropriate “given the issue of how one would treat the number of incisions and the number of osteochondromas to be removed at the time of surgery [and] given that there was a long time while everybody knew that the osteochondromas were there but surgery was not indicated or arguably not indicated.”
At the Court of Appeals, tire Fosters again argued numerous trial errors, including that it was improper to issue the general physician standard of care instruction and the best judgment instruction. They contended these instructions could have misled the jury. A divided Court of Appeals agreed, reversing and remanding the case for a new trial. Foster v. Klaumann, 42 Kan. App. 2d 634, 216 P.3d 671 (2010).
The panel’s majority held that the best judgment instruction could have improperly focused the jury on Klaumann’s subjective beliefs in determining the appropriate treatment, instead of basing its decision on the objective standard of care. 42 Kan. App. 2d at 666. And as to the standard of care instructions, the majority concluded the district court should have modified the instructions to inform the juiy this claim was governed by the lower standard of care. It held the failure to make those modifications could have misled the juiy and required reversal. 42 Kan. App. 2d at 652-54.
Judge G. Joseph Pierron dissented on both instruction issues. He found that issuing the general physician standard of care instruction could not have misled the juiy because “[a]t worst it is surplusage.” 42 Kan. App. 2d at 691. He also indicated the majority panel overlooked cited Kansas caselaw approving the best judgment instruction, noting “there is nothing to indicate that Kansas appellate court approval of the instruction had waned.” 42 Kan. App. 2d at 691-92.
Klaumann petitioned this court for review of the two juiy instruction issues. Our jurisdiction arises under K.S.A. 20-3018(b) (review of Court of Appeals decision).
Analysis
The Fosters argue two erroneous juiy instructions require reversal and remand for a new trial. First, they assert the district court could have confused or misled the jury by giving both the general physician and specialist standard of care instructions from PIK Civ. 4th 123.01 and PIK Civ. 4th 123.12. They argue that only PIK Civ. 4th 123.12 should have been issued because it establishes the specialist standard of care applicable to all their claims. Second, they argue the district court erred by giving PIK Civ. 4th 123.11 (Physician’s Right to Elect Treatment to be Used). The parties and some caselaw refer to this as the “best judgment” instruction. We adopt that terminology for this case even though it does not capture all of the instruction’s substance.
Standard of Review
This court recently held that its prior decisions applied an “imprecise” standard of review for jury instruction issues and set forth an analytical framework with accompanying standards of review to promote greater consistency. State v. Plummer, 295 Kan. 156, 160, 283 P.3d 202 (2012). We now implement the following four-step process:
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, tire court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and de gree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” Plummer, 295 Kan. 156, Syl. ¶ 1.
Under step one, the Fosters objected to both instructions at trial, preserving these issues for appeal. Under steps two and three, trial courts are required to give an instruction supporting a party’s theory of the case if “tire instruction is requested and there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence.” Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 419, 228 P.3d 1048 (2010). Because two different instructions are challenged, we examine steps two through four in the sections related to each instruction.
A. The General Physician Standard of Care Instruction
To establish medical malpractice, a plaintiff must show: (1) the health care provider owed the patient a duty of care, which required that tire provider meet or exceed a certain standard of care to protect the patient from injuiy; (2) the provider breached that duty or deviated from the standard of care; (3) the patient was injured; and (4) the injury proximately resulted from the health care provider’s breach of the standard of care. Miller v. Johnson, 295 Kan. 636, Syl. ¶ 15, 289 P.3d 1098, (2012).
The duty of care owed by all physicians, regardless of the particular medical specialty in which a physician practices, is to exercise reasonable and ordinary care and diligence. But the particular decisions and acts required to satisfy that duty of care vary, i.e., the required skill depends on the patient’s situation and the physician’s medical specialty, if applicable. What constitutes negligence in a particular situation is judged by the professional standards of the particular area of medicine involved. Durflinger v. Artiles, 234 Kan. 484, 490, 673 P.2d 86 (1983), disapproved on other grounds by Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995).
PIK Civ. 4th 123.01 (Duty of Health Care Provider) and PIK Civ. 4th 123.12 (Duty of Medical Specialist) are intended to inform the jury about the applicable standards of care. Both were issued in this case. As given, the more general physician standard of care instruction stated:
“In performing professional services for a patient, a physician has a duty to use that degree of learning and sldll ordinarily possessed and used by members of that profession and of that school of medicine in which the physician practices and under like circumstances. In the application of this sldll and learning the physician should also use ordinary care and diligence. A violation of this duty is negligence.
“A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the injury or damages for which claim is made.”
The specialist standard of care instruction stated:
“A surgeon who holds herself out to be a specialist in a particular field of medicine must use her sldll and knowledge as a specialist in a manner consistent with the special degree of sldll and knowledge ordinarily possessed by other specialists in the same field of expertise at the time of the treatment and diagnosis. A violation of this duty is negligence.
“A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the injury or damages for which claim is made.”
The only modification from the standard PIK instructions was the addition of the second paragraph for both instructions. And the parties agree this addition was appropriate because it explained tire causation element for the medical malpractice claim.
The Fosters have consistently argued that all claims are governed by die specialist standard of care. And based on that, they argue the specialist instruction, PIK Civ. 4th 123.12, applied. Klaumann has never disputed that at least some of the Fosters' medical malpractice claims were governed by the specialist standard of care. Thus, under our new framework, the parties agree the specialist instruction was both legally appropriate and factually supported under steps two and three of the jury instruction analysis. The parties dispute whether it was proper to issue the general physician standard of care instruction, PIK Civ. 4th 123.01.
Since the Fosters contend the specialist standard of care is the only standard applicable to their claims, they argue it was improper to issue the general physician standard of care instruction. This was initially a disputed point because Klaumann maintained to the district court and the Court of Appeals that the general physician standard of care governed the informed consent claim. And based on that, Klaumann argued the general physician standard of care instruction was both legally appropriate and factually supported.
During the jury instructions conference, Klaumann said the informed consent claim was governed by the general physician standard of care because all physicians are required to get informed consent, stating:
“I did not pick up during the trial that the duty for informed consent was a duty that’s limited to specialists. I mean that is a duty that common malpractice law in Kansas applies to every single physician. Indications for treatment alternatives, that sort of thing are things that all physicians do and all physicians have a duty to do. Where it gets into tire specialty is because we’re doing a surgery and we acknowledge that surgery is implicated . . . and [it] would be appropriate to give the instruction on the specialist because of that surgery.”
Klaumann repeated this argument in her brief to the Court of Appeals, where she stated: “The district court in this case correctly noted that the informed consent claim could, and in this case should, be subject to a generalist instruction.”
Notably, both lower courts adopted Klaumann’s argument that the informed consent claim was governed by the general physician standard of care. But her argument changed in her briefs to this court.
Klaumann now argues that “[wjhile counsel and the court may have believed the [general physician standard of care from PIK Civ. 4th] 123.01 applied to the informed consent claims, there was no dispute in the evidence that [Klaumann] was a specialist.” And she criticizes the Court of Appeals for concluding that the evidence was confusing as to whether the general physician standard of care or the specialist standard of care should be applied to the Fosters’ informed consent claim, stating: “All standard of care testimony was given by specialists and pertained to a specialist. ... No one offered testimony about what a general physician would be expected to do in the context of Keely Foster’s surgery.” Finally, during oral argument to this court, Klaumann argued the general physician standard of care instruction was appropriate because it is a prelude to the specialist instruction and shows tire jury the specialist standard of care applies to the Fosters’ claims.
Under our analytical framework for deciding jury instruction issues, these concessions eliminate our need to determine whether the general physician standard of care instruction was legally appropriate under step two or whether it was supported by the evidence in step three. Klaumann agrees that all of the Fosters’ claims are governed by the specialist standard of care. This admission focuses our inquiry on step four to consider whether it was harmless error to issue the general physician standard of care instruction when all the evidence established the standard of care of a specialist.
In State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012), we held:
“[B]efore a Kansas court can declare an error harmless it must determine the error did not affect a party’s substantial rights, meaning it will not or did not affect the trial's outcome. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether the error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial’s outcome, i.e., there is no reasonable possibility that the error contributed to die verdict. If a right guaranteed by the United States Constitution is not implicated, a Kansas court must be persuaded that there is no reasonable probability that tire error will or did affect the outcome of the trial.”
Based on the language from our decisions predating Plummer, Klaumann argues issuing both instructions could not have misled the jury because the general physician standard of care instruction compliments the specialist instruction by establishing that Klau-mann must be held to the higher standard of care of a specialist. For this, Klaumann relies on Douglas v. Lombardino, 236 Kan. 471, 693 P.2d 1138 (1985).
In that case, Patricia.Douglas died following administration of a local anesthetic for a Caesarean section. Her family sued the anesthesiologist for medical malpractice, arguing inappropriate administration of the anesthetic and subsequent incorrect and substandard behavior caused Douglas’ death. The anesthesiologist denied negligence, arguing Douglas died from an adverse drug reaction. Both the general physician and specialist standard of care instructions were submitted to tire jury. Plaintiffs argued the in structions could mislead the jury because the only trial evidence indicated the anesthesiologist was a specialist.
The Douglas court held that the specialist instruction more clearly defines the specialist’s duty, but the two instructions were not inconsistent. 236 Kan. at 479. And since there was no dispute the anesthesiologist was a specialist and all standard of care testimony was clearly related to a specialist’s standard, this court concluded the jury could not have been confused. 236 Kan. at 479-80. But in doing so this court cautioned that giving both instructions could be confusing—if there had been a dispute in the evidence as to whether the anesthesiologist was a specialist. 236 Kan. at 480. The Douglas court also held that submitting the general physician standard of care instruction “gave the jury a frame of reference so they could see [the anesthesiologist] was being held to a higher degree of care than a general practitioner.” 236 Kan. at 480.
The Fosters urge us to overrule Douglas. And the Court of Appeals majority decision criticized the conclusion in Douglas that also giving the general physician standard of care instruction provided a frame of reference for the specialist instruction, stating it was “a subtlety not warranted by the law.” Foster, 42 Kan. App. 2d at 652. The panel also implied that Douglas is inconsistent with Simpson v. Davis, 219 Kan. 584, 587, 549 P.2d 950 (1976). Foster, 42 Kan. App. 2d at 652 (“It is noteworthy that unmentioned in Douglas is tire case of Simpson v. Davis.”).
In Simpson, a dentist dropped a device down the patient’s throat during a procedure designed to eliminate complications following a root canal. The patient swallowed the device, causing numerous problems including puncturing her stomach. Dentists are held to the same objective standard of care as physicians. See 219 Kan. at 587. And this dentist had told the patient that root canal work was a specialized field that he was capable of performing. The jury was instructed that the dentist undertook the duty of a specialist by agreeing to perform the work and had the duty to use tire care and skill of a specialist. This court affirmed the determination that the dentist was acting as a specialist under these circumstances, stating:
“It is tlie generally accepted rule that a physician or surgeon or dentist who holds himself out to be a specialist is bound to bring to tlie discharge of his professional duties as a specialist that degree of skill, care and learning ordinarily possessed by specialists of a similar class, having regard to the existing state of knowledge in medicine, surgery and dentistry, that is, a higher degree of skill, care and learning than that of the average practitioner. [Citations omitted.]” 219 Kan. at 587.
But Simpson merely confirms what the parties have conceded— that Klaumann, as a specialist, must be held to the standard of care of a specialist. So the question remains whether issuing the general physician standard of care instruction was erroneous when the only trial evidence established tire standard of care of a specialist.
We decline to overrule our Douglas decision as the Fosters request. Issuing the general physician standard of care instruction could not have affected the trial’s outcome because the only standard of care evidence presented was that of a specialist. In this context, these instructions are not necessarily inconsistent. The general physician instruction informs tire jury that physicians have a duty to use a certain degree of skill and the skill level required is based on an objective standard developed by physicians practicing in the same field. The specialist instruction then reiterates that a higher degree of skill is required for specialists and the objective standard is established by other specialists.
We also agree with Judge Pierron’s dissent stating that the general physician standard of care instruction was at worst superfluous in this context. See Foster, 42 Kan. App. 2d at 691. Nevertheless, this is not a ringing endorsement for giving both instructions.
These instructions could be improved upon, and we encourage the PIK Committee to revisit them. One problem is that the PIK instructions do not suggest how to modify the PIK instructions to identify what claims may be governed by different standards of care. Quite possibly, that sort of ambiguity led to Klaumann’s change of heart regarding the standard of care applicable to the informed consent claim on appeal. And while this may provide greater flexibility for appellate argument, it does not provide clarity to jurors.
There is a second problem because several other PIK instructions, including tire best judgment instruction discussed below, reference the applicable standard of care. And as demonstrated in this case, that practice can lead to inconsistencies within the jury instructions as a whole because the other instructions are not always modified to reflect the standard of care instructions issued.
B. The “Best Judgment” Instruction
PIK Civ. 4th 123.11, which the parties refer to as the “best judgment” instruction, was also issued over the Fosters’ objection. The PIK instruction was not modified, but the parties designated Klau-mann as a specialist where applicable. The jury was instructed:
“Where, under the usual practice of the profession of the defendant, Michelle Klaumann, M.D., different courses of treatment are available which might reasonably be used, the orthopedic surgeon has a right to use her best judgment in die selection of the choice of treatment.
“However, the selection must be consistent widi the skill and care which other orthopedic surgeons practicing in the same field of expertise would use in similar circumstances.”
The Fosters argue the instruction is misleading because it emphasizes Klaumann’s subjective “best judgment” in violation of the objective standard of care applicable to the medical malpractice claims. Under our analytical framework for jury instruction issues, this is a challenge under the second step because the Fosters allege the instruction is legally infirm in that it does not fairly and accurately state the applicable law. See Plummer, 295 Kan. at 161. In the alternative, if this court is unwilling to disapprove of the instruction as written, the Fosters contend it was inappropriate under these facts because surgeiy was the only possible course of treatment. This is a challenge under the third step because the Fosters allege the instruction is not supported by the particular facts of the case at bar. 295 Kan. at 161-62.
In contrast, Klaumann counters that the instruction’s language is appropriate because the second paragraph carefully maintains the objective standard of care. She argues the best judgment instruction was required because the treatment options were to have surgeiy or do nothing surgically and “apply medical management only.” And as an alternative, the doctor argues any error with the instruction was harmless and does not require reversal.
The district court issued the best judgment instruction after finding there was testimony on different courses of treatment. It defined those as the expansion of the surgery between March and May and the recommendation whether to use one incision or two. The Court of Appeals reversed, holding the instruction should not be issued in cases like this when the jurors must resolve complex factual issues before determining whether the standard of care was violated. Otherwise, the Court of Appeals said the instruction could mislead jurors to improperly consider the physician’s subjective intent or belief. Foster, 42 Kan. App. 2d at 663-64.
But almost all medical malpractice cases require jurors to resolve complex factual issues, so this should not be the determinative criterion. We address whether the best judgment instruction fairly and accurately states the law.
PIK Civ. 4th 123.11 derives from a jury instruction this court approved in Natanson v. Kline, 186 Kan. 393, 399, 350 P.2d 1093, reh. denied 187 Kan. 186, 354 P.2d 670 (1960). Natanson is the first Kansas case recognizing a physician’s duty to obtain informed consent and to define tire parameters of that duty. See Funke v. Fieldman, 212 Kan. 524, 530-31, 512 P.2d 539 (1973). In Natanson, a breast cancer patient sued tire hospital and a physician in charge of the radiology department for injuries sustained during radiation therapy that the patient alleged was administered in an excessive amount. The physician opted to use a newer and harsher procedure involving radioactive cobalt rather than an older method of X-rays. The plaintiff alleged she was not informed about the alternatives or potential consequences from the radioactive cobalt treatment. This court approved the following instruction in dicta:
“ ‘The law does not require that treatments given by a physician to a patient shall attain nearly perfect results. He is not responsible in damages for lack of success or honest mistakes or errors of judgment unless it be shown that he did not possess that degree of learning and skill ordinarily possessed by radiologists of good standing in his community, or that he was not exercising reasonable and ordinary care in applying such skill and learning to the treatment of the patient. And if among radiologists more than one method of treatment is recognized, it would not be negligence for the physician to have adopted any of such methods if the method he did adopt was a recognized and approved method in the profes sion at the time and place of treatment.’ ” (Emphasis added.) Natanson, 186 Kan. at 399.
The comments to PIK Civ. 4th 123.11 cite Natanson as support for issuing the instruction, but there are some notable differences. The instruction approved in Natanson instructed the jury that it is not negligence if a physician adopts one recognized and approved method in the profession over another. PIK Civ. 4th 123.11 does not focus the juiy on what is (or is not) medical malpractice. Instead, the first paragraph of the PIK Civ. 4th 123.11 instruction informs the juiy the physician has a “right” to use his or her best judgment in selecting the choice of treatment. And this language appears to derive from some of this court’s other early medical malpractice caselaw defining the physician’s contractual duty when the cause of action arose in contract.
At that time, the law stated that a physician did not warrant a cure, unless the doctor entered a special contract for that purpose. But, that caselaw continued to state the doctor’s contract of service did imply by law or impliedly warranted the following duties of care:
“that [the doctor] possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by others of [the doctor’s] profession; that [tire doctor] will use reasonable and ordinary care and diligence in the treatment of the case which [the doctor] undertakes; and that [the doctor] will use [the doctor’s] best judgment in all cases of doubt as to the proper course of treatment.” Teft v. Wilcox, 6 Kan. 46, 61(1870).
This language filtered through Kansas caselaw after medical malpractice claims began arising in tort. It was simply characterized as the legal duty underlying the negligence claim. See, e.g., Durflinger v. Artiles, 234 Kan. 484, Syl. ¶ 3, 673 P.2d 86 (1983); Goheen v. Graber, 181 Kan. 107, 112, 309 P.2d 636 (1957); Paulich v. Nipple, 104 Kan. 801, 805,180 P. 771 (1919). More recently, this language was cited again in Smith v. Welch, 265 Kan. 868, 881, 967 P.2d 727 (1998).
In Smith, the plaintiff was injured during an automobile accident, and she sued the driver. During that litigation, she submitted to a medical exam by the defendant’s medical expert. She alleged she was asked personal and inappropriate questions and sexually battered by the doctor during the exam. She sued the doctor for negligence. In defense, the doctor argued a physician conducting a medical exam for litigation purposes does not have a physician-patient relationship and did not have a duty to avoid negligently injuring the person examined. In defining a normal physician-patient relationship, the Smith court held:
“A physician is obligated to his or her patient to use reasonable and ordinary care and diligence in the treatment of cases the physician undertakes, to use his or her best judgment, and to exercise that reasonable degree of learning, ski]], and experience which is ordinarily possessed by other physicians. [Citation omitted.]” 265 Kan. at 881.
Klaumann interprets Smith as approving PIK Civ. 4th 123.11. And the Court of Appeals cited Smith as authority for issuing the best judgment instruction in Hibbert v. Ransdell, 29 Kan. App. 2d 328, 334, 26 P.3d 721, rev. denied 272 Kan. 1417 (2001). There, the physician discovered an ovarian cyst during an exam and recommended the patient undergo surgery only if an abnormality was discovered by a laparoscopy. The cyst was obscured during the procedure, but the physician found and surgically removed it, later causing incontinence and painful urinary tract infections. Testimony was introduced that the physician should not have immediately recommended surgeiy but, instead, should have monitored the cyst for 5-6 weeks to see if it resolved itself. If it did not resolve itself, the argument continued, the physician should have tried an oral contraceptive before surgery. The best judgment instruction was issued. The patient argued on appeal the instruction injected a subjective standard for determining negligence in addition to potentially confusing the jury into believing the standard of care turned on whether the doctor tried his best.
The Hibbert court concluded the patient’s criticism of the best judgment instruction was not “entirely without merit,” but it held the instruction was substantially correct and could not have misled tire jury. 29 Kan. App. 2d at 334. It characterized the instruction as being not “particularly misleading” because it still instructed the jury that the physician’s judgment must be consistent with the skill and care of other specialists. 29 Kan. App. 2d at 332. It also noted that the instruction was based directly on the applicable PIK in struction and “our Supreme Court has strongly recommended the use of [PIK] instructions and appears to have accepted the best judgment language as a proper statement of the physician’s duties” in Smith, 265 Kan. at 881-82. Hibbert, 29 Kan. App. 2d at 334.
While this court did approve the best judgment language in Smith as a legally correct statement, it was not addressing whether that language was appropriate for a jury instruction. We decline to stretch Smith beyond its boundaries. There can be accurate statements of the law that do not help the juiy perform its function. To be sure, the instruction at issue in Natanson does a better job of focusing tire jury on the issue before it—whether the physician committed malpractice—than the language in PIK Civ. 4th 123.11, which states that a physician has a “right” to exercise his or her best judgment when picking a course of treatment.
We strongly encourage future litigants and the PIK-Civil Advisory Committee to reexamine the instruction using this phraseology. But we are not convinced the instruction as a whole misstates the law, principally because tire second paragraph directs the jury back to the correct standard of care.
The Fosters cite numerous cases from other jurisdictions declaring those jurisdictions’ version of the best judgment instruction improper because such an instruction suggests that the physician’s exercise of his or her best judgment precludes a finding of negligence, instead of focusing the determination on whether the physician chose a method approved by the profession. For example, in Das v. Thani, 171 N.J. 518, 529, 795 A.2d 876 (2002), tire New Jersey Supreme Court criticized the following instruction because it did not make clear to the jury that the “ "selection of an alternative that is objectively unreasonable would violate the doctor’s duty of care to the patient.’ ” The instruction stated in part:
“ ‘When the accepted standards of medical practice permit two or more courses of action and the physician in the exercise of his judgment selects one of those alternatives, he cannot be found negligent if the course chosen produces a poor result.’ ” 171 N.J. at 526.
This New Jersey instruction is distinguishable from PIK Civ. 4th 123.11 because, unlike the Kansas instruction, it does not contain the second paragraph that references the objective standard of care. See also Parodi v. Washoe Medical Ctr., 111 Nev. 365, 370-71, 892 P.2d 588 (1995) (holding that “error-in-judgment” instruction given “may confuse jurors into focusing on the health care provider s subjective intentions and judgments rather than on the real issue of whether the health care provider s conduct conformed to an objective standard of care”).
In summary, we hold that PIK Civ. 4th 123.11 does not misstate the law because the second paragraph directs the jury to the objective standard of care, clarifying any potential confusion caused by referencing a physician’s right to use the doctor’s best judgment. Moreover, the PIK Civ. 4th 123.11, Notes on Use indicate the Duty of Health Care Provider and/or Medical Specialist instructions “must also be given,” depending on which standard of care applies. And those instructions were issued here.
Finally, we must determine whether the best judgment instruction was appropriate under the facts in this case. Klaumann’s principal argument is that the instruction was required because the treatment options were to have surgery or do nothing surgically and “apply medical management only.” The Fosters argue it was error to give tire instruction because Keely’s injury did not occur as a result of Klaumann choosing one method of surgery over another. They note Keely was injured during surgery, citing Kostel v. Schwartz, 756 N.W.2d 363 (S.D. 2008).
In Kostel, a physician expanded the scope of surgery once it commenced because he found additional pathology requiring treatment during the surgery. The physician requested an “ ‘error in judgment’ ” instruction, which stated:
“ ‘A physician is not necessarily negligent because the physician errs in judgment or because efforts prove unsuccessful. The physician is negligent if the error in judgment or lack of success is due to a failure to perform any of the duties as defined in these instructions.’ ” 756 N.W.2d at 380.
The South Dakota Supreme Court held this instruction was “only to be given when the physician is presented with multiple treatment options that are viewed as acceptable in the subject field of practice.” 756 N.W.2d at 380. And the instruction was inappro priate in Kostel’s case, the court held, because the issue was whether the physician negligently fused two vertebral segments that did not need to be fused, not whether the physician erred in choosing one of multiple acceptable treatment options. 756 N.W.2d at 381.
Likewise, the Fosters argue Keely’s nerve injury occurred because Klaumann negligently performed the surgery, not because the doctor chose one treatment methodology over another. And it is debatable whether choosing not to remove the osteochondromas was a second course of treatment when the situation would never improve under tire wait-and-see approach. Cf. Hibbert, 29 Kan. App. 2d at 330-34 (one course of treatment was to wait and see whether cyst resolved itself before trying surgeiy).
Certainly, tire Fosters’ claims do not present a classic example of alternative courses of treatment like the facts in Natanson in which the doctor chose to use radioactive cobalt instead of X-rays and the patient was injured by the cobalt. But we do not need to decide that issue because the Fosters also claim Klaumann did not do enough once she realized Keely’s peroneal nerve was damaged. They claim she violated tire standard of care by monitoring the nerve damage after surgery, instead of immediately recommending surgery. Klaumann disputed that immediate surgery was an acceptable course of treatment.
We conclude the instruction accurately stated the law and was supported by the case facts. Although neither of the challenged instructions was as helpful to the jury in deciding this case as it could have been with some modification, neither requires a new trial. Therefore, we reverse the judgment of the Court of Appeals reversing and remanding the case for a new trial and affirm the judgment of the district court based on the jury verdict finding Klaumann not at fault.
Moritz, J., not participating.
Jerome P. Hellmer, District Judge, assigned. | [
-15,
-18,
-99,
-68,
10,
98,
56,
26,
69,
-121,
119,
51,
45,
-31,
-107,
111,
7,
-67,
64,
99,
87,
-77,
7,
-119,
-22,
-45,
115,
-41,
-77,
110,
-12,
-99,
77,
120,
-118,
-11,
102,
-117,
-51,
82,
-122,
-108,
8,
-23,
73,
-30,
-76,
118,
28,
6,
21,
46,
-93,
34,
60,
-61,
40,
40,
122,
61,
-128,
-80,
-85,
37,
-19,
0,
-77,
2,
58,
-89,
90,
60,
-48,
56,
8,
-8,
114,
-106,
-126,
52,
75,
-103,
28,
103,
102,
-95,
29,
-19,
121,
-72,
31,
95,
-115,
-89,
-101,
9,
-117,
3,
-73,
-72,
116,
118,
30,
-4,
-17,
89,
-98,
100,
8,
-125,
16,
-77,
-33,
52,
-100,
40,
-5,
-121,
20,
113,
-51,
48,
84,
-124,
57,
-13,
-18,
-74
] |
Powell, J.:
The Hanover Insurance Co. (Hanover) appeals the denial of its own motion for summary judgment and the granting of Dun-Par Engineered Form Company’s (Dun-Par) cross-motion for summary judgment. The district court granted Dun-Par’s claim to recover the unpaid balance due Dun-Par, a sub-sub-subcontractor, from the Subcontract Payment Bond bought from Hanover by the subcontractor, Vanum Construction Co., Inc. (Vanum). Hanover challenges the district court’s interpretation of tire definition of “Claimant” as set out in tire bond.
Because we find that Dun-Par does not meet the definition of “Claimant” as set out in the Subcontract Payment Bond, we reverse the district court and remand with instructions to enter judgment for Hanover.
Factual and Procedural History
The parties agree on the following uncontroverted facts. Fortis Construction Co., LLC (Fortis) hired Dun-Par as a subcontractor for a construction project in Fort Riley, Kansas. Dun-Par was the sub-sub-subcontractor on the project. The general contractor for the project was BE&K Federal Services, LLC (BE&K). BE&K hired Vanum to be a subcontractor. BE&K and Vanum entered into a Subcontract Payment Bond through Hanover naming Vanum as the principal and BE&K as the obligee. Under this bond, Vanum and Hanover agreed to “jointly and severally, bind themselves ... to [BE&K] to pay for labor, materials and equipment furnished for use in die performance of the Subcontract....” Vanum then hired Fortis to be its sub-subcontractor, which in turn hired Dun-Par, making Dun-Par a subcontractor to Fortis and a sub-sub-subcontractor to BE&K. Dun-Par admitted that it did not have a direct contract with Vanum.
Dun-Par performed and, on December 9,2011, filed suit against Fortis, Vanum, and Hanover for the unpaid balance due Dun-Par under its contract with Fortis. Dun-Par obtained default judgments against both Fortis and Vanum. Dun-Par and Hanover both filed cross-motions for summary judgment on the issue of whether Hanover’s Subcontract Payment Bond covered Dun-Par’s claim for payment.
The Subcontract Payment Bond required that Vanum “promptly make payment directly or indirectly to all Claimants as defined in this bond, for all labor, material and equipment used in performance of the Subcontract.” The terms of the bond defined “Claimant” as:
“an individual or entity having a direct contract with tire Principal to furnish labor, materials or equipment for use in the performance of the Subcontract or any individual or entity having valid, lien rights which may be asserted in the jurisdiction where the Project is located.” (Emphasis added.)
The district court granted Dun-Par summary judgment while denying Hanover’s motion.
The district court found that Dun-Par was entitled to payment under the bond as a contract beneficiary and as a “claimant” with valid “lien rights.” It initially concluded that, on its face, the bond language appeared to preclude Dun-Par from payment for two reasons: first, Dun-Par did not fall into the first category of claimants because Dun-Par did not have a direct contract with Vanum; and second, Dun-Par did not fall into the second category of claimants because federal law prohibited Dun-Par from obtaining a lien on federal property.
However, Vanum supplied a generic form for the bond with Hanover which, unlike Hanover’s usual bond agreement form, did not provide coverage for subcontracts two levels down from Vanum. The district court interpreted the word “jurisdiction” as used in the bond’s definition of a claimant as referring to die jurisdiction of Kansas, not the jurisdiction of the federal government. With that interpretation, the district court reasoned that Dun-Par would have had the right to assert a mechanic’s lien on the project under Kansas law, but federal law prohibited the remedy. Despite the lack of remedy, Dun-Par still retained the right of a mechanic’s lien under Kansas law. The district court explained that the lien laws of Kansas were designed to protect contractors who are denied justly earned compensation, which promotes fairness in the construction industry. Though Dun-Par could not issue a mechanic’s lien on the Fort Riley project, Dun-Par still had the right to a mechanic’s lien under state law; therefore, Dun-Par qualified as a claimant under the terms of the bond.
The second theory relied upon by the district court provided Dun-Par with the right to collect from Hanover because Dun-Par was a third-party beneficiary of the contract. The district court interpreted Wichita Sheet Metal Supply, Inc. v. Dahlstrom & Ferrell Constr. Co., 246 Kan. 557, 561, 792 P.2d 1043 (1990), as holding that “[cjlaims under Kansas little Miller Act statutes must look down two levels.” Following this conclusion, the district court reasoned that if this bond had been a public works bond under K.S.A. 60-1111, then Dun-Par would be within two levels of Vanum and Hanover’s bond would cover payment to Dun-Par. The legislature’s enactment of K.S.A. 60-1111 demonstrated the State’s public policy in favor of protecting subcontractors from nonpayment through the use of bonds.
The district court found that Hanover’s risk was so limited under the terms of the bond that it appeared as an “inadvertent windfall to Hanover from the fortuitous caprices of using someone else’s supplied form.” The district court also discussed the background of the bond by concluding that there was no evidence of a meeting of the minds on the terms of the bond. “The facts of this case are an anomaly that lead, under defendant’s position to a result inconsistent with the usual bond coverage of Kansas workers and contractors.” The court concluded that the “weight of the law in this court’s opinion is that the contractor two levels down from Vanum and five levels down on the whole project is and should be covered by Hanover’s bond.”
Hanover timely appeals.
Did the District Court Err in Finding that Dun-Par Had the Right to Payment by Hanover Under the Subcontract Payment Bond?
Hanover relies upon the plain language of the bond to argue that Dun-Par clearly does not fit into either of the two categories of claimants given in the bond because Dun-Par had neither a direct contract with Vanum nor the right to impose a lien upon the property owned by the federal government. Hanover argues that the Subcontract Payment Bond is a contract and is therefore subject to the rules governing contract interpretation. See Tradesmen Int'l, Inc. v. Wal-Mart Real Estate Business Trust, 35 Kan. App. 2d 146, 163, 129 P.3d 102 (giving the ordinary meaning to clear and un ambiguous language in a payment bond), rev. denied 281 Kan. 1382 (2006).
Dun-Par cites to two cases, Local No. 1179 v. Merchants Mutual Bonding Co., 228 Kan. 226, 229, 613 P.2d 944 (1980), and Haynes Hardware Co. v. Western Casualty & Surety Co., 156 Kan. 356, 360, 133 P.2d 574 (1943), to show that courts should construe surety bonds to give effect to the bond’s -purpose. Dun-Par argues that in giving effect to the purpose of Hanover’s Subcontract Payment Bond, the district court correctly decided that the bond covered Dun-Par’s claims. -
Standard of Review and Analysis
“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 die moving party is entitled to judgment as a matter of law.” Law v. Law Company Building Assocs., 295 Kan. 551, 561, 289 P.3d 1066 (2012). “ ‘ “ ‘ “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.” ’ ” ’ ” Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011) (quoting Warner v. Stover, 283 Kan. 453, 455, 153 P.3d 1245 [2007]). On appeal, the same rules apply. Summaryjudgmentmustbe denied if “ ‘ “ ‘ “reasonable minds could differ as to the conclusions drawn from the evidence.” ”” ” Osterhaus, 291 Kan. at 768 (quoting Warner, 283 Kan. at 455-56).
“The legal effect of a written instrument is a question of law. It may be construed and its legal effect determined by the appellate court regardless of the construction made by the district court.” Osterhaus, 291 Kan. at 768. “[W]here there are no disputed facts and an appellate court is required to interpret and give legal effect to a written contract, appellate review of a summary judgment order is de novo.” Wittig v. Westar Energy, Inc., 44 Kan. App. 2d 216, 221, 235 P.3d 535 (2010). There are no disputed material facts here; therefore, summary judgment is appropriate.
It is a correct statement of the law that “[a] surety bond is to be construed in tire light of the circumstances in which it is given, so as to effectuate its purpose.” Local No. 1179, 228 Kan. at 229. But it is also well established in Kansas law that “the obligation of a bond is to be measured by the bond itself and may not be extended by implication or enlarged by construction beyond the terms of the executed contract.” Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 400, 507 P.2d 189 (1973); see also In re Conservatorship of Huerta, 273 Kan. 97, 104, 41 P.3d 814 (2002) (same); Martin v. Hanschu, 241 Kan. 521, 523, 738 P.2d 96 (1987) (same). Moreover, “[t]he primaiy rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction.” Osterhaus, 291 Kan. at 768.
The terms of the bond defined “Claimant” as:
“an individual or entity having a direct contract with the Principal to furnish labor, materials or equipment for use in the performance of the Subcontract or any individual or entity having valid hen rights which may be asserted in the jurisdiction where the Project is located.”
The district court incorrectly interpreted the word “jurisdiction” to mean the jurisdiction of Kansas. The district court explained that the “work and materials were supplied in Kansas and the parties were subject to Kansas law. That Federal law stops the effect of the remedy under Kansas law does not extinguish the jurisdiction nor [sic] the fact that [Dun-Par] meets the requirements under State law to have filed a lien.”
However, a review of the plain wording in tire bond reveals that die word jurisdiction is clearly modified by “where the Project is located.” According to the bond’s description of the project, Project No. 0880019 was located at 2310 Trooper Drive, Fort Riley, Kansas. The address places the project within the Fort Riley Military Reservation. Under K.S.A. 27-102 and K.S.A. 27-105, the State of Kansas gave the federal government exclusive jurisdiction over the Fort Riley Military Reservation, only reserving for itself the right to serve process within the Fort’s boundaries. Therefore, federal law dictates whether Dun-Par qualifies as an “entity having valid lien rights which may be asserted” in tire federal enclave of Fort Riley.
While mechanic’s lien rights provide protection from nonpayment for contractors and subcontractors who work on private property, federal law does not provide lien rights for contractors and subcontractors who work on federal land or buildings. Instead, to protect subcontractors, Congress enacted the Miller Act. This Act mandates that when awarding a federal contract for the “construction, alteration, or repair of any public building or public work of the Federal Government,” a contractor must furnish a bond to the federal government in order to ensure payment “of all persons supplying labor and material in carrying out the work provided for in the contract.” 40 U.S.C. § 3131(b)(2) (2006).
In this case, the language in the bond is clear and unambiguous. The second definition of a claimant requires that Dun-Par must have lien rights that may be asserted under federal law. Since there are no federal lien rights for Dun-Par to assert, Dun-Par does not qualify as a claimant. Since Dun-Par is not a claimant, the district court erred in granting Dun-Par summary judgment.
Because the clear and unambiguous contract language in die bond resolves the issue of whether the district court properly granted Dun-Par summary judgment, there is no reason for us to consider Dun-Par’s arguments regarding the purpose of the bond or any public policy supporting Dun-Par’s claims. Any other allegations of error are also moot.
Accordingly, the district court’s granting of summary judgment for Dun-Par is reversed, and the case is remanded to the district court with directions to enter summary judgment in favor of Hanover. | [
20,
120,
-48,
126,
-102,
96,
48,
-40,
-38,
-31,
39,
81,
-1,
-22,
-108,
122,
-90,
127,
101,
108,
87,
-13,
35,
67,
-42,
-14,
-77,
-59,
-71,
111,
76,
20,
77,
32,
-122,
-107,
-26,
-112,
-60,
24,
6,
-124,
-72,
109,
-103,
65,
-80,
-2,
16,
79,
81,
-59,
-69,
40,
26,
79,
104,
106,
105,
-87,
-32,
-16,
-29,
5,
125,
29,
-93,
4,
-98,
78,
88,
28,
-104,
49,
4,
-23,
82,
-65,
-42,
116,
99,
25,
-119,
98,
97,
32,
-107,
-19,
-2,
-100,
62,
-36,
-113,
-123,
-109,
-72,
43,
11,
-73,
-99,
122,
22,
-25,
-2,
-18,
-99,
19,
109,
3,
-49,
112,
-112,
28,
-12,
-98,
-127,
-2,
-120,
48,
116,
77,
-32,
-36,
118,
127,
-109,
79,
-70
] |
McAnany, J.;
Isidro Villa-Vasquez was convicted of animal cruelty and various drug crimes. On the appeal of his drug convictions, he contends that the district court erred in admitting testimony regarding “narco saint” religious icons and their association with drug traffickers. He also contends we should reverse all his convictions because the court erred in permitting the State to exercise peremptory challenges with respect to two Hispanic prospective jurors contrary to his equal protection rights as determined in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
Facts
Based on the information provided by a confidential informant, law enforcement officers secured a search warrant for Villa-Vasquez’ residence. During the search, the officers found drugs and drug paraphernalia in Villa-Vasquez’ bedroom.
The officers also found in Villa-Vasquez’ basement various religious icons arranged with candles into a shrine honoring Jesus Mal-verde, who is not recognized by the Catholic Church or any other religious organization but who is considered by drug traffickers to be their patron saint. The shrine also contained a statue of Santa Muerte, a cult figure revered by drug criminals and by tire Mexican poor but denounced by the Catholic Church; a book containing rituals for worshipping Santa Muerte; candles depicting San Ramon (a 13th century Catholic saint whose bps were pierced with a hot poker and padlocked together) with pennies taped over his mouth; and a broken statue of Saint Michael the Archangel, the patron saint of law enforcement.
The State filed a pretrial motion to certify United States Marshal Robert Almonte as an expert witness on the subject of shrines and icons used by drug dealers. The State contended that Almonte was an expert whose testimony was relevant to show Villa-Vasquez’ intent to distribute drugs and that Almonte’s testimony would aid the jury in understanding the purpose of the shrine the officers found.
At die conclusion of the first day of trial, the district court held a hearing on the State’s motion and its proffer of Almonte’s testimony. Almonte testified that he was a United States marshal for the western district of Texas who had worked in law enforcement since 1978, including approximately 13 years overseeing a narcotics task force in El Paso, Texas. According to Almonte, it was common to encounter shrines and altars during the execution of search warrants in drug cases.
Almonte researched how individuals involved in crime prayed to different icons for protection from law enforcement. Almonte studied case reports and photographs of scenes depicting narco saints found by other officers. Almonte said he had talked to traffickers who had similar shrines about tire connection between drug trafficking and the use of these shrines.
Almonte also travelled to Mexico to visit these shrines and to study the topic. He created a law enforcement training video called “Patron Saints of the Mexican Drug Underworld,” which he has presented to law enforcement officers around the nation. Almonte has testified in federal court as an expert witness on the topic of narco saints. He testified that the association between the presence of narco saints and drug activity is quite high.
Over Villa-Vasquez’ objection, the district court found that Al-monte was qualified as an expert under K.S.A. 60-456. The court found that “Almonte has that specialized knowledge that goes beyond what a normal lay juror would understand,” and the testimony would be helpful for the juiy to understand the significance of the evidence found in Villa-Vasquez’ basement. Further, the court found that Villa-Vasquez’ challenge to Almonte’s association of these icons to drug dealers goes to the weight rather than to the admissibility of this testimony.
The court then recessed for the day. The following morning, the State presented tire testimony of two witnesses before calling Al-monte to the stand. The first was a witness who was recalled for brief additional testimony on the animal cruelty charge. The second was a police officer involved in conducting the search of Villa-Vasquez’ house. She identified photos of Villa-Vasquez’ basement, including photos of the shrine. The photos and the items depicted in the photos were admitted into evidence without objection. The officer testified, without objection, that the photos were taken “because these appear to us to be a shrine, some of which are depicting saints that we often see in the drug trafficking business.”
Almonte then testified at trial. Villa-Vasquez did not lodge a timely and specific objection to Almonte’s credentials as an expert or to the substance of Almonte’s testimony, other than to lodge a hearsay objection when, in testifying about the development of his expertise in tire area, Almonte testified that he interviewed drug suspects “at least 50 times, maybe more, maybe 100 or more.” When tire prosecutor asked what these people told him, Almonte answered, over Villa-Vasquez’ overruled hearsay objection, that he “was told by several of tírese people that they would use these items and pray to these various items, and icons, and saints, for protection from law enforcement.”
Almonte testified that “a lot of these drug traffickers were invoking the spiritual world for protection against law enforcement.” He told the jury that die photographs of the narco saints found in Villa-Vasquez’ basement were consistent with drug trafficking and other criminal activities. According to Almonte, individuals involved in criminal activity pray to these particular icons for protection from law enforcement officials.
Almonte testified that the small statuette of Jesus Malverde represented die original narco saint. Jesus Malverde was originally a bandit who was likened to a Mexican Robin Hood. He testified that drug traffickers identified with Jesus Malverde because they wanted to rationalize their illegal activities based upon their donations of some of their drug money back to the community.
Referring to photographs of the shrine, Almonte also identified statues of Santa Muerte, a figure who is not recognized by the Catholic Church as a saint. He also identified a book containing rituals for Santa Muerte, prayers to Santa Muerte, and directions on setting up shrines.
Almonte testified about the candles found in the shrine which contained the image of San Ramon, a recognized Catholic saint. The image depicted a padlock on the saint’s mouth. According to Almonte, many criminals prayed to San Ramon because “he can keep people quiet about what they’re doing.”
Almonte also noted the broken statue of Saint Michael, the patron saint of law enforcement. Almonte said the statue is broken in an effort to protect the criminals from law enforcement.
Almonte could not conclude that persons praying at such a shrine necessarily were drug traffickers, but he opined there is an association between drug traffickers and maintaining a shrine such as the one found in Villa-Vasquez’ basement.
Following Almonte’s testimony, Villa-Vasquez’ wife testified briefly under a grant of immunity. She claimed that she had not spoken with Kansas Bureau of Investigation Special Agent Chris Turner about “things in the basement .,. . witch things.” Turner was then called to impeach Villa-Vasquez’ wife. He testified without objection:
“Q. Did [Villa-Vasquez’ wife] say anything to you about the basement area of the Marshal Road property in regard to a shrine or objects that were utilized by Mr. Villa-Vasquez?
“A. Specifically that there were spooky items in the basement, that there were witch things in the basement, statues. And, she had spoken about he does things to insure—I can’t remember specifically, or, exactly what she said, things to either deter or identify if somebody has been in tire room.”
Villa-Vasquez testified that he constructed the shrine after his mother’s death and denied any association between the shrine and drug trafficking. Following Villa-Vasquez’ convictions and sentencing, he brought this appeal.
Standard, of Review
In our review of the district court’s ruling on the admission of evidence, our Supreme Court has prescribed a multistep protocol. See State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010). For tire first step, we determine whether the evidence is relevant. Evidence is relevant when it has “any tendency in reason to prove any material fact.” K.S.A. 60-401(b). As such, relevant evidence must be both probative and material. State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010). Whether evidence is probative is reviewed under an abuse of discretion standard, and materiality is judged under a de novo standard. Shadden, 290 Kan. at 817.
For the second step, we determine which rules of evidence or other legal principles apply. The district court’s conclusion is reviewed de novo. 290 Kan. at 817. For the third step, we review the district court’s application of the rule or principle. This application is reviewed either for abuse of discretion or de novo, depending on the rule or principle being applied. Some rules and principles grant tire district court discretion, while others raise matters of law. 290 Kan. at 817. .
But we need not dwell on every step in the Shadden analysis. State v. King, 288 Kan. 333, 348-350, 204 P.3d 585 (2009), teaches that without a contemporaneous objection at the time evidence is admitted, the propriety of its admission has not been preserved for appellate review. K.S.A. 60-404 provides:
“A verdict or finding shall not be set aside, nor shall tire judgment or decisions based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
See State v. Harris, 293 Kan. 798, 813-14, 269 P.3d 820 (2012). Notwithstanding a prior ruling on the admissibility of evidence, the objecting party is required to renew any objections at the time the testimony is introduced into evidence at trial. State v. Breedlove, 295 Kan. 481, 488, 490, 286 P.3d 1123 (2012); see State v. Carapezza, 286 Kan. 992, 1002, 191 P.3d 256 (2008) (defendant objected on sole basis of hearsay; thus, she failed to preserve for appeal the issue of the inadmissibility of the evidence under K.S.A. 60-455).
Thus, we consider the failure to preserve an issue for review by a contemporaneous objection the functional equivalent of simply not arguing a point or conceding it on appeal. This creates a situation similar to the one in State v. Holt, No. 106, 711, 2013 WL 517657, at *3 (Kan. App. 2013) (unpublished opinion), in which this court observed: “Holt does not argue on appeal that evidence of his prior convictions for theft . . . was irrelevant for either impeachment or substantive purposes, and thus this court need not address the first step of the multistep evidentiary analysis.” In fact, in Shadden the Supreme Court did not dwell on the relevancy step of its own multistep analysis regarding a field sobriety test because “[ajpplying the multistep evidentiary standard, the first step—relevance—is not in issue.” 290 Kan. at 818.
Expert Testimony
Villa-Vasquez’ sole contemporaneous objection was a hearsay objection to Almonte’s testimony. Thus, we need not consider the relevancy step in the Shadden protocol in deciding wither the district court abused its discretion in admitting this evidence. See State v. Miller, 42 Kan. App. 2d 12, 21-22, 208 P.3d 774 (2009), aff'd 293 Kan. 535, 264 P.3d 461 (2011). We turn directly to the hearsay issue.
• Hearsay
Almonte testified that he travelled to Mexico and around the United States speaking to law enforcement officials and drug traffickers about the narco saints and their significance. Villa-Vasquez objected to Almonte’s testimony on the grounds of hearsay. The State countered that the testimony was not offered to prove the truth of the matter asserted but rather was presented to establish tire basis for Almonte’s claimed expertise on the subject of narco saints. The court overruled Villa-Vasquez’ objection. We reviewthe district court’s rejection of Villa-Vasquez’ hearsay objection for any abuse of discretion. See Miller, 42 Kan. App. 2d at 21-22.
K.S.A. 2012 Supp. 60-460 defines hearsay as “[ejvidence of'a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” Thus, the issue here is whether this testimony was offered to prove the truth of the matter asserted.
Villa-Vasquez relies on State v. Gonzalez, 282 Kan. 73, 143 P.3d 18 (2006). Gonzalez does not apply. In Gonzalez, the defendant sought to have a doctor testify that the defendant was not competent to stand trial. The doctor testified that she had attempted to conduct a psychological evaluation on the defendant but found him to be uncooperative. Thus, her expert opinion was based “largely on written records from the California penal system and, to a lesser extent, on the videotaped interview with Anaheim police, on the Larned evaluation, and on conversations with defendant’s attorneys and jailers.” 282 Kan. at 82. The district court rejected the doctor’s testimony on the grounds of hearsay.
In Gonzalez, the doctor’s opinion was offered to prove the truth of the matter asserted: that the defendant was not competent to stand trial. The opinion on that subject was found in the California records and other out-of-court sources which were hearsay, and no attempt was made to offer the underlying records pursuant to any exception to the hearsay rule. The doctors in California apparently opined that Gonzalez was incompetent, an opinion that could not be tested in cross-examination.
Here, however, Almonte did not interview 100 or more individuals to get their views on whether Villa-Vasquez was a drug dealer. There is no indication any of his interviewees even knew Villa-Vasquez or knew he maintained a shrine honoring Jesus Malverde and others. Almonte’s testimony regarding these interviews was offered to establish that through his experience he had obtained a wealth of background material on the connection between the honoring of narco saints and drug trafficking.
In Gonzalez, the rejected opinion testimony related to whether tire defendant was competent to stand trial. The doctor made no observations of the defendant upon which to base an opinion of his mental state because of the defendant’s failure to cooperate. Thus, she merely adopted the opinions of others. Here, Almonte formed his opinion regarding Villa-Vasquez’ shrine and its association with drug dealers from examining photos of the actual shrine and figures taken from the shrine Villa-Vasquez maintained in his basement. But he made clear he was not expressing an opinion on whether Villa-Vasquez was a drug dealer. He merely testified to the association between the shrines and persons in the illicit drug trade.
Almonte was not an academically trained expert. He gained his expertise from law enforcement work in the field. The foundation knowledge for an academically trained expert comes from class lectures and studies that lead to die student’s degrees and other forms of academic recognition. A considerable portion of that knowledge may come from the oral pronouncements of professors in their lectures, pronouncements that are unsworn statements not subject to cross-examination. We reject the notion that such “hearsay” statements from a college professor in a class lecture undermine the student’s later audiority to speak as an expert, just as we reject the notion that Almonte’s law enforcement work, including speaking with drug dealers and others involved in drug crimes, undermined his expertise.
In Helter Skelter, his book about the Charles Manson murder trial, prosecutor Vincent Bugliosi noted at the outset that it was going to be a long trial when one of the defendants’ counsel objected to asking the People’s first witness to state his name because the question called for hearsay: the witness’ recounting what his mother said his name was. We decline Villa-Vasquez’ invitation to trod such a path.
As a subset of his hearsay argument, Villa-Vasquez argues that Almonte, who had no “formal training in anthropology, religious studies, ethno-history, or any related field,” relied on knowledge he accumulated over the years in his law enforcement work, much of which came in the form of hearsay—unsworn and untested observations from criminal defendants charged with drug crimes and law enforcement officials who encountered these shrines. Thus, Villa-Vasquez argues, Almonte was not qualified to render an expert opinion. Villa-Vasquez suggests that Almonte’s opinion is based solely on his Catholic background and his curiosity about narco saints and shrines. We will not rise to the bait in the form of Villa-Vasquez’ proposition that knowledge and expertise prompted by intellectual curiosity is somehow suspect.
Villa-Vasquez failed to object to Almonte’s qualifications when Almonte testified at trial. But even if we consider Villa-Vasquez’ current argument as a subset of his hearsay argument, the fact that Almonte’s expertise came from his experiences in a nonacademic setting does not render him unqualified to express opinions in his area of expertise. Other courts have examined the manner in which Almonte gained his expertise and have so held. See United States v. Guererro, No. DR-09-CR-820, unpublished opinion filed May 10, 2011 (W.D. Tex.), Slip op. at “1-6; United States v. Goxcon-Chagal, 885 F. Supp. 2d 1118 (10th Cir. 2012); United States v. Bobadilla-Campos, 839 F. Supp. 2d 1230 (D. N.M. 2012). As the court noted in Goxcon-Chagal:
“Almonte’s expert opinion relies largely on his experience as a law enforcement officer. The Tenth Circuit has acknowledged that experience and training are generally the basis upon which experts rely to provide testimony regarding the modus operandi of drug organizations. See United States v. Garza, 566 F.3d [1194,] 1199-1200 [10th Cir. 2009].” Goxcon-Chagal, 885 F. Supp. 2d at 1148-49.
In Kansas, a law enforcement officer dealing with gang activity in Wichita, who developed a significant part of his expertise in tire field as did Almonte, was allowed to render expert opinions on the topic of gangs. See State v. Tran, 252 Kan. 494, 847 P.2d 680 (1993). There, the court stated:
“As the Wichita gang intelligence officer, Carey is required to gather information on Wichita gangs and gang-related activity. Officer Carey, in his capacity as gang intelligence officer for SCAT, has accumulated knowledge and information unique to the field of gangs and gang activity. Carey was able to provide the jury with information not generally known regarding gang characteristics and indicia of membership in a specific gang.” 252 Kan. at 502.
The fact that Almonte gained some of his expertise in ways Villa-Vasquez attempts to characterize as hearsay did not disqualify him from rendering his expert opinion about the association between narco saints and drug dealers.
• Relevance
Villa-Vasquez argues that Almonte’s opinion regarding the alleged correlation between narco saints and drug-trafficking was not relevant. Villa-Vasquez failed to object to Almonte’s testimony at trial on the grounds of relevance, so this issue has not been preserved for appeal, and we can bypass this step in the multistep Shadden analysis.
There is no Kansas case directly in point, but had Villa-Vasquez properly preserved the issue for appeal, it would not have been a winner in light of the high burden of showing an abuse of judicial discretion (State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 [2010]; State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 [2009]), and in light of the holdings on the issue of the relevance of this type of testimony found in State v. Obregon, No. 104, 584, 2011 WL 5526551 (Kan. App. 2011) (unpublished opinion), rev. denied February 20, 2013; United States v. Pena-Ponce, 588 F.3d 579, 582 (8th Cir. 2009); United States v. Caballero, 417 Fed. Appx. 500, 502, 507 (6th Cir. 2011); United States v. Lopez-Gutierrez, 334 Fed. Appx. 880 (10th Cir. 2009); Bobadilla-Campos, 839 F. Supp. 2d at 1234; United States v. Favela-Lujan, No. 10-3232, unpublished opinion filed January 21, 2011 (D. N.M.); United States v. Rivas, No. 4: 02CR3205;. 2003 WL 22400238, at *1-2 (D. Neb. 2003) (unpublished opinion); People v. Islas, No. F040734, 2003 WL 21465341, at *5-6 (Cal. App. 2003) (unpublished opinion); and State v. Alverez, 147 P.3d 425, 432-33 (Utah 2006).
• Prejudice
Villa-Vasquez also argues that Almonte’s testimony regarding the alleged correlation between narco saints and drug trafficking was unduly prejudicial. Here, the KBI agent, who was called to impeach Villa-Vasquez’ wife, testified that she told tire agent that there were “spooky items” or “witch things” in the basement. Villa-Vasquez claims this testimony, to which no objection was lodged, encouraged the juiy to convict him on the basis of his religious beliefs and to speculate about the risks posed to society as a result of his beliefs.
Because Villa-Vasquez failed to make this objection at trial, he has not preserved it for appeal and we do not consider it. Besides, the KBI agent’s testimony was not admitted for the purpose of establishing Villa-Vasquez’ religious beliefs. The issue was not Villa-Vasquez’ religious beliefs but rather the connection between persons who honor narco saints and similar icons to persons involved in criminal activity. The evidence was limited to the significance of the items found in Villa-Vasquez’ basement and their potential connection to those involved in drug trafficking.
• Harmless Error
As his final argument on this issue, Villa-Vasquez claims that tire error in admitting Almonte’s testimony was not harmless because tire evidence against him was “purely circumstantial.” We conclude that if the question put to Almonte is considered to have called for hearsay, the error was harmless.
Under K.S.A. 60-261 and 60-2105, an error in the admission of evidence is not grounds for setting aside a judgment if the trial court’s ruling did not have a prejudicial effect on substantial rights of a party. See State v. Ransom, 289 Kan. 373, 388, 212 P.3d 203 (2009).
It is axiomatic that even tire most serious crime can be proven through circumstantial evidence. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009). But here, the evidence was far more than circumstantial. In the search of Villa-Vasquez’ house, the authorities discovered about 20 grams of cocaine, along with scales, baggies, and a cutting agent. The items were found in Villa-Vasquez’ bedroom, and they were identified as belonging to him. A confidential informant, Manuel Gonzalez, testified to discussions and transactions that clearly linked Villa-Vasquez to the drug trade.
Here, the claimed hearsay to which Villa-Vasquez objected did not relate to the substances of Almonte’s opinions but only to one small facet of Almonte’s expertise accumulated over 25 years of active service in law enforcement and since then in his research and study during his retirement. Had the prosecutor framed his question to Almonte so as to make clear that the professional experiences that led to Almonte’s expertise included talking to drug suspects and left it at that, rather than seeking to elicit what those suspects had to say, we are satisfied that the outcome of the trial would not have been different because Almonte’s substantive testimony would have been the same.
We find no reversible error in Almonte’s answer to this single question put to him about this one aspect of his accumulated expertise.
Jury Selection
Turning to Villa-Vasquez’ second issue, he claims the State exercised peremptory challenges to eliminate the only two Hispanics from the jury panel in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). He argues that the district court failed to make a credibility determination regarding the State’s proffered race-neutral reasons for striking these prospective jurors.
In considering the State’s use of its peremptory challenges, we first determine whether the defendant has made a prima facie showing that the challenges were made on the basis of race. This is a question of legal sufficiency subject to plenary review. Next, we consider whether the State provided a race-neutral explanation for striking the prospective jurors. The State’s explanation need not be persuasive or even plausible but merely facially valid. Unless a discriminatory intent is inherent in the State’s explanation, the reason offered will be deemed neutral. Finally, because the defendant always bears the ultimate burden of persuasion, we consider whether the defendant has met the burden of proving purposeful discrimination. Because the district court is in a better position to view the demeanor of prospective jurors and attorneys during voir dire, the district court’s ruling on a Batson challenge will not be disturbed on appeal unless it amounts to an abuse of discretion. State v. Hill, 290 Kan. 339, 359-60, 228 P.3d 1027 (2010).
The State offered racially neutral reasons for both peremptory strikes. With respect to the first prospective juror, the prosecutor stated that he “never responded or responded to any of the questions during voir dire, just no eye contact. Also, it seemed like on his questionnaire he may have been—potentially worked with the Defendant based on my knowledge of where the defendant worked when these charges arose.”
With respect to the second prospective juror, the prosecutor expressed concern that he worked at night: “I don’t think he is half awake right now. He said he already worked through the night. So, even if he could make arrangements for tonight, he didn’t sleep yet.”
Defense counsel responded that possible work connection between the first prospective juror and Villa-Vasquez was based on pure speculation. He further noted that this prospective juror did not answer any questions because there was no need to respond. Regarding the second prospective juror, defense counsel noted that the prospective juror stated that he could probably find someone to work for him that night and noted that this prospective juror did not appear any more tired than die rest of the jurors.
The district court ruled: “It doesn’t appear to this Court that the Defendant has raised ... a systematic exclusion of Hispanics in this panel. The reasons given for [striking] both [of the potential jurors] appear on their face to be racially neutral. The Court denies the Batson challenge.”
Villa-Vasquez argues that the district court failed to make a credibility determination regarding the State’s proffered race-neutral reasons for striking these prospective jurors and that the facts did not support the district court’s findings. But Villa-Vasquez failed to preserve the issue on appeal by failing to object to the district court’s analysis of the issue. A party must object to the district court’s failure to complete the final step of a Batson analysis to preserve the issue for appeal. Further, the district court’s analysis of the final Batson step can be implied from its consideration of the State’s reasons for striking these prospective jurors and the defendant’s counter-argument. See State v. Angelo, 287 Kan. 262, 274-75, 197 P.3d 337 (2008) (noting the better practice for a district court faced with a Batson challenge is to identify and follow each step, but concluding that the defendant did not prove purposeful discrimination).
With respect to the first prospective juror’s nonresponsiveness, in State v. Pham, 281 Kan. 1227, 1238, 136 P.3d 919 (2006), the State struck a prospective juror because he “did not answer any questions from the State or Defense, even with s'o much as a nod of the head, demonstrating that he either was not listening or simply had no interest in being in the courtroom.” Our Supreme Court upheld this reason as facially valid. 281 Kan. at 1238-39.
With respect to the second prospective juror’s lack of sleep, in Forrest v. State, 757 N.E.2d 1003, 1005 (Ind. 2001), the State struck the only African-American from the panel because she had only 45 minutes of sleep the night before. Noting die deferential standard of review, the court found no error in the district court’s decision to overrule die defendant’s objection and permit the peremptory challenge. 757 N.E.2d at 1005.
In this case, the State provided race-neutral reasons for striking botii jurors. Although the district court did not explicitly state its reasoning under the final step, it obviously heard and considered die defense’s rebuttal argument before making its decision. See McCullough, 293 Kan. at 994. Villa-Vasquez has not shown that the district court abused its discretion in its Batson analysis.
Affirmed. | [
49,
-26,
-44,
46,
59,
64,
62,
62,
-61,
-25,
100,
95,
109,
-118,
16,
57,
-15,
37,
84,
105,
-53,
-90,
-45,
-125,
-14,
-13,
104,
-44,
113,
111,
-18,
-11,
15,
48,
-118,
101,
34,
96,
-83,
94,
-114,
1,
-102,
-14,
19,
73,
36,
42,
-105,
11,
-31,
23,
-125,
26,
24,
111,
108,
40,
107,
61,
77,
-103,
62,
77,
-21,
23,
-125,
52,
-98,
1,
-8,
61,
-40,
17,
0,
-8,
-13,
-74,
14,
116,
1,
-102,
-124,
96,
-94,
5,
93,
-83,
100,
-103,
63,
46,
-99,
39,
-48,
-53,
99,
108,
22,
-100,
46,
91,
44,
96,
-26,
84,
69,
36,
-9,
-50,
-108,
-89,
-51,
80,
-36,
-31,
-53,
101,
18,
-16,
-51,
-30,
116,
103,
-16,
-106,
-113,
-43
] |
Malone, C.J.:
Gregory J. Papineau appeals the district court’s order denying his motion to modify child support. Papineau contends that he is entitled to reimbursement from Jeri D. Stephenson, his former wife, for child support payments he made to her on behalf of their minor children during months for which Stephenson, as representative payee for the minor children, ultimately received a retroactive lump-sum payment of Papineau’s Social Security disability benefits. For the reasons set forth herein, we affirm the district court’s order.
The facts are undisputed but also somewhat sketchy. Papineau and Stephenson were married in 1997. They had two children during the marriage, bom in 2002 and 2004. When they divorced in 2006, Stephenson was granted primary residential custody of the minor children. Both parties were employed full time, and child support responsibilities were allocated based on their earnings for full-time employment as well as the cost of health insurance, daycare, and related expenses. Papineau was ordered to pay child support to Stephenson in tire amount of $782 per month.
In 2010, Papineau became permanently and totally disabled and unable to work. At the time he became disabled, he began receiving disability payments from a long-term disability insurance policy issued by Standard Insurance Company (Standard). The record does not reflect the amount of benefits paid by Standard. Papineau made no attempt to modify his child support obligation when he became disabled and unable to work in 2010. Instead, from 2010 until August 2012, Papineau continued to pay child support to Stephenson in the amount of $782 per month.
Papineau also filed for Social Security disability benefits, although the record does not reflect when Papineau initially filed his claim. Effective March 21, 2012, Papineau was awarded Social Security disability benefits. As part of Papineau’s benefits, the minor children were awarded monthly benefits of $802 and a retroactive lump-sum payment of approximately $5,600. The record does not reflect how tírese benefits were calculated. Stephenson was designated by the Social Security Administration as the representative payee for the minor children and receives the payments on the children’s behalf. According to the briefs and counsels’ statements at oral argument, Stephenson has set aside the lump-sum payment to start a college fund for the children.
On August 22, 2012, Papineau filed a motion to modify child support, asking in part for reimbursement of the child support payments he made to Stephenson during the months for which Stephenson, on behalf of the minor children, ultimately received the retroactive lump-sum payment of Papineau’s Social Security disability benefits. The parties submitted the motion to the district court on stipulated facts. The parties agreed in district court that the Social Security payments of $802 per month for the benefit of the minor children satisfied Papineau’s current child support obligation. The only issue for the district court to decide was whether Papineau was entitled to réimbursement of the child support pay ments he made to Stephenson during months for which Stephenson ultimately received the retroactive lump-sum payment.
According to tire stipulated facts, Standard claims subrogation rights to all Social Security disability benefits received by Papineau and his minor children, including the retroactive lump-sum payment awarded for the benefit of the minor children. But Standard is not a party to this case, and the status of its subrogation claim is not clear from the record on appeal.
The district court denied Papineau’s motion to modify child support. Relying on In re Marriage of Hohmann, 47 Kan. App. 2d 117, 274 P.3d 27 (2012), rev. denied 297 Kan. 1245 (2013), the district court found that Papineau was not entitled to reimbursement of any child support payment in excess of the amount owed because the excess benefit is a gift that inures to the benefit of the children. The district court further found that any subrogation claim by Standard was irrelevant because the insurance company would have no right of subrogation against benefits that belong to the minor children, who are not parties to the insurance contract. Papineau timely appealed the district court’s order.
On appeal, Papineau again contends that the district court erred in finding that he was not entitled to reimbursement of child support payments that he made during months for which his minor children ultimately received a retroactive lump-sum payment of his Social Security disability benefits. He acknowledges that as a general rule in Kansas, when a minor child receives Social Security disability benefits as part of an obligor parent’s Social Security disability award, any amount in excess of the child support owed by the obligor parent is considered a gratuity that inures solely to the benefit of the child. See Hohmann, 47 Kan. App. 2d at 118-21 (citing Andler v. Andler, 217 Kan. 538, 542-44, 538 P.2d 649 [1975]; In re Marriage of Williams, 21 Kan. App. 2d 453, 454-56, 900 P.2d 860 [1995]). Papineau concedes that to the extent that the $802 per month that his minor children receive from his Social Security disability benefits exceeds the $782 per month he owes in child support, the excess inures solely to the benefit of the children.
But Papineau argues that his children did not. merely receive excess benefits but in fact received double benefits for certain months, i.e., once when he paid child support on time and in full, and again when the children received a retroactive lump-sum payment of his Social Security disability benefits covering months for which he already had paid child support. He points out that if his children had received his Social Security disability benefits contemporaneously rather than retroactively for those months, his child support obligation for those months would have been fulfilled. Papineau claims that his children have no legal or equitable right to a double payment and that as a policy matter, refusing to reimburse an obligor parent for child support payments made while a Social Security disability claim is pending creates a disincentive for the obligor parent to remain current on his or her child support payments.
Finally, Papineau argues that this court should equitably consider the fact that Standard is seeking subrogation of his Social Security disability benefits paid for the benefit of his minor children. He contends that if Standard is successful in its subrogation claim, he effectively will be required to pay his child support obligation three times for the relevant months, i.e., first as a regular child support payment, second as a Social Security disability benefit, and third in repayment to Standard.
The sole issue on' appeal is whether an obligor parent is entitled to reimbursement of child support payments made during months for which the minor children ultimately receive a retroactive lump-sum payment of the obligor parent’s Social Security disability benefits. This is a question of law, over which an appellate court has unlimited review. See Hohmann, 47 Kan. App. 2d at 119.
Kansas courts have never squarely decided tire issue presented in this case. But several cases are instructive, beginning with the Kansas Supreme Court’s decision in Andler. In that case, the father began making child support payments to his former wife on behalf of their minor children in January 1970. That same month, the former wife began receiving the father’s Social Security disability benefits on behalf of the minor children. The father made four child support payments (January to April 1970) before he discontinued the payments because he had no money with which to malee them. In August 1973, the former wife brought a motion for con tempt against the father for failure to pay child support. The district court terminated the father’s obligation to make future child support payments because his future obligation was satisfied by the monthly Social Security disability benefits, but the district court found that the father had a judgment against him for the previously accrued unpaid child support.
On appeal, our Supreme Court reversed the district court’s determination that the father had a judgment against him for the previously accrued unpaid child support. Our Supreme Court held that where a father who has been ordered to make child support payments becomes totally and permanently disabled and unconditional Social Security payments for the benefit of the minor children are paid to the divorced mother, the father is entitled to credit for such payments by the government against his liability for child support under a divorce decree to die extent of, but not exceeding, his monthly obligation for child support. 217 Kan. at 544. In reaching this decision, our Supreme Court rejected the district court’s reasoning that the father waived his right to seek relief because he made four child support payments after the disability benefits had commenced:
“It is apparent the [father] was unaware of his legal remedy, if any, when he made tire first four child support payments. His failure to immediately assert such remedy does not waive his right to seek relief in a case such as this. The [father] asserted a good faith effort, and clean hands under equitable principles, until he had exhausted his financial resources. Under the circumstances here presented the four payments of child support. .. must he regarded as gratuities for the children. [Citation omitted.]” 217 Kan. at 545.
The next case dealing with this topic is Williams. In that case, the father was ordered to pay $250 per month in child support for his minor child' He stopped malting those payments in December 1986. In 1989, the Social Security Administration found the father to be totally disabled due to a mental condition and began paying disability benefits in the amount of $555 per month on behalf of the minor child. Eventually the father asked the district court to apply the excess disability payment ($305 per month) to his child support arrearages that had accrued before tire father became disabled. The district court ruled that the disability benefits received by the minor child were to be credited against current support then due, but that the father was not entitled to any credit against past-due support.
On appeal, this court affirmed the district court’s ruling and held that a child’s Social Security benefit payments may be credited against a current child support obligation accruing during the corresponding month but may not be credited against past-due child support obligations accruing prior to the start of the Social Security benefit payments. 21 Kan. App. 2d at 455-56. This court found that the excess benefit results in a windfall that should inure to the benefit of the child, not the defaulting father. 21 Kan. App. 2d at 456.
We recognize that the facts presented in Andler and Williams are distinguishable from the facts herein. In Andler and Williams, the court was not faced with a situation where the minor children were awarded a retroactive lump-sum payment of Social Security disability benefits. Also, in Andler and Williams the father had defaulted on the child support obligation, whereas Papineau made all child support payments on time from the date of his disability until the date he filed his motion to modify child support.
More recently, this court addressed die issue of disability payments and child support in Hohmann. In that case, the issue was whether a disabled father’s child support arrearages could be satisfied by a retroactive lump-sum payment to the mother, on behalf of the minor children, of the father’s Social Security disability benefits covering the months during which the arrearages accrued. The mother argued that if the court allowed the retroactive lump-sum payment to apply to child support arrearages accrued during the months covered by the lump-sum payment, then by logical extension if there was no arrearage she would have to reimburse the father for the timely child support payments that he had made. This court declined to rule on the mother’s hypothetical factual scenario but noted that “the majority of courts who have decided this issue have found that the nonobligor parent is not required to return such ‘overpayments’ to the obligor parent. Most courts view it as a voluntary overpayment that inures solely to the benefit of the child. [Citations omitted.]” 47 Kan. App. 2d at 121. This court ultimately ruled that the retroactive lump-sum payment of the father’s Social Security disability benefits could be applied to the child support arrearages that accrued during the months covered by the retroactive lump-sum payment. 47 Kan. App. 2d at 121.
Finally, in In re Marriage of Taber, 47 Kan. App. 2d 841, 280 P.3d 234 (2012), rev. denied 298 Kan. 1202 (2012), this court reaffirmed its decision in Hohmann that an obligor parent’s child support arrearages could be satisfied by a retroactive lump-sum payment of Social Security disability benefits covering the months during which the arrearages accrued. But like the mother in Hoh-mann, the Kansas Department of Social and Rehabilitation Services argued hypothetically in Taber that if an obligor parent has timely paid his or her child support and subsequently the children receive a retroactive lump-sum payment covering months already paid by the obligor parent, then the nonobligor parent would be required to reimburse the obligor parent for the overpayment. This court again noted that the majority of courts take the view that no reimbursement is required because the overpayment is deemed a gift to the children. 47 Kan. App. 2d at 846. This court specifically noted that in Andler, the four child support payments made by the father during months for which his children also received his Social Security disability benefits were “regarded as gratuities for the children.” Taber, 47 Kan. App. 2d at 846 (quoting Andler, 217 Kan. at 545).
In Hohmann and Taber, this court responded to a hypothetical argument that now is squarely presented in the case herein. In both decisions, this court surmised that a nonobligor parent would not be required to reimburse an obligor parent for what could be deemed as overpayments of child support caused by a retroactive lump-sum payment of Social Security benefits. Although the dicta in Hohmann and Taber is not controlling here, we find that these decisions provide persuasive authority for the proposition that an obligor parent is not entitled to reimbursement for timely child support payments made during months for which the minor children ultimately receive a retroactive lump-sum payment of the obligor parent’s Social Security disability benefits. ■
Papineau argues that his children have no legal or equitable right to a double payment of child support, which he claims they are receiving unless he is reimbursed for the child support he paid during the months covered by the retroactive lump-sum disability payment. But as this court noted in Hohmann and in Tabor, courts in other jurisdictions have considered and rejected this argument. For example, in Keith v. Purvis, 982 So. 2d 1033 (Miss. App. 2008), the noncustodial father was ordered to pay child support in the amount of $350 per month on behalf of his minor child. In 2001, the father suffered a stroke and became disabled, but he faithfully met his child support obligations until August 2006. The father and child became eligible for Social Security disability benefits, and in September 2006, the child received a retroactive lump-sum payment of $20,164. The father petitioned the court for an order requiring his former wife to reimburse him for child support payments he made during the 22-month period covered by the retroactive lump-sum disability award received by the child. The district court ruled that the father was not entitled to reimbursement of child support.
On appeal, the Court of Appeals of Mississippi held that the district court did not err in denying the father reimbursement for support payments made during the 22-month period covered by the lump-sum payment of retroactive disability benefits subsequently received by the child. 982 So. 2d at 1038-39. The court determined that the Social Security disability benefits received by the child belonged to the child and rejected the fathers claim of a double payment:
“[The fathers] claim for reimbursement is essentially a claim of unjust enrichment. However, we find that [the father] has not ‘overpaid’ his support obligation, in that, the disability benefits [the child] received from the Social Security Administration never belonged to [the father]. On this point, the court in [Mask v. Mask, 95 N.M. 229, 620 P.2d 883 (1980),] authoritatively stated as follows in determining that social security benefits received by a child belong to the child and not the non-custodial parent:
“ ‘The Social Security Act, Title 42, U.S. Code, Section 401 et seq., provides that eveiy dependent child of an individual who is entitled to Social Security benefits shall be entitled to a child’s insurance benefit.... We determine from this that the benefit inures directly to the child, notwithstanding the prereq uisite status of the parent. No indices of the father’s ownership ever attached to these funds.’
Mask, 620 P.2d at 886 (quoting Fuller v. Fuller, 49 Ohio App. 2d 223, 360 N.E.2d 357, 358 [1976], Because the excess money received by [the child] did not belong to [the father], we fail to see how he can prevail on the theory of unjust enrichment.” Purvis, 982 So. 2d at 1038-39.
In another case, Steel v. Hartwick, 209 W. Va. 706, 551 S.E.2d 42 (2001), the noncustodial father was ordered to pay child support for his two minor children. In 1995, he sustained a severe injury in the course of his employment and was unable to work. He nonetheless continued to make child support payments, apparently out of workers’ compensation and other job benefits. In August 1997, the father was notified that he was entitled to Social Security disability benefits retroactive to July 1995. As part of the award, his former wife, as representative payee for his dependent children, also became entitled to Social Security disability benefits retroactive to July 1995 in the amount of $6,709 for each child. When the award was made, the father petitioned the court to require his former wife to reimburse him for the child support payments he made from July 1995 through August 1997. In his petition, he claimed that because his former wife, as representative of the children, received a Social Security disability award for the children, she, in effect, was paid twice for support for tire children and she was unjustly enriched. The district court refused to require the former wife to reimburse tire father for past child support payments which had already been paid.
On appeal, the Supreme Court of Appeals of West Virginia affirmed the district court, held that the children had a legal right to receive both child support and lump-sum retroactive Social Security payments for the same 2-year period, and thus the father was not entitled to reimbursement under a theory that his former wife was unjustly enriched. 209 W. Va. at 709-10. In reaching this conclusion, the court stated:
“The children in the present case had a legal right under court and administrative orders, to both the child support and the social security benefits in issue in this case, and this Court can find no inequitable conduct on the part of the children, or unjust enrichment on their part, which in the Court’s view, would support a legal basis for depriving them of then property.” 209 W. Va. at 709.
Papineau has not cited a compelling reason why this court should depart from the general rule that any excess Social Security disability payment beyond the minimum child support obligation is considered a gratuity that inures solely to the benefit of the child. When Papineau became permanently and totally disabled in 2010, he could have filed a motion to modify child support if he was unable to make his child support payments. Papineau chose not to file a motion to modify child support in 2010, presumably because the disability payments he received from Standard were sufficient for Papineau to satisfy his child support obligation. It is to Papi-neau’s credit that he continued to make all child support payments on time while his Social Security disability claim was pending, but under Kansas law any excess payments inure solely to the benefit of his children. Papineau argues that he would have been better off not making timely child support payments while his Social Security case was pending. While that may be true, his children certainly would not have been better off if Papineau had defaulted on his child support obligation, and such a default could have subjected Papineau to a judgment for accrued/past-due child support or a finding of contempt by the district court.
Papineau financially supported his minor children prior to August 2012, pursuant to court order and his common-law duty as a parent. Now that his children have received Social Security benefits covering part of the time for which they received child support, Papineau essentially wants his children to pay back the child support to prevent them from receiving a “windfall.” Papineau views his child support obligation as something akin to an account ledger that can and should be reconciled at the end of the fiscal term. But if Papineau and Stephenson had been married when he became disabled, the family would have done its best to use its resources, including the disability benefits paid by Standard, to meet the children’s needs. In that situation, Papineau would not be entitled to reimbursement from his children once they received Social Security disability benefits covering the same period of time. Likewise, Papineau fails to make a case that he now is entitled to reimbursement of child support simply because he and Stephenson are divorced.
Furthermore, even if Papineau is legally entitled to a reimbursement of child support, we are unable to discern from the record how the district court was expected to calculate the amount of the reimbursement. The parties stipulated that Stephenson “has received or will receive retroactive benefits of approximately $5,600.00 from the Social Security Administration on behalf of the minor children.” The parties further stipulated that “the retroactive benefits received on behalf of the children equate to $802.00 per month.” Presumably, Papineau believes he is entitled to reimbursement of child support for approximately 7 months, but the record does not identify the 7-month period covered by the retroactive lump-sum payment. Papineau certainly is not entitled to reimbursement of the entire $5,600 lump-sum payment. At most, he would be entitled to reimbursement of $782 per month for the months covered by the retroactive payment. As Papineau concedes, the excess lump-sum payment inures solely to the benefit of his children.
Finally, Papineau argues that this court should equitably consider the fact that Standard is seeking subrogation of the Social Security disability benefits paid for the benefit of his minor children. But Standard is not a party to this action, and the status of the subrogation claim is not clear from the record on appeal. Thus, this court has no basis to consider whether Standard has a valid subrogation claim and how the subrogation claim may affect the Social Security disability benefits paid on behalf of the minor children. Based on the record herein, we conclude drat the district court did not err in denying Papineau’s motion to modify child support.
Affirmed.
« * ⅜ | [
-48,
124,
-44,
110,
-118,
33,
59,
0,
51,
-77,
-121,
-45,
-17,
-26,
20,
57,
-29,
59,
72,
123,
85,
-93,
63,
65,
-6,
-13,
-15,
77,
-79,
77,
-20,
-44,
76,
50,
3,
-43,
98,
-128,
-123,
84,
-114,
-126,
-71,
-19,
89,
6,
12,
107,
18,
31,
113,
-34,
55,
44,
-70,
-22,
12,
14,
89,
57,
-112,
-14,
-85,
7,
127,
82,
-95,
20,
28,
78,
112,
7,
-104,
57,
0,
-23,
50,
-74,
-122,
116,
1,
-101,
-127,
100,
102,
-124,
17,
-12,
-84,
8,
-66,
-34,
11,
4,
-111,
89,
0,
14,
-76,
-66,
76,
20,
46,
122,
104,
-51,
38,
108,
10,
-114,
-42,
-95,
-52,
104,
12,
-126,
-17,
36,
-96,
113,
-37,
-32,
92,
83,
123,
-97,
-10,
-70
] |
Bruns, J.:
Oliver Heights, LLC entered into an installment contract for of real estate with James and Sharon Smith. Less than 2 years later, Oliver Heights filed for Chapter 11 bankruptcy, and a reorganization plan was confirmed by the bankruptcy court. Subsequently, the Smiths filed a foreclosure action in state court alleging that Oliver Heights defaulted under the terms of both the installment contract and the reorganization plan.
After a bench trial, the district court found that Oliver Heights was in default, that the Smiths had given adequate notice of the default to Oliver Heights, and that the Smiths had not waived their rights by accepting an untimely payment. Moreover, the district court ordered that possession of the real property be immediately returned to the Smiths and granted a judgment for damages against Oliver Heights in the amount of $3,000. Thereafter, Oliver Heights timely appealed.
On appeal, we find substantial evidence to support the district court’s findings on the issues of default, notice, and waiver. But we find that the confirmed reorganization plan created an equitable mortgage, which is subject to foreclosure and a right of redemption under Kansas law. Accordingly, we affirm the district court’s decision in part, reverse it in part, and remand this case to the district court for further proceedings.
Facts
On August 13,2009, the Smiths entered into an installment contract for sale of real estate in which they agreed to sell Oliver Heights certain real property located in Atchison, Kansas, for the sum of $120,000. The installment contract required Oliver Heights to make 120 monthly payments in the amount of $577.92 to the Smiths. In addition, the installment contract required Oliver Heights to make a lump-sum payment of $60,000 to the Smiths on September 1, 2019.
In an Addendum to tire installment contract, the parties agreed:
“Upon execution hereof, [the Smiths] shall execute a General Warranty Deed to the subject property, in which [die Smidis] shall be grantor and [Oliver Heights] shall be grantee, and said Deed shall be held by [die Smiths’ attorney], until die full performance of this Agreement by the parties, whereupon the same shall be delivered to [Oliver Heights].”
On December 1,2010, Oliver Heights filed for Chapter 11 bankruptcy protection in federal court. See 11 U.S.C. § 1129 (2006). After negotiating with its creditors, Oliver Heights submitted a final reorganization plan that was confirmed by the United States Bankruptcy Court. Under the confirmed reorganization plan, Oliver Heights was to retain possession of the real property it was purchasing from the Smiths—subject to any hens. Likewise, the reorganization plan recognized that the Smiths held “legal title” to the real property and they were to retain their interest in it to tire extent of any outstanding balance owed to them by Oliver Heights.
The confirmed reorganization plan required Oliver Heights to continue to pay the Smiths $577.92 per month until September 1, 2019, when a lump-sum payment of $60,000 would become due. Moreover, Oliver Heights was to pay the Smiths an additional sum of $150 per month for 33 months. The reorganization plan also obligated Oliver Heights to keep property taxes current and to maintain insurance on the real property.
In addition to the specific terms relating to the sale of the real property by the Smiths to Oliver Heights, the confirmed reorganization plan included a general provision—which was applicable to all secured creditors—entitled “Means for Execution of the Plan.” This provision stated that “[i]f at any time [Oliver Heights] is unable to make payments as they become due to any secured creditor, [it] will surrender the collateral to satisfy the indebtedness to that creditor in lieu of the payments as outlined within this Plan.” Furthermore, this provision gave Oliver Heights 30 days from the date a payment was due in which to cure any default.
On April 6, 2012, the Smiths filed a petition in state court naming Oliver Heights and Atchison County as defendants. In the petition, the Smiths alleged that Oliver Heights defaulted under both the installment sale contract and the confirmed reorganization plan by failing to timely make installment payments, by failing to keep the property taxes current, and by failing to keep the real property insured. According to the petition, it also named Atchison County as a party because it held a lien on the real property for “unpaid real estate taxes” for several years.
In the petition, the Smiths explicitly requested that any rights or interest that OHver Heights held in the real property “should be forthwith foreclosed as provided by law, and any amount found due” to them from Oliver Heights “should be decreed a first and prior Hen on all of said real estate.” Likewise, the petition aHeged “[t]hat less than one-third (Vkrd) of the original amount advanced has been paid, and that therefore any redemption period herein should not exceed three (3) months.” The petition, however, did not include a request for immediate possession of the property or a demand for a monetary judgment.
OHver Heights filed an answer to the petition, asserting that it had kept the property taxes current and had kept the real property insured. But the answer did not assert waiver as an affirmative defense. Likewise, the final pretrial order entered by the district court did not list waiver as an affirmative defense. After denying OHver Heights’ motion for summary judgment, the district court conducted a bench trial on August 29, 2012.
Following the trial, the district court filed a memorandum decision in which it found that Oliver Heights was in default under the terms of the real estate installment contract and the reorganization plan for failing to make timely installment payments to the Smiths and for failing to keep the property taxes current. The district court also found that the Smiths had given sufficient notice of default to Oliver Heights. But rather than granting the remedy of foreclosure as requested by the Smiths in their petition, the district court granted the Smiths immediate possession of the real property, purportedly under the terms of the installment sale contract, and entered a monetary judgment against Oliver Heights in the amount of $3,000.
Analysis
Chapter 11 Reorganization Plan
On appeal, we must first determine the effect of the Chapter 11 reorganization plan confirmed by the bankruptcy court on the legal rights and responsibilities of the parties in this case. As a general rule, “Chapter 11 of the Bankruptcy Code authorizes reorganization of any assets [and debts of] the debtor (usually a business) rather than liquidation under Chapter 7.” Fyler v. Brundage-Bone Concrete Pumping, Inc., 48 Kan. App. 2d 615, 618, 297 P.3d 1180 (2013). Furthermore, as tire Kansas Supreme Court has found: “[T]he provisions of a confirmed plan [under 11 U.S.C. § 1141(a) (2006)] bind the debtor and any creditor whether or not such creditor has accepted the plan.” Waterview Resolution Corp. v. Allen, 274 Kan. 1016, Syl. ¶ 6, 58 P.3d 1284 (2002).
“[T]he confirmation of a [Chapter 11] plan . . . discharges the debtor from any debt that arose before the date of such confirmation.” 11 U.S.C. § 1141(d)(1)(A) (2006). “[T]he effect of confirmation is to discharge the entire preconfirmation debt, replacing it with a new indebtedness as provided in the confirmed plan; the plan is essentially a new and binding contract, sanctioned by the Court, between a debtor and his [or her] preconfirmation creditors.” In re Consumers Realty & Development Co., Inc., 238 B.R. 418, 425 (B.A.P. 8th Cir. 1999) (citing In re Ernst, 45 B.R. 700, 702 [Bankr. D. Minn. 1985]). In other words, “[a] confirmed plan of reorganization is in effect a contract between the parties and the terms of the plan describe their rights and obligations.” Ernst & Young LLP v. Baker O’Neal Holdings, Inc., 304 F.3d 753, 755 (7th Cir. 2002); see also In re Clay, No. 09-80909-TRC, 2010 WL 547165, at *2 (Bankr. E.D. Okla. 2010) (“It is well-settled that a confirmed plan creates a new contract between the debtor and interested parties, which replaces pre-petition obligations with a new contractual obligation in accordance with the creditor’s treatment under die confirmed plan.”).
It is important to recognize that “[t]he underlying creditors’ rights asserted in bankruptcy proceedings are creatures of state law.” Paul v. Monts, 906 F.2d 1468, 1475 (10th Cir. 1990) (citing In re Elcona Homes Corp., 863 F.2d 483, 486 [7th Cir. 1988]). Consequently, the use of state court remedies to enforce a confirmed reorganization plan is proper. 906 F.2d at 1476 (“The availability of alternative remedies [under the bankruptcy code] does not persuade us that those remedies are exclusive.”). Thus, a confirmed reorganization plan establishes a new contractual obligation that is enforceable in state court. Waterview Resolution Corp., 274 Kan. at 1029-30; see also Van Sickle v. Hallmark & Associates, Inc., 744 N.W.2d 532, 536 (N.D. 2008).
In the present case, the Smiths negotiated with Oliver Heights and ultimately withdrew their objection to the provisions of the reorganization plan confirmed by the bankruptcy court that related to the sale of die real property in question. Accordingly, we find that the confirmed reorganization plan controls the rights as well as the obligations of the Smiths and Oliver Heights in this case. Furthermore, we find that the remedies available under Kansas law may be used to enforce the rights and obligations of the parties under the terms of the confirmed reorganization plan.
Default, Notice, and Waiver
“The legal effect of a written instrument is a question of law.” Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011) (If the terms of the written instrument are clear, “the intent of the parties is to be determined from the language of the [instrument] without applying rules of construction.”). Because a Chapter 11 reorgani zation plan confirmed by a bankruptcy court creates a new contractual obligation, our interpretation of such plans is a question of law subject to unlimited review. See In re Davis Offshore, L.P., 644 F.3d 259, 263 (5th Cir.) (“This court interprets the terms of a bankruptcy reorganization plan and confirmation order de novo and holistically.”), cert. denied 132 S. Ct. 782, 181 L. Ed. 2d 488 (2011); In re Shenango Group Inc., 501 F.3d 338, 344-45 (3d Cir. 2007) (“In construing a confirmed plan of reorganization, we apply contract principles. . . . [W]e exercise plenary review.”).
Whether a party has defaulted on a contractual obligation is a question of fact, and we review a district court’s findings of fact to determine whether they are supported by substantial competent evidence. See Hall v. Ford Motor Credit Co., 292 Kan. 176, 181-82, 254 P.3d 526 (2011); Carpenter v. Riley, 234 Kan. 758, 764-65, 675 P.2d 900 (1984). In reviewing the record to determine whether a factual finding is supported by substantial competent evidence, we do not reweigh the evidence nor do we evaluate witness credibility. Progressive Products, Inc. v. Swartz, 292 Kan. 947, 955, 258 P.3d 969 (2011). But we review the legal conclusions based on those facts de novo. Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
Here, the reorganization plan confirmed by the bankruptcy court provides:
“If at any time the Debtor is unable to malee payments as they become due to any secured creditor, the Debtor will surrender the collateral to satisfy the indebtedness to that creditor in lieu of the payments as outlined within this Plan. Should the Debtor be unable to malee a Plan payment as it becomes due to any secured creditor, the Debtor shall have thirty (30) days from the date the Plan payment is due in which to cure the default under the Plan.”
At trial, one of the members of Oliver Heights admitted that the installment payment due on January 9 or 10, 2012, was not made to the Smiths until February 24, 2012. Under the plain and unambiguous language of the confirmed reorganization plan, the failure to malee the Januaiy 2012 payment in a timely manner constituted a default that Oliver Heights failed to cure within the 30-day grace period allowed by the plan. Nevertheless, Oliver Heights contends on appeal that the Smiths failed to give it proper notice of the default and that they waived their right to assert default by accepting the untimely payment.
Oliver Heights argues that the Smiths did not send written notice of the default in the manner required by the installment sale contract. But as indicated above, the confirmed reorganization plan is essentially a new and binding contract that replaces tire precon-firmation contract entered into by the parties. See In re Consumers Realty & Development Co., Inc., 238 B.R. at 425. Although the installment sale contract required written notice of default be sent to Oliver Heights and Robert Campbell, the reorganization plan did not contain such a requirement.
At trial, testimony was presented to establish that tire Smiths gave notice of the default to Oliver Heights’ bankruptcy attorney. Moreover, the bankruptcy attorney testified that it was his normal practice to forward the notice of default to his client and that he might also have called them to discuss the matter. Thus, we find that there is substantial evidence in the record to support the legal conclusion that the Smiths gave sufficient notice of the default to Oliver Heights.
Oliver Heights also argues that even if appropriate notice was given, tire Smiths waived their rights by accepting the January 2012 payment more than 30 days after it was due. In Kansas, waiver is an affirmative defense that the party asserting bears the burden of proving. Lyons v. Holder, 38 Kan. App. 2d 131, 139, 163 P.3d 343 (2007); see Foundation Property Investments v. CTP, 286 Kan. 597, Syl. ¶ 7, 186 P.3d 766 (2008). Furthermore, affirmative defenses—including waiver—must be set forth in an answer or other responsive pleading. See K.S.A. 2012 Supp. 60-208(c)(l)(Q) (“In responding to a pleading, a party must affirmatively state . . . waiver.”) (Emphasis added.); Brooker v. Brooker, 214 Kan. 89, 96-97, 519 P.2d 612 (1974).
A review of the record reveals that trial counsel for Oliver Heights did not assert waiver as an affirmative defense in its answer. Likewise, waiver is not even listed as an affirmative defense in the final pretrial order. Although Oliver Heights’ trial counsel argued during closing argument that late payments were accepted “without any problem” by the Smiths, we find this argument to be too little too late. Because waiver is an affirmative defense that a party must assert in an answer or other responsive pleading, we find that Oliver Heights failed to properly assert this affirmative defense before the district court, and, as such, we will not decide the issue of waiver on appeal. See In re Care & Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009).
Although we conclude that there is substantial evidence in the record to support the district court’s finding that Oliver Heights defaulted on the terms of the confirmed reorganization plan because of the late payment made in January 2012, we also conclude that there is substantial evidence to support the finding that Oliver Heights failed to keep the taxes on the real property current. We note that Article VII of the reorganization plan states: “[Tjaxes . . . shall be paid as they become due.” Additionally, in the portion of the reorganization plan related to the Smiths, the plan states that Oliver Heights “shall keep current real estate property taxes
Under K.S.A. 2012 Supp. 79-2004(a), a taxpayer can pay “at such person’s option, the full amount [owed] on or before December 20 of each year, or ½ [owed] on or before December 20 and the remaining ½ on or before May 10 next ensuing.” If the taxpayer fails to pay at least the first half of the taxes by December 20, then that first half accrues interest until the full amount is paid. Any tax obligation that remains unpaid on May 11 accrues interest until tire obligation is paid in full or the property is sold in foreclosure. See K.S.A. 2012 Supp. 79-2004(a).
Accordingly, we find that the plain and unambiguous language of the confirmed reorganization plan required Oliver Heights to pay the property taxes when they became due. In reality, the taxes at issue became due on November 1, 2011, but they were not payable until December 20,2011. See K.S.A. 79-1804; In re Prairie Mining, Inc., 194 B.R. 248, 253 (Bankr. D. Kan. 1995). Regardless, Oliver Heights conceded that it did not pay the first half of the property taxes by December 20, 2011.
Ultimately, Oliver Heights paid the entirety of the property tax obligation—including tire accrued interest on the first half—on May 3, 2012, which was nearly a month after this action was filed. Although Oliver Heights had the right to elect to either pay one- half of the properly taxes or the entire amount in December 2011, paying nothing at that time was not an option under the terms of tire reorganization plan. Consequently, when Oliver Heights failed to pay any of tire property taxes in December, it defaulted under the plain and unambiguous terms of the reorganization plan because it failed to keep tire property taxes current or pay them as they became due.
Addidonally, Oliver Heights claims that it did not default on its obligations because the real property was never subject to foreclosure for failure to pay taxes. But the obligation to keep the taxes current and to pay them as they became due under the reorganization plan was not contingent upon whether the property was subject to foreclosure. Thus, we conclude that the district court did not err in finding Oliver Heights in default of the reorganization plan for failure to keep taxes current or pay them when they became due.
In sum, we find substantial competent evidence to support the district court’s factual finding that Oliver Heights was in default of the reorganization plan for failing to make timely payments and for failing to keep taxes current. We also find Oliver Heights’' arguments regarding notice to be unpersuasive, and we do not consider its argument regarding waiver. We, therefore, affirm the decision of the district court on the issues of default, notice, and waiver.
Remedy for Default
In their petition, the Smiths requested that the rights and interest of Oliver Heights in the real property “be forthwith foreclosed as provided by law.” (Emphasis added.) And that because “less than one-third (lArd) of .the original amount advanced has been paid . . . any redemption period herein should not exceed three (3) months.” (Emphasis added.) Notwithstanding the Smiths’ request, the district court did not enter an order of foreclosure or establish a period of redemption. Instead, the district court granted the Smiths immediate possession of the property—evidently under the terms of the installment sale contract—-and entered a monetary judgment against Oliver Heights in the amount of $3,000. We find these remedies to be error first because the reorganization plan— not the installment sale contract—controlled the rights and obligations of the parties and second because the reorganization plan created an equitable mortgage subject to foreclosure.
In Kansas, an equitable mortgage is created when die parties intend “to charge real property as a security for an obligation.” Garnett State Savings Bank v. Tush, 232 Kan. 447, Syl. ¶ 3, 657 P.2d 508 (1983); see also Fuqua v. Hanson, 222 Kan. 653, Syl. ¶ 1, 567 P.2d 862 (1977); Hill v. Hill, 185 Kan. 389, 396-97, 345 P.2d 1015 (1959). When, pursuant to a contract for die sale of real estate, a seller retains legal title to property as security for the purchase price and the purchaser takes possession of the property, “the seller has no greater rights than he would possess if he had conveyed the property and taken back a mortgage.” Roberts v. Osburn, 3 Kan. App. 2d 90, Syl. ¶ 5, 589 P.2d 985, rev. denied 225 Kan. 845 (1979).
Here, the confirmed reorganization plan clearly provides for the installment sale of real property from the Smiths to Oliver Pleights. Moreover, the reorganization plan provides that the real property is to serve as security for the indebtedness—with the Smiths continuing to hold “legal title” to the property—to the extent of the outstanding balance of the indebtedness. Accordingly, we conclude that the terms of the confirmed reorganization plan are sufficient to establish an equitable mortgage in the real property.
In light of tire existence of an equitable mortgage, we find that the appropriate remedy for Oliver Heights’ default is foreclosure, subject to the applicable redemption rights under K.S.A. 2012 Supp. 60-2414. See Pine v. Pittman, 211 Kan. 380, 386, 506 P.2d 1184 (1973) (“As contract purchasers, the appellees were the equitable owners of tire premises and had an interest therein which was substantial so as to secure to them the right of redemption as guaranteed by K.S.A. 60-2414(a).”). Based on a review of the record, it is apparent that Oliver Heights has not yet paid ½ of the purchase price for the real property. Oliver Heights would be entitled to a 3-month redemption period under K.S.A. 2012 Supp. 60-2414(m). We, therefore, conclude that the appropriate remedy for the default by Oliver Heights would be foreclosure with a 3- month redemption period—which is the remedy sought by the Smiths in the first place.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. | [
-43,
105,
-104,
-20,
-118,
-32,
40,
-112,
123,
-45,
55,
95,
-49,
8,
20,
107,
-28,
89,
65,
105,
69,
-77,
14,
-127,
-42,
-77,
-75,
-43,
-66,
77,
100,
-105,
76,
112,
-46,
21,
-58,
-118,
-23,
92,
78,
-127,
9,
100,
-3,
0,
52,
-37,
20,
14,
1,
28,
-13,
46,
49,
75,
72,
42,
-53,
-19,
-48,
-16,
-37,
4,
127,
19,
33,
84,
-44,
75,
104,
-114,
-112,
53,
9,
-24,
115,
54,
-122,
28,
3,
27,
-84,
39,
-10,
0,
65,
-3,
-48,
28,
42,
-41,
-99,
-93,
-93,
88,
19,
42,
-65,
-100,
93,
7,
36,
-2,
-18,
-123,
25,
104,
15,
-22,
-12,
-45,
-34,
114,
-37,
-113,
-2,
2,
-95,
112,
-49,
-78,
94,
-25,
127,
-125,
-114,
-6
] |
Leben, J.:
In 2007, Lana Smith began work as a physical therapist for a Wichita medical practice. After she left its employment, she sued for bonuses she said were owed to her. Smith said that the practice’s business manager promised her a minimum $10,000 per year bonus before she began work.
But Smith’s employment agreement also clearly provided that she was an at-will employee, something she has not contested, and the compensation of at-will employees may be changed on a going-forward basis. Her employer announced new compensation terms during 2008, paid her more than $10,000 in bonuses for 2008, and applied the new compensation terms to bonuses in later years. By staying on after new compensation terms are announced for future compensation, an at-will employee impliedly accepts those terms. Accordingly, the district court properly granted summary judgment against Smith’s claim for additional bonuses from 2009 until she ended her employment in 2011.
Factual and Procedural Background
While Smith was employed by another Wichita medical practice, she applied for a physical-therapist position with Kansas Ortho-paedic Center, P.A. She signed an employment application that said she understood that she would be an at-will employee and that no one acting for the company could bind it to anything to the contrary:
“I understand that, if hired, my employment will be at-will and may be terminated for any reason, with or without cause, at any time at my option or by the company. I understand that no employee, officer or agent of the company may bind it to anything contrary to tire above by oral or printed statements, including handbooks, benefits booklets, or other forms of communication. I agree to conform to the rules and regulations of the company. I acknowledge that the company retains the right to revise its policies or procedures, in whole or in part, at any time.”
The next month, Kansas Orthopaedic Center s business manager, Liz Tolberd, contacted Smith to say that the practice was interested in hiring her. Tolberd and Smith discussed potential work schedules and compensation packages. Smith rejected an initial offer, but accepted a later offer of a starting salary of $70,000 with a guaranteed bonus of $10,000. Tolberd later said that the bonus guarantee had been limited to the first year, but Smith said she didn’t recall such a limitation.
Tolberd confirmed the terms in a letter to Smith, which listed a starting date of November 1, 2007, and said, “Annual Salary: $70,000 with a bonus guarantee of $10,000.” The letter also noted that there would be a performance evaluation after 90 days “without pay increase” and merit evaluations annually “with the potential of a salary adjustment on or about the anniversary date.” The letter made no mention of any term of employment.
On Smith’s first day of work, she received a personnel policy manual. It referenced more than once that her employment was “at will,” could be terminated at any time by her or the practice— with or without notice, and that the practice could change the terms of its personnel manual at any time:
“I have reviewed a copy of the company Personnel Policy Manual dated 9/1/03. I have read and understand the guidelines, policies, and procedures presented herein. I realize that this manual is a notification of Kansas Orthopaedic Center, P.A.’s (KOC, P.A.) guidelines, policies, and procedures. I understand that this manual is not intended to create any contractual rights in favor of KOC, P.A., or me. I also understand that it is not to be construed as a guarantee of employment for any specific period of time, for any specific type of work, or for any specific term. I agree that my employment is ‘at will’ and may be terminated at any time by either KOC, P.A., or me, with or without cause, and with or without notice.
“I understand that neither the personnel policies contained in this manual, nor any other written or oral statement by the company or its representatives are contracts of employment. No employee of KOC, P.A., other than the President has any authority to enter into any agreement for employment for any specific period of time, or an agreement contrary to the employment-at-will policy, and no such agreement has been made.
“I acknowledge my responsibility to become familiar with the terms of this manual, and further acknowledge that KOC, P.A., may change the terms of this manual without notice and at any time, and that any written notices of changes furnished to me should be kept with this manual as a record of current guidelines, policies, and procedures until a revised manual is issued.” (Emphasis added.)
In April 2008, Kansas Orthopaedic Center changed its bonus plan and provided Smith a copy. The revised plan provided that therapists would receive a quarterly bonus equal to 15% of their receipts for therapy services in excess of $45,000. For part-time employees, the plan provided for bonsues in a prorated amount based on the percentage of full-time employment. Smith understood that Kansas Orthopaedic Center was changing its bonus policy, and she continued to work there.
In June 2008, management and therapists at Kansas Ortho-paedic Center discussed the therapists’ desire to switch from working 8 hours per day 5 days per week to working 10 hours per day 4 days per week. Management representatives suggested that this would likely reduce a therapist’s productivity and thus reduce her bonus. But the therapists preferred the 4-day-a-week schedule, and it was implemented in March 2009; Smith moved to that schedule. In February 2010, the therapists were given the option to return to an 8-hour-per-day, 5-days-per-week schedule, but they declined.
Smith took a 12-week paid leave of absence in March 2010 for the birth of her son. When she returned to work in June 2010, she and her employer agreed that she could reduce her work to 4 8-hour days per week; her salary was reduced accordingly. In August 2011, she moved to a 39-hour-per-week schedule; her salary was again adjusted.
In November 2011, Smith gave notice that she would leave in 6 weeks to take a new job. Her last day of employment with Kansas Orthopaedic Center was December 14, 2011.
She had been paid a bonus of $12,522 in 2008, but her bonuses for later years were all less than $10,000: $6,412 in 2009; $1,854 in 2010; and $1,598 in 2011. The number of services billed by her declined after her first year as well: 10,849 in 2008, 9,283 in 2009, 5,193 in 2010, and 6,351 in 2011.
In February 2012, Smith sued for breach of contract, claiming that Kansas Orthopaedic Center had guaranteed her a bonus of $10,000 for every year of her employment. She claimed as damages the amounts needed to boost her bonus in each year from 2009 through 2011 to $10,000 each—a total of $20,136—plus interest.
Kansas Orthopaedic Center moved for summary judgment, contending that Smith was an at-will employee and that the letter Tolberd wrote to Smith did not obligate it to pay a $10,000 bonus throughout Smith’s employment. Smith claimed that the parties either had an implied-in-fact contract or that she had accepted a unilateral contract that guaranteed a $10,000 annual bonus as long as she worked there. The district court granted summary judgment to Kansas Orthopaedic Center, and Smith appealed to this court.
On appeal, we review the matter independently, without any required deference to the district court. See Hansford v. Silver Lake Heights, 294 Kan. 707, 710, 280 P.3d 756 (2012). Summary judgment is appropriate only when the pleadings and evidence presented to the court 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. O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012).
Analysis
We begin our analysis with the nature of Smith’s employment: she was an at-will employee. As a general rule, an at-will employee may be fired at any time for any reason. See Campbell v. Husky Hogs, 292 Kan. 225, 227-28, 255 P.3d 1 (2011); Worth & Landis, Fire at Will? The Status of Judicially Created Exceptions to Employment-at-Will in Kansas, 64 J.K.B.A. 22 (Feb./Mar. 1995). There are public-policy exceptions, such as that an employee can’t be fired for filing a complaint under employment-discrimination laws, but Smith doesn’t argue that any public-policy exception applies to her case. Moreover, the employment application and tire personnel policy manual she got before and when she began her employment clearly explained that her employment could be terminated either by her or by the employer at any time, with or without cause.
Logically, the nature of at-will employment, i.e., that eidier party can end it at any time for any reason, has a corollary: either party can announce new terms to apply going forward. As the Oregon Court of Appeals has said, if the employment is at will, “[i]t follows that an employer may also modify tire employment contract so long as the modification applies only prospectively. An enrployefe] impliedly accepts such modifications by continuing employment after the modification.” Albrant v. Sterling Furniture Co., 85 Or. App. 272, 278, 736 P.2d 201, rev. denied 304 Or. 55 (1987); accord Kauffman v. IBT, 950 A.2d 44, 47-48 (D.C. App. 2008); Stieber v. Journal Pub. Co., 120 N.M. 270, 273, 901 P.2d 201 (N.M. App. 1995); Duncan v. Alaska USA Fed. Credit Union, 148 Wash. App. 52, 76-78, 199 P.3d 991 (2008).
The power to terminate the employment relationship necessarily includes tire power to change the terms of employment so long as it is done prospectively and the employee is notified of the changed terms. See Anthony Marano Co. v. Passoff, No. 1-11-2853, 2012 WL 6861752, at “9 (Ill. App. 2012) (unpublished opinion); Malone v. American Bus. Info., 264 Neb. 127, 135, 647 N.W.2d 569 (2002); Stieber, 120 N.M. at 273; Gormley v. Coca-Cola Enterprises, 135 N.M. 128, 135, 85 P.3d 252 (N.M. App. 2003), aff'd 137 N.M. 192, 109 P.3d 280 (2005); Thus, an employer can make prospective changes to compensation or commissions. Geary v. Telular Corp., 341 Ill. App. 3d 694, 698-99, 793 N.E.2d 128 (2003). In our case, Smith agrees that she knew of the change made to the bonus-compensation plan, and she continued to work for Kansas Ortho-paedic Center for several years afterwards.
Sometimes air employment-at-will relationship will become something more permanent—not subject to termination without cause by the employer—because some representation made by the employer will be held to have created an “implied-in-fact” contract. See Worth & Landis, 64 J.K.B.A. at 23-30. Smith hasn’t argued that on appeal.
Instead, she claims that a “unilateral contract” was formed when she began work after receiving the offer for a guaranteed bonus of $10,000 per year. In a unilateral contract, one party malees a promise in exchange for the other party’s performance rather than a corresponding promise. A classic example of a unilateral contract involves one person who says to another, “ ‘If you will walk across the Brooklyn Bridge I will pay you $100.” The person making the promise wants performance in return, not merely the promise of action. The contract is formed when the second person performs by walking across the bridge. In such a contract, since only one party has made a promise (here, to pay if the other party walks across the bridge), only the party who made the promise has a legal obligation. The other party can choose to walk across the bridge or not. See Calamari & Perillo, Contracts § 2.10 (4th ed. 1998).
But it’s not clear that the concept of a unilateral contract is of any real importance in deciding our case. Even if the initial employment contract between Smith and her employer is characterized as unilateral, that doesn’t change the nature of Smith’s employment from employment at will to something else. Even if an at-will employment begins under a unilateral contract, the terms of an employment-at-will relationship still may be changed so that “where an at-will employee retains employment with knowledge of new or changed conditions, the new or changed conditions may become a contractual obligation.” Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1983). In fact, if one applies unilateral-contract analysis, the at-will employee’s performance—after announcement (or promise) of the new terms of employment— operates to accept those new terms. 333 N.W.2d at 626-27.
Kansas Orthopaedic Center malees several arguments on appeal; one of them is that the employer in an at-will employment can change the compensation on a prospective basis. In support, Kansas Orthopaedic Center cites Salon Enterprises, Inc. v. Langford, 29 Kan. App. 2d 268, 31 P.3d 290 (2000), in which an employer changed the commission-based compensation for an at-will employee. The employee sued for back wages under the Kansas Wage Payment Act, but our court determined that nothing in that statute prohibited changing the commission plan for at-will employees as long as the change was announced before the wages were earned. 29 Kan. App. 2d at 271. That case—and Kansas Orthopaedic Center’s corresponding argument—are fully consistent with the principles we discussed earlier in this opinion: the compensation plan for an at-will employee is subject to change.
Of course, summary judgment can only be granted where there are no material facts in dispute, so we should consider whether any of the few facts that are disputed might prevent summary judgment. There’s a potential factual dispute in our case as to what Tolberd initially told Smith about the duration of the guarantee of a $10,000 annual bonus. Tolberd testified that she told Smith orally that the guarantee was only for Smith’s first year of employment, although the letter Tolberd sent didn’t reflect that limitation; it said simply, “Annual Salary: $70,000 with a bonus guarantee of $10,000.” The letter does separately mention annual performance reviews and possible annual salary adjustments, but nothing in the letter definitively speaks to the duration of the bonus guarantee. At her deposition, Smith testified that she did not recall Tolberd saying that the bonus guarantee was limited to her first year of employment. What we’re left with factually, from those materials, is that Tolberd has a recollection of saying that the bonus guarantee had a specific time limit, while Smith didn’t recall mention of the limit. And we have a letter that’s ambiguous.
Once Kansas Orthopaedic Center filed for summary judgment, Smith filed an affidavit contending that Tolberd’s recollection on this point was “flawed” and that Tolberd’s statements on the point were “false[j”: “[Tolberd] states falsely that I agreed to ‘a bonus guarantee of $10,000 for the first year.’ ” The district court refused to consider the affidavit, citing a rule under which an affidavit cannot be used to controvert earlier deposition testimony for the purpose of avoiding summaiy judgment. See P.W.P. v. L.S., 266 Kan. 417, Syl. ¶ 8, 969 P.2d 896 (1998). A district court’s decision to apply that rule is reviewed for abuse of discretion, 266 Kan. at 431, and we find no abuse of discretion here. To go from saying that she didn’t recall Tolberd limiting the bonus guarantee to the first year, to saying that Tolberd had testified falsely was more than a subtle shift, and the new position came only in response to a summary-judgment motion.
So while we have some dispute in the parties’ recollections about whether Tolberd said the bonus guarantee had a time limitation, we have no definitive statements that the guarantee would last as long as Smith worked for Kansas Orthopaedic Center. And even if such a promise had been made in advance of employment, as long as Smith was only an at-will employee, changes still could be made to her compensation as long as they were only applied to compensation earned after the change was announced. See, e.g., Salon Enterprises, Inc., 29 Kan. App. 2d at 271; Anthony Marano Co., 2012 WL 6861752, at *9.
At most, Smith had a subjective expectation that her bonus guarantee would continue even after a new bonus plan was announced. That would not be enough to avoid summary judgment on the facts presented here. See Hall v. Kansas Farm Bureau, 274 Kan. 263, 273, 50 P.3d 495 (2002) (finding that an employee’s subjective understanding about employment is not sufficient by itself to create an implied-in-fact contractual obligation on the employer).
We therefore affirm the district court’s judgment. | [
-110,
-8,
-48,
-19,
8,
-32,
50,
50,
113,
-64,
39,
83,
-17,
-52,
13,
59,
83,
109,
64,
99,
83,
51,
5,
8,
-58,
-105,
-7,
-63,
-71,
74,
-76,
85,
69,
48,
10,
-43,
-26,
67,
-51,
24,
-24,
5,
11,
-8,
-7,
-128,
48,
51,
-96,
79,
113,
-36,
-71,
40,
29,
71,
44,
110,
122,
-86,
-31,
-31,
-14,
-123,
127,
17,
-77,
5,
62,
75,
-36,
-114,
-120,
57,
105,
-56,
18,
-74,
-62,
116,
27,
-87,
-60,
99,
98,
50,
24,
-27,
52,
-68,
-82,
-98,
-113,
-92,
-77,
89,
-102,
15,
-74,
-68,
-40,
20,
-127,
92,
-14,
85,
29,
96,
9,
-98,
-42,
-77,
15,
100,
28,
-113,
-1,
6,
1,
1,
-118,
-94,
94,
67,
114,
-109,
43,
-77
] |
Green, J.:
This appeal arises out of the trial court’s judgment enforcing a settlement of a lawsuit between Kevin O’Neill and Lisa C. O’Neill (the O’Neills) and Greg T. Spies and McDowell, Rice, Smith & Buchanan, P.C., (collectively MRSB). The O’Neills sent an unsolicited email to MRSB offering to dismiss MRSB from the lawsuit in exchange for a mutual release. While they expressly preserved their claims against a separate defendant, Zoe Herrington, they did not preserve nor express any intent to preserve any claims against MRSB. MRSB accepted the offer by return email.
After receiving MRSB’s acceptance of the O’Neills’ offer, the O’Neills asked that MRSB prepare and sign a written agreement for the release that same day. MRSB did so. After receiving the written settlement agreement, the O’Neills then asked that their attorneys be specifically mentioned by name in the agreement. MRSB inserted the names of the O’Neills’ attorneys in the agreement, signed it, and emailed the agreement to the O’Neills. When the O’Neills failed to sign the agreement, MRSB moved to dismiss the case and for the court to enforce the settlement agreement.
The trial court ruled that the O’Neills had agreed to a settlement agreement to dismiss MRSB from this lawsuit in exchange for a mutual release. The trial court found that the agreement was binding even though the formal agreement had not been signed by both parties. On appeal, the O’Neills contend that the trial court erred in ruling that a settlement agreement had been reached to justify dismissing the lawsuit between the parties with prejudice. We disagree. In addition, the O’Neills contend that the trial court erred in granting summary judgment in favor of MRSB on their slander of title and abuse of process claims based on the statute of limitations. Because we are affirming the trial court’s judgment on the basis of a settlement agreement having been reached between the parties, it is not necessary that we address the O’Neills’ statute of limitations contention.
The underlying lawsuit began when Zoe Herrington sued the O’Neills for specific performance of a real estate contract. Once that suit was dismissed, the O’Neills sued MRSB and Herrington for malicious prosecution, slander of title, and abuse of process. MRSB represented Herrington in the underlying lawsuit where the trial court granted summary judgment to the O’Neills.
On June 22, 2011, the trial court granted summary judgment to MRSB and Herrington on the O’Neills’ abuse of process and slander of title claims, finding that the claims were barred by the statute of limitations. The remaining malicious prosecution claim was set for trial on August 20, 2012.
On June 19, 2012, MRSB moved for summary judgment on the malicious prosecution claim. The O’Neills had to respond to MRSB’s motion for summary judgment by July 13, 2012.
On July 12,2012,1 day before the O’Neills’ deadline to respond, the O’Neills contacted MRSB with a settlement offer. At 12:15 p.m., the O’Neills emailed counsel for MRSB offering to dismiss the case against MRSB in exchange for a mutual release:
“My wife and I are interested in dismissing the case against Mr. Spies and your firm [MRSB], Let me know if you will provide a mutual release. If you will then we can move forward on the dismissing the case against your firm and Mr. Spies. We would not be agreeable to dismissing the case against Mrs[.] Herrington. This offer is good through till this time tomorrow.”
Counsel for MRSB accepted the O’Neills’ settlement offer by email at 12:35 p.m. the same day: “I have authority to settle all of plaintiffs’ claims against MRSB and Mr. Spies on those terms. We will draft up the appropriate papers and forward them to you.”
The O’Neills then responded: “Can you get me the release before the end of the day? Otherwise we have to finish the response to your motion and get it over to the court house.”
At the O’Neills’ request, MRSB’s counsel drafted the formal written settlement agreement and release and a stipulation of dismissal with prejudice and emailed those documents to the O’Neills the same day. The O’Neills reviewed the formal written settlement agreement and release, and the only request they made was that the release specifically mention and include the names of their former attorneys in the release. MRSB made the requested change. The O’Neills then asked MRSB to send them a signed copy of the formal written settlement agreement and release for them to sign: “Please have it [the agreement] signed and then fax it to [us.] My wife and I will execute it and fax it back to you. Regards
After MRSB accepted the O’Neills’ settlement and mutual release offer, MRSB’s counsel emailed the trial judge to advise him of the settlement. The trial judge then asked the O’Neills to confirm by email the following: (1) that MRSB was being dismissed with prejudice, (2) that the O’Neills would proceed solely against defendant Zoe Herrington, and (3) that the trial court could disregard MRSB’s motion for summary judgment. The trial judge further stated: “I need Mr. and Mrs. O’Neill to confirm this to me by e-mail. If they do, the e-mail will go into the Court file and will be a binding decision on their part.”
MRSB responded to the trial court’s email, with a copy to the O’Neills, confirming the answer to each of the court’s three questions was “yes,” that the agreement was documented and that signatures were being arranged. After a few hours, the O’Neills also confirmed that they had released MRSB from the suit:
“Lisa and I [the O’Neills] wanted to confirm that we have released MSRB [sic] and Mr. Spies from the suit. We are sorry for taking so long to respond we just needed to make sure our attorneys were included in the release. We have a meeting with David Smith on Monday about entering his appearance in the case. Unfortunately he [sic] can not meet with him until 2:00 p.m.”
The next day, on July 13, 2012, the O’Neills sent an email to the trial court advising the judge that they could not meet with Smith until the following week and that Smith wanted to review the formal written settlement agreement at their meeting. The O’Neills asked the trial judge if that was okay. The trial judge responded:
“I am not sure what you are asking me. As far as I am concerned, you have officially told the Court that you are releasing MRSB and Spies. If you talk to Mr. Smith on Monday and he advises that you should not have done so, that will change nothing, they are still dismissed from the case. . . .”
The O’Neills responded and told the judge: “I was just referring to having the signed [formal written] settlement agreement that I was hoping to have today.” The trial judge then responded: “I do not see this as a problem, with the understanding that again, if he advises you that you should not have decided to release MRSB and Spies, you cannot retreat from your position yesterday that you have released them.”
When the O’Neills had not signed the formal written settlement agreement and mutual release by July 15, 2012, MRSB filed a motion to dismiss with prejudice. MRSB asked the court to direct the O’Neills to sign the mutual release and settlement agreement and to dismiss MRSB from the suit with prejudice.
A couple of days later, on July 17, 2012, the trial court held a pretrial conference. At the pretrial conference, the O’Neills told the trial court that they had not signed the formal written release because they never intended to release MRSB on the abuse of process and the slander of title claims that were previously dismissed. The O’Neills stated, “[We] had never contemplated releasing them of the abuse of process and the slander of title that had already been dismissed. That is—and [we] haven’t had a chance to go through it completely to figure out what else there is, but that is [our] biggest contention.” The O’Neills agreed to dismiss the malicious prosecution claim against MRSB but maintained that they never intended to provide a full release of all claims.
On July 23, 2012, the trial court held a hearing on MRSB’s motion to dismiss. At the hearing, the O’Neills argued that the emails clearly show that they were still considering the agreement and that they wished to have an attorney review the formal written agreement before they signed it. On the other hand, MRSB argued that the O’Neills contacted them and offered a mutual release. MRSB accepted that offer of a mutual release. MRSB maintained that based on Kansas law an agreement was formed even though the agreement was not yet formally drafted.
The trial court ruled from the bench and agreed with MRSB. The trial court enforced the settlement agreement and dismissed MRSB with prejudice. The trial judge stated:
“Kansas contractual law is clear that I have to enforce agreements based on what the parties—well, I have to determine their intent. And when the agreement is in wilting, through e-mail or whatever, I have to garner that intent from the words used by the parties. And I think in this case, the words clearly intended that both parties completely and fully released each other.”
The O’Neills moved for reconsideration, which the trial court denied.
Did the Trial Court Err in Ruling That a Settlement Agreement Had Been Reached to Dismiss the Lawsuit Between the O’Neills and MRSB?
Here, the records indicate that the trial court granted MRSB’s motion to dismiss based on the pleadings, motions of the parties, and other written materials. Before ruling from the bench, the trial court heard arguments from the parties. In such situations, our Supreme Court has held:
“ “Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions, and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine ele novo what the facts establish.’ ” Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990); see also Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001) (interpretation and legal effect of contracts and other written instruments); cf. Aeroflex Wichita, Inc. v. Filardo, 294 Kan. 258, 268-69, 275 P.3d 869 (2012) (applying de novo, standard of review where no evidentiary hearing is held and matter resolved based upon only pleadings and affidavits of the parties and considering evidence in light most favorable to the nonmoving party.
The essential elements of a valid informal contract are as follows: (a) A promisor and a promisee each of whom has legal capacity to act as such in the proposed contract; (b) manifestation of assent by the parties who form the contract to the terms thereof and by every promisor to the consideration for his or her promise; (c) a sufficient consideration; and (d) the transaction, though satisfying the foregoing requirements, must be one that is not void by statute or by special rules of the common law. Restatement (First) of Contracts § 19 (1932).
Whether a contract exists is a question of fact. U.S.D. No. 446 v. Sandoval, 295 Kan. 278, 282, 286 P.3d 542 (2012). On appeal, we review the record to determine whether substantial competent evidence exists to support that factual conclusion. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009).
When determining whether an agreement was formed, it is important to remember the key principle that “[t]he law favors settlement of disputes.” Bright v. LSI Corp., 254 Kan. 853, Syl., 869 P.2d 686 (1994). For numerous reasons, we prefer that parties settle their disputes rather than engage in litigation. Settlements need not be in writing to be enforceable. Lewis v. Gilbert, 14 Kan. App. 2d 201, 202-03, 785 P.2d 1367 (1990). Because a settlement agreement is a contract, what is required is that the parties reach agreement on all material terms. Once that is done, any nonma-terial discrepancies can be resolved by the court consistent with the parties’ intent when they agreed upon the material terms. See NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 396-400, 996 P.2d 821 (2000). Moreover, once one party has made a setdement offer and the other party has unconditionally accepted it, neither party may call off the agreement. Connor v. Hammer, 201 Kan. 22, 24, 439 P.2d 116 (1968).
On appeal, the O’Neills raise several objections to enforcement of the settlement agreement, including that there was no meeting of the minds as to a full release. The O’Neills contend that it was their intent to release MRSB from only the pending claim of malicious prosecution and not from the two previously dismissed claims of slander of title and abuse of process. The O’Neills further maintain that they did not intend to be bound by the agreement until they had a formal written agreement reviewed by counsel. And finally, the O’Neills argue that the court should take into consideration that they were acting pro se when they allegedly entered into this settlement agreement and full release. We will address each of these issues individually below.
Secret Intent to Only Release Pending Claim
The O’Neills maintain that it was never their intent to release MRSB from all claims and that they intended to release MRSB from only the pending claim of malicious prosecution. Thus, they argue that there was no meeting of the minds and therefore no binding contract.
In order to find that the O’Neills and MRSB entered into an enforceable contract, MRSB is required to show a meeting of the minds as to all essential terms. Sidwell Oil & Gas Co. v. Loyd, 230 Kan. 77, 79, 630 P.2d 1107 (1981).
“In determining intent to form a contract, the test is objective, rather than subjective, meaning that the relevant inquiry is the ‘manifestation of a party’s intention, rather tiran the actual or real intention.’ [Citation omitted.] Put another way, ‘the inquiry will focus not on the question of whether the subjective minds of the parties have met, but on whether their outward expression of assent is sufficient to form a contract.’ ” Southwest & Assocs., Inc. v. Steven Enterprises, 32 Kan. App. 2d 778, 781, 88 P.3d 1246 (2004) (citing 1 Lord, Williston on Contracts § 4:1, p. 241 [1990]).
While it may be true that the O’Neills did not intend to release MRSB from the two previously dismissed claims, the O’Neills failed to share this secret intent. Only disclosed intentions can be part of the parties’ contract; undisclosed intentions are not to be considered when construing the intent of the parties to a contract. See First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 600, 647 P.2d 1268 (1982) (“ ‘[I]t is the intention that is expressed in the contract that controls, not an intention secretly cherished by one of the parties’ ”); State, ex. rel. v. Rosenbaum Grain Co., 115 Kan. 40, 50, 222 P. 80 (1924) (A party’s undisclosed intention will not defeat a contract.). The O’Neills did not share their secret intent to release MRSB from only the pending claim of malicious prosecution. There is no room to attach any importance to the O’Neills’ secret personal or individual intentions. Here, the emails, which used unambiguous words between the parties, showed that an offer and an acceptance had occurred. Moreover, the O’Neills did not condition their offer to say that no agreement shall be formed until a formal agreement has been drawn up and signed. There is no question that the O’Neills understood how to condition an offer or to preserve a claim since they expressly stated they wanted to preserve their claim against Herrington.
The trial court properly ruled that there was a meeting of the minds between the O’Neills and MRSB and that the contract contained a full release for both parties.
No Intent to Be Bound Until the Contract Was Reviewed by an Attorney and Signed
The O’Neills also argue that they did not intend to be bound by the agreement until the following: (1) the formal written agreement was reviewed by their attorney; and (2) they had signed the formal written agreement. The O’Neills maintain that they were still negotiating the terms of the contract and that they cannot be bound by the contract until they signed it.
Parties can bind themselves to a contract orally or by informal letters or emails. “The fact that tire parties contemplate the subsequent execution of a formal instrument as evidence of their agreement does not necessarily imply they have not already bound themselves to a definite and enforceable contract.” Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, 735, 512 P.2d 379 (1973).
The O’Neills’ argument is untenable for two reasons: First, the trial court specifically told the O’Neills that their confirmation of the release to the court would be binding on them and would be made part of the record. The trial court further explained to the O’Neills that an attorney could review the agreement but if the attorney later told them that they should not have released MRSB that would not change anything because they had already agreed to release them. Second, the 'O’Neills were tire ones who set the 24-hour deadline on the settlement agreement. The O’Neills contacted MRSB with tire settlement offer 1 day before their deadline to respond to MRSB’s motion for summary judgment. Thus, the O’Neills needed to reach a settlement within approximately 24 hours, or they would be forced to respond to MRSB’s motion for summary judgment. The O’Neills did not have an attorney at that time. Moreover, they were not planning to meet with an attorney until the following week, well after their deadline to respond to the motion for summary judgment. Therefore, it is disingenuous for the O’Neills to contend that they did not want or intend to be bound by the settlement agreement on the day they made the offer to MRSB.
Further, while MRSB did prepare a formal written settlement agreement and mutual release, the O’Neills have not demonstrated any material term of the settlement that was not already agreed upon in the emails. For example, the only terms of the agreement that the O’Neills wanted altered dealt with specifically including their former attorneys’ names in the release. This was not a material detail, and the O’Neills have failed to demonstrate that there was any material dispute related to this request. Moreover, the O’Neills did not place a condition on the contract to not be bound until the contract was reviewed by an attorney and signed. Where parties condition a contract on it being reduced to writing and signed, there is no enforceable contract until5such act is accomplished. Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, 75, 500 P.2d 39 (1972). That is not the case here. In this case, the O’Neills contacted MRSB offering to dismiss the case in exchange for a mutual release. MRSB unconditionally accepted that offer which created a binding contract. It is clear from the record that the parties intended to be bound without a formal document and that the expected formal document was nothing more than a memorial of that contract.
Special Consideration for Pro Se Litigants
Finally, the O’Neills contend that this court should give them special consideration because they were acting pro se when they entered into the settlement agreement and release with MRSB. The O’Neills maintain that the court has a “duty to protect pro se litigants, as they are unskilled in legal matters and prone to errors.” This court has stated the following concerning a pro se litigant:
“A pro se litigant in a' civil case is required to follow the same rules of procedure and evidence which are binding upon a litigant who is represented by counsel. Our legal system cannot function on any basis other than equal treatment of all litigants. To have different rules for different classes of litigants is untenable. A party in civil litigation cannot expect the trial judge Or an áttorney for the other party to advise him or her of the law or court rules, or to see that his or her case is properly presented.to the court. A pro se litigant in a civil case cannot be given either an advantage or a disadvantage solely because of proceeding pro se.” Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, 595-96, 730 P.2d 1109 (1986).
The O’Neills’ failure to preserve claims against MRSB or to condition the settlement agreement cannot be excused simply because they were pro se litigants. Moreover, Mr. O’Neill was a sophisti cated businessman who had already gone through three separate attorneys on this case. The O’Neills offered a settlement with MRSB in exchange for a mutual release, and MRSB accepted that offer. The O’Neills cannot expect to be excused from this binding contract simply because they were not represented by counsel when the contract was formed.
Here, the trial court ruled that the parties had entered into a settlement agreement and full mutual release. The trial court based this determination on the fact that Mr. O’Neill was a sophisticated businessman who initiated the email contact with MRSB, where the O’Neills offered a mutual release. The court found that MRSB immediately accepted the offer and stated that it related to “all” claims between the parties. The court stated that the O’Neills could have responded and said that they wished to preserve some claims, but they did not do that. Instead, the O’Neills responded: “Can you get me the release before the end of the day?” The trial court explained that a contract has nothing to do with the secret or personal intent of the parties: “I can’t make my decisions on what the parties intended if that intent is different than what is stated. And, unfortunately, I certainly cannot enforce a contract based on what a party wished they had included in the terms.” The writings and emails that passed between the parties contained all the elements of a completed contract. Thus, the trial court properly concluded that a settlement agreement and full mutual release had been reached. Moreover, this conclusion is supported by substantial competent evidence.
Because we have determined that the O’Neills entered into a binding settlement agreement and mutual release with MRSB, we do not need to address the O’Neills’ remaining claim that the trial court erred in granting summary judgment in favor of MRSB. In agreeing to the mutual release, the O’Neills lost their right to challenge the trial court’s decision to dismiss their slander of title and abuse of process claims against MRSB.
Affirmed. | [
-112,
125,
-119,
-84,
-120,
97,
50,
-70,
99,
-127,
47,
83,
-65,
-17,
24,
107,
-25,
105,
69,
104,
80,
-93,
39,
82,
115,
-77,
-61,
85,
-75,
111,
-12,
30,
76,
48,
-54,
85,
-30,
-126,
-27,
-46,
2,
-123,
-104,
108,
-7,
70,
48,
51,
16,
-113,
68,
-68,
-79,
45,
53,
71,
104,
40,
-17,
61,
-44,
60,
-117,
4,
111,
1,
-77,
53,
-104,
2,
-6,
78,
-114,
57,
33,
-23,
48,
54,
-58,
116,
75,
-69,
8,
-94,
113,
32,
-59,
-17,
-99,
-68,
46,
126,
-97,
-26,
-13,
88,
8,
104,
-83,
-35,
112,
64,
-91,
-10,
-28,
-116,
29,
-20,
12,
-17,
86,
-101,
31,
126,
30,
9,
-17,
19,
32,
81,
-51,
-80,
92,
102,
113,
-45,
14,
-37
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Per Curiam:
This is a contested original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Douglas Lee Baker of Lawrence, an attorney admitted to the practice of law in Kansas in 1975.
On December 15, 2011, the office of the Disciplinaiy 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 9, 2012. On March 28, 2012, a hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys, where the respondent was personally present and was represented by counsel. The hearing panel determined that the respondent violated KRPC 4.1 (2012 Kan. Ct. R. Annot. 605) (truthfulness in statements to others); KRPC 8.4(e) (2012 Kan. Ct. R. Annot. 643) (engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and KRPC 8.4(g) (engaging in any other conduct that adversely reflects on the lawyer’s fitness to practice law). The respondent stipulated to the factual allegations as set forth in the complaint and also stipulated to having violated KRPC 4.1, KRPC 8.4(c), and KRPC 8.4(g).
After the hearing’s conclusion, the panel made the following findings of fact, conclusions of law, and recommendation to the court:
“FINDINGS OF FACT
7. ... The Kansas Supreme Court admitted the Respondent to the practice of law on September 12, 1975. Later, in September, 1997, the Idaho Supreme Court admitted the Respondent to the practice of law. After returning to live in Kansas, the Respondent transferred his Idaho license to inactive status.
“8. In 1992, the Respondent began acquiring gold mining claims for mining operations in Idaho. At a later time, he also acquired mining claims in Arizona.
“9. On February 20, 2001, the Respondent formed and organized Arizona Idaho Mining, LLC (‘AZID’) as an Idaho limited liability company. The Respondent named himself managing member of AZID. AZID was purportedly formed to engage in the exploration, development, and production of gold and other precious metals, primarily in the states of Arizona and Idaho by acquiring interests in Custer Mining, LLC and Western Metallurgical Company, LLC (‘Western’).
“10. That same day, February 20, 2001, the Respondent formed and organized Custer Mining, LLC (‘Custer’) as an Idaho limited liability company. Western Metallurgical did not exist in February, 2001. [Footnote 1: On July 25, 2001, the Respondent formed and organized Western Metallurgical Company, LLC (Western) as a Nevada limited liability company. Wéstern was formed to conduct a mining operation on 85 acres in Arizona.]
“11. The Respondent prepared a securities offering document by AZID, also dated February 20, 2001. The offering document stated, ‘the managing member [of AZID] is accountable to the Members as a.fiduciary and must act with integrity and good faith to promote the Members’ interests.’
“12. The Respondent also prepared a stock ownership document. The Respondent provided a copy of the offering document and the stock ownership document to prospective investors to explain the terms of an investment in AZID.
“13. The Respondent offered and sold membership interests in AZID to 36 investors, in six states, raising approximately $2.6 million. As the managing member, the Respondent had access to and control of AZID’s funds from its inception until it became insolvent.
“14. Investors received no return on their investment in AZID, including no dividends, interest, or return of principal. The Respondent spent all of the AZID’s investors’ investment monies.
“15. In the offering document and the stock ownership document, as well as during oral conversations, the Respondent made written and oral representations to prospective AZID investors to explain the terms of an investment in AZID. The representations made by tire Respondent included material misrepresentations. Additionally, the Respondent failed to provide prospective AZID investors with material information.
“Material Misrepresentations
“16. Safety Net. The Respondent stated that Adair Creek Mine was a safety net and would virtually eliminate the risk of loss to the investors. The Respondent stated that the Adair Creek claims were ‘already a proven entity.’ However, at the time the Respondent made that statement, the Respondent knew that Adair Creek Mine had never been profitable.
“17. Independent Laboratory Confirmation of Results of Stage One Testing. The Respondent stated that, as a protection for the investors, tire results of the stage one testing of the Arizona property would be confirmed by an independent laboratory before additional expenses were incurred. However, the Respondent and AZID failed to have an independent laboratory confirm the results of the stage one testing before proceeding to stage two.
“18. Cash Flow Projection for Mining Year 2001. In the offering document, die cash flow projection for the mining year 2001 on 'the Adair Creek Claims was based on a representation that AZID would be processing a minimum of 8,950 cubic yards. However, die Respondent knew that the Forest Service had audior-ized AZID to process a maximum of only 5,400 cubic yárds.
“19. Transfer of Stricklans’ Interest in Adair Creek Claims. In the offering document, tíre Respondent stated that William and Marie Stricklan had transferred their production interest in the Adair Creek Claims to AZID. However, the Respondent knew diat as of die date of the offering document, die Stricklans had not transferred their interest. The Stricklans did not'transfer their interest in die Adair Creek Claims until December 14, 2001. The Respondent failed to inform investors who purchased the membership interest in AZID prior to December 14, 2001, that the Stricklans had not yet entered into a written agreement for the transfer of their production interest in die Adair Creek claims to AZID.
“Material Omissions
“20. Deficiency Letter. On May 10, 2001, die Respondent filed the offering document with the State of Idaho, Department of Finance. On May 18, 2001, Nancy C. Ax, an examiner/investigator for the Department of Finance, sent a letter to the Respondent, noting deficiencies in die offering document. Specifically, Ms. Ax stated, ‘[i]n order to provide adequate disclosure to investors, additional revision and information will be required.’ In offering and selling investments to prospective investors in AZID after May 18,2001, the Respondent failed to inform the prospective investors that the Department of Finance had issued a deficiency letter.
“21. Mining History of Arizona Property. The Arizona property was previously mined by NewCut, Inc. John Allison served as NewCut’s plant manager. In February 1999, NewCut filed for bankruptcy and die mining operation was shut down. Thereafter, in September, 1999, Al/Far Mining, Inc., owned by Dan Carney, purchased the mining operating through NewCut’s bankruptcy case. Mr. Allison was instrumental in having Al/Far Mining purchase die Arizona mining operation through NewCut’s bankruptcy case. Additionally, Mr. Allison served as the general manager for Al/Far Mining. By March, 2000, Al/Far Mining shut down the mining operation on die Arizona property. On August 1, 2001, the Respondent, as manager of Western Metallurgical Company, LLC, purchased die Arizona property from Al/Far Mining for $300,000. Again, Mr. Allison was the general manager of the mining operation of the Arizona, property. Prior to preparing the offering document and the stock ownership document, the Respondent knew diat the Arizona mining operation was not profitable and had shut down in March, 2000. The Respondent failed to inform prospective investors that the Arizona mining operation was not profitable and had shut down in March, 2000.
“Idaho
“22. On August 12, 2004, the State of Idaho, Department of Finance, Securities Bureau, filed a complaint against the Respondent and AZID alleging securities fraud and misrepresentation. The State of Idaho sought an injunction and restitution.
“23. On October 13, 2005, the Court entered judgment against AZID in the amount of $1,735,000.00. In the judgment, the Court concluded that AZID violated the Idaho Securities Act and permanently enjoined AZID from engaging in acts, what would constitute violations of the Idaho Securities Act. Additionally, the Court prohibited AZID from selling securities without receiving the prior written consent of the Director of the Idaho Department of Finance. Finally, the Court ordered AZID to pay a money judgment in the amount of $1,730,000 and $5,000 in attorneys fees and costs.
“24. On December 7, 2006, the Court granted summary judgment against the Respondent. In its order, the Court concluded that the Respondent’s misrepresentations of fact constituted material misrepresentations in violation of the Idaho Securities Act. Additionally, the Court concluded that the Respondent made material omissions of fact in violation of the Idaho Securities Act. The Court granted summary judgment to the State of Idaho and granted the relief that die State of Idaho sought.
“25. On December 18, 2006, the Court entered judgment and a permanent injunction against the Respondent. Specifically, the Court concluded that the Respondent violated the Idaho Securities Act by misrepresenting and omitting material facts in connection with the offer or sale of a security. Further, the Court permanently enjoined the Respondent from engaging in any acts, practices or courses of business, omissions, and misrepresentations that would constitute violations of the Idaho Securities Act and the Uniform Securities Act. Finally, the Court awarded a money judgment against the Respondent in the total amount of $2,960,000 to include $2,600,000 as restitution to investors injured by the Respondent’s violations of the Idaho Securities Act and $360,000 in penalties.
“26. On January 30, 2007, the State of Idaho registered the foreign judgment in tire District Court of Douglas County, Kansas. At an aid in execution hearing, the Respondent testified that he has no assets with which to satisfy the judgment. At the time of the disciplinary hearing, the Respondent has paid a total of $500 toward the judgment. The Respondent admitted that he will never be able to satisfy the judgment.
“Washington.
“27. On March 21, 2005, the State of Washington, Department of Financial Institutions, Securities Division, filed a statement of charges and notice of intent to enter an order to cease and desist and to impose fines against the Respondent and AZID. In the statement of charges, the State of Washington made tentative findings of fact and conclusions of law.
“28. On May 9, 2005, the Respondent waived his right to an adjudicative hearing and agreed to cease and desist his actions.
“29. On July 29, 2005, the State of Washington determined that neither the Respondent nor AZID had the financial ability to pay a fine and entered an agreed order that the Respondent and the AZID would cease and desist from offering or selling securities in the State of Washington.
“CONCLUSIONS OF LAW
“30. Based upon the Respondent’s stipulations and the above findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 4.1, KRPC 8.4(c), and KRPC 8.4(g), as detailed below.
“31. KRPC 4.1 provides:
‘In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by or made discretionary under Rule 1.6.’
In this case, the Respondent founded and organized AZID. In behalf of AZID, the Respondent solicited investments from 36 separate individuals. In so doing, the Respondent made material misrepresentations and material omissions. The Respondent violated KRPC 4.1[a] when he made misrepresentations of material fact. Additionally, the Respondent violated KRPC 4.1[b] when he made omissions of material fact. Accordingly, the Plearing Panel concludes that the Respondent repeatedly violated KRPC 4.1.
“32. ‘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 made material misrepresentations of fact and material omissions of fact. As such, the Plearing Panel concludes that the Respondent repeatedly violated KRPC 8.4(c).
“33. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The Respondent repeatedly made misrepresentations and repeatedly failed to provide material information to investors. Engaging in this conduct adversely reflects on the Respondent’s fitness to practice law in Kansas. Thus, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“34. 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, tire po tential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“35. Duty Violated. The Respondent violated his duty to the public and the legal profession to maintain his personal integrity.
“36. Mental State. The Respondent knowingly violated his duties.
“37. Injury. As a result of the Respondent’s misconduct, the Respondent caused actual, serious financial injury to the investors and the Respondent caused actual, serious injury to the legal profession.
“38. 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 the following aggravating factors present:
“39. Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by dishonesty and selfishness. As the managing member, the Respondent had access and control over the $2.6 million invested by the investors. The Respondent wrongfully used some of the investors’ money for his personal benefit, rather tiran for reasons related to the purposes of the investments. The Respondent spent the money. The Hearing Panel concludes that the misconduct in this case was clearly motivated by dishonesty and selfishness.
“40. A Pattern of Misconduct. The Respondent sought and obtained investments from 36 separate investors. The Respondent engaged in a pattern of misconduct when he repeatedly made misrepresentations to the investors and when he repeatedly failed to inform the investors of material facts. Therefore, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
“41. Substantial Experience in the Practice of Lato. The Kansas Supreme Court admitted tire Respondent to tire practice of law in tire State of Kansas in 1975. At the time of the misconduct, the Respondent had been practicing law for approximately 25 years. Accordingly, the Hearing Panel concludes that tire Respondent has substantial experience in the practice of law.
“42. Indifference to Making Restitution. In February, 2012, and March, 2012, the Respondent made two payments of $250, for a total payment of restitution of $500 on a judgment that includes restitution in excess of $2,600,000. The Hearing Panel concludes that failing to make significant payments on tire judgment evidences the Respondent’s indifference to making restitution.
“43. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“44. Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. The Hearing Panel concludes that the Respondent’s lack of a disciplinary record is a mitigating factor in this case.
“45. In addition to tire above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘5.11 Disbarment is generally appropriate when:
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
‘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
“46. The Disciplinary Administrator recommended that the Respondent be suspended for a period of two years.
“47. The Respondent requested that he be placed on probation, pursuant to Kan. Sup. Ct. R. 211(g). That rule provides:
‘(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that -will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court.
‘(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
‘(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to dre Disciplinary Administrator and each member of tire 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 tlie hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’
“48. In support of his request for probation, the Respondent contends the issue involving his integrity is not related to the practice of law; it is only relevant to his involvement in business interests. The Respondent further contends that he has ‘found his way back’ and is a different person from the one that committed the acts detailed in the complaint.
“49. The Respondent’s plan of probation is not workable, substantial, and detailed. Further, tire misconduct, in this case, cannot be corrected by probation. Finally, placing the Respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas. Accordingly, tire Hearing Panel does not recommend that the Court place the Respondent on probation for the violations in this case.
“50. Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for a period of two years.
“51. Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Respondent’s Exceptions
On June 29, 2012, the respondent filed exceptions to the final hearing report. See Supreme Court Rule 212(e) (2012 Kan. Ct. R. Annot. 368). In doing so, the respondent did not take exception to the hearing panel’s findings of fact or conclusions of law pertaining to the violations of KRPC 4.1 (2012 Kan. Ct. R. Annot. 605) (truthfulness in statements to others); KRPC 8.4(c) (2012 Kan. Ct. R. Annot. 643) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); and KRPC 8.4(g) (engaging in any other conduct that adversely reflects on lawyer’s fitness to practice law), or to the aggravating factors cited by the hearing panel. As such, those portions of the report are deemed admitted. Supreme Court Rule 212(c) (2012 Kan. Ct. R. Annot. 369) (“Any part of the hearing report not specifically excepted to shall be deemed admitted.”). As a result, it is undisputed that the respondent violated the Idaho and Washington securities acts by misrepresenting and omitting material facts in an offer or sale of a security; he repeated this act at least 36 times; these acts involved dishonesty, fraud, deceit, or misrepresentation; he gained control of over $2.6 million of investors’ money; he wrongfully used some of that money for his personal benefit rather than for reasons related to the investments; and, at the time of the hearing, he had satisfied only $500 of a $2.6 million judgment.
The respondent did, however, taire exception to the hearing panel’s recommendation of discipline; its conclusion that his plan of probation is not workable, substantial, and detailed; its conclusion that probation is not an appropriate discipline in this case; and its legal conclusions regarding three aggravating factors: knowingly violating his duties, acting with misconduct clearly motivated by dishonesty and selfishness, and failing to make significant payments on the judgment which evidences an indifference to making restitution. Instead of the hearing panel’s recommendation of a 2-year suspension, the respondent requests he be granted a 1-year period of probation.
In his brief to this court, the respondent does not advance any arguments pertaining to the three aggravating factors with which he previously took exception. Instead, he focuses on the hearing panel’s recommendation of suspension and on mitigating factors which he believes should have swayed the panel to recommend probation. Because the respondent does not argue the other exceptions that he had raised, he has abandoned those exceptions. See In re Ireland, 294 Kan. 594, 603, 276 P.3d 762 (2012) (a respondent who does not advance arguments in a brief to this court that support exceptions to the final hearing report is deemed to have abandoned the exceptions); In re Johanning, 292 Kan. 477, 486, 254 P.3d 545 (2011) (same).
In the arguments that tire respondent does advance, he urges this court to reject tire hearing panel’s recommendation for three reasons, which have been reordered for ease of discussion: (1) The hearing panel erred in its recommendation by disregarding mitigating factors other than the absence of a prior disciplinary record; (2) the respondent’s years of public service “support approval of the plan of probation”; and (3) the respondent’s plan of probation is “workable, substantial and, detailed” and is appropriate under the circumstances pursuant to Supreme Court Rule 211(g) (2012 Kan. Ct. R. Annot. 350) (requirements of probation).
Before examining these arguments, it is helpful to consider some general principles regarding this court’s consideration of disciplinary proceedings. In disciplinaiy cases, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of the KRPC exist, and, if they do, what discipline should be imposed. Attorney mis conduct must be established by clear and convincing evidence. Ireland, 294 Kan. at 604; In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f). 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]). This court considers the hearing panel’s findings of fact, conclusions of law, and recommendation to be advisory but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. In re Frahm, 291 Kan. 520, 525, 241 P.3d 1010 (2010). Because the panel’s recommendation of discipline is only advisory, that recommendation does “not prevent the Court from imposing sanctions greater or lesser than those recommended by the panel or the Disciplinary Administrator.” Supreme Court Rule 212(f) (2012 Kan. Ct. R. Annot. 370); see In re Freed, 294 Kan. 655, 661, 279 P.3d 118 (2012); In re Depew, 290 Kan. 1057, 1073, 237 P.3d 24 (2010).
Mitigating Factors
First, the respondent complains that the hearing panel considered only one mitigating factor—his lack of prior discipline—and failed to consider other mitigating factors under the American Bar Association Standards for Imposing Lawyer Sanctions (ABA Standards), such as full and free disclosure (ABA Standard 9.32[e]), character or reputation (ABA Standard 9.32[g]), and remorse (ABA Standard 9.32[1]). The respondent also argues that the limited nature of his current law practice should have been considered.
The ABA Standards are guidelines to assist courts in selecting appropriate and uniform discipline, depending upon the facts and the aggravating and mitigating factors of each case. See In re Keithley, 252 Kan. 1053, 1057, 850 P.2d 227 (1993); In re Anderson, 247 Kan. 208, 212, 795 P.2d 64 (1990), cert. denied 498 U.S. 1095 (1991). Neither this court nor the hearing panel is required to cite and discuss every potentially apphcable standard. In re Woodring, 289 Kan. 173, 186, 210 P.3d 120 (2009). In this case, it is clear from reviewing the panel’s final hearing report and the transcript of the disciplinary hearing that the panel was aware of the facts that the respondent believes mitigate his misconduct. The hearing panel simply did not give those factors the weight the respondent believes they deserve. We agree with the hearing panel that in this case the factors carry such minimal weight they deserved no mention by the panel.
Regarding the respondent’s citation to ABA Standard 9.32(e) allowing mitigation if there is full and free disclosure, under the rules of this court all lawyers are required to cooperate with the investigatory process and are required to provide information to the Disciplinary Administrator. See KRPC 8.1 (2012 Kan. Ct. R. Annot. 634) (lawyer in disciplinary matter shall not knowingly make a false statement of material fact, fail to disclose a fact necessary to correct a misapprehension, or knowingly fail to respond to a lawful demand for information). Consequently, to the extent the respondent disclosed information, he simply did what this court demands of all attorneys. See Woodring, 289 Kan. at 183 (reasonable not to give attorney credit as a mitigating factor for simply doing what appellate courts expect from licensed attorneys). Additionally, there is reason to question that disclosure was fully given because the respondent indicated at the disciplinary hearing that he had no financial means to satisfy the Idaho judgment. Yet, the respondent had a joint income with his wife in 2009 consisting of approximately $150,000 and admitted that he used investment scheme money to set up several companies, including an investment company for his wife through which she owns rental properties that generate a monthly income of $8,000 to $10,000.
Likewise, given the respondent’s paltry effort at making restitution, we find little reason to give weight to the respondent’s claim of remorse, which can be a mitigating factor'under ABA Standard 9.32(1). The respondent did testify: “I feel bad that they [the 36 investors] lost their money. I mean they were my friends.” There is reason to question the sincerity of that remorse, however, when only $500 of $2.6 million has been repaid. Also troubling is the respondent’s attitude that he is the victim in this matter. This attitude is reflected in his testimony during a 2010 “Aid in Execution Hearing” in which the respondent was asked whether he was “will ing to make any kind of voluntary payments” on the Idaho judgment. The respondent replied: “No. I don’t have any money. You understand what this lawsuit did? It absolutely took away my ability to earn money.” Instead of recognizing that the respondent’s actions caused his inability to continue to pursue his business, the respondent points to the enforcement action as the culprit. This answer and his efforts at restitution weigh heavier than his self-serving statement and lead us to conclude the respondent’s remorse is not genuine.
As to the third mitigating factor, the respondent argues that the hearing panel should have recognized his character or reputation as a mitigating factor under ABA Standard 9.32(g). In support of this argument, the respondent contends that “Pastor Willems, Dan Carney, Mark Nelson and Jim Lord . . . solidly confirmed Respondent’s character and reputation.” In contrast to these witnesses, the hearing panel was faced with evidence that the respondent collected a large sum of money from investors in a venture involving dishonesty, misrepresentation, and material omissions. It is reasonable to conclude that this evidence was more persuasive than the opinions of the respondent’s witnesses.
As a final mitigating factor, the respondent argues the hearing panel should have considered the limited nature of his current law practice—whiplash injuries and mild traumatic brain injuries—because there is no risk of a recurrence of the respondent’s misconduct. We find no solace in the limited nature of the respondent’s practice. The core of his misdeeds—misrepresentation and dishonesty—is not unique to securities law. It can impact all aspects of the practice of law. Even though the respondent contends he has made profound changes in his business life, has “recovered his moral compass,” and “is no longer driven by his dream of operating a gold mine,” the hearing panel justifiably focused on the respondent’s pattern of misconduct in this case, its conclusion that his actions were motivated by dishonesty and selfishness, and the respondent’s seeming, indifference to making restitution.
In summary, this court, like the hearing panel, gives little, if any, weight to the mitigating factors asserted by the respondent.
Public Service
In addition to the mitigating factors discussed above, the respondent argues that his years of public service warrant the lighter discipline of probation. Although he presents this argument as a separate issue, it is, in essence, an extension of the mitigating factor of character or reputation.
At the disciplinary hearing, the respondent testified to serving as Assistant Cherokee County Attorney for approximately 6 months after graduating from law school in 1975. Then, in 1976, he became the City Attorney for Frontenac, Kansas, and held that position for a period of approximately 4 years, during which he also served in the Kansas House of Representatives. The respondent then served as the Crawford County Attorney for approximately 2 years, until he entered the oil business in 1981. Later, after tire respondent got out of the oil business, he entered the gold mining business.
As noted by the Disciplinary Administrator, other than the respondent’s statements that he held various public service jobs, he does not explain how these jobs or the duties associated with these jobs relate to his plan of probation. This dated public service does not give great weight to the respondent’s request for probation for acts of misconduct committed approximately 20 years after the respondent last served in public office.
The Respondent’s Plan of Probation
In arguing the third issue, the respondent asserts the hearing panel should'haye recommended the plan of probation that he timely submitted as required by Supreme Court Rule 211(g).
Probation may. be granted in limited situations when three requirements have been met. First, the respondent must develop a workable, .substantial, and detailed plan of probation before the hearing. Next, there must be unique circumstances or tire respondent must demonstrate an exceptional case with persuasive mitigating factors. Finally, the plan of probation.must serve tire best interests of both the legal profession and the citizens of Kansas. In re Anderson, 278 Kan. 512, 516, 101 P.3d 1207 (2004); In re Conwell, 275 Kan. 902, 911, 69 P.3d 589 (2003). The hearing panel concluded that the respondent’s plan did not meet any of these requirements. We agree.
Generally, this court has been waiy of granting probation where the underlying misconduct involves dishonesty. No level of supervision can assure public safety from misrepresentation or fraud. See Supreme Court Rule 211(g)(1) (2012 Kan. Ct. R. Annot. 351) (“The plan of probation must contain adequate safeguards that will protect the public and ensure tire Respondent’s full compliance with tire disciplinary rules and orders of the Supreme Court.”); Supreme Court Rule 211(g)(3)(iii) (2012 Kan. Ct. R. Annot. 352) (“The Hearing Panel shall not recommend . . . probation unless: . . . the misconduct can be corrected by probation.”).
The respondent suggests that accountability can be obtained through several steps. First, he proposes monthly financial reporting regarding his client trust account and operating account. Yet, as the Disciplinary Administrator aptly notes, an audit of law firm accounts in 2001 would not have uncovered the investment scheme that resulted in this discipline—a scheme that was not accounted for through a law firm. Second, the respondent proposes he would attend an additional 9 hours of continuing legal education in law practice management and ethics. However, the respondent’s discipline does not stem from a failure to understand law practice management or the proper handling of a trust account; it stems from a breach of the core value of honesty, a value that cannot be taught or rehabilitated in 9 hours of education. Third, the respondent proposes that he would meet weekly with a spiritual and personal mentor, Pastor Peiter Willems of the Mustard Seed Church in Lawrence, Kansas. This step, while laudable, does not provide the type of accountability required for a probation plan to past muster. The record reflects that Pastor Willems was a friend and spiritual mentor to the respondent during the time period when the respondent acted deceitfully in his dealings with the 36 investors. Such a relationship is not sufficient to meet the requirements of Rule 211(g) under the circumstances of this case. Finally, the respondent proposes supervision by an attorney who practices in the state of Missouri, where the respondent is not licensed. Even though the respondent promises that “[h]is practice will be limited to Kansas claims, Kansas clients,” we agree with the panel that such a plan is not workable.
As to the second requirement for a plan of probation to be approved, we do not accept the respondent’s effort to pigeonhole his conduct into the unique circumstances of a mining venture. The dishonest actions of the respondent were, at least in part, selfishly motivated, and selfish motivation can manifest itself in all areas of practice.
Finally, given the nature of the respondent’s actions we cannot conclude that probation would be in the best interests of the legal profession and the citizens of Kansas. To argue it would be, the respondent cites In re Kershner, 250 Kan. 383, 392, 827 P.2d 1189 (1992), a case in which this court publically censured an attorney following four felony convictions for violating Kansas securities statutes. The respondent’s reliance on this case is misplaced. Each disciplinary sanction is based on the specific facts and circumstances of the violations and the aggravating and mitigating circumstances presented in the case. Because each case is unique, past sanctions provide little guidance. In re Bishop, 285 Kan. 1097, 1108, 179 P.3d 1096 (2008). That is illustrated by comparing tire court’s analysis in Kershner with the facts of this case. There, the court noted that “Kershner’s convictions for violating the securities act were not acts of violence, dishonesty, or a breach of trust or a serious interference with the administration of justice. In addition, the district judge determined there were no victims to compensate because of Kershner’s illegal act.” Kershner, 250 Kan. at 392. Here, there were acts of dishonesty, a serious breach of trust, and 36 victims who suffered a total of $2.6 million in damages.
In summary, we agree with the hearing panel that the plan of probation does not meet the requirements of Rule 211(g).
Recommended Discipline
We turn, then, to the panel’s recommendation that the respondent be suspended from the practice of law for a period of 2 years.
As already noted, in determining its recommendation of discipline, the hearing panel cited ABA Standard 5.11 (disbarment) and ABA Standard 7.2 (suspension). In his brief before this court, the respondent argues that the hearing panel should have considered other ABA Standards that he argues suggest his discipline does not warrant suspension. He cites ABA Standard 5.12, which states suspension is appropriate when a lawyer knowingly engages in criminal conduct, and ABA Standard 8.2, which states suspension is appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct. In essence, he argues that because he was not convicted of a crime and had not been previously disciplined for the same ’or similar conduct, these standards do not apply to him and suspension would be inappropriate.
We do not agree with the respondent’s parsing of ABA Standard 5.12 because commentary to that standard indicates: “As in the case of disbarment, a suspension can be imposed even where no criminal charges have been filed against the lawyer.” Such charges may have been warranted in this case. Further, other ABA Standards calling for suspension or disbarment apply to the facts of this case, including ABA Standard 5.11 and Standard 7.2, which were cited by the hearing panel in the final hearing report. See In re Thomas, 291 Kan. 443, 454, 241 P.3d 104 (2010); In re Robertson, 256 Kan. 505, 507-08, 886 P.2d 806 (1994).
ABA Standard 5.11 states that “[djisbarment is generally appropriate when . . . (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.” The facts of this case fall under that standard. The respondent knowingly made misrepresentations and material omissions involving 36 investors in six states. He raised approximately $2;6 million and squandered all of the investors’ money. The investors received no return on their investment, including no dividends, interest, or return of principal. Even though the State of Idaho issued a deficiency letter to the respondent just 8 days after the offéring was filed, the respondent failed to act and cure that deficiency. In making the misrepresentations and in failing to take action to mitigate potential losses, the respondent acted both personally arid as a fiduciary in a corporate capacity, and such actións seriously adversely reflect on the respondent’s fitness to practice law. The facts show a pattern of misrepresentation and omissions and a severity of injury so severe that a majority of this court concludes disbarment is appropriate. A minority of the court would impose a less severe sanction.
Conclusion and Discipline
It Is Therefore Ordered that Douglas Lee Baker be disbarred from the practice of law in the state of Kansas, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(1) (2012 Kan. Ct. R. Annot. 294).
It Is Further Ordered that Douglas Lee Baker comply with Supreme Court Rule 218 (2012 Kan. Ct. R. Annot. 397), as amended December 1, 2012.
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. | [
48,
-22,
-35,
13,
-104,
96,
58,
50,
89,
-61,
103,
83,
-23,
-50,
-120,
59,
-61,
29,
-47,
110,
-41,
-78,
83,
-64,
102,
-5,
-8,
-59,
-72,
95,
-20,
-36,
72,
112,
-126,
85,
6,
-118,
-41,
-100,
-18,
0,
8,
-32,
90,
1,
58,
107,
18,
11,
113,
-74,
-13,
43,
29,
107,
73,
46,
-65,
-19,
81,
-47,
-77,
21,
125,
16,
33,
-123,
-104,
7,
-48,
62,
-38,
-72,
33,
-88,
51,
-78,
-122,
-12,
79,
-55,
-84,
118,
98,
-93,
25,
-91,
40,
-68,
47,
-1,
13,
-25,
-45,
72,
105,
9,
-66,
-103,
118,
22,
35,
-4,
-24,
12,
31,
-20,
7,
-54,
-44,
-111,
13,
119,
-51,
3,
-5,
-122,
16,
36,
-55,
102,
94,
70,
48,
30,
-49,
-27
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied. ..
Unpublished | [
29,
105,
77,
62,
-88,
-79,
49,
62,
82,
-113,
103,
119,
-49,
-30,
-116,
-39,
-83,
103,
-76,
91,
79,
18,
127,
-27,
98,
-37,
-94,
-11,
113,
111,
-6,
56,
76,
56,
-102,
69,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-112,
-63,
36,
35,
72,
15,
17,
-44,
-15,
-114,
30,
65,
-64,
102,
-59,
-83,
-62,
-35,
-111,
23,
-65,
84,
-64,
85,
-48,
73,
-64,
110,
20,
-80,
37,
-24,
114,
102,
-121,
85,
15,
-7,
-76,
32,
10,
32,
-84,
-19,
40,
-68,
79,
94,
45,
-124,
-5,
40,
75,
121,
-101,
-3,
0,
-43,
39,
56,
34,
-124,
47,
-88,
46,
-17,
-28,
-93,
31,
40,
12,
9,
-13,
-10,
16,
53,
-49,
-9,
-52,
-78,
53,
-102,
-122,
52
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Granted
Unpublished | [
-123,
105,
-99,
31,
-86,
33,
58,
-98,
70,
-113,
98,
95,
-113,
-21,
28,
-39,
-89,
103,
-92,
83,
-36,
7,
119,
101,
-30,
-45,
-77,
-47,
113,
109,
-2,
-48,
78,
-96,
-102,
61,
-26,
-52,
-51,
88,
-122,
23,
-120,
-83,
-48,
97,
36,
35,
-56,
15,
81,
84,
96,
-82,
31,
81,
-52,
62,
-25,
-115,
81,
-19,
-99,
3,
-69,
-108,
-126,
85,
-100,
11,
-64,
102,
-112,
56,
37,
-86,
114,
-26,
-121,
85,
15,
-69,
-95,
4,
26,
48,
-68,
-3,
-80,
-84,
7,
-50,
45,
-92,
-119,
121,
75,
121,
27,
93,
8,
-108,
39,
124,
-29,
-123,
45,
34,
43,
-33,
102,
-93,
95,
40,
12,
11,
-5,
-73,
2,
54,
-49,
-74,
-36,
-30,
37,
11,
-62,
-73
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
The opinion of the court was delivered by
Nuss, C.J.:
The district court denied Ramon Rodriguez’ motion for new trial that was based on the results of postconviction DNA testing under K.S.A. 2014 Supp. 21-2512(f). The Court of Appeals affirmed, agreeing with the district court that the new DNA evidence was unlikely to result in a different jury verdict on retrial.
Because the district court did not abuse its discretion in denying the motion, we affirm the lower courts.
Facts
A jury convicted Rodriguez of one count each of rape, aggravated sodomy, and criminal restraint in 2002. The victim, J.S., fell asleep after a party at a home where Javier Vallejos was house sitting for relatives. J.S. testified that she awoke in the bedroom to find party attendee Rodriguez on top of her and using his knees to pin her shoulders. According to J.S., he digitally penetrated her vagina, placed his penis in her moudi, ejaculated, and then forced her to swallow his semen.
No physical evidence implicated Rodriguez in the crime. Instead, the State relied primarily on J.S.’s testimony and recorded statement in which she identified Rodriguez as her attacker. The State provided corroboration through the testimony of party host Vallejos and Jose Yannes, who also was in the house at the time of the crimes.
Rodriguez’ theory of defense was that someone else raped J.S. He attempted to discredit her identification by eliciting testimony that she was intoxicated and confused and that it was too dark in the bedroom for her to indentify her attacker. On direct appeal, the Court of Appeals reversed Rodriguez’ criminal restraint conviction as multiplicitous with his rape conviction but otherwise affirmed. State v. Rodriguez, No. 85,125 (Kan. App. 2002) (unpublished opinion) (Rodriguez I).
Since then, Rodriguez has sought postconviction relief on multiple occasions. In 2004, he filed a motion under K.S.A. 60-1507 alleging ineffective assistance of trial counsel. The district court denied the 1507 motion after an evidentiary hearing, and a Court of Appeals panel affirmed. Rodriguez v. State, No. 96,587, 2008 WL 3367543 (Kan. App. 2008) (unpublished opinion) (Rodriguez II). Among other things, Rodriguez argued his counsel was ineffective for failing to request DNA testing to determine the origin of hair found on the bed where J.S. was raped. Forensic testing at the time of trial eliminated Rodriguez as the source of the hair. But he argued his counsel should have tried to identify the particular source of the hair to further support his theory that someone else raped J.S. In rejecting Rodriguez’ argument, the panel rea soned that, because the tests did not implicate him, it was unnecessary to perform further tests to identify the hair’s source. 2008 WL 3367543, at *8.
Before Rodriguez’ 1507 motion was resolved, he also filed a motion for post-conviction DNA testing under K.S.A. 21-2512. He requested testing of blood and saliva samples collected from Val-lejos at the time of trial but never analyzed. The district court denied the motion after a preliminary hearing, concluding that additional testing would not produce noncumulative, exculpatory evidence as required by K.S.A. 21-2512(c).
A panel of die Court of Appeals different from the one rejecting his 1507 motion then reversed and remanded the case to the district court for an evidentiary hearing. State v. Rodriguez, No. 100,636, 2009 WL 3630919 (Kan. App. 2009) (unpublished opinion) (Rodriguez III). It reasoned that because no physical evidence linked Rodriguez to the attack, J.S.’s identification of him as her attacker could be undermined by DNA testing linking another person to the crime scene. 2009 WL 3630919, at *6-7. It further opined: “Unless there is a reason (not related to J.S.’s sexual assault) for why Vallejos’ DNA would be present in his sister’s and brother-in-law’s bedroom, finding his DNA on the items recovered from the bedroom would likely constitute noncumulative, exculpatory evidence relevant to Rodriguez’ claim that he was wrongfully convicted of sexually assaulting J.S.” 2009 WL 3630919, at *7.
On remand from Rodriguez III, the district court ordered additional DNA testing be performed to compare Vallejos’ blood and saliva samples to the samples of biological material found at the crime scene. It agreed with Rodriguez’ counsel that the only reason Vallejos’ DNA should not have been tested at the time of the trial would be if there was a nonsexual reason for his DNA being in the bedroom where J.S. was raped. Five semen stains were tested in this later analysis of bedroom materials—one from a pillowcase, one from a green sheet, one from a white flowered sheet, and two from a comforter.
After the postconviction testing was complete, the district court held an evidentiary hearing. Regarding Rodriguez and J.S., the crime lab analyst testified this later testing confirmed that neither person’s DNA was present on any of these bedroom items.
As for Vallejos, the lab analyst began by explaining that every semen sample essentially contains two categories of biological material—sperm cells and all other types of cells. These cells can be separated into “sperm fractions” and “non-sperm fractions.” The analyst tested both the sperm and non-sperm fractions for each of the five stains. For the pillowcase sample, the analyst determined that Vallejos was “included as a contributor” in the non-sperm fraction.
But the analyst could draw no such conclusion from the rest of the testing results. As to the sperm fraction of this pillowcase sample, “no conclusion [could] be offered as to whether [] Vallejos [was] the source of the partial DNA profile.” The same “no conclusion” applied to the non-sperm fraction of the sample from the white flowered sheet. And Vallejos was eliminated as a contributor to that sheet’s sperm fraction. Moreover, he was also eliminated as a contributor to the sperm and non-sperm fractions of the remaining three samples from the green sheet and comforter.
The analyst further explained that non-sperm fractions are particularly probative in cases of oral or vaginal penetration. This is because the mouth and vagina slough a significant amount of cellular material. When ejaculation occurs, semen—which contains both sperm and non-sperm cells—mixes with cellular material from the mouth or vagina. A mixture of the non-sperm cells from the semen and those cells from tire mouth or vagina is typically found in the non-sperm fraction of the crime scene sample. And this mixture makes it possible to identify both the attacker and the victim.
Regarding the non-sperm fraction of the pillowcase stain—the only one for which the analyst included Vallejos as a contributor— the analyst also concluded his DNA was mixed with at least one other individual’s. So if it was J.S.’s DNA found in this sample, it would suggest Vallejos was her attacker. But J.S. was excluded as a contributor to this sample. Accordingly, the analyst concluded it was “very unlikely” that sample was created contemporaneously with J.S.’s rape, i.e., it was placed on the pillowcase at a different time.
Relying on the analyst’s testimony, the State argued the results of the post-conviction DNA testing were unfavorable because they did not help Rodriguez. Specifically, it claimed that because the jury knew that the DNA testing eliminated Rodriguez as the source of the semen stains, it presumably took that knowledge into account during its deliberations.
The State also argued that the lack of a mixture of DNA from Vallejos and J.S. indicated the pillowcase stain containing his DNA was likely unrelated to the assault. The State further noted it was not surprising Vallejos’ DNA would be found in the bed where he was house sitting. Ultimately, the State concluded whatever biological material was linked to Vallejos “is of such little significance given what the jury heard at trial and given what their result was, that there is no way that it would result in a different outcome.”
Rodriguez’ counsel responded by drawing a distinction between the general evidence Vallejos was staying at the house and the purported lack of specific evidence Vallejos had actually been in the bedroom:
“I remember that Mr. Vallejos was staying at the house. I do not recall the record indicating that he was staying in that room. I think that is a distinction that should be carefully considered. If he was not staying in that room and he has potentially a sperm fraction on [the pillowcase], I think that is problematic, Judge. . . .
“I don’t believe the record adequately supports that Mr. Vallejos’ non-sperm fraction and potentialj] sperm fraction should be on these items found in the bedroom, or I don’t believe the record was clear that he was staying it—he was staying at the house, but I don’t think the record indicates that he toas sleeping or living in that bedroom.” (Emphasis added.)
The district court agreed counsel’s distinction was important. But it concluded “there does seem to be a logical explanation why Vallejos’ DNA would be in the bedroom and in that bed.” It further reasoned the DNA test results did not link Vallejos to the assault because, while his DNA was on the pillowcase, there was no DNA from J.S. in that sample. Ultimately, the district court denied Rodriguez’ motion for new trial, concluding the new information that Vallejos’ DNA was on the pillowcase was “unlikely to have yielded or would yield in the event of a new trial a different outcome.”
A panel of the Court of Appeals affirmed the district court. State v. Rodriguez, No. 106,731, 2012 WL 6734515 (Kan. App. 2012) (unpublished opinion) (Rodriguez IV). It held that when die new DNA evidence was considered with all of the other evidence, there was no reasonable probability the new evidence would result in a different outcome at trial. It agreed with the district court’s rationale, explaining that the impact of the new DNA evidence
“would likely be minimal for two reasons. First, there was a logical reason why Vallejos’ DNA would be found in the bedroom because Vallejos was staying at •the house when the crime was committed. Second, and more importantly, the pillowcase stain was not clearly related to the crime because J.S.’s DNA was not found in the stain. As [tire DNA analyst] testified, it was ‘very unlikely’ that the pillowcase stain was contemporaneous with die crime.” 2012 WL 6734515, at *6.
We granted Rodriguez’ petition for review under K.S.A. 20-3018, providing us jurisdiction under K.S.A. 60-2101(b).
More facts will be added as necessary to the analysis.
Analysis
Issue 1: The district court made sufficient findings of fact and conclusions of law to facilitate meaningful appellate review.
Rodriguez claims the district court failed to make specific findings of fact or conclusions of law as required by Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 285). Accordingly, he requests we remand his case to the district court to make clear findings and conclusions. The State counters that Supreme Court Rule 183(j) does not apply and, in any case, there was no ambiguity in tire district court’s findings or order.
Standard of review
Rodriguez’ argument about the sufficiency of the district court’s findings of fact and conclusions of law initially requires us to interpret Supreme Court Rule 183(j). The interpretation of a Supreme Court Rule is a question of law over which we exercise unlimited review. Fischer v. State, 296 Kan. 808, 815, 295 P.3d 560 (2013) (citing Kansas Judicial Review v. Stout, 287 Kan. 450, 460, 196 P.3d 1162 [2008]).
Discussion
On its face, Rule 183(j) applies to motions for habeas relief filed under K.S.A. 60-1507, not motions for new trial like Rodriguez’ filed under K.S.A. 2014 Supp. 21-2512. See State v. Hoge, 283 Kan. 219, 221-22, 150 P.3d 905 (2007) (Rule 183 “relates solely to actions under K.S.A. 60-1507”). But see State v. Denney, 283 Kan. 781, 794, 156 P.3d 1275 (2007) (acknowledging that this court has not always limited its application of Rule 183(j) to K.S.A. 60-1507 motions). Nevertheless, we have “repeatedly ‘recognized that meaningful appellate review is precluded where a trial court’s findings of fact and conclusions of law are inadequate to disclose the controlling facts or basis for the court’s findings.’ Blair Construction, Inc. v. McBeth, 273 Kan. 679, 688, 44 P.3d 1244 (2002).” Hoge, 283 Kan. at 221-22.
We observe Supreme Court Rule 165 (2014 Kan. Ct. R. Annot. 272) is more generally applicable. It requires that, “[i]n a contested matter submitted to the court without a jury . . . the court must state its findings of fact and conclusions of law in compliance with K.S.A. 60-252.” The court’s “findings and conclusions may be stated on the record after the close of evidence, or may appear in an opinion or a memorandum of decision filed by the court.” K.S.A. 2014 Supp. 60-252.
Regarding Rule 165, we have explained that it
“places on the district court Ae primary duty to provide adequate findings and conclusions on the record of Ae court’s decision on contested matters. But a party also has Ae obligation to object to inadequate findings of fact and conclusions of law in order to preserve an issue for appeal because Ais gives the trial court an opportunity to correct any finings or conclusions that are argued to be inadequate.” Fischer, 296 Kan. at 825.
Rodriguez particularly contends “[t]he district court made no specific findings of fact or conclusions of law.” (Emphasis added.) We disagree. At the conclusion of the hearing, tire district court stated:
“Well, I do agree with the State’s analysis here. You know, looking back if this [new DNA] evidence had been available, it would have been admitted probably in the trial. I guess in retrospect it would have been nice if it had been, but it wasn’t and that isn’t the test. It seems—there does seem to be a logical explanation why Mr. Vallejos’ DNA would be in tire bedroom and in tire bed. There is no evidence either from all of tire evidence at trial or this DNA analysis to suggest that whatever DNA was there was any evidence of this particular sexual assault, that there is any connection between that DNA and the assault because there wasn’t any DNA found from the victim.
“. . . [T]he jury is the factfinder in this case. I thought there were plenty of facts to support their finding. I guess my decision here today is that this additional fact is unlikely to have yielded or would yield in the event of a new trial a different outcome.”
As the State points out, the court found a logical explanation for the presence of Vallejos’ DNA at the crime scene, but also found this new evidence failed to link Vallejos to J.S.’s rape. And the court concluded it was therefore unlikely the presence of any of Vallejos’ DNA would result in a different verdict at a new trial. While perhaps not nicely enumerated, the court did make findings and conclusions as contemplated by Rule 165.
Contained within Rodriguez’ argument about insufficient findings and conclusions is his complaint about the district court’s ultimate conclusion that the new DNA evidence was “unlikely” to result in a different verdict. According to Rodriguez, this term does not represent the correct standard for granting a new trial based on favorable postconviction DNA testing results. He points out that, pursuant to K.S.A. 2014 Supp. 21-2512(f)(2), a-defendant is entitled to a new trial if there is a “reasonable probability” that the DNA evidence would result in a different outcome at trial. See Haddock v. State, 295 Kan. 738, 765, 286 P.3d 837 (2012) (Haddock III). The Court of Appeals panel in this case determined that although the district court used the term “unlikely” instead of quoting Haddock’s “reasonable probability” requirement, there was no indication it applied the wrong standard or did not understand the law. Rodriguez IV, 2012 WL 6734515, at *4. We agree.
The district court was certainly well aware of the “reasonable probability” standard. At the hearing on Rodriguez’ motion for new trial based on the new testing, the State identified this standard and relied on it during argument. It informed the court that to grant a new trial, “evidence must be of such materiality that a reasonable probability—not a remote possibility, but a reasonable probability exists that it would result in a different outcome at trial.”
After articulating this standard, the State then applied it, arguing there was “no way” the evidence would lead to a different outcome at trial. It particularly emphasized that (1) the jury heard at trial there was no physical evidence linking Rodriguez to the rape; (2) J.S. unequivocally identified Rodriguez as the attacker; (3) Vallejos and Yannes corroborated J.S.’s testimony; and (4) the stain containing Vallejos’ DNA was found in the home where he was staying while his sister and brother-in-law were away.
In this specific context of postconviction DNA testing, we have defined “reasonable probability” as “ ‘ “a probability sufficient to undermine the confidence of the outcome.” ’ ” Haddock v. State, 282 Kan. 475, 507, 146 P.3d 187 (2006) (Haddock II) (quoting United States v. Bagley, 473 U.S. 667, 668, 105 S. Ct. 3375, 87 L. Ed. 2d 481 [1985]). When determining whether such a “reasonable probability” exists,
“the court’s function is not to make an independent factual determination about what likely occurred, but rather to make a probabilistic determination about the likely impact of the new evidence on reasonable, properly instructed jurors.” (Emphasis added.) Haddock III, 295 Kan. 738, Syl. ¶ 6.
In its holding that the new DNA evidence was “unlikely” to yield a different result at trial, we conclude the district court made the equivalent of “a probabilistic determination about the likely impact of the new evidence on reasonable, properly instructed jurors.” See Haddock III, 295 Kan. 738, Syl. ¶ 6; see also American Heritage Dictionary of the English Language 1402 (1971) (“unlikely” means “improbable” or “likely to fail”).
Recause there are no relevant shortcomings in the district court’s findings of fact and conclusions of law, we need not remand for their completion or correction. So we proceed to Rodriguez’ ultimate issue: whether he is entitled to a new trial as a result of the new DNA evidence.
Issue 2: The district court did not err in denying Rodriguez’ motion for new trial because no reasonable probability exists that the new DNA evidence would result in a different outcome at trial.
Rodriguez’ motion for new trial based on DNA testing results is governed by K.S.A. 2014 Supp. 21-2512(f). That subsection sets out “specific and distinct” procedures a trial court must follow depending on whether the results of postconviction DNA testing are unfavorable to the petitioner, favorable to the petitioner, or simply inconclusive. See Haddock III, 295 Kan. at 755 (quoting Goldsmith v. State, 292 Kan. 398, 402, 255 P.3d 14 [2011]).
Regarding unfavorable DNA testing results, the statute provides tire following direction to the court:
“(f)(1) Except as provided in subsection (f)(3), if the results of DNA testing conducted under this section are unfavorable to the petitioner, the court:
(A) Shall dismiss the petition; and
(B) in the case of a petitioner who is not indigent, may assess tire petitioner for the cost of such testing.” (Emphasis added.) K.S.A. 2014 Supp. 21-2512(f)(l).
As for favorable testing results, the statute provides:
“(2) If the results of DNA testing conducted under this section are favorable to the petitioner and are of such materiality that a reasonable probability exists that the new evidence would result in a different outcome at a trial or sentencing, the court shall:
(A) Order a hearing, notwithstanding any provision of law that would bar such a hearing; and
(B) enter any order that serves the interests of justice, including, but not limited to, an order:
(i) Vacating and setting aside the judgment;
(ii) discharging the petitioner if the petitioner is in custody;
(iii) resentencing the petitioner; or
(iv) granting a new trial.” (Emphasis added.) K.S.A. 2014 Supp. 21-2512(f)(2).
Finally, for inconclusive test results the statute provides:
“(3) If the results of DNA testing conducted under this section are inconclusive, the court may order a hearing to determine whether there is a substantial question of innocence. If the petitioner proves by a preponderance of tire evidence that there is a substantial question of innocence, the court shall proceed as provided in subsection (f)(2).” (Emphasis added.) K.S.A. 2014 Supp. 21-2512(f)(3).
Consequently, a petitioner seeking a new trial under subsection (f) has the burden to establish that “(1) the postconviction DNA test results are favorable and (2) the new DNA “evidence . . . [is] of such materiality that a reasonable probability exists that it would result in a different outcome at trial.” ’ ” Haddock III, 295 Kan. at 756-57 (quoting Haddock II, 282 Kan. at 502) (ellipses and brackets in original).
Rodriguez argues that the new DNA evidence is favorable to him and that the district court abused its discretion in denying his motion for new trial. The State concedes that the new evidence is favorable. But it contends a reasonable person would agree with the district court’s refusal to grant a new trial. In particular, it argues the new evidence, when considered in conjunction with the evidence and arguments already heard by the jury at trial, is unlikely to yield a different outcome.
Standard of review
The State admits Rodriguez has met the condition required in the first step of our analysis for reviewing a district court’s decision denying a motion for new trial under K.S.A. 2014 Supp. 21-2512(f)(2)(B)(iv), i.e., favorable test results. See Haddock III, 295 Kan., at 756-57. So we proceed to the second step. Specifically, we determine “if a reasonable person would agree with the district court’s decision regarding whether postconviction DNA test results were not of such materiality that a reasonable probability exists that it would result in a different outcome at trial.” 295 Kan. at 765.
The approach in this step is consistent with our well-established standard of reviewing motions for new trial under an abuse of discretion standard. 295 Kan. at 764 (citing State v. Warrior, 294 Kan. 484, 277 P.3d 1111 [2012]) (decision to grant new trial has traditionally been considered under the no-reasonable-person-would-agree prong of the abuse of discretion standard); see also State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014) (citing State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]) (“Judicial discretion can be abused in three ways: [1] if no reasonable person would have taken the view adopted by the trial court; [2] if the judicial action is based on an error of law; or [3] if the judicial action is based on an error of fact.”).
Discussion
Throughout these proceedings Rodriguez essentially has argued there was no evidence that during Vallejos’ service as a house sitter, Vallejos had done anything in the bedroom where the crimes occurred. So the therefore unexplained presence of his DNA in the bedroom logically raised the suspicion that he was the one who had raped J.S. there.
In arguing that Rodriguez should receive a new trial based on tire results of the new DNA testing, his counsel told the district court, "I do not recall the record indicating that he [Vallejos] was staying in that room. ... If he was not staying in that room and he has potentially a spex-m fraction on [the pillowcase], I think that is problematic, Judge. . . . I don’t think the record indicates that he was sleeping or living in that bedroom.” (Emphasis added.)
And in Rodriguez’ biief to this court he repeats this specific theme:
’‘No evidence explains why Vallejos’ DNA is on the bedding at the scene of the attack. He stayed at the house for at least a month near the time of the attack, but we know nothing of his actions in the house beyond that. The evidence does not clearly establish a reason unrelated to the crime why Vallejos’ DNA was recovered from the pillowcase. Perhaps at a new trial the [S]tate can explain why Vallejos’ DNA was the only identifiable sample recovered from tire crime scene. This is a matter for the new trial, and should not be speculated upon at this point.” (Emphasis added.)
But our careful l'eview of the record reveals Rodriguez’ jury actually heard evidence that Vallejos had slept, and perhaps had sex, in the bed where J.S. was raped. Specifically, the detective assigned to the case was asked by the State why police obtained DNA samples from Vallejos during the investigation. The detective testified in response:
“A: Just because he was in the house. He had said that he was in the bed.
“Q: Was he a suspect?
“A: No, no.
“Q: Okay. Well, then what was the purpose of retrieving samples when he is not a suspect in any way?
“A: Well, we were going to see if there was anything, as far as his hairs, but he had already said that he slept in the bed, so it was kind of a moot point.” (Emphasis added.)
In that same vein, the jury heard the DNA analyst who tested the samples during the initial investigation twice testify on cross-examination that she was told Vallejos may have had sex in the bed. Her second reference was as follows:
“Q: And you have an unknown DNA male sample from a semen stain that does not match Ramon Rodriguez. We are clear on that, at least?
“A: Yes.
“Q: And you have, now you are telling us, some information that Mr. Vallejos claims to have had sex in the bed. That is what you are telling us?
“A: At the time of the testing I was told that he may have had sex in that room on that bed, yes.
"Q: I see. So you didn’t test his [Vallejos’] blood?
“A: No.”
The analyst explained that her laboratory’s DNA testing was not the type involving numbers such as “1 in a million, 1 in a billion.” Rather, the statistics associated with their genetic samples typically involve the “1 in 5,000 to 1 in the 10,000 range.” These lower numbers lead to the possibility of purely random DNA matches for the suspect, e.g., Rodriguez. So Vallejos’ sample was collected as an “elimination sample.”
According to the analyst, if Rodriguez’ DNA had matched the semen stains on the bedding, then she would have tested Vallejos’ DNA sample to eliminate him as a possible source of the semen. She would do so to ensure the testing had identified the right suspect, e.g., that the matches between Rodriguez’ DNA and the bedding samples were not simply random. But because Rodriguez was excluded as a source from any of the bedding stains, the analyst testified there was no reason to test Vallejos’ DNA.
The jury had the opportunity to consider this testimony about why Vallejos’ DNA could be found in the bedroom, along with the absence of Rodriguez’ DNA in all of the semen samples from the bedding and J.S.’s testimony that Rodriguez forced her to swallow his semen. The jury was also able to assess J.S.’s credibility and the evidence corroborating her testimony and to decide whether she was capable of identifying Rodriguez as her attacker.
Rodriguez argues the presence of Vallejos’ DNA in the bedroom advances his theory of defense that someone else, i.e., Vallejos, raped J.S. there. But the DNA analyst explained at the evidentiary hearing that even for the one sample where Vallejos was “included as a contributor”—the non-sperm fraction of the pillowcase stain— J.S.’s DNA was not mixed with his. So the analyst concluded it was “very unlikely” this sample containing his DNA was connected with the rape.
The testing results for the remaining samples from the bedding were even less helpful to Rodriguez. The results meant either that (1) Vallejos was eliminated altogether as a DNA contributor or, at best for Rodriguez, (2) no conclusion could be offered on whether he was the source of the DNA profile. So the new DNA evidence does not advance Rodriguez’ theory that Vallejos was J.S.’s attacker. If anything, this scientific evidence undercuts his allegation.
We conclude the district court did not err in essentially holding there is no reasonable probability a jury would have reached a different outcome had it considered the testing results. See K.S.A. 2014 Supp. 21-2512(f)(2). So the court did not abuse its discretion in denying Rodriguez’ motion for new trial, i.e., it cannot be said no reasonable person would have taken the view adopted by the court. See Haddock III, 295 Kan. at 765-66; Mosher, 299 Kan. at 3.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. | [
-16,
-24,
125,
-82,
26,
65,
42,
60,
64,
-45,
114,
-13,
-17,
-54,
-124,
127,
-78,
125,
100,
97,
-41,
-73,
-57,
-31,
-74,
115,
-32,
-41,
115,
78,
126,
-4,
12,
112,
-54,
-11,
38,
88,
-111,
88,
-114,
-117,
-104,
-32,
-110,
67,
52,
51,
110,
15,
33,
30,
-13,
105,
29,
-53,
-23,
44,
83,
-67,
-36,
125,
-67,
3,
-53,
20,
-93,
48,
30,
-88,
-8,
55,
-102,
49,
0,
104,
122,
-74,
6,
116,
121,
-85,
5,
97,
98,
37,
77,
-122,
108,
-71,
-113,
31,
44,
38,
-39,
72,
72,
109,
-74,
-7,
120,
60,
46,
120,
119,
-35,
61,
-20,
-118,
-33,
-128,
-77,
73,
117,
10,
73,
-29,
52,
16,
101,
-59,
96,
76,
86,
89,
123,
-49,
-74
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Per Curiam-.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Wendell Betts, of Topeka, an attorney admitted to the practice of law in Kansas in 1981.
On October 29, 2014, 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 November 21, 2014. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on February 26, 2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 8.4(b) (2014 Kan. Ct. R. Annot. 680) (commission of a criminal act reflecting adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer s fitness to practice law).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“9. During the early morning hours of January 24, 2013, the respondent and his wife argued. The respondent pushed his wife to a couch. The respondent’s wife called the Shawnee County Sheriff s Department. After the depuly sheriff arrived, the respondent volunteered to vacate the residence. The deputy sheriff allowed the respondent to drive his vehicle away from die home.
“10. In March 2013, the Shawnee County District Attorney’s office charged the respondent with domestic battery and intimidation of a witness in case number 2013CR363. Despite the pending charges, die respondent and his wife continued to share a residence.
“11. On July 23, 2013, a Topeka police officer observed the respondent drive his automobile in a reckless manner. The police officer observed the respondent nearly strike a vehicle being driven by the respondent’s wife, near the Topeka Law Enforcement Center.
“12. The police officer detained die respondent, administered a breathalyzer test, and searched the respondent’s vehicle. The respondent’s breathalyzer test result was .04. The respondent admitted that he had been drinking beer and taking prescription pain medication, the police officer located an open container of alcohol in the vehicle. The respondent failed the field sobriety tests. The respondent’s eyes were bloodshot. Additionally, during the search of the respondent’s vehicle, he located a pipe with marijuana and an unloaded handgun.
“13. As a result, the Shawnee County District Attorney’s office charged the respondent with eight counts, including one felony offense, five misdemeanor offenses, and two traffic infractions in case number 2013CR1460: stalking (felony); driving under the influence of alcohol (misdemeanor); possession of marijuana (misdemeanor); possession of drug paraphernalia (misdemeanor); transporting an open container of alcohol (misdemeanor); violation of a protective order (misdemeanor); improper driving on laned roadway (infraction); and improper left turn (infraction).
“14. On January 8, 2014, the respondent entered into a plea agreement with the Shawnee County District Attorney’s office. The respondent entered no contest pleas to driving under the influence, possession of marijuana, possession of drug paraphernalia, and transporting an open container of alcohol. In exchange for the respondent’s pleas, the Shawnee County District Attorney’s office dismissed the stalking charge, the battery charge, and'intimidation of a witness charge, and the two traffic infractions. Based on tire respondent’s pleas, the court found the respondent guilty of driving under the influence, possession of marijuana, possession of drug paraphernalia, and-transporting an open container of alcohol.
“15. That same day, the court sentenced the respondent to concurrent six month jail sentences. The court ordered the respondent to serve 48 hours. Following the completion of the 48 hours in jail, the court suspended the remainder of tire jail sentence and placed the respondent on supervised probation. As a term of probation, the court ordered the respondent to refrain from possessing or consuming any alcohol and/or illegal drugs. Further, as a term of probation, the court ordered the respondent to submit to drug and alcohol testing.
“16. On August 14, 2014, the respondent submitted to a urinalysis. Some time prior to the drug test, tire respondent had used marijuana, methamphetamine, and cocaine. As a result, the respondent’s urinalysis showed the presence of ma rijuana, methamphetamine, and cocaine in the respondent’s system. Thereafter, on August 25, 2014, the respondent’s probation officer alleged that the respondent violated the terms of his probation. That same day, the court issued a warrant for the respondent’s arrest.
“17. On September 20, 2014, following a routine traffic stop, the respondent was arrested on the warrant. The respondent appeared before the court on September 23, 2014, for a first appearance on the probation violation matter. The court scheduled the hearing on the probation violation matter for October 2,2014.
“18. On October 2, 2014, the court conducted a hearing on the allegations that the respondent violated the supervised probation, by failing to remain law abiding and failing to abstain from drugs and alcohol. The respondent stipulated that he violated the conditions of probation: on May 23, 2014, he entered a plea of guilty to driving without a driver’s license in his possession (misdemeanor) and on August 14, 2014, he tested positive for marijuana, methamphetamine, and cocaine. The court revoked the respondent’s probation, suspended the execution of die sentence of imprisonment, and placed the respondent back on probation for an extended period of 12 months.
“19. On October 7, 2014, the respondent was transported from the jail to the Veteran’s Administration Hospital in Topeka, Kansas, for alcohol and drug treatment. Following the completion of the alcohol and drug treatment program, the respondent was transferred to the Veteran’s Administration Hospital domiciliaiy in Leavenworth, Kansas. The respondent remains at the domiciliary for drag, alcohol, and mental health treatment.
“20. In February, 2015, the respondent’s psychiatrist placed the respondent into a cognitive behavioral treatment program. The respondent is due to complete the program in May, 2015.
“21. The respondent states that he has not attempted to practice law since his arrest on July 23, 2013.
“22. The Kansas Supreme Court suspended his license to practice law on September 18, 2013, for failing to complete tire required continuing legal education.
“Conclusions of Law
“23. Based upon the respondent’s stipulations and the above findings of fact, die hearing panel concludes as a matter of law that the respondent violated KRPC 8.4(b), ICRPC 8.4(d), and ICRPC 8.4(g), as detailed below.
“KRPC 8.4(b)
“24. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the respondent entered a plea of no contest to four crimes: driving under the influence of alcohol, possession of marijuana, possession of drug paraphernalia, and transporting an open container of alcohol. In exchange for the respondent’s plea, the Shawnee County District Attorney’s office dismissed a felony, two misdemeanors, and two traffic infractions. The crimes which the respondent was convicted of adversely reflect on the respondent’s fitness as a lawyer. Accordingly, the hearing panel concludes that the respondent violated KRPC 8.4(b).
“KRPC 8.4(d)
“25. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). For the past number of years, tire respondent has worked as a public defender for Shawnee County, Kansas. The respondent’s ability to represent indigent criminal defendants was compromised when he engaged in criminal conduct. He could no longer defend cases against an entity which was prosecuting him. Additionally, the respondent’s commission of the criminal acts also prejudices the administration of justice, given the respondent’s reputation and relationship with the criminal law practice in Shawnee County, Kansas. Finally, the respondent engaged in conduct that is prejudicial to tire administration of justice when he violated the court’s order of probation. As such, the hearing panel concludes that the respondent engaged in conduct that was prejudicial to tire administration of justice, in violation of KRPC 8.4(d).
“KRPC 8.4(g)
“26. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on tire lawyer’s fitness to practice law.’ KRPC 8.4(g). The respondent engaged in conduct that adversely reflects on his fitness to practice law when he failed to comply with the terms and conditions of his probation. Specifically, the respondent engaged in conduct that adversely reflects on his fitness to practice law when he used marijuana, methamphetamine, and cocaine, leading to the positive urinalysis result. The hearing panel concludes that the respondent violated KRPC 8.4(g).
“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, tire factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by tire lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“28. Duty Violated. The respondent violated his duty to tire public and to the legal profession to maintain his personal integrity.
“29. Mental State. The respondent knowingly violated his duty.
“30. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to the legal profession.
“Aggravating and Mitigating Factors
“31. 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:
“32. Prior Disciplinary Offenses. The respondent has been previously disciplined on five occasions.
a. On June 2,1995, the Kansas Supreme Court placed the Respondent on probation for 2 years for having violated MRPC 1.1, MRPC 1.3, and MRPC 8.4(d). In re Betts, 257 Kan. 955, 895 P.2d 604 (1995).
b. On January 23,1998, the Kansas Supreme Court placed the Respondent on probation for 3 additional years for having violated MRPC 1.1, MRPC 1.3, MRPC 1.4, MRPC 1.15(d), MRPC 8.4(d), and Kan. Sup. Ct. R. 207. In re Betts, 263 Kan. 801, 953 P.2d 223 (1998).
c. On July 14,1998, the Disciplinary Administrator informally admonished the Respondent for having violated MRPC 1.1, MRPC 1.3, MRPC 1.4, and MRPC 8.4.
d. On July 6, 2006, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.3 and KRPC 8.4.
e. On October 9, 2009, the Kansas Supreme Court censured the respondent for having violated KRPC 8.4(c). The Kansas Supreme Court published the censure in the Kansas Reports. In re Betts, 289 Kan. 820, 217 P.3d 30 (2009).
“33. A Pattern of Misconduct. The respondent has engaged in a pattern of criminal misconduct and abuse of alcohol and use of illegal drugs.
“34. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 8.4(b), KRPC 8.4(d), and KRPC 8.4(g). Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
“35. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in die State of Kansas in 1981. At die time of die misconduct, the respondent has been practicing law for more dian 30 years.
“36. Illegal Conduct, Including that Involving the Use of Controlled Substances. The respondent’s misconduct consisted of illegal conduct, including the use of illegal substances. As such, the hearing panel concludes that the respondent’s misconduct is aggravated by the fact that the conduct was illegal.
“37. 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, die hearing panel, in tíiis case, found die following mitigating circumstances present:
“38. Absence of a Dishonest or Selfish Motive. The respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“39. Personal or Emotional Problems if Such Misfortunes Have Contributed to 'Violation of the Kansas Rides of Professional Conduct. The respondent has suffered from ‘lifelong bouts of depression that precipitate the cycle of using alcohol.’ The respondent’s psychiatrist, Dr. Marian Mack of the Veteran’s Administration Hospital, specifically diagnosed the respondent with suffering from recurrent major depressive disorder, insomnia, and alcohol dependence. According to Dr. Mack, the respondent is in early remission from his alcohol dependence. Currently, the respondent is participating in a 16 week cognitive behavioral therapy depression group. According to the respondent, the cognitive behavior therapy is the treatment that he needs to properly address his problems. Finally, according to the respondent’s psychiatrist, die respondent’s prognosis is excellent. Additionally, the respondent has had marital difficulties for many years. On August 5, 2013, the respondent filed for divorce from his wife of 40 years. The case remains pending before the Douglas County District Court. The respondent also testified that on September 24, 2013, his oldest son, Chaz, age 32, died unexpectedly. It is clear that the respondent’s personal problems contributed to his misconduct.
“40. 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 fully cooperated with the disciplinary process. The respondent admitted most of the underlying facts and the respondent stipulated diat he violated KRPC 8.4(b), KRPC 8.4(d), and KRPC 8.4(g).
“41. 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 of Topeka, Kansas. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by many letters received by the hearing panel.
“42. Imposition of Other Penalties or Sanctions. The respondent has experienced other sanctions for Inis conduct. The respondent was incarcerated for more than 2 weeks.
“43. Remorse. At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct.
“44. Remoteness of Prior Offenses. The respondent’s previous misconduct is remote in time and character to the misconduct in this case.
“45. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain tire elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.
‘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
“46. The disciplinary administrator recommended that the respondent’s license to practice law be suspended for a period of 2 years. The disciplinary administrator fuither recommended that the respondent be required to undergo a reinstatement hearing, under Supreme Court Rule 219, prior to consideration of any petition for reinstatement. The respondent recognized that a period of suspension is warranted given the misconduct in the case. The respondent joined the disciplinary administrator’s recommendation for a hearing pursuant to Supreme Court Rule 219.
“47. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that tire respondent’s license to practice law be suspended for a period of 2 years. The hearing panel further recommends that the respondent be required to undergo a healing pursuant to Supreme Court Rule 219, prior to consideration of a petition for reinstatement. Finally, the hearing panel recommends that at the reinstatement hearing, the respondent be required to show the following:
a. The respondent successfully completed tire 16 week cognitive behavioral therapy depression group.
b. The respondent has continued to engage in treatment as recommended by the treatment professionals and is in compliance with all treatment recommendations.
c. The respondent has continued to take all medications as recommended and prescribed by the treatment professionals.
d. The respondent has remained completely abstinent from alcohol and illegal drugs from the date of this report to the date of his reinstatement hearing.
e. The respondent’s treatment professionals are in agreement that the respondent is fit to resume the practice of law.
£ The respondent agrees to limit his practice to criminal law. The respondent agrees to engage in the practice of law in a structured group practice, i. e., law firm, public defender’s office, legal aid, etc., and not in a solo practice setting.
“48. 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 tire arguments of the parties and determines whether violations of KR.PC 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) (2014 Kan. Ct. R. Annot. 363). 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 the hearing before the panel and the hearing before this court. The respondent did not file exceptions to the hearing panel’s final hearing reports. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2014 Kan. Ct. R. Annot. 383).
The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated KRPC 8.4(b) (2014 Kan. Ct. R. Annot. 680) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law), and it supports the panel’s conclusions of law. We adopt the panel’s conclusions.
The only remaining issue before us is the appropriate discipline for respondent’s violations. At the hearing before the panel, the office of the Disciplinary Administrator and respondent recommended that respondent be suspended from the practice of law in the state of Kansas for a period of 2 years and that respondent be required to undergo a Supreme Court Rule 219 (2014 Kan. Ct. R. Annot. 415) hearing prior to consideration of a petition for reinstatement. The panel adopted those recommendations and added that at the reinstatement hearing the respondent should be required to establish that:
a. he has successfully completed the 16-week cognitive behavioral therapy depression group;
b. he has continued to engage in treatment as recommended by the treatment professionals and is in compliance with all treatment recommendations;
c. he has continued to take all medications as recommended and prescribed by the treatment professionals;
d. he has remained completely abstinent from alcohol and illegal drugs from the date of the final hearing report to the date of his reinstatement hearing;
e. his treatment professionals are in agreement that the respondent is fit to resume the practice of law; and
f. he agrees to limit his practice to criminal law and agrees to engage in the practice of law in a structured group practice, i.e., law firm, public defender’s office, legal aid, etc., and not in a solo practice setting.
At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator recommended that respondent be suspended from the practice of law in the state of Kansas for a period of 2 years, that respondent be required to undergo a Supreme Court Rule 219 hearing prior to consideration of a petition for reinstatement, and that respondent meet the six requirements recommended by the hearing panel. The office of the Disciplinary Administrator suggested that respondent could petition the court for a Rule 219 hearing at any time during the 2-year suspension period. Respondent agreed with the 2-year suspension and requested that the effective date of the suspension be retroactive to July 23, 2013, the date of his fateful traffic stop and when he voluntarily ceased practicing law.
We hold that, given respondent’s disciplinary record and the nature of his current problems, a more severe discipline than recommended by the panel should be imposed: he should be indefinitely suspended effective as of the date of his administrative suspension, September 18, 2013; that respondent undergo a Rule 219 reinstatement hearing; and that at tire reinstatement hearing, the respondent should be required to establish the six requirements set out by the panel in the final hearing report.
A minority of the court would impose a less severe discipline.
Conclusion and Discipline
It Is Therefore Ordered that Wendell Betts be and is hereby disciplined by indefinite suspension from the practice of law in the state of Kansas, in accordance with Supreme Court Rule 203(a)(2) (2014 Kan. Ct. R. Annot. 306), and that the effective daté of the suspension be made retroactive to September 18, 2013, tire date of the administrative suspension. It is further ordered that, prior to reinstatement, respondent undergo a Rule 219 reinstatement hearing and that at the reinstatement hearing, the respondent establish the six requirements set out above.
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.
Luckert and Rosen, JJ., not participating.
Michael J. Malone, Senior Judge, and Timothy J. Chambers, District Judge, assigned. | [
-112,
-22,
-3,
-33,
45,
-31,
58,
56,
121,
-45,
119,
114,
-23,
-53,
9,
43,
88,
77,
85,
105,
-43,
-74,
123,
-64,
102,
-5,
-8,
65,
-74,
95,
-4,
-35,
73,
48,
-62,
-43,
6,
-54,
-107,
92,
-126,
4,
11,
-16,
90,
-62,
-78,
56,
-105,
11,
53,
-113,
115,
110,
23,
-29,
105,
76,
31,
-82,
65,
-47,
-43,
21,
94,
6,
-93,
-92,
-100,
-123,
84,
59,
-104,
57,
40,
-24,
115,
-78,
2,
116,
111,
-119,
-120,
38,
96,
34,
25,
-93,
-96,
-120,
14,
56,
15,
38,
-103,
88,
105,
8,
-106,
-99,
116,
20,
15,
124,
-5,
69,
25,
104,
14,
-53,
-112,
-111,
-113,
96,
-50,
-112,
-21,
-91,
20,
81,
-53,
-26,
87,
-43,
114,
27,
-114,
-76
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
50 Kan. App. 2d 866 | [
21,
-21,
-19,
60,
-116,
-32,
-111,
30,
1,
-69,
117,
115,
-19,
-34,
4,
123,
-2,
15,
48,
123,
-55,
-74,
127,
72,
82,
91,
-37,
-35,
-8,
107,
-12,
-76,
76,
-16,
-86,
-43,
70,
-62,
-115,
88,
-116,
4,
-71,
-51,
17,
-109,
60,
-29,
122,
3,
49,
-116,
-13,
44,
26,
97,
-63,
108,
-53,
-67,
-55,
-3,
-71,
-105,
-34,
20,
-32,
20,
-104,
65,
80,
126,
-110,
-112,
37,
-24,
115,
38,
-122,
116,
67,
-103,
-95,
-28,
98,
35,
40,
-19,
124,
-84,
14,
30,
-115,
-90,
-110,
8,
73,
25,
-106,
-67,
65,
22,
11,
-6,
107,
-124,
79,
108,
-118,
-1,
-16,
-77,
-99,
57,
12,
-127,
-17,
-112,
-110,
49,
-33,
-16,
76,
-41,
49,
-101,
126,
-80
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
The opinion of the court was delivered by
Luckert, J.:
This case arises from a dispute over the ownership of a 5.5-acre tract of real estate in Cloud County. The district court determined that Keith Elliott, who had at one time deeded away the land to his then-wife’s daughter, had regained possession of the disputed tract through adverse possession. A panel of the Court of Appeals reversed on the issue subject to our grant of review, concluding that the district court’s conclusion was not supported by substantial evidence. We now affirm the Court of Appeals’ decision on that issue and reverse the judgment of the district court.
Facts and Procedural History
Keith purchased the disputed tract in 1963 as part of a larger purchase of approximately 80 acres. Keith built a metal building on the disputed tract sometime during 1980, but it is unclear when Keith actually began living on the land. Keith married Sue Elliott in 1988, and together they built an apartment inside the metal building and began living there.
After a few years, Keith and Sue became concerned the Internal Revenue Service or Keith’s ex-wife might attach the disputed tract to satisfy Keith’s unpaid debts. To avoid losing the property to a creditor, Keith and Sue decided to transfer ownership of the disputed tract to Sue’s daughter from a former marriage, Polly Marie (Moore) Grant (now Polly M. Ruhland), and her husband, Eric Grant. Keith and Sue executed a warranty deed transferring tire property on June 14, 1993, and the deed was recorded in Cloud County on the same date.
Despite the transfer of ownership, Keith and Sue continued living on the disputed tract in the same way as before: They maintained the disputed tract, made improvements such as planting trees and digging a well, and paid the property taxes. Keith and Sue did not execute a lease agreement or pay any rent, and Polly and Eric took no actions as owners or landlords and received no benefits from the property.
In 1999, Polly and Eric divorced. On March 9, 1999, in anticipation of the divorce, they executed a document labeled “QUIT CLAIM DEED” that purported to transfer their interest in the disputed tract to Sue alone. However, despite its title, this document did not follow the statutory language for quitclaim deeds and, although Polly mailed the document to Keith and Sue, it was never recorded. Sue testified at trial that she was not even aware of the document’s existence until the present litigation, although it was found among Keith’s private papers after his death. This “quit claim deed” did not significantly factor in the district court’s decision and the district court did not determine its precise legal effect.
Keith and Sue lived together in the apartment on the disputed tract from 1988 until 2000. In September 2000, Sue moved to Pittsburg. She initially intended to return to the disputed tract after about a year, but she never did—ultimately, she remained in Pitts-burg until she and Keith divorced in 2006.
But Keith continued living in the apartment. In August 2006 he leased a tract of real estate—which included a portion of the disputed tract—out for agricultural purposes. The tenant paid rent to Keith and testified at trial that he was not aware that someone other than Keith might own the property. Later, in 2008, Keith sold approximately 75 acres of real estate. He and the buyer discussed a simultaneous purchase of the disputed tract, but the final sale did not include it. The buyer testified at trial that Keith had said the buyer could always buy the disputed tract from Keith’s daughter after he died, and the buyer further testified that he was unaware Keith might not be the actual owner of the land.
All told, Keith lived in the apartment on the disputed tract from 1988 until he died on May 8, 2009. His daughter, Suzann Elliott, then took possession of the disputed tract, maintained it, and paid all expenses—including taxes. Neither Polly nor Sue initially took any action to eject Suzann from the disputed tract, and indeed they did nothing to care for the property.
But sometime after Keith’s death, his children and Sue’s children began to dispute the ownership of certain personal property and the ownership of the disputed tract. In April 2010, Suzann filed a caveat affidavit claiming ownership of the disputed tract through Keith’s adverse possession. Polly filed an interpleader action and sought a court order declaring that either she or Sue was the rightful owner of the disputed tract. Polly’s ex-husband, Eric, quitclaimed to Sue any interest he might have had in the tract, thereby effectively removing himself from the litigation. Sue died during proceedings before the district court, but her death does not affect the issues in the case.
Suzann raised numerous defenses to Polly’s claim to the disputed tract, but the district court granted summaiy judgment on all of Suzann’s defenses in favor of Polly, save one—Suzann’s allegation that Keith had reacquired ownership of the property via adverse possession. The case eventually proceeded to a bench trial on this sole issue. The district court held Suzann proved all of the elements of adverse possession by clear and convincing evidence, and it accordingly concluded Keith obtained title to the disputed tract by adverse possession, which he then passed to Suzann by intestate succession.
Polly appealed, and a panel of the Court of Appeals reversed on the grounds that Keith had only permissively occupied the disputed tract after he deeded it to Polly, a fact that defeated any adverse possession claim by Keith or his heirs. Ruhland v. Elliott, No. 108, 825, 2013 WL 4046605, at *5-6 (Kan. App. 2013) (unpublished opinion). Accordingly, the panel concluded that substantial competent evidence did not support the district court’s conclusion that Keith had possessed the disputed tract under a knowingly adverse claim. 2013 WL 4046605, at *6.
Polly filed a petition for review regarding the district court’s and panel’s denial of her requests for costs, attorney fees, and sanctions. We denied her petition for review, but we granted Suzann’s cross-petition for review on the adverse possession issue pursuant to K.S.A. 20-3018(b). Jurisdiction is proper under K.S.A. 60-2101(b).
Analysis
Suzann argues that Keith’s occupancy was adverse, not permissive, because despite the deed to Polly he always acted as the owner and always intended his continued possession to be permanent. She also advances an argument, for the first time on appeal, that Keith did not occupy the land with Polly’s permission but, instead, that Polly acquiesced to Keith’s assertion of ownership. Polly responds that Suzann’s adverse possession claim fails for two reasons: First, there was no evidence that Keith claimed ownership of the land or notified the true owner of his alleged adverse claim, and, second, Suzann failed to prove that Keith’s possession was exclusive.
1. The standard of review and analytical framework.
Whether a party has acquired title by adverse possession is a question of fact to be determined by the trier of fact—in this case, the district court. Schaake v. McGrew, 211 Kan. 842, 845, 508 P.2d 930 (1973). We review the district court’s factual findings to “de termine if the record shows substantial competent evidence” to support the findings. 211 Kan. at 845. Substantial competent evidence is such evidence that “provides a substantial basis of fact from which the issues can be reasonably determined.” Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009); see also Boese v. Crane, 182 Kan. 777, 779, 324 P.2d 188 (1958) (explaining that we will not weigh the evidence and are concerned “only with whether it supports the findings made by the trial court”). However, we exercise de novo review over a district court’s interpretation of the adverse possession statute, K.S.A. 60-503. See Dillon Real Estate Co. v. City of Topeka, 284 Kan. 662, 665, 163 P.3d 298 (2007).
K.S.A. 60-503 provides: “No action shall be maintained against any person for the recoveiy of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years.”
A party claiming title by adverse possession must prove each of the statutory requirements by “clear and positive proof.” Boese, 182 Kan. at 782. We take this opportunity to approve tire Court of Appeals’ conclusion in Ruhland, 2015 WL 4046605, at *3, that “clear and positive proof’ in the context of adverse possession corresponds to “clear and convincing evidence,” which means evidence that “shows the truth of the facts asserted is highly probable.” See, e.g., Crone v. Nuss, 46 Kan. App. 2d 436, 442-43, 263 P.3d 809 (2011), rev. denied 294 Kan. 943 (2012); Wright v. Sourk, 45 Kan. App. 2d 860, 866, 258 P.3d 981 (2011), rev. denied 293 Kan. 1114 (2012); accord In re B.D.-Y., 286 Kan. 686, 694-96, 187 P.3d 594 (2008).
A party may not establish adverse possession through inference. Boese, 182 Kan. at 782; see also Stith v. Williams, 227 Kan. 32, 36, 605 P.2d 86 (1980) (“ The law will not allow the property of one person to be taken by another upon slight presumptions or probabilities’ ” [quoting 2A C.J.S., Adverse Possession § 267].). Rather, a party claiming title through adverse possession must “rely on the strength of his [or her] own title and not the weaknesses of his [or her] adversary’s title.” Beams v. Werth, 200 Kan. 532, 543, 438 P.2d 957 (1968). “Every presumption is in subordination to the rightful owner.” Boese, 182 Kan. at 782; see Stith, 227 Kan. at 36.
Here, the parties do not dispute all of the K.S.A. 60-503 elements of adverse possession. Parsing the elements in K.S.A. 60-503, it requires a party claiming ownership by adverse possession to have:
(1) possessed the property for a period of 15 years in a manner
(2) that is (a) open, (b) exclusive, and (c) continuous; and
(3) that is either (a) under a claim knowingly adverse or (b) under a belief of ownership.
As to the first element, no one disputes that Keith possessed the property for the requisite 15-year period. The disputes arise over whether he did so under the requisite conditions. As to the conditions imposed through the second element, the parties do not dispute that Keith openly and continuously possessed the disputed tract. But Suzann must also establish that Keith’s possession was exclusive, and Polly argues Suzann has failed to do so. As to the final element, neither party has presented any argument regarding the district court’s rejection of any assertion that Keith possessed the disputed tract “under a belief of ownership.” See Ruhland, 2013 WL 4046605, at *4; see also State v. Rojas-Marceleno, 295 Kan. 525, 543, 285 P.3d 361 (2012) (reaffirming that failure to adequately brief an issue results in abandonment or waiver of the issue). Therefore, if Suzann is to satisfy the third element, she must do so by proving that Keith possessed the disputed tract “under a claim knowingly adverse.” See Stark v. Stanhope, 206 Kan. 428, 433, 480 P.2d 72 (1971) (explaining statutory amendments effective in 1964 created alternative conditions of a possession that is [1] knowingly adverse—i.e., hostile or [2] under a “ ‘belief of ownership’ ”).
If Suzann failed to prove both of the two disputed elements— exclusive possession and possession under a claim knowingly adverse—by clear and convincing evidence, her claim of adverse possession must fail. See Shaw v. Bandel, 122 Kan. 343, 346, 251 P. 1086 (1927). We first address the question of whether there is clear and convincing evidence that Keith possessed the disputed tract under a claim knowingly adverse.
2. The evidence does not clearly demonstrate that Keith possessed the tract under a claim knowingly adverse.
If a party seeks to establish adverse possession by showing 15 years of continuous, exclusive, and open possession “under a claim knowingly adverse,” that party must show his or her possession was “hostile” to the claim of the true owner. See, e.g., Stark, 206 Kan. at 432-33 (explaining that while K.S.A. 60-503 eliminated hostility as an “essential” element by permitting a party to satisfy the statute by showing instead a belief of ownership, a party not relying on belief of ownership must still show “an adverse or hostile holding”). “Hostile” in this sense refers not to animosity, but merely to the fact that the possessor is knowingly claiming adversely to the title of the true owner. See 206 Kan. at 432-33; 2 A.L.R.3d 1005 § 2(a), p. 1008 (“With respect to ‘hostile’ possession, there is again general agreement that the term ‘hostile’ does not mean that there must be ill will or malevolence, but only that the one in possession of land claims tire exclusive right thereto.”); see also Fear v. Barwise, 93 Kan. 131, 136, 143 P. 505 (1914) (emphasizing that the relevant question is whether the possessor intends “to appropriate the land to his own use without regard to any claim his rival may advance”).
Correspondingly, we have consistently held that “ ‘[u]se by the owner’s permission will not ripen into adverse possession no matter how long [the land is] used.’ ” Kratina v. Board of Commissioners, 219 Kan. 499, 502, 548 P.2d 1232 (1976) (quoting City of Osawatomie v. Slayman, 185 Kan. 631, 634, 347 P.2d 405 [1959]). This rale that possession by permission is never adverse within the meaning of K.S.A. 60-503 applies with special force when a grantor of land later attempts to reclaim title from the grantee via adverse possession. In Dotson v. Railway Co., 81 Kan. 816, 818, 106 P. 1045 (1910), this court held:
“In the absence of evidence to the contrary, the possession of the grantor who has made [an absolute] conveyance is presumed to be temporary and in subservience to the title of his grantee. The possession of a grantor of land is not considered to be adverse to a grantee who has been vested with the entire title to the premises, and can not be so regarded until the grantor explicitly renounces the title of his grantee or positively asserts a hostile claim of title in himself, which is brought to the attention of the grantee.”
Thus, pursuant to the Dotson doctrine, we will assume that a grantor who continues to possess the land the grantor has given away does so with the permission of the grantee. To allow otherwise would be unjust, as a grantee should be permitted to rely on the grantor’s total renouncement of the property by transfer. See 81 Kan. at 819 (citing Zellers Lessee v. Eckert et al., 45 U.S. (4 How.) 289, 296, 11 L. Ed. 979 [1846]).
However, the Dotson presumption may be overcome if the grantor puts forth “strong, clear evidence of a purpose to claim adversely to the grantee.” 81 Kan. at 818-19. Specifically, there must be evidence the grantor “explicitly renounces” the title of the grantee by positively asserting “a hostile claim of title in himself, which is brought to the attention of the grantee.” 81 Kan. at 818.
In this case, the Court of Appeals discussed the Dotson presumption and concluded that Suzann had failed to rebut it. The Court of Appeals did not, however, discuss this court’s opinion in Freeman v. Funk, 85 Kan. 473, 117 P. 1024 (1911), which was decided 1 year after Dotson. See Ruhland, 2013 WL 4046605, at *5-6. It does not appear that any party cited Freeman in the district court or the Court of Appeals, and Freeman is not mentioned in the district court or Court of Appeals decisions. Nonetheless, noting obvious factual similarities with her own case, Suzann urges us to find that Freeman controls the resolution of her appeal.
In Freeman, a father deeded real estate to his daughter to prevent a creditor from reaching it to satisfy an unpaid debt. The daughter knew tire purpose for the transfer and she accepted the deed with the understanding that she would reconvey the property upon request. The father continued living on the land and in fact built a home and a bam. Seven years after the transfer, he requested his daughter reconvey the land but she refused and instead gave him a “life lease,” ostensibly to prevent him from disposing of it outside the family. The father lived on the land for 10 more years and then brought an action to quiet title, asserting that he had reacquired title to the property through adverse possession. The district court agreed with the father, and this court affirmed. 85 Kan. at 475-76, 478.
The Freeman court explained that while the Dotson rule that continued possession of the grantor “must be presumed to be in subservience to the title of the grantee” was “no doubt true as a general proposition,” the rule “does not and can not apply” in situations like Freeman. 85 Kan. at 477-78. The court identified specific circumstances that led to a contrary conclusion from Dotson, including the fact that the grantor “constantly and persistently” claimed ownership for nearly 17 years, the grantor exercised all the rights incident to ownership, and the grantee “from time to time concede[d] the possession of only a paper title, which [was] to be revested upon request of the grantor.” 85 Kan. at 477. The Freeman court did not conclude that the Dotson presumption had been overcome, but instead appears to have concluded the Dotson presumption did not apply because, despite the transfer, “die grantor all along asserted ownership in himself’ and there were “repeated concessions [by the grantee] diat [the] grantor’s claim was rightful and that the shifting of the paper evidence of title back to the real owner was a mere formality.” 85 Kan. at 478.
We will not foreclose the possibility diat there will be some factual circumstances where, despite a grantor and grantee relationship, the Dotson presumption diat the grantor’s possession is temporary and subservient will not apply. See Dotson, 81 Kan. at 818 (suggesting die presumption applies “[i]n the absence of evidence to the contrary,” though without explaining what might constitute such evidence); see also, e.g., Forrest v. Forrest, 208 Ark. 48, 53, 184 S.W.2d 902 (1945) (explaining the presumption is the “ 'general rule’ ”); Toscano v. Delgado, 506 S.W.2d 317, 320 (Tex. Civ. App. 1974) (“ordinarily” applying a similar presumption).
Nevertheless, we frankly fail to understand why the circumstances in Freeman or in this case justify the holding that the Dotson presumption of subservient possession simply does not apply where a grantor transfers land to a grantee for the purpose of avoiding creditors, with the full intent to in reality continue exercising many of the rights of ownership. In such cases, the grantor necessarily intends his possession to be subservient to the grantee’s—indeed, that is the premise of a scheme to avoid creditors by transfer of land. See Forrest, 208 Ark. at 53 (asserting the presumption of a grantors subservient title “ ‘applies where the deed is in fraud of the grantor s creditors’ ” and permitting the fraudulent grantor to rebut the presumption “ ‘upon a proper showing/ ” “ ‘as in other cases’ ” [quoting 2 C.J.S., Adverse Possession § 95]); Collins v. Colleran, 86 Minn. 199, 206, 90 N.W. 364 (1902) (asserting that the grantor’s intent at the time of conveyance must have been to have his possession be in subordination to the grantee’s tide); Robinson v. Reynolds, 176 S.W. 3, 7 (Mo. 1915) (explaining a grantor’s admission that a grantee was supposed to retain title under a deed given to avoid creditors, at least until the grantor settied the debt, was clear evidence that his possession prior to such a settlement was not hostile to the grantee’s title) .While the grantor in such circumstances may be in continued possession of the grantee’s property and may even exercise some or many rights of ownership, such possession is not “adverse” to the tide of the grantee because, if the creditors came knocking, tire grantor intends die grantee’s title to protect him. See Williams v. Higgins, 69 Ala. 517, 523 (1881) (“[A] possession can not be adverse, which in any contingency is intended to be in subservience and subordination to the true title.”).
Freeman fails to explain why a grantor who transfers title in an attempt to avoid creditors nonetheless possesses the property adversely to the grantee’s title. The contrary approach taken by other courts in such situations, which is to recognize die application of a Doison-like presumption subject to rebuttal, retains focus on whether the possession is adverse to the title; this approach is more faithful to general principles regarding adverse possession and better reasoned. Accordingly, we hold the Dotson presumption applies when a grantor gives a deed to a grantee in an attempt to evade the grantor’s creditors and then continúes to remain in possession, and we disapprove of the contrary holding in Freeman. See Simmons v. Porter, 298 Kan. 299, 304, 312 P.3d 345 (2013) (doctrine of stare decisis does not apply when this court is “ ‘clearly convinced [a court-made rule] was originally erroneous’ ”).
This holding does not alter the approach taken by the district court in this case. As previously noted, the district court did not discuss or cite to Freeman, and both the district court and the Court of Appeals explicitly applied the Dotson presumption. We likewise presume that Keith’s possession of the disputed tract was temporary and in subservience to Polly’s title and that his continued possession was with Polly’s permission. See Dotson, 81 Kan. at 818.
To overcome this presumption, Suzann was required to show, with “strong, clear evidence,” that Keith explicitly renounced Polly’s title or positively asserted a hostile claim of title in himself that was brought to Polly’s attention. See 81 Kan. at 818. We conclude that the district court’s conclusion that Suzann had done so is not supported by substantial competent evidence.
The district court focused on the fact that there was no evidence Polly had given permission to Keith to remain on the property, but the Dotson presumption takes the place of such evidence. The district court then appears to have concluded that the Dotson presumption was overcome because Keith asserted himself as tire owner of the property through his actions and deeds—but tire Dotson presumption can only be overcome with evidence that Keith explicitly renounced Polly’s title (and the district court made no finding that he did so) or with evidence that he positively asserted a hostile claim of title and that this claim was brought to Polly’s attention (and the district court made no finding on this point either). See Dotson, 81 Kan. at 818-19. As we referenced above, the evidence indicates that the very purpose of the specific transfer at issue in this case was to establish superior title in Polly. See 81 Kan. at 818 (explaining that part of the reason for tire Dotson presumption is the understanding that a grantor “does not intend to deny the title he has conveyed”).
The district court correctly noted that no one involved in tire transfer appeared to believe it was permanent, and, drawing all inferences in favor of Polly, this only further suggests that Keith’s possession was temporary (and accordingly permissive) until Keith informed Polly otherwise. See Boese, 182 Kan. at 782 (drawing every presumption in favor of the rightful owner); Dotson, 81 Kan. at 818; see also Federal Savings & Loan Ins. Corp. v. Urschel, 159 Kan. 674, 678-79, 157 P.2d 805 (1945) (explaining that originally nonhostile possessions can become adverse, but such possession must “ ‘become hostile in character ” to start the adverse possession statute running [quoting 2 C.J.S., Adverse Possession § 87]). The district court found that Keith and Sue eventually satisfied all IRS debts, but there is no evidence suggesting Keith changed his mind and no longer wanted the IRS or his ex-wife to believe that Polly held the title to the property. See Robinson, 176 S.W. at 7 (“To show title by adverse possession, we must have not only acts of ownership, but we must have a claim of title as against all persons, and especially against the title of the alleged fraudulent grantee.” [Emphasis added.]).
In essence, Suzann failed to rebut the Dotson presumption because she pointed to no evidence that Keith explicitly renounced Polly’s title by affirmatively asserting a hostile claim of title in himself and bringing this assertion to Polly’s attention. Thus, Suzann provided no evidence “operating] to convert what appeared to be a subservient and permissive possession into a hostile and adverse one.” See Dotson, 81 Kan. at 819.
Suzann’s final argument is that, even if Keith never explicitly repudiated the deed to Polly, Polly’s acquiescence to Keith’s adverse possession provides the functional equivalent. See generally Spencer v. Supernois, 176 Kan. 135, 138-39, 268 P.2d 946 (1954) (discussing the doctrine of acquiescence, whereby a mutually agreed-upon boundaiy line between two adjacent landowners may eventually be declared the true boundary line, even if the time period falls short of that required for adverse possession). We are doubtful this doctrine applies to the facts of this case, but we decline to reach her argument because she raises it for the first time on appeal, without any explanation as to why it is properly before us. See Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) (requiring a party who is attempting to raise an issue not raised below to explain why it is properly before the appellate court); Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011) (stating our general rule that we will not consider issues raised for the first time on appeal).
We must therefore conclude that Keith’s possession was permissive. Suzann cannot prove the material element of adversity by clear and positive proof, which defeats her claim of adverse pos session. See Boese, 182 Kan. at 782. The district court’s conclusion to the contrary was not supported by substantial competent evidence. See Schaake, 211 Kan. at 845.
3. We need not discuss whether Keith’s possession was exclusive.
Because we conclude Suzann did not carry her burden to present clear and positive proof that Keith’s possession was knowingly adverse, her adverse possession claim fails and we need riot, and do not, reach whether substantial competent evidence supports the district court’s conclusion that Keith’s possession of the disputed track was exclusive. See Shaw, 122 Kan. at 346 (holding that failure to prove any required element precludes a successful adverse possession claim); see also Ruhland, 2013 WL 4046605, at *6 (also declining to reach this issue).
Motion for Costs
After oral argument before this court, Polly filed a motion requesting an order directing that the district court and appellate filing fees, a service of process fee, and die transcript costs be assessed against Suzann.
In the district court, Polly had filed a motion seeking the costs and attorney fees as a sanction under K.S.A. 60-211. The district court denied the motion, and, on appeal, the Court of Appeals affirmed. Polly filed a petition for review, seeking our review of the Court of Appeals’ ruling on this point. We denied the petition and, as a result, do not have jurisdiction to review the ruling that Polly is not entitled to costs and fees as a sanction. See Kansas Supreme Court Rule 8.03(g) (2014 Kan. Ct. R. Annot. 80) (“The denial of a petition for review is not subject to a motion for reconsideration by the Supreme Court.”).
Nevertheless, noting that Polly “has only lost on a request for fees under K.S.A. 60-211,” Polly’s counsel asks for us to order the costs paid. She fails to explain how this new theory can be considered for the first time through a motion filed after oral argument in this court, especially when we have denied review on the issue she presents.
It appears to us that, if we were to grant Polly’s request, we would be constrained to do so under Kansas Supreme Court Rule 7.07 (2014 Kan. Ct. R. Annot. 70). Only Rule 7.07(a)(4) and Rule 7.07(a)(5) appear to have any relevance to Polly’s request.
Under Rule 7.07 (a)(4) (2014 Kan. Ct. R. Annot. 71), certain fees and expenses can be assessed “as justice may require.” In our view, our decision denying review of the Court of Appeals’ decision on this point forecloses application of this subsection. Rule 7.07(a)(5) (2014 Kan. Ct. R. Annot. 71) does not depend on the exercise of discretion but instead states: “When a decision of the district court is reversed, the mandate will direct that appellant recover the original docket fee and expenses for transcripts, if any.” But here the Court of Appeals reversed in part and affirmed in part, and this court denied review over the portion of the judgment that was affirmed—the decision about costs and fees. Thus, the district court’s decision was not fully reversed, and Rule 7.07(a)(5) does not apply.
We therefore deny Polly’s request for costs, fees, and expenses.
Conclusion
On the one issue subject to our review-—the adverse possession claim—-we affirm the Court of Appeals’ decision reversing the district court’s decision and reverse the district court. | [
-47,
110,
-39,
15,
-82,
-32,
42,
-104,
106,
-83,
39,
83,
107,
-22,
88,
43,
-94,
13,
97,
106,
-41,
-77,
67,
-127,
-12,
-5,
121,
-51,
-79,
77,
124,
70,
76,
49,
-126,
85,
-26,
0,
-121,
88,
-50,
-122,
43,
69,
-39,
-62,
60,
-21,
64,
15,
97,
-113,
-79,
45,
53,
-62,
73,
46,
75,
-87,
93,
-8,
-69,
5,
91,
11,
-111,
21,
-108,
-61,
-24,
-86,
-112,
49,
0,
-24,
59,
38,
-106,
116,
79,
-101,
9,
36,
99,
1,
108,
-51,
-8,
-104,
15,
-36,
15,
-90,
-44,
88,
66,
104,
-68,
-99,
116,
22,
110,
-2,
-18,
-115,
95,
108,
7,
-50,
-44,
-79,
13,
48,
-114,
65,
-33,
35,
49,
113,
-49,
-30,
92,
102,
113,
-101,
79,
-77
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied. ..
Unpublished | [
29,
105,
77,
62,
-88,
-79,
49,
62,
82,
-113,
103,
119,
-49,
-30,
-116,
-39,
-83,
103,
-76,
91,
79,
18,
127,
-27,
98,
-37,
-94,
-11,
113,
111,
-6,
56,
76,
56,
-102,
69,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-112,
-63,
36,
35,
72,
15,
17,
-44,
-15,
-114,
30,
65,
-64,
102,
-59,
-83,
-62,
-35,
-111,
23,
-65,
84,
-64,
85,
-48,
73,
-64,
110,
20,
-80,
37,
-24,
114,
102,
-121,
85,
15,
-7,
-76,
32,
10,
32,
-84,
-19,
40,
-68,
79,
94,
45,
-124,
-5,
40,
75,
121,
-101,
-3,
0,
-43,
39,
56,
34,
-124,
47,
-88,
46,
-17,
-28,
-93,
31,
40,
12,
9,
-13,
-10,
16,
53,
-49,
-9,
-52,
-78,
53,
-102,
-122,
52
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied. ..
Unpublished | [
29,
105,
77,
62,
-88,
-79,
49,
62,
82,
-113,
103,
119,
-49,
-30,
-116,
-39,
-83,
103,
-76,
91,
79,
18,
127,
-27,
98,
-37,
-94,
-11,
113,
111,
-6,
56,
76,
56,
-102,
69,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-112,
-63,
36,
35,
72,
15,
17,
-44,
-15,
-114,
30,
65,
-64,
102,
-59,
-83,
-62,
-35,
-111,
23,
-65,
84,
-64,
85,
-48,
73,
-64,
110,
20,
-80,
37,
-24,
114,
102,
-121,
85,
15,
-7,
-76,
32,
10,
32,
-84,
-19,
40,
-68,
79,
94,
45,
-124,
-5,
40,
75,
121,
-101,
-3,
0,
-43,
39,
56,
34,
-124,
47,
-88,
46,
-17,
-28,
-93,
31,
40,
12,
9,
-13,
-10,
16,
53,
-49,
-9,
-52,
-78,
53,
-102,
-122,
52
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
50 Kan. App. 2d 1094 | [
21,
107,
-23,
60,
-52,
-96,
3,
14,
25,
-17,
53,
81,
-19,
-42,
4,
107,
-1,
77,
-96,
122,
-53,
-73,
127,
8,
82,
90,
-53,
-59,
-8,
111,
-15,
-108,
76,
-16,
-86,
85,
-126,
-126,
-115,
88,
-84,
4,
-103,
-51,
17,
-109,
56,
-29,
122,
7,
17,
-123,
-13,
40,
26,
-64,
-127,
116,
-53,
-67,
-23,
-15,
-7,
-105,
-36,
20,
-64,
20,
-104,
65,
80,
110,
-112,
-47,
41,
-24,
114,
38,
-122,
117,
3,
-103,
-123,
-20,
98,
34,
56,
-19,
108,
60,
30,
28,
13,
-90,
-45,
8,
75,
25,
-105,
-99,
92,
22,
15,
-6,
107,
4,
15,
108,
-118,
-17,
-16,
-77,
-97,
113,
12,
17,
-17,
-108,
-112,
49,
-33,
-16,
78,
-57,
49,
26,
-50,
-80
] |
The opinion of the court was delivered by
Johnson, J.:
Charles Ford and Larry LeDoux were killed in a shoot-out during an attempted drug-house robbery. Brandon Ford, who survived the incident and who previously knew Cedric Warren, named Warren as one of the two shooters and later identified Warren’s codefendant, Dominic Moore, as the second killer. Warren and Moore were tried together, and a jury convicted Warren of one count of premeditated first-degree murder, one count of intentional second-degree murder based on an aiding and abetting theory, and one count of attempted premeditated first-degree murder. The district court imposed a life sentence with a minimum term of 50 years (hard 50 life sentence) for the first-degree premeditated murder conviction.
On direct appeal to diis court, Warren argues that (1) the district court violated his right to an impartial jury by denying his motion for a mistrial after a potential juror s comments irreparably tainted the jury pool; (2) tire district court violated his right to an impartial jury by denying his motion for mistrial after a State’s witness made improper, prejudicial comments; (3) the district court erred in denying his motion for a new trial based on newly discovered evidence; (4) the district court erred in denying his motion to sever his trial from Moore’s trial, based on antagonistic defenses; (5) the district court denied his constitutional rights by instructing the jury that it could return a verdict of guilty upon proof of any element of the charged offense, rather than proof of each element of the charged offense; (6) cumulative error denied him a fair trial; (7) the hard 50 sentencing scheme is unconstitutional; (8) his hard 50 sentence is illegal; and (9) the district court erred by ordering lifetime postrelease supervision.
Finding no reversible error, we affirm Warren’s convictions. But pursuant to Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2160-63, 186 L. Ed. 2d 314 (2013), and State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014), we must vacate the hard 50 life sentence and remand the case to tire district court for resentencing.
Factual and Procedural Overview
On February 13, 2009, Brandon, Charles, and Larry spent most of the day at a house in Kansas City, Kansas, which was used by Charles and Larry to facilitate their drug transactions. Charles was armed with a loaded nine millimeter Glock and Larry kept a loaded AK-47 within his reach, but Brandon was initially unarmed when two men came to the house that evening. •
Although his description of the events changed several times prior to trial, one of Brandon’s initial stories to the police had him walking toward the bathroom when two men entered the house, one of whom he knew as “Ced.” As he entered the bathroom, Brandon said he heard someone say “where’s the shit” or “give me the shit,” immediately followed by gunshots. Brandon exited the bathroom and saw a short black male holding a gun, whereupon he ducked into a bedroom, locked its door, and retrieved a weapon. Brandon exchanged gunfire through the closed bedroom door with someone outside. After the shots subsided, Brandon looked out the window and saw two men running toward an SUV. Brandon exited through the bedroom window, ran to a nearby house, and asked the resident to call the police.
When police arrived at the residence, they found Charles’ body near the front door surrounded by several different types of cartridge casings and Larry’s body in the dining room with .40 caliber Smith and Wesson spent cartridges scattered nearby. Police also discovered a locked bedroom door riddled with bullet holes. A police officer broke down the door and observed an open window in the bedroom.
Although no weapons were found in the house, police recovered multiple gun magazines and a significant amount of ammunition. Police also discovered a black bag hidden inside a clothes dryer; the bag contained packets of cocaine.
Brandon was transported to the police station and shown a lineup, from which he identified Warren as the individual he knew as “Ced.” The day after the murders, police apprehended Warren and Moore at a house in Kansas City, Missouri. A search of the Missouri house revealed several weapons, including a Glock nine millimeter semi-automatic handgun, and drugs, all hidden within an air duct. Brandon was later able to select Moore out of a line-up as the short black man he saw in tire hallway.
Warren was charged with the premeditated first-degree murder of Larry; the intentional second-degree murder of Charles, based on an aiding and abetting theory; and the attempted premeditated first-degree murder of Brandon. At trial, Brandon testified that he was sitting in the living room when he saw Warren come up the stairs after entering the house. Brandon said that Warren went straight into the kitchen and began shooting at Larry. Brandon ran to the bedroom to retrieve a weapon; but he said that he was able to see Moore, through tire cracked bedroom door, also come up the stairs after entering the house. Brandon admitted that his trial testimony was inconsistent with previous statements, wherein he said he was in the bathroom when shots were fired. Brandon was extensively cross-examined on his inconsistent testimony.
A KBI firearms expert testified that the casings found at the crime scene came from three different guns, one of which was the Glock seized from the Missouri residence. Specifically, two cartridge casings found under Charles’ body were fired from the Glock. A KBI forensic scientist testified that a sample taken from the Glock was consistent with Moore’s DNA profile. The KBI firearms expert testified that the bullet recovered from Larry’s body was a .40 caliber full metal jacket round, but he was unable to tie it to a particular spent cartridge or to identify the type of weapon from which it was fired.
Warren presented two alibi witnesses in his defense. His stepmother, Nicole Carter, testified that on the night of the murders, Warren was at her house until approximately 11 p.m., when he left to go to a music show with his father. Warren’s father, Cedric Toney, testified that he dropped Warren off at a friend’s Kansas City, Missouri, house around midnight. The murders were alleged to have taken place around 11 p.m. Moore did not present any evidence in his defense.
The jury convicted both defendants as charged. Warren filed a motion for new trial, which the district court denied. The State filed a motion for imposition of a hard 50 sentence for Warren’s first-degree murder conviction under K.S.A. 21-4635, which the district court granted. Warren’s sentences for the two other convictions were ordered to be served concurrently with the hard 50 life sentence. Warren filed a timely appeal.
Motion for Mistrial Based on Potential Juror’s Statements
Warren’s first issue concerns comments made by a member of the venire during voir dire. The potential juror, C.W., expressed fear over rendering a guilty verdict because the defendants had access to the juror questionnaires, which contained his personal information, specifically stating,
“[E]veiy tíme we talk they flip through these papers. It’s got my name on it, it’s got where I work on it, it’s got my family, it’s got everything, and if I stand up in court and say hey, they’re guilty, they’re like, hey, that’s number 4, that’s [C.W.]. They know where I work, they know where I live, what if he gets mad? That’s how I look at it.”
The prosecutor followed up by inquiring whether C.W.’s apprehension would interfere with his juiy duty and C.W. responded, “Kind of, yeah, because if I stand up and say hey, you’re guilty, they know my name, where I work and my family. That makes you feel land of awkward, don’t you think?” C.W. explained that even if the jury rendered a guilty verdict and the defendants went to jail, nevertheless “[tjhey know people. People know people.”
Thereafter, the district court conducted a bench conference at which defense counsel requested a mistrial, arguing that the jury pool had been “poisoned at this point beyond—possibly beyond salvation.” The prosecutor argued that any possible prejudice could be cured by informing potential jurors that while the defendants could review the questionnaires during jury selection, they did not have access to the questionnaires during the trial. The district court took the motion for mistrial under advisement and thereafter provided the following instruction to the jury pool:
“All right. I guess based upon [C.W.’s] comments, there’s I wanted to clarify tilings. Obviously, this is a serious case and diere are serious charges, here. As die defendants sit here, tíiey are presumed to be innocent. The State has the burden to prove their guilt beyond every reasonable doubt as to die elements widi which they are charged. It is also their right to have a jury trial, and tiiat is why all of you have been summoned in here to come down here and go through this process. That’s why I’ve asked you questions, Miss Lidtke has asked you questions and counsel will ask you questions.
“The questionnaires tiiat he referred to are simply in order to try to speed up the process as opposed to questioning each of you individually. These questionnaires are used in every trial that we conduct here in Wyandotte County, they have been used for many years, and it’s the best possible way that we have come up with to expedite the process as much as we possibly can.
“I understand that there’s concerns about your names being on there and information, but those questionnaires are not kept by anyone but the Court. They are collected and destroyed. There is nothing that anyone—the attorneys, the defendants, anyone else will have any information regarding anything what is on those questionnaires. But tiiat is the process tiiat we have, that is the process that we use in every jury trial, whether it’s a civil trial or a criminal trial, so with that, Miss Lidtke, let’s move on.”
Despite the district court’s instruction, C.W. still expressed doubt over whether he could return an appropriate verdict. Consequently, the prosecutor moved, without objection from defense counsel, to strike C.W. for cause. The district court took the motion to strike under advisement.
Voir dire thereafter continued without any other potential juror expressing any safety concerns. Of note, at the close of her voir dire examination, the prosecutor specifically asked the jury pool if there was anything else that needed to be addressed or considered when determining whether a potential juror should serve on the juiy. None of the potential jurors expressed any concerns about their safety or the defendants having access to their personal information. Similarly, at the close of Warren’s voir dire examination, defense counsel specifically gave the jury pool the opportunity to discuss anything that they thought would prevent them from acting as fair and impartial jurors, but none responded.
The district court subsequently granted the prosecutor’s motion to strike C.W. for cause but denied the defendants’ motion for mistrial, finding that while the jury pool may have visibly reacted to the potential juror’s comments, “the record should be perfectly clear no one was nodding their head in agreement, no one was raising their hand to come forward, no one anticipated any further questions when the broadest possible question was asked, is there anything we should know about?” The district court found that if any member of the jury pool had concerns for their safety, or believed such concerns would prevent them from serving as a fair and impartial juror, they had ample opportunity to express their concerns. The district court therefore concluded that a mistrial was not appropriate.
Warren claims on appeal that C.W.’s comments irreparably tainted the jury pool and the district court’s curative instruction did not purge the taint.
Standard of Review
We review a district court’s decision denying a motion for mistrial for an abuse of discretion. State v. Armstrong, 299 Kan. 405, 442, 324 P.3d 1052 (2014). A district court abuses its discretion if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Waller, 299 Kan. 707, 722, 328 P.3d 1111 (2014).
Analysis
Pursuant to K.S.A. 22-3423(1)(c), a district court may declare a mistrial if prejudicial conduct, inside or outside the courtroom, makes it impossible for tire trial to proceed without injustice to the prosecution or defense. When evaluating a motion for mistrial under this provision, the district court must take the first step of deciding whether the prejudicial conduct created a fundamental failure in the proceeding. If so, the district court’s second step is to decide whether the prejudicial conduct made it impossible to continue tire proceeding without denying the parties a fair trial. Armstrong, 299 Kan. at 441-42. Under tire second step, tire court considers whether the conduct caused prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice. State v. Ward, 292 Kan. 541, 551, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
The question of whether a fundamental failure in the proceeding existed “varies with the nature of the alleged misconduct, such as whether the allegation is based on the actions of a witness, the actions of a bystander, prosecutorial misconduct, or evidentiary error.” 292 Kan. 541, Syl. ¶ 4. Here, we are dealing with a potential juror’s actions in expressing fear of retribution from the defendants. Although we have yet to address the precise issue presented here, we have considered cases involving a potential juror’s prejudicial statements in the presence of the jury pool.
For example, in State v. McCorgary, 224 Kan. 677, 687, 585 P.2d 1024 (1978), a potential juror, who also happened to be the defendant’s cousin, “expressed a strong feeling in front of other prospective jurors that what she had read in the paper about these murders was true.” The potential juror was excused from service, but the defendant moved for a mistrial before voir dire was completed. The motion was denied, but the juiy was instructed to disregard statements by prospective jurors and to not consider what they may have read in newspapers. On appeal, we held that the district court did not abuse its discretion in denying the motion for a mistrial because there was no evidence that the defendant’s rights had been substantially prejudiced. 224 Kan. at 687.
Similarly, in State v. Mayberry, 248 Kan. 369, 380, 807 P.2d 86 (1991), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), the defendant argued that the trial court erred in denying his motion for a mistrial based upon a potential juror’s statement that he knew about the defendant from his previous conviction. The juror was excused for cause, and the district court instructed foe jury to disregard any information concerning the case other than the evidence presented at trial. Once again, we held that the district court did not abuse its discretion in denying the motion for mistrial because there was no showing of substantial prejudice to the defendant’s right to a fair trial. 248 Kan. at 381.
More recently, in State v. Betancourt, 299 Kan. 131, 322 P.3d 353 (2014), a potential juror, during voir dire, disclosed that she had heard that the murder case was gang related. Prior to voir dire, the district court had granted a motion in limine precluding any evidence of gang membership during the trial. The defendant moved for a mistrial based on a violation of the order in limine and because the jury panel was allegedly tainted. The district court denied the motion for mistrial. Citing cases from other jurisdictions dealing with prospective jurors’ prejudicial comments during voir dire, we held that the district court did not abuse its discretion in denying the motion for mistrial because there was no prejudice to the other jury members. 299 Kan. at 146. We reasoned:
“The juror mentioned gang involvement only in passing, and tire topic was not brought up again. The defense did not ask for permission to conduct an examination of tire jury for prejudice and did not request an instruction directing the jury to disregard unsworn statements by jury members. Furthermore, the defense did not seek to strike tire juror in question for cause.” 299 Kan. at 146.
On the other side of the argument, Warren points to State v. Yurk, 230 Kan. 516, 638 P.2d 921 (1982). There, during the course of an aggravated robbeiy trial, a juror read a newspaper article, which revealed that Yurk had three prior convictions related to larcenous activities. The juror initially stated that his ability to be fair and impartial would be affected by the newspaper article, ex plaining “ ‘the main thing that bothered me were the other charges that had been filed against the man and the convictions.’ ” 230 Kan. at 520. However, under further questioning by the trial judge, the juror stated he could render a fair decision, prompting the trial court to deny the defense motion for mistrial and to proceed with the trial. The Yurk majority found that the district court erred in denying the mistrial and continuing the trial because the single juror involved admitted that he was adversely influenced by the knowledge of defendant’s prior convictions, and the juror’s subsequent assurances of fairness could not protect the defendant’s right to a fair trial. 230 Kan. at 523-24.
The Yurk court was concerned with the impartiality of a single juror who improperly read forbidden and prejudicial information about defendant’s prior convictions during the course of the trial and admitted that the information bothered him. Here, we have no evidence that the impartiality of any sitting juror was actually prejudiced. Rather, Warren surmises that the actual jurors might have been adversely affected by overhearing the comments of an excused potential juror, notwithstanding the total absence of any direct statements of such influence. In other words, our circumstance more closely resembles that in McCorgary, Mayberry, and Betancourt, where we found the respective juiy pool was not tainted by a venireperson’s prejudicial comment and, consequently, no abuse of discretion in the district court’s denial of a mistrial.
In this case, the district court noted that no one in the jury pool appeared to agree with C.W.’s comments and that no one expressed any similar personal safety concerns when asked if there was anything the parties or court should know about. Pointedly, Warren’s counsel did not request an individual polling of the juiy pool to investigate the existence of any prejudice. In short, there is no evidence of record indicating that the jury pool was, in fact, prejudiced by C.W.’s comments. Therefore, we conclude that the district court did not abuse its discretion in determining that C.W.’s comments did not constitute a fundamental failure in die proceedings.
Notwithstanding the foregoing holding, we pause to note that the district court in this case took the appropriate curative and mitigation measures to assure that Warren suffered no injustice from C.W.’s remarks. Warren’s assertion that United States v. Blitch, 622 F.3d 658 (7th Cir. 2010), required tire district court to sua sponte poll tire jury pool is unavailing because of the factual distinction that the persons expressing personal safety fears in Blitch actually sat as jurors in the case. Our circumstance is more analogous to that in United States v. Small, 423 F.3d 1164 (10th Cir. 2005), where a venireperson expressed doubt as to his impartiality because of safety concerns based on the number of marshals present in the courtroom. The district court denied a defense motion for mistrial but explained to the jury pool that the number of marshals was due to the number of defendants, not to concerns about potential violence. The Small Court upheld the denial of defense counsel’s mistrial motion, finding that “[a]ny prejudice that may have resulted from the statement of the venireperson was adequately addressed by the district court’s explanation of the presence of the marshals in the courtroom.” 423 F.3d at 1180. Here, die district court adequately explained the use of the jury questionnaires.
In short, we find that the district court did not abuse its discretion in denying Warren’s motion for mistrial.
Motion for Mistrial Based on Witness’ Testimony
Warren similarly argues that the district court violated his right to an impartial jury by denying his motion for mistrial after a State’s witness, Detective Brian Block, testified that he knew Warren and his associates. Warren claims that because the jury “entered the trial with safety concerns raised by [C.W.] regarding the defendants and their friends, such an answer undoubtedly aggravated these concerns.” We disagree, discerning no fundamental failure in the proceedings.
Standard of Review
We apply the same standard of review and legal framework as applied to Warren’s first issue, namely whether the district court abused its discretion in denying the motion for a mistrial. See Armstrong, 299 Kan. at 442.
Analysis
During the trial, Detective Block, in explaining why he placed Warren in a photo line-up after Brandon identified one of the shooters as “Ced,” stated that he was “familiar with Cedric Warren and his associates.” Warren’s defense counsel thereafter moved for a mistrial, arguing that the jury now believed that the police were familiar with his client and his “associates,” which made it sound like Warren was in some sort of “syndicate.” The district court overruled the motion, but stated, “Let’s limit what’s talked about to just Cedric Warren. He’s established he knew him so he put him in there. I don’t think he should state with associates or any connotation that might have.”
On appeal, Warren argues that the jury had already been tainted by C.W.’s comments that the defendants “know people. People know people.” Warren claims this taint was exaggerated by Block’s reference to Warren “and his associates.” Warren also asserts that Block’s comment carried the unnecessary implication that ‘Warren was a dangerous gang member.”
In State v. Ransom, 288 Kan. 697, 207 P.3d 208 (2009), the defendant was charged with two counts of felony murder after he and three others made plans to rob a drug house. Prior to trial, the defendant filed a pretrial motion in limine to prevent introduction of evidence about his involvement with gangs, arguing that such evidence was immaterial, irrelevant, and inadmissible. The State agreed that it would not offer any evidence of the defendant’s gang affiliation, and the district court sustained the motion. At trial, the lead detective on the case, in testifying about her efforts to locate the four suspects, mentioned “gang officers” before defense counsel interrupted with an objection. The defendant then moved for a mistrial, but the district court overruled the motion, finding that the State did not design its question to elicit a response about gangs and thereafter instructed the juiy to ignore the officer’s response that a gang unit was asked to investigate because neither the State nor the witness was suggesting the defendant was affiliated with a gang.
On appeal, this court held that the defendant could
“demonstrate no substantial prejudice from Bachman’s brief reference to ‘the gang officers.’ Even if witness preparation and the detective’s experience—along with the fact that this detective sat at counsel table during trial and had been present when die admonition was given to odier witnesses—should have prevented the reference, it was innocuous. We are confident diat it did not create an unduly prejudicial impression that Ransom was involved in a gang or gang activity. Indeed, the district judge’s admonition was emphatic in dispelling any weak association diat could have arisen in the minds of jurors. As it happened, Ransom may have received a great deal more in the way of a court endorsement because of the detective’s mistake than most criminal defendants have a right to expect.” 288 Kan. at 715.
In die present case, Block’s reference to Warren “and his associates” is even more isolated and innocuous than Ransoms gang reference. Granted, the district court in this case did not provide a cautionary instruction to the jury, but on the other hand, the detective was not laboring under a limine order prohibiting the mention of tire defendant’s associates.
Moreover, as the State points out, another witness in this case, Detective Dion Dundovich, specifically testified, without objection, that' at the time of the murders, he was assigned to the FBI Violent Crime Gang Task Force. Dundovich explained that he was contacted to assist with the present case because he was familiar with Warren based on his association with a gang called “the Mob.” Even though Dundovich testified after Block, Warren did not object to his testimony or move for a mistrial. In addition, Warren does not argue, on appeal, that Dundovich’s testimony was prejudicial or aggravated the alleged prejudice caused by Block’s testimony.
In short, Block’s brief reference to “his associates” did not constitute a fundamental failure in the proceedings and the district court did not abuse its discretion in denying the motion for a mistrial.
Motion for New Trial
Next, Warren argues the district court abused its discretion by denying his motion for a new trial based on newly discovered evidence. In the alternative, Warren argues that the district court abused its discretion in refusing to hold an evidentiary hearing on his motion for a new trial.
Standard of Review
A district court’s order denying a request for a new trial based on newly discovered evidence is reviewed under an abuse of discretion standard. Moncla v. State, 285 Kan. 826, 839, 176 P.3d 954 (2008). 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. Waller, 299 Kan. at 722. Warren bears the burden of demonstrating an abuse of discretion. See State v. Laurel, 299 Kan. 668, 676, 325 P.3d 1154 (2014).
Analysis
Warren argues that new evidence, by way of two letters and an affidavit attached to his brief, entitled him to a new trial. At the outset of our analysis, we note that the letters and affidavit were appended to Warren’s brief but were never formally introduced as evidence in the proceedings below or added to the record. Therefore, our analysis is limited to defense counsel’s proffer regarding the letters and affidavit, which occurred prior to sentencing, when the district court took up the motion for new trial. See Kansas Supreme Court Rule 6.02(b) (2014 Kan. Ct. Rule Annot. 41) (“The appendix is for the court’s convenience and is not a substitute for the record itself.”); Edwards v. Anderson Engineering, Inc., 284 Kan. 892, Syl. ¶ 1, 166 P.3d 1047 (2007) (“The court will not consider appended items which are not found in die appeal record.”).
At the hearing, defense counsel explained that because he did not have the authors of the letters and affiant present to testify, he would represent, by way of proffer, that the two letters and affidavit were authored by inmates, who purported to be in jail widi Bran don at various points in time during 2010 and with whom Brandon discussed the murders. The attorney claimed that one of the inmates stated that Brandon admitted drat Warren was not present on the night of the murders and did not commit the murders; and that another inmate stated that Brandon confessed to framing Warren for the murders. While defense counsel referenced the affidavit, its contents were not specifically proffered. The defense argued that the evidence constituted newly discovered material that warranted a new trial, or at least further exploration to determine whether the inmates’ allegations were true. The district court denied the motion for new trial, finding:
“As to the statements made by [Brandon] after his testimony, or to these other inmates at some point, I would concur with the State’s argument that these are to be reviewed with caution. Obviously these inmates did submit affidavits, but there’s nothing in diere or anything that’s been presented to this Court diat finds them to be credible to die point that a new trial would be warranted on that basis.”
Warren first argues that given Brandon’s lack of credibility, the district court abused its discretion in failing to grant a new trial based on the allegations contained in the letters and affidavit. When determining whether a new trial is warranted on the basis of newly discovered evidence, the court considers whether: (1) “the new evidence could not, with reasonable diligence, have been produced at trial,” and (2) “the evidence is of such materiality that it would be likely to produce a different result upon retrial.” Laurel, 299 Kan. at 676.
Here, the first factor is not at issue because the district court treated the letters and affidavit as newly discovered evidence but denied the motion for new trial based on the materiality of the evidence. Specifically, the district court determined that, as presented, the newly discovered evidence lacked sufficient credibility to warrant a new trial. In determining whether newly discovered evidence is material,
“the district court must assess the credibility of the newly proffered evidence. See Cook, 281 Kan. at 993; State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984). Ordinarily, a new trial is not warranted when the newly proffered evidence merely tends to impeach or discredit the testimony of a witness. Richard, 235 Kan. at 363; State v. Watson, 204 Kan. 681, 685, 466 P.2d 296 (1970); State v. Ayadi, 16 Kan. App. 2d 596, 601-02, 830 P.2d 1210, rev. denied 250 Kan. 806 (1991). But, even when tire evidence tends to impeach the testimony of a witness, the presence or absence of corroborating evidence is another factor to consider in determining whether the newly discovered evidence is of such materiality that it is likely to produce a different result upon retrial. See State v. Norton, 277 Kan. 432, 441-42, 85 P.3d 686 (2004); State v. Smith, 39 Kan.App.2d 64, 68, 176 P.3d 997, rev. denied 286 Kan. 1185 (2008).” State v. Rojas-Marceleno, 295 Kan. 525, 540, 285 P.3d 361 (2012).
Here, the State argued that the inmates’ allegations were not credible, arguing that based on their pending charges, each inmate had a bias against the State. The district court apparently agreed, finding that there had been no showing of credibility with regard to the inmates’ allegations.
But Warren counters that the “district court lacked substantial competent evidence to find the submitted documentaiy evidence incredible” and that “[n]o reasonable person could possibly disregard the written evidence in this case without holding an evi-dentiaiy hearing.” Warren points to specific allegations contained within the letters and affidavits as evidence of credibility. However, as discussed, those documents are not a part of the record, so their specific allegations cannot be considered on appeal in determining whether the district court abused its discretion. The burden is on the appellant to furnish a record that affirmatively shows prejudicial error, and without such a record, we presume the actions of the trial court were proper. State v. Goodson, 281 Kan. 913, 919, 135 P.3d 1116 (2006).
Nevertheless, evidence of bias and motive is a valid method of attacking credibility. State v. Ross, 280 Kan. 878, 886, 127 P.3d 249, cert. denied 548 U.S. 912 (2006) (Proof of bias is almost always relevant to the finder of fact and weigher of credibility.). Moreover, “[w]e do not reassess a district judge’s determination of credibility at a motion for a new trial hearing. [Citation omitted.] Zero credibility means zero materiality and zero chance that the outcome of a retrial would be different.” Laurel, 299 Kan. at 676-77. Therefore, we hold that the district court did not abuse its discretion in denying the motion for new trial based upon a finding that the newly discovered evidence was not credible.
Moreover, even if the district court had conducted a hearing that established that Brandon had actually told inmates that Warren was not the shooter, that would not have established an effective recantation of Brandon’s trial testimony. Recantation occurs when a witness formally or publicly withdraws or renounces prior statements or testimony. See Black’s Law Dictionary 1295 (8th ed. 2004). Here, Brandon did not recant his prior testimony, but rather he just told different versions of what occurred. He did that prior to trial, and the defense vigorously cross-examined Brandon on the inconsistencies between his statements to police, his preliminary hearing testimony, and his trial testimony. That circumstance illustrates why evidence that merely impeaches a witness’ trial testimony does not typically warrant a new trial. See Rojas-Marceleno, 295 Kan. at 540; see also Smith v. Wichita Transportation Corp., 179 Kan. 8, 21, 293 P.2d 242 (1956) (newly discovered cumulative evidence does not warrant new trial).
A reasonable person could agree with the district court’s determination that tire proffered evidence was insufficiently material to warrant a new trial. Consequently, we find no abuse of discretion.
Motion to Sever
Warren claims that he and Moore had antagonistic defenses and the district court therefore erred in denying his motion to sever. Warren cannot clear the first hurdle; the two defenses were not antagonistic.
Standard of Review
A trial court’s denial of a motion to sever under K.S.A. 22-3204 will be reversed only when a clear abuse of discretion is shown. State v. Winston, 281 Kan. 1114, 1130, 135 P.3d 1072 (2006). The party claiming that a severance denial was error has the burden of establishing an abuse of discretion. State v. White, 275 Kan. 580, 589, 67 P.3d 138 (2003).
If the challenger establishes that the district court abused its discretion in refusing to sever a trial, the next step is to determine whether the severance denial resulted in prejudice. But the burden of demonstrating harmless error, i.e., a lack of prejudice, is on the party benefitting from the error. State v. Carr, 300 Kan. 1, 95, 331 P.3d 544 (2014).
Analysis
K.S.A. 22-3204 provides, in relevant part, that “the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney.” Severance should occur when a defendant has established there would be actual prejudice if a joint trial occurred. State v. Davis, 277 Kan. 231, 239, 83 P.3d 182 (2004).
Antagonistic defenses have been referred to as the “most compelling ground for severance.” State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 (1980). However, a mere claim of antagonistic defenses is not enough. State v. Pham, 234 Kan. 649, 654, 675 P.2d 848 (1984). Instead, antagonistic defenses occur when “each defendant is attempting to convict the other” or “the defenses conflict to the point of being irreconcilable and mutually exclusive.” State v. Anthony, 257 Kan. 1003, 1018, 898 P.2d 1109 (1995). “[A] mere inconsistency in trial strategy does not constitute an antagonistic defense.” State v. Aikins, 261 Kan. 346, 361, 932 P.2d 408 (1997), disapproved on other grounds hy State v. Warrior, 294 Kan. 484, 277 P.3d 1111 (2012). Similarly, presentation of evidence by one defendant that is inconsistent with the evidence presented by another defendant does not make the defenses antagonistic for purposes of severance. State v. Reid, 286 Kan. 494, 520, 186 P.3d 713 (2008). Instead, “[bjefore defenses of codefen-dants will be declared antagonistic there must be á dichotomy, or near dichotomy, between the defenses. The clássic example of intrinsically antagonistic defenses is where both defendants blame each other for the crime while attempting to defend against the State’s case.” Pham, 234 Kan. at 655.
In his motion to sever, Warren alleged that Moore would blame him for the crimes charged in the complaint. The State objected to the motion to sever, arguing that Moore and Warren did not have antagonistic defenses and that judicial economy favored the cases being tried together. While Moore had initially filed a motion to sever, he later withdrew that motion and asserted that he pre ferred to have his case tried with Warren’s. The district court denied the motion, finding that the defendants did not have antagonistic defenses and that the strengdi of evidence against Moore did not warrant severance.
At trial, Warren presented two alibi witnesses and Moore did not present any evidence in his defense. During closing argument, Warren’s trial counsel argued that Brandon was not a credible witness due to his conflicting and inconsistent testimony; that there was no physical evidence linking Warren to the crime scene; and that Warren had an alibi for the night of the murder. In other words, Warren’s defense was that he was not in the drug house when the victims were shot.
Similarly, Moore’s trial counsel attacked Brandon’s testimony as incredible, i.e., Brandon’s identification of Moore as the second shooter should not be believed. Further, Moore’s attorney challenged tlie strength of the State’s physical evidence linking Moore to the Glock and linking the crime scene shell casings to the Glock. In other words, Moore’s defense was that he was not in the drug house when the victims were shot.
Simply put, Warren has failed to make even a cursory showing that the defenses in this trial were antagonistic. Consequently, he has failed to meet his burden of establishing that the district court abused its discretion in refusing to sever his trial from that of his codefendant, Moore.
Jury Instruction
For the first time on appeal, Warren argues that the reasonable doubt instruction given to the jury in this case erroneously lowered the State’s burden of proof and that such an erroneous instruction must be considered structural error. We rejected this argument in State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013).
Standard of Review
Warren did not object to the instruction below, therefore relief may only be granted if the instruction was clearly erroneous. See K.S.A. 22-3414(3).
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.
“If the reviewing court determines that tire district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the couit assesses whether it is firmly convinced that the jury would have reached a different verdict had tire instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish die degree of prejudice necessary for reversal.” State v. Williams, 295 Kan. 506, Syl. ¶¶ 4-5, 286 P.3d 195 (2012).
Analysis
The instruction, which was identical to the pre-2005 version of PIK Crim. 3d 52.02, stated, in relevant part:
“If you have a reasonable doubt as to the trudi of any of the claims required to be proved by die State, you must find die defendants not guilty. If you have no reasonable doubt as to die truth of any of the claims required to be proved by die State, you should find die defendants guilty.” (Emphasis added.)
Herbel considered this same instruction and opined that “|w]hile the older PIK instruction used in Herbel’s trial was not the preferred instruction, it was legally appropriate.” 296 Kan. at 1124. Subsequently, this ruling has been followed repeatedly. See, e.g., State v. Holt, 300 Kan/985, 1006-07, 336 P.3d 312 (2014); Miller v. State, 298 Kan. 921, 936-38, 318 P.3d 155 (2014); State v. Smyser, 297 Kan. 199, 206, 299 P.3d 309 (2013); State v. Waggoner, 297 Kan. 94, 98-99, 298 P.3d 333 (2013). Warren offers nothing new to compel a different result. Consequently, we hold that the reasonable doubt instruction given in this case was not clearly erroneous and Warren is not entitled to relief.
Cumulative Error
Alternatively, Warren argues that pursuant to the cumulative error doctrine he is entitled to a new trial. Even if an individual error is insufficient to support a reversal, the cumulative effect of multiple errors may be so great as to require the reversal of a defendant’s conviction. State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010).
But “[cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant.” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Even if the defendant establishes a single error, that will not constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010). Quite simply, Warren has not established the applicability of the cumulative error doctrine in this appeal.
Sentencing Issues
Finally, Warren raises three sentencing issues. First, he asks us to vacate his hard 50 life sentence, arguing that K.S.A. 21-4635, the hard 50 statute in effect at the time of his sentencing, is unconstitutional because it denies a defendant his or her Sixth Amendment right to have a jury decide, beyond a reasonable doubt, all of the facts necessary to increase the penalty for first-degree murder. Second, or alternatively, Warren claims that his hard 50 sentence is illegal because the district court failed to provide written findings of the statutory aggravating circumstances, as required by K.S.A. 21-4635. Last, Warren argues, and the State concedes, that the district court erred by ordering lifetime post-release supervision, instead of parole. See K.S.A. 22-3717(b); State v. Clay, 300 Kan. 401, 418, 329 P.3d 484 (2014) (offenders sentenced for certain off-grid crimes subject to parole, not postrelease supervision).
Because we hold that Warren’s sentence was imposed in violation of his constitutional right to a jury trial, and that such error was not harmless, we vacate his hard 50 sentence and remand for resentencing. That holding renders moot the remaining claims of sentencing error. See State v. Salary, 301 Kan. 586, 608-09, 343 P.3d 1165 (2015) (declining to address additional sentencing issue as moot, once hard 50 sentence vacated for violating United States Constitution).
Standard of Review
Determining a statute’s constitutionality is a question of law subject to de novo review. State v. Soto, 299 Kan. 102, Syl. ¶ 8, 322 P.3d 334 (2014).
Analysis
At the time of Warren’s conviction, K.S.A. 21-4635 set forth a procedure whereby the State could seek enhancement of the minimum sentence for premeditated first-degree murder to 50 years before the convict is parole eligible. As a prerequisite to the enhanced sentence, the State had to prove and the sentencing court had to find the existence of one or more statutorily enumerated aggravating factors. K.S.A. 21-4635. In this case, the district court found that Warren knowingly or purposely tolled or created a great risk of death to more than one person, K.S.A. 21-4636(b); that Warren committed the crime for the purpose of receiving money or other things of monetary value, K.S.A. 21-4636(c); and that Warren authorized or used another person to commit the crime, because a third person drove the getaway car, K.S.A. 21-4636(d).
The statutory scheme then required the district court to determine whether there were any mitigating circumstances present, and, if so, whether they outweighed the aggravating factors. K.S.A. 21-4635(d).
At the sentencing hearing, Warren’s counsel opposed the hard 50 sentence, arguing that the evidence was too conflicting to establish that Warren knowingly or purposefully tolled or created a great risk of death to more than one person; that the evidence did not indicate that Warren was at the house for tire purpose of stealing anything or robbing anyone; and that the statutory aggravating circumstance of using another person to commit the crime did not contemplate the use of a getaway driver. Warren’s counsel did not argue any mitigating circumstances to weigh against the State’s allegation of aggravating circumstances, albeit the district court determined that Warren’s young age and his lack of criminal history constituted mitigating circumstances.
Ultimately, the district court imposed a hard 50 life sentence for the premeditated first-degree murder conviction. The court found the existence of each of the aggravating circumstances alleged by the State and determined that tire mitigating circumstances did not outweigh the aggravators.
In Soto, which was issued after the briefs were filed in this case, we determined that Kansas’ hard 50 sentencing statute was uncon stitutional pursuant to the United States Supreme Court’s ruling in Alleyne v. United States, 570 U.S. -, 133 S. Ct. 2151, 2160-63, 186 L. Ed. 2d 314 (2013). Soto, 299 Kan. at 124. Alleyne held that a person’s right to a jury trial under the Sixth Amendment to the United States Constitution requires that any fact increasing a mandatory minimum sentence for a crime must he proved to a jury beyond a reasonable doubt. Given that our hard 50 procedure allowed a judge to find the existence of one or more aggravating factors, instead of requiring a jury to find those factors beyond a reasonable doubt, that procedure was unconstitutional as violative of the Sixth Amendment. Soto, 299 Kan. at 124. The same unconstitutional procedure was used in this case, i.e., the sentencing judge, not the jury, made the specific factual findings of aggravating circumstances and did the balancing against mitigating circumstances that resulted in an increased mandatory minimum sentence for Warren.
The State has acknowledged Soto’s holding through a Supreme Court 6.09 (2014 Kan. Ct. R. Annot. 52) letter; but it argues that Soto “left open the possibility that there could be rare cases where harmless error analysis would allow a Hard 50 sentence to stand.” Granted, Soto did describe a harmless error test that would require the appellate court to find, beyond a reasonable doubt, that (1) the uncontroverted and overwhelming evidence supported the aggravating circumstance such that the jury would have found the existence of the aggravating circumstance beyond a reasonable doubt; and (2) “that no rational jury would have determined that any mitigating circumstances outweighed any aggravating circumstances.” Soto, 299 Kan. at 126-27.
Nevertheless, Soto declined to definitively decide whether a hard 50/Alleyne error could ever be harmless because even assuming the applicability of a harmlessness analysis, the error in Soto’s case did “not come close to meeting that test.” 299 Kan. at 126. Specifically, Soto opined that even if overwhelming and uncon-troverted evidence established the existence of an aggravating factor, this court could not conclude beyond a reasonable doubt, “that no rational jury would have determined that the mitigating circumstance outweighed the aggravating circumstance.” 299 Kan. at 127; see also State v. Hilt, 299 Kan. 176, 205, 322 P.3d 367 (2014) (assuming without deciding that harmlessness applies but concluding case did not present “one of the rare instances when a hard 50 Alleyne error can be declared harmless”)- Likewise, the case before us does not justify our presuming to read the collective mind of a hypothetical jury to find, beyond a reasonable doubt, that it would have determined that mitigating circumstances did not outweigh aggravating factors. In other words, this is not one of the rare cases to which Soto alluded.
The State contends that this case is different because Warren failed to present any evidence of mitigating factors at the sentencing hearing, so that no weighing was necessary. But as we noted, the district court engaged in a balancing of the aggravators against the mitigators, which it determined to be Warren’s young age and his lack of criminal history. Evidence of those mitigators was contained in the presentence investigation report (PSI), i.e., the record contains evidence of mitigating factors. A jury would have been free to consider those factors as well, and we continue to avoid predicting the result of that consideration.
In conclusion, we hold that the sentencing scheme under which Warren was sentenced was unconstitutional, and we decline to declare that such unconstitutionality was harmless in this case. Warren’s hard 50 sentence is vacated, and tine matter is remanded for resentencing.
Convictions affirmed, hard 50 life sentence vacated, and case remanded for resentencing. | [
112,
-22,
-3,
-97,
25,
-125,
10,
-72,
16,
-22,
100,
83,
45,
-21,
69,
121,
-71,
-17,
85,
121,
21,
-73,
39,
105,
-78,
-77,
-37,
-43,
-77,
-55,
-2,
89,
72,
112,
-114,
-43,
-26,
8,
-59,
82,
-114,
-111,
25,
119,
-111,
-110,
48,
102,
92,
15,
-31,
-116,
-77,
110,
18,
-54,
-23,
40,
91,
35,
80,
-79,
-55,
-121,
-33,
22,
-77,
6,
-114,
39,
120,
44,
-39,
49,
1,
-24,
99,
-106,
-58,
-12,
109,
-117,
44,
38,
99,
4,
80,
-51,
-4,
-119,
46,
86,
-115,
-89,
26,
17,
65,
4,
-106,
-33,
126,
54,
-90,
114,
-17,
94,
93,
109,
-121,
-35,
-74,
-111,
-52,
56,
-42,
-8,
-23,
33,
0,
101,
-49,
-22,
78,
117,
89,
-45,
-117,
-106
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Marquardt, J.:
Terry Miner and Floyd Trim appeal the Workers Compensation Board’s (Board) ruling that it did not have jurisdiction to hear their claims. We affirm.
The underlying facts here are not in dispute. In August 1999, Miner was injured while driving a truck in the course of his em ployment. He filed his application for hearing with the Division of Workers Compensation (Division of WC) in October 1999. J.L. Floyd Trim was injured in August 1997, also while driving a truck in the course of his employment. He filed his application for hearing in October 1998.
In November 2000, TIC United Corp. (TIC), the parent company to CX Transportation (CX), filed a petition for Chapter 11 bankruptcy. The bankruptcy court issued a mandatory alternative dispute resolution (ADR) procedure for all damage claims. An individual having a damage claim against TIC, including workers compensation claims, was required to submit notice of loss and participate in the mediation process. Neither Miner nor Trim completed the ADR process.
The bankruptcy court granted an injunction, which enjoined any party from “continuing in any form or fashion” against TIC until the ADR procedure was complete. In November 2000, the Division of WC was notified that the bankruptcy proceeding would stay the claims of Miner and Trim, subject to 11 U.S.C. § 362 (2000).
Trim and Miner filed notices that they were impleading the Kansas Workers Compensation Fund (Fund). The Fund entered its appearance in both cases.
Miner and Trim had regular workers compensation hearings, at which counsel for both CX and the Fund argued that due to the bankruptcy stay, the Division of WC did not have jurisdiction to consider the merits of the claims. The administrative law judge (ALJ) in both cases agreed. Miner and Trim filed applications for review with the Board. The Board upheld the ALJ awards, finding that the Division of WC did not have jurisdiction to enter an award for either claimant. Miner and Trim timely appeal.
Miner and Trim claim that K.S.A. 44-532a states the Fund is hable if an employer is unable to pay a workers compensation claim. They claim that forcing them to go through the bankruptcy process contravenes the intent of the workers compensation statutes.
The Board has authority to review an ALJ’s decision for questions of law and fact. The Board’s decision is appealable to this court, where review is limited to questions of law. Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 34-35, 991 P.2d 406 (1999). Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002).
K.S.A. 44-532a establishes the liability of the Fund in cases where the employer is financially unable to pay compensation to an injured worker. Under the old workers compensation code, the Fund’s liability was solely derivative, meaning that no direct action against the Fund could be brought by an employee. Arduser v. Daniel International Corp., 7 Kan. App. 2d 225, 231-32, 640 P.2d 329, rev. denied 231 Kan. 799 (1982). However, the question of direct Fund liability has not been addressed since 1993.
The language of K.S.A. 44-532a malees “financially unable to pay” a prerequisite of Fund liability. In this case, there is no evidence that CX was unable to pay Miner’s and Trim’s claims. Rather, Miner, Trim, and any other damaged party must proceed through the bankruptcy process before receiving compensation.
The bankruptcy court records indicate that injured parties who participate in the ADR process will receive an offer from the trustee. The trustee’s options ranged from denial of the claim through full payment of the claim. We cannot evaluate CX’s ability to pay these claims because Miner and Trim did not complete the ADR process.
We understand that Miner and Trim must be frustrated by their inability to seek direct compensation from CX. However, it is undisputed that only the bankruptcy court has jurisdiction over CX. K.S.A. 44-532a does not allow an injured worker to proceed directly against the Fund. Accordingly, we find that the Board did not err by finding that it lacked jurisdiction to hear these claims.
Affirmed. | [
16,
106,
-47,
-116,
8,
-32,
26,
56,
109,
-93,
101,
87,
-17,
-50,
21,
57,
-13,
29,
85,
123,
115,
-73,
19,
-21,
-22,
-45,
59,
68,
-102,
74,
-12,
-100,
73,
80,
2,
85,
-26,
65,
79,
60,
-50,
2,
-5,
104,
25,
1,
56,
123,
82,
95,
17,
-89,
-14,
46,
25,
107,
-55,
42,
59,
-95,
-47,
88,
-22,
5,
117,
18,
1,
4,
-68,
39,
114,
31,
-128,
-71,
33,
-88,
114,
-74,
-94,
-11,
43,
-103,
13,
110,
99,
-95,
29,
-27,
104,
-72,
14,
-66,
-97,
-91,
-126,
16,
3,
7,
-73,
-99,
124,
23,
34,
124,
-22,
5,
68,
77,
-121,
-114,
-74,
-93,
79,
87,
-100,
-57,
-21,
-122,
54,
33,
-116,
-10,
127,
-122,
115,
31,
95,
-80
] |
Johnson, J.:
Dale E. Capps appeals his convictions for attempted manufacture of methamphetamine, possession of methamphetamine, possession of drug paraphernalia with intent to manufacture, illegal possession of ephedrine/pseudoephedrine, and failure to affix a drug tax stamp. Finding insufficient evidence to support a drug tax stamp violation, we reverse that conviction. Finding multiple errors, including a clearly erroneous instruction on attempt and an erroneous admission of prior crime evidence, we reverse the remaining convictions and remand for a new trial.
The case began with a traffic stop of a vehicle with illegal window tinting. Larry Capps was the vehicle driver; Dale Capps, Larry’s uncle, was in the front passenger seat. While issuing a warning ticket for the traffic violation, the officer observed that Lany appeared nervous. The officer asked for and obtained permission to search the car.
On die floorboard in the front seat area was a black bag containing a camouflage mask, rubber gloves, a funnel, a metal oxygen cylinder, and two hoses. A pen tube and foil with white powder were found under the driver’s seat. In the back seat were found a funnel with white powder residue, night-vision equipment, and a toolbox containing coffee filters with powder residue and foil with burnt residue. When the officers opened the trunk, they observed a white vapor and detected a strong ammonia odor. Inside the trunk were a propane tank with corroded fittings, a gassing generator fashioned from a soda bottle, a bottle of drain cleaner, a partially emptied bottle of muriatic acid, a roll of aluminum foil, and two thermoses. One thermos contained a paste-like substance; the other contained a more liquified material. Both substances tested positive for the presence of methamphetamine.
Both Larry and Dale were charged with multiple drug-related offenses. Dale’s motion to consolidate the trials was denied based on the court’s finding of antagonistic defenses. Larry was convicted of some of the charges but acquitted on the manufacturing charge. His convictions were affirmed on appeal. State v. Capps, No. 89,374, unpublished opinion filed August 29, 2003.
Dale raises the following issues: (1) the attempted manufacture of methamphetamine elements jury instruction was clearly erroneous; (2) the trial court failed to give an instruction on accomplice testimony; (3) the trial court erroneously admitted evidence of a prior methamphetamine possession conviction; (4) the State violated Dale’s right to due process by presenting Larry’s false and inconsistent testimony; (5) the evidence was insufficient to support the drug tax stamp conviction; and (6) the charges for possessing anhydrous ammonia, ephedrine, and drug paraphernalia are multiplicitous with the attempted manufacturing conviction.
ELEMENTS INSTRUCTION ON ATTEMPTED MANUFACTURING
Dale complains that the trial court’s instruction on attempted manufacturing did not include the elements of attempt. Dale objected to the giving of any attempted manufacturing instruction, although he did not specify an objection to the wording of the instruction which was given. Arguably, a clearly erroneous standard of review applies. See K.S.A. 2003 Supp. 22-3414(3). However, the trial court has a duty to define the offense charged, stating the essential elements of the crime. State v. Houck, 240 Kan. 130, 138, 727 P.2d 460 (1986). A jury instruction that omits an essential element of the crime is clearly erroneous. State v. Crawford, 247 Kan. 223, 228, 795 P.2d 401 (1990).
In State v. Martens, 274 Kan. 459, 465, 54 P.3d 960 (2002), our Supreme Court discussed the distinction between manufacturing and an attempt to manufacture, pointing out that manufacturing is controlled by K.S.A. 65-4159, while attempted manufacturing is controlled by K.S.A. 21-3301. To convict of attempted manufacturing, “the State must show that the defendant: (1) performed an overt act toward the commission of a certain crime; (2) did so with the intent to commit the crime; and (3) failed to perpetrate the crime or was prevented or intercepted in the execution of the crime.” 274 Kan. at 466. The three elements of attempt are essential. State v. Wilson, 30 Kan. App. 2d 498, 499-500, 43 P.3d 851, rev. denied 274 Kan. 1118 (2002).
Here, the trial court simply used PIK Crim. 3d 67.21, the instruction for manufacture of methamphetamine, and added the word “attempted” to the first element. That effort was woefully inadequate and clearly erroneous. The jury especially needed that part of die attempt instruction, PIK Crim. 3d 55.01, which defines “overt act” to be something more than “mere preparation.” Dale’s conviction for attempted manufacture of methamphetamine is reversed and remanded for a new trial.
ACCOMPLICE TESTIMONY INSTRUCTION
Capps asserts that the trial court’s failure to give, sua sponte, the accomplice witness instruction found in PIK Crim. 3d 52.18 constituted clear error. “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
“The failure to give an accomplice instruction is not reversible error if the defendant’s guilt is plain, [citation omitted], or if the judge provided another instruction which cautioned the jury about the weight to be accorded testimonial evidence.” State v. Crume, 271 Kan. 87, 94-95, 22 P.3d 1057 (2001). Here, the jury was instructed: “It is for you to determine the weight and credit to be given tire testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
Even the prosecutor, who proffered tire accomplice testimony of Larry Capps, advised the jury that it could not believe everything that Lany Capps had said. A separate instruction was unnecessary to inform the juiy that it should consider the accomplice testimony with caution. The instruction would not have changed tire outcome.
EVIDENCE OF PRIOR CONVICTION
The trial court permitted the State to introduce a journal entry of Dale Capps’ 3-year-old conviction for possession of methamphetamine for the limited purpose of proving Capps’ intent. Capps essentially argues that the prior crime evidence was not relevant. We agree.
K.S.A. 60-455 makes evidence that Capps committed a specific prior crime inadmissible to prove that Capps was disposed to criminal activity so as to provide an inference that Capps committed the currently charged crimes. An exception would lie if the prior crime evidence is relevant to prove some other material fact, such as intent.
“Three requirements must be satisfied to admit evidence under K.S.A. 60-455. First, the evidence is relevant to prove one of the facts specified in die statute. Second, the fact is a disputed, material fact. Third, the probative value of the evidence outweighs its potential prejudice. If these requirements are met, the scope of appellate review is limited to whether the trial court abused its discretion. [Citation omitted.]” State v. Boorigie, 273 Kan. 18, 34, 41 P.3d 764 (2002).
The trial court opined that because Dale and Larry were pointing fingers at each other and declaring their respective innocence, “intent is squarely at issue.” On appeal, the State focuses on tire definition of possession, which is having control over a place or thing with knowledge of and the intent to have such control. See State v. Graham, 244 Kan. 194, 196, 768 P.2d 259 (1989). The State’s apparent argument is that, because it had to prove Dale intended to control the contraband, his intent was a disputed, material fact.
Before the jury could get to the question of whether Dale had the requisite intent to control the contraband, it had to find that Dale knew the items were in the car. Dale denied having “knowledge of’ the contraband; he professed that he entered Larry’s vehicle to take an innocent trip without knowing what was in the vehicle. Thus, although intent was a material fact, it was not a disputed fact.
More importantly, the 1999 conviction for methamphetamine possession was not relevant to intent in this case. The fact that Dale possessed methamphetamine, as a final product, some years earlier did not malee it more probable than not that he intended to exercise control over contraband intended to be used to manufacture methamphetamine. The only relevancy of the prior crime was to prove the impermissible criminal disposition inference. As such, the probative value of the evidence, being nil, was outweighed by its potential prejudice. Therefore, the State did not meet any of the requirements for admitting the prior crime evidence, and the court erred in permitting the introduction of the journal entry.
Given the nature of the evidence, we cannot declare that the evidence of Dale’s prior conviction did not adversely influence the juiy’s verdict. We reverse and remand for a new trial.
PROSECUTORIAL MISCONDUCT
Dale complains that the State employed irreconcilable theories in the separate trials of Larry and Dale, which resulted in the introduction of knowingly false testimony in Dale’s trial. Specifically, Dale asserts that the State, having argued in Larry’s trial that Larry committed the crime, should not have been permitted to use Larry as a State’s witness to testify that Dale did it. The State counters that its theory was that both Larry and Dale committed the crimes in concert.
The record supports the State’s contention. During the State’s opening statement at Dale’s trial, the prosecutor said: “You will hear from that driver. He is the defendant’s nephew. Larry Capps, the driver of that car, is not an angel. Is he involved in the manufacture of these methamphetamines? Yes, a jury said he was. But he’s not alone. He’s not alone.” At Larry’s trial, the prosecutor stated: “It’s not Larry or Dale; it’s Larry and Dale.” The State was permitted to use Larry to establish Dale’s involvement in the criminal enterprise; each State’s witness need not corroborate the entire theory of prosecution.
We are concerned, however, about the State’s closing arguments in support of Larry’s credibility. Specifically, the State argued that double jeopardy would permit Larry to testify that Larry was solely responsible for the crimes and that “no one has threatened him with a thing.” This argument strikes us as misleading, at best. The State used its subpoena power to get Larry on the stand and retained the implicit threat of a perjury charge if his testimony differed from that in his own trial. Double jeopardy would not have saved Larry from a perjury charge.
However, for prosecutorial misconduct to be reversible, the alleged error must have denied the defendant his right to a fair trial. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003). The State followed up its statements in support of Larry’s credibility by telling the jury that it could not believe everything that Larry said. In that context, any error in bolstering Larry’s credibility was harmless.
SUFFICIENCY OF THE DRUG TAX STAMP EVIDENCE
Dale maintains that his drug tax stamp conviction was not supported by sufficient evidence that he possessed more than a gram of a controlled substance, which is a required element of the crime. To the extent the issue is sufficiency of the evidence, our review standard is that set forth in State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). To tire extent we must interpret statutes, our review is unlimited. State v. Maass, 275 Kan. 328, Syl. ¶ 1, 64 P.3d 382 (2003).
Dale was convicted of possessing methamphetamine without having affixed a stamp evidencing the payment of the tax imposed under K.S.A. 79-5202. The prohibition against possessing controlled substances without a tax stamp is imposed upon dealers. K.S.A. 79-5204(a). As applicable to Dale’s case, a dealer is defined as a person who possesses “more than one gram of any controlled substance.” K.S.A. 79-5201(c). Therefore, the State had to prove that Dale possessed more than one gram of methamphetamine to support the drug tax stamp conviction.
The State relies on the total weight of the substances found in the two thermos containers. The Kansas Bureau of Investigation laboratory report indicated the presence of methamphetamine, ephedrine/pseudoephedrine, and lithium in the substances; the report did not indicate the amount of methamphetamine. However, the State contends that it is permitted to use the total weight of all materials because K.S.A. 79-5202(b) provides that in calculating the tax, the weight of the controlled substance “includes all material, mixture or preparation that is added to the . . . controlled substance.” We disagree.
The substances in the thermos containers were apparently either a by-product of or the results of an unfinished stage of tire methamphetamine manufacturing process. No material was added to the controlled substance. Rather, the substances, other than the methamphetamine, had been extracted or separated during the manufacturing process. The drug tax stamp provisions are specifically applicable to the possession of controlled substances by dealers, not to the possession of partially manufactured controlled substances or the by-products of the process by manufacturers.
The evidence of the total weight of the paste-like and liquid substances in the thermos containers was insufficient to prove that Dale met the definition of a controlled substance dealer. The drug tax stamp conviction is reversed.
MULTIPLICITY
Finally, Dale argues that his convictions for possessing anhydrous ammonia, drug paraphernalia, and ephedrine are multiplicitous with his conviction for attempted manufacturing of methamphetamine. He presents a question of law subject to unlimited review. See State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171 (2001).
Capps argues that the State’s theory of prosecution on the attempted manufacture of methamphetamine charge was that his possession of the anhydrous ammonia, paraphernalia, and ephedrine was the overt act performed toward the intended crime of manufacturing. Therefore, the same act provided the basis for the possession charges and for the attempted manufacturing charge.
“Upon general principles a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense.” State v. Colgate, 31 Kan. 511, 515, 3 Pac. 346 (1884). If one were to apply that rule logically, one would conclude that it is impermissible to split manufacturing methamphetamine into the necessary component parts of possessing ephedrine with intent to manufacture methamphetamine, possessing paraphernalia with intent to use it for manufacturing methamphetamine, etc. Further, if possessing the components necessary to make methamphetamine is used to establish the overt act for attempted methamphetamine manufacturing, tiren all of the elements of the possession charges are necessarily contained in some of the elements of manufacturing, specifically the overt act element. That would make the possession charges lesser included offenses. See K.S.A. 2003 Supp. 21-3107(2)(b).
The appellate courts have settled upon a multiplicity test that determines “whether each offense charged requires proof of a fact not required in proving the other.” State v. Garcia, 272 Kan. 140, 143, 32 P.3d 188 (2001). If the State uses the possession charges as the overt act element of attempted manufacturing, the facts necessary to prove both the possession and the attempted manufacturing crimes are the same. Those common facts would be that Capps possessed the ingredient or equipment with the intent to manufacture methamphetamine. Upon remand, unless the State asserts an overt act other than possessing the anhydrous ammonia, ephedrine, and paraphernalia, those possession convictions would be multiplicitous with the conviction for attempted manufacturing of methamphetamine.
The drug tax stamp conviction is reversed. The remaining convictions are reversed and remanded for a new trial. | [
-80,
-24,
108,
-68,
58,
-95,
43,
26,
66,
-121,
-25,
115,
-81,
-10,
17,
49,
-3,
127,
112,
105,
-35,
-73,
67,
99,
-26,
-73,
58,
-64,
-11,
75,
44,
-48,
76,
112,
-62,
29,
70,
0,
-9,
88,
-50,
16,
-79,
99,
89,
-46,
38,
42,
-89,
15,
113,
-105,
-42,
46,
27,
-49,
73,
40,
75,
-68,
72,
-8,
-103,
21,
-17,
22,
-93,
20,
-103,
-123,
-40,
15,
-98,
-79,
0,
-8,
-77,
-74,
-126,
-44,
79,
-103,
-116,
32,
-30,
1,
25,
-83,
-7,
-116,
62,
-69,
29,
-89,
-104,
65,
73,
-91,
-74,
-66,
100,
18,
14,
120,
122,
93,
85,
124,
-121,
-57,
-72,
-111,
15,
32,
14,
-5,
-5,
35,
52,
113,
-43,
-30,
86,
53,
80,
27,
-18,
-106
] |
Green, J.:
Howard Johnson appeals his convictions by a jury of possession of cocaine with intent to sell, no drug tax stamp, possession of drug paraphernalia, and obstructing official duty. On appeal, Johnson contends that the trial court abused its discretion in admitting previous crime evidence on rebuttal. We agree. In addition, Johnson maintains that the trial court wrongly failed to give a unanimity instruction. We agree. Finally, Johnson argues that his conviction for possession of cocaine with intent to sell was not supported by sufficient evidence. We disagree. Nevertheless, based on the errors, we reverse the previously mentioned convictions and remand for a new trial. Moreover, we direct that the State make an election between the baggie of cocaine and the cocaine residue contained on the scales in the retrial of Johnson for possession of cocaine with the intent to sell. If no election is made, the trial court is directed to give a unanimity instruction.
The police received an anonymous tip that Charles Adams, a criminal suspect, was at 612 West 13th Street, Junction City, Kansas. At approximately 9:45 p.m., Officer Eric Coffman drove by that location and saw several people standing in the shadows of the side of the house. Coffman and his partner exited their unmarked patrol car and walked toward the house. Both officers were wearing black raid vests that said “POLICE” across the front and back. As they approached the house, Coffman saw an individual run from the house. The person was later identified as Johnson.
Coffman yelled, “Police, stop!” or “Stop, police!” and began to chase Johnson. Johnson was wearing a dark-colored jacket and a multicolored baseball cap. At the same time, another person ran from the house in a different direction. Coffman chased Johnson behind the house next door and then across the street. Johnson jumped a fence and disappeared. As officers looked for him, they heard a rattling noise from a chain-link fence in the front of the house. Coffman went to the front of the house and saw Johnson walking toward an open lot. Johnson was arrested.
Coffman asked Johnson why he had run from the police. Johnson replied that he did not know it was the police and that he thought the police were robbers. Coffman tiien advised Johnson of his Miranda rights and asked him what had happened to the jacket and hat that he was wearing before the chase started. Johnson did not respond. Coffman later found the jacket and cap behind the house where he had lost sight of Johnson. Johnson’s identification card and a set of digital gram scales were discovered in the jacket. The scales later tested positive for cocaine residue.
Additionally, Coffman recovered a small baggie of a powdeiy substance located in the direct path where Johnson had run. The baggie, with no drug tax stamp affixed, was sitting on top of leaves and was not weathered. The substance in the baggie later tested positive for cocaine. The baggie weighed 4 grams.
While Coffman apprehended Johnson, other officers detained three males and two females behind the house. Several of these individuals, in addition to the other man who ran from the scene, were known drug offenders. A search of Johnson revealed $26 in his pants pocket and $70 in his mouth.
The State charged Johnson with possession of cocaine with intent to sell, a violation of K.S.A. 65-4161(a); with no drug tax stamp, a violation of K.S.A. 79-5204(a) and K.S.A. 79-5208; with possession of drug paraphernalia, a violation of K.S.A. 65-4152(a)(3); and with obstructing official duty, a violation of K.S.A. 21-3808(a).
Coffman testified that based on his training and experience, he believed the baggie of cocaine was consistent with the sale of drugs rather than personal use. Coffman’s opinion was based on finding the scales, which were consistent with sale rather than personal use, and on the absence of any drug paraphernalia indicating drug use. Further, Coffman testified that the area was well known for drug use and sales.
Johnson testified that the jacket and hat that had been recovered belonged to him. He conceded that he had the scales in his jacket pocket and stated that was why he had run from the police and discarded the jacket. Johnson asserted that the scales belonged to a friend who had asked Johnson to hold them while the friend went to the store. Johnson denied ever possessing the baggie of cocaine and denied having knowledge of where it came from.
The jury found Johnson guilty of all four counts. The trial court imposed concurrent prison sentences of 56 months for possession of cocaine with intent to sell, 6 months for no drug tax stamp, 11 months for possession of drug paraphernalia, and 12 months for obstructing official duty.
Johnson argues that the trial court erred in allowing the State to call a rebuttal witness to testify about a prior episode where Johnson ran from police and was apprehended and found with cocaine on his person. According to Johnson, this evidence constituted improper K.S.A. 60-455 evidence. The trial court, however, did not admit the evidence under K.S.A. 60-455. Nevertheless, Johnson maintains that the prejudicial effect of this evidence outweighed its probative value and, thus, reversal of his convictions is required.
The trial court admitted the evidence as rebuttal evidence.
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. The use and extent of rebuttal rests in the sound discretion of the district court. [Citation omitted.] The erroneous admission of rebuttal evidence is not grounds for reversal unless discretion has been abused to defendant’s prejudice. [Citation omitted.]” State v. Flournoy, 272 Kan. 784, 805, 36 P.3d 273 (2001).
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, an appellate court will not conclude that the trial court abused its discretion. State v. Washington, 275 Kan. 644, 670, 68 P.3d 134 (2003).
Johnson takes issue with the State’s cross-examination of him about whether he knew the purpose of the digital scales and whether he had run from the police in the past. The exchange immediately followed Johnson’s explanation drat he was holding the scales for a friend who did not want to take the scales with him to the store. The exchange was as follows:
“Q. [Prosecutor] So what’s the big deal about being caught with scales?
“A. [Johnson] It’s just — I guess it’s what I’m charged with, drug paraphernalia.
“Q. But, I mean, if they’re just scales, what’s the big thing about having scales?
“A. I guess he was using them for drugs, sir.
“Q. And you knew that when he gave them to you?
“A. No, I knew that he wanted me to hold them, he wanted me to hold them until he got back from the store.”
The State then turned its attention to whether Johnson had run from the police in the past:
“Q. Okay. As a matter of fact, Mr. Johnson, you’ve run from the police before, haven’t you?
“A. Yes, sir, I have.
“Q. For the exact same thing, huh?
“A. No, sir, I haven’t.
“Q. Excuse me?
“A. No, sir, I haven’t.
“Q. You’ve never run from the police for the exact same thing?
“A. For — no, sir, I never ran from the police.
“Q. You’ve never run from the police?
“A. Not for no scales, I never had no scales running from the police, sir.
“Q. Have you — have you ever run from the police because of drugs?
“A. Yes, sir, I have.”
Defense counsel objected, arguing that the State’s line of questioning was highly prejudicial and that the State had not moved for the admission of the evidence under K.S.A. 60-455. Further, defense counsel argued that he had not opened the door for this testimony during Johnson’s direct examination. In response, the State asserted that it was proper rebuttal evidence because Johnson maintained that the drugs were not his and that he lacked intent to possess them.
The trial court ruled that the State could call a rebuttal witness to testify about Johnson’s previous instance of running from the police while in possession of cocaine. The trial judge explained that Johnson had “opened the door, I think, by saying he’s never run before and that’s never happened, also the fact he doesn’t know what die scales were for, that’s rebuttal.” Defense counsel reminded the court of Johnson’s clarification that he had never run before with scales in his possession but had, in fact, run from the police before.
The State recalled Coffman to testify about a previous incident where Johnson ran from the police. When Johnson was apprehended, the officers found a large quantity of suspected crack co caine packaged for sale. Coffman testified that a person who had crack cocaine for sale would know what digital scales are used for.
On appeal, Johnson presents several challenges to the admission of the prior incident evidence. First, Johnson argues that the evidence was impermissible under K.S.A. 60-455. The State, however, did not attempt to introduce the evidence under K.S.A. 60-455. Moreover, the trial court did not admit the evidence under K.S.A. 60-455. Rather, the court merely stated the evidence was proper as rebuttal evidence because Johnson had opened the door by denying running from police previously and by denying knowledge of the purpose of the scales.
Next, Johnson argues that the trial court improperly found that he had opened the door to such evidence being admitted by testifying that he had never run from police before and did not know what the scales were for. Indeed, it is apparent that the trial court misconstrued the totality of Johnson’s testimony on these issues. As Johnson correctly states, he did admit having previously run from police because of drugs; he simply denied having previously run from police because of possessing scales. Regarding the purpose of the scales, Johnson testified that he surmised they were used in connection with drugs but did not know at the time whether that was the case. According to Johnson, his testimony was not cause for impeachment, as he admitted previously running from the police and acknowledged the probable use of the scales.
The State argues that the rebuttal evidence was proper due to Johnson’s theoxy of defense, namely, that he was simply holding tire scales for a friend and had no knowledge of either the baggie of cocaine or the cocaine residue on the scales. The State maintains that the rebuttal evidence supported die State’s contention that Johnson knowingly and intentionally possessed cocaine with intent to sell.
Even if Johnson’s testimony did open the door for the rebuttal evidence, Johnson maintains that the State was not allowed to open the door for itself. The testimony prompting the rebuttal evidence was elicited by the State during its cross-examination of Johnson. Johnson maintains that the State could not then rely on that testimony as grounds for presenting the rebuttal evidence.
As Johnson correctly notes, the rule that a party can open the door to otherwise inadmissible evidence applies only when one party opens the door for another party to present such evidence. “A party cannot open the door for itself to present the inadmissible evidence.” State v. McClanahan, 259 Kan. 86, 94, 910 P.2d 193 (1996). Here, if any door was opened, it was opened by the State.
We conclude that the trial court abused its discretion in admitting the prior crimes evidence on rebuttal. Not only did Johnson admit to having run from the police in the past, but also he admitted he ran because of drugs. Thus, there was no need for the State to introduce the circumstances of that prior incident. Further, Johnson admitted possessing the scales. Regarding their use, Johnson surmised they could be used for drugs but asserted that he did not know whether those particular scales were actually used for that purpose.
Next, we must determine whether the improper rebuttal evidence was unduly prejudicial and denied Johnson a fair trial or whether its admission was harmless.
“ ‘Normally, the admission or exclusion of evidence is measured by the harmless error rule. In-determining if the erroneous admission or exclusion of evidence is harmless, the court must consider if it is inconsistent with substantial justice, i.e., affects the substantial rights of a defendant and, if not, whether this court can declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.’ [Citation omitted.]” State v. Davidson, 31 Kan. App. 2d 372, 384, 65 P.3d 1078, rev. denied 276 Kan. 971 (2003).
See State v. Smart, 26 Kan. App. 2d 808, 812, 995 P.2d 407 (1999), rev. denied 269 Kan. 939 (2000) (reversal of conviction based upon trial court’s erroneous admission of prior crimes evidence is proper only when admission prejudiced defendant’s right to substantial justice).
Here, although Johnson’s attorney asked the juiy to find Johnson guilty of the drug paraphernalia charge, there is serious question whether the jury would have found Johnson guilty of all the charges in the absence of the prior crimes evidence. The evidence was not overwhelming. The allegation that Johnson possessed the baggie of cocaine was based on the baggie being found in the path of Johnson’s flight from the officers. The prior crimes evidence clearly served to demonstrate diat Johnson had a propensity to commit drug offenses and therefore he committed the crimes now charged. To allow this type of rebuttal evidence would be to ignore dre principle of K.S.A. 60-455.
We determine that the improper admission of rebuttal evidence was not harmless beyond a reasonable doubt but instead deprived Johnson of substantial justice. Accordingly, we reverse Johnson’s convictions and remand with directions for a new trial.
Next, Johnson asserts drat his right to a unanimous verdict was violated by the trial court’s failure to give a unanimity instruction. As the State notes, Johnson did not request a unanimity instruction at trial. A challenge to the trial court’s failure to give an instruction that is raised for dre first time on appeal is reviewed for clear' error. See K.S.A. 2003 Supp. 22-3414(3); State v. Banks, 273 Kan. 738, 743-44, 46 P.3d 546 (2002). An instruction error is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility tire jury would have rendered a different verdict if the trial error had not occurred. 273 Kan. at 744.
In a multiple acts case, several acts are alleged and any one of the acts could constitute dre crime charged. In such a case, the jury must be unanimous as to which act constitutes the crime. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003); State v. Timley, 255 Kan. 286, Syl. ¶ 2, 875 P.2d 242 (1994). Therefore, to ensure jury unanimity, either the State must elect tire particular act upon which it will rely for conviction or the court must instruct the jury to agree on a specific underlying criminal act. 255 Kan. at 289-90.
The jury was instructed that to establish that Johnson committed the crime of possession of cocaine with intent to sell, tire State must prove: (1) Johnson possessed cocaine; (2) he did so with the intent to sell, deliver, or distribute it; and (3) he did this act on or about March 15, 2003, in Geary County, Kansas. On appeal, Johnson argues that a unanimity instruction was required because the jury could have found him guilty of possession of cocaine with intent to sell based upon his possession of either dre baggie of cocaine or the scales with cocaine residue and that the State failed to elect the specific act upon which it was relying for the possession charge.
In State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001), our Supreme Court adopted a two-step analysis for determining whether a unanimity instruction is required:
“In applying a two-step harmless error analysis, the first step is to decide whether there is a possibility of jury confusion from the record or if evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by ‘a fresh impulse.’ When jury confusion is not shown under the first step, the second step is to determine if tire error was harmless beyond a reasonable doubt with respect to all acts.”
Preliminarily, Johnson urges this court to apply a structural error analysis rather than the two-step analysis set forth in Hill. According to Johnson, a harmless error analysis applies only in cases involving a general denial and he presented mixed defenses regarding possession of the baggie of cocaine and possession of the scales on which cocaine was found. In contrast, the State argues that Johnson’s admission of possessing the scales did not constitute a separate defense to possessing cocaine with intent to sell because Johnson denied possessing any cocaine.
Contrary to Johnson’s argument, the Hill analysis applies despite his admission of possessing the scales. In announcing the proper framework for analyzing a trial court’s failure to give a unanimity instruction, the Hill court explicitly rejected the structural error approach previously advocated by such cases as State v. Wellborn, 27 Kan. App. 2d 393, 4 P.3d 1178, rev. denied 269 Kan. 940 (2000), and State v. Barber, 26 Kan. App. 2d 330, 988 P.2d 250 (1999). Hill, 271 Kan. at 937-39.
Here, Johnson argues that jury confusion was possible because he presented separate defenses to the alleged acts; namely, he admitted possessing the scales but denied possessing the baggie of cocaine. Further, Johnson asserts that the evidence showed both factually and legally separate incidents. For support, Johnson cites State v. Kinmon, 26 Kan. App. 2d 677, 995 P.2d 876 (1999), a case in which defendant was charged with possession of cocaine based upon the discovery of cocaine in two places. The Kinmon court reversed defendant’s conviction, holding the trial court’s failure to give a unanimity instruction was clear error. 26 Kan. App. 2d at 679. Johnson fails to note, however, that Kinmon applied the structural error approach later abrogated by Hill. For this reason, Kinmon provides little guidance.
The State maintains that it based the allegation that Johnson possessed cocaine with intent to sell on the total amount of cocaine found, both on the scales and in the baggie. Indeed, during closing arguments, tire State did not specifically elect one or the other instance as constituting the crime of possession of cocaine with intent to sell. Rather, the State apparently sought to tie the evidence together in urging the jury to find Johnson guilty of the crime.
This case involved factually separate incidents. One incident was based on Johnson’s actual possession of the scales. The other incident was based on Johnson’s alleged constructive possession of the baggie of cocaine. The incidents, also, were legally separate: Johnson denied possessing the baggie of cocaine but admitted possessing the scales; and although Johnson denied knowing that the scales contained cocaine residue, he admitted possessing the scales.
Based on the evidence presented, there was a possibility of jury confusion. Johnson maintains that in finding him guilty of possession of cocaine with intent to sell, the jury could have relied either on his possession of the scales on which cocaine residue was found or, conversely, on his possession of the baggie of cocaine. This is correct. As a result, we cannot say that the error in failing to provide a unanimity instruction was harmless.
Next, Johnson argues that there was insufficient evidence to support his conviction of possession of cocaine with intent to sell. According to Johnson, a finding that he constructively possessed the baggie of cocaine necessarily required the basing of an inference on an inference, which is prohibited. Specifically, he argues that the juiy would have to infer that Johnson possessed the baggie of cocaine based upon his nonexclusive presence on the premises; then, the jury would have to infer that he intended to sell the drugs.
Johnson acknowledges that the jury could have based its guilty verdict on his possession of the scales on which cocaine was found. Johnson argues, however, that this evidence was insufficient to prove he possessed cocaine with intent to sell (1) because there was no evidence he had knowledge of the cocaine residue on the scales and (2) because the residue could not be intended for sale. Interestingly, this argument directly contradicts. Johnson’s earlier unanimity argument.
“When a defendant challenges the sufficiency of evidence, [an appellate] court’s standard of review is whether, after review of all of the evidence, viewed in the light most favorable to the State, the appellate court is convinced that a rational jury could have found die defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004).
A conviction can be sustained only where every element of a crime is proven beyond a reasonable doubt. State v. Star, 27 Kan. App. 2d 930, 934, 10 P.3d 37, rev. denied 270 Kan. 903 (2000). A conviction of even the gravest offense may be sustained by circumstantial evidence. Davis, 275 Kan. at 118. As previously noted, to prove Johnson committed the crime of possession of cocaine with intent to sell, the State was required to prove: (1) Johnson possessed cocaine; (2) he did so with the intent to sell, deliver, or distribute it; and (3) he did this act on or about March 15, 2003, in Geary County, Kansas.
Johnson correctly notes that the State did not present any direct evidence that Johnson actually possessed the baggie of cocaine. Rather, the State’s allegation was based on the theory of constructive possession. To this end, Johnson makes the following argument: “The only proof that Mr. Johnson possessed the baggie of cocaine is circumstantial and was afforded too much weight by the jury.” It is well settled that an appellate court will not determine the credibility of witnesses or weigh conflicting evidence. State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000).
Further, Johnson contends that a reasonable jury would not have found he constructively possessed the baggie. According to Johnson, he did not have exclusive possession of the premises on which the baggie was found and there were no other incriminating circumstances linking him to the baggie. As a result, it could not be inferred that he knowingly possessed the drugs. In fact, Johnson notes the following: that the area was known for its high rate of drug activity, that officers apprehended several known drug offenders during this incident, and that Johnson was not the only person who ran from the police that night.
For support, Johnson cites State v. Cruz, 15 Kan. App. 2d 476, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). In Cruz, this court reversed defendant’s conviction of possession of cocaine with intent to sell, holding the finding of guilt was not justifiable based on the evidence presented. 15 Kan. App. 2d at 492. In doing so, this court stated it was reversible error to allow a jury to speculate on unjustifiable inferences: “Guilt may never be based on inference alone. Presumptions and inferences may be drawn from facts established, but presumption may not rest upon presumption or inference on inference. [Citation omitted.]” 15 Kan. App. 2d at 490.
Importantly, the Cruz court acknowledged that the element of possession maybe proven by circumstantial evidence. 15 Kan. App. 2d at 489. “Possession of a controlled substance requires having control over the substance with knowledge of and the intent to have such control.” 15 Kan. App. 2d 476, Syl. ¶ 10. The Cruz court explained that if a defendant lacks exclusive possession of the premises upon which drugs are found, it cannot be inferred that the defendant knowingly possessed the drugs unless other incriminating circumstances link the defendant to the drugs. 15 Kan. App. 2d at 489. Incriminating factors include the following: (1) the defendant’s previous sale or use of narcotics; (2) the defendant’s proximity to the area in which the drugs were found; (3) the fact that the drugs were found in plain view; and (4) the defendant’s incriminating statements or suspicious behavior. 15 Kan. App. 2d at 489.
Here, Johnson lacked exclusive possession of the area where the baggie was found. Nevertheless, other incriminating factors linked Johnson to the baggie of cocaine. For instance, the baggie was found in the direct path of where Johnson had run. The baggie was found in plain view on top of leaves; it had not been weathered in any way. Additionally, Johnson’s behavior was suspicious. He fled from officers whose vests were clearly marked “POLICE.” When apprehended, Johnson maintained that he ran because he did not know they were officers. At trial, however, Johnson testified that he knew they were officers and that he ran because he had scales in his pocket. Finally, Johnson was hiding money in his mouth.
When the evidence is viewed in the light most favorable to the State, the evidence sufficiently linked Johnson to the baggie of cocaine. Additionally, the evidence demonstrated that the baggie was consistent with the sale of drugs rather than mere personal use. As a result, Johnson’s conviction of possession of cocaine with intent to sell was supported by sufficient evidence. Nevertheless, because we have previously determined that the erroneous admission of rebuttal evidence was not harmless, we reverse Johnson’s convictions and remand with directions for a new trial.
Reversed and remanded with directions. | [
49,
-29,
-7,
62,
24,
-96,
47,
52,
81,
-9,
118,
115,
45,
-29,
1,
59,
-111,
127,
116,
105,
-47,
-73,
119,
-125,
-26,
-13,
90,
-43,
-74,
79,
-4,
-35,
12,
48,
-98,
-11,
34,
76,
103,
88,
-114,
1,
-16,
112,
22,
66,
44,
42,
54,
14,
49,
14,
-29,
26,
17,
-38,
-55,
40,
-53,
-75,
80,
-40,
-71,
-123,
-19,
22,
-93,
4,
-103,
-89,
120,
63,
92,
53,
0,
120,
-13,
-90,
-126,
116,
77,
11,
-124,
102,
98,
0,
25,
-17,
-76,
-127,
62,
-81,
-97,
-89,
28,
64,
65,
44,
-44,
-97,
109,
22,
39,
-4,
99,
29,
29,
108,
-107,
-34,
-76,
-111,
13,
48,
6,
88,
-13,
37,
112,
97,
-49,
-30,
78,
117,
80,
-97,
-115,
-43
] |
Brazil, J.:
After Leroy Wipf was convicted in municipal court of driving under the influence (DUI), he appealed his conviction to the district court. The district court granted Wipf s motion to suppress his blood test results, and the City of Dodge City appeals. We affirm.
At approximately 3:30 a.m., Officer Michael Coil arrested Leroy Wipf for DUI. Coil transported him to the police station for the purpose of administering an Intoxilyzer 5000 breath test. While walking toward the testing room but before entering the room, Wipf told Coil he was going to refuse any testing. Based on this information, Coil transported Wipf to the detention center, intending to complete paperwork and give Wipf another opportunity to submit to the breath test.
At the detention center, Coil read Wipf the implied consent advisory. After Coil read the provision stating that Wipf could con- suit with an attorney after testing, Wipf said, “I want to call my lawyer.” Coil told him he could do so after the testing. After Coil finished reading the implied consent advisory, he asked Wipf to submit to a breath test. Wipf again refused but requested a blood test. Coil told him they would wait 20 minutes for observation, as required for the Intoxilyzer, and if Wipf still refused to submit to a breath test he could submit to a blood test at that time. After 20 minutes, Wipf still refused to submit to the breath test and again requested a blood test. Coil tiren transported Wipf to the hospital, where his blood was drawn. Wipf was in handcuffs during this time.
While en route back to the detention center, Wipf asked to call his attorney. Coil told him the jailers would let him use a phone at the detention center. After arriving at the detention center, Coil delivered Wipf to the custody of the jailers and left at approximately 6 a.m. Before leaving, he did not hear any conversation regarding Wipf s desire to contact an attorney.
Wipf testified the jailer told him he could not call anyone from the detention center. Wipf also testified he did not remember asking tire jailer for an opportunity to call an attorney. The jailer testified that Wipf was uncooperative during the booking process and that Wipf refused to sign documents because “he wanted to speak to an attorney.” The jailer stated, “[I]f I remember, he didn’t want to sign anything without spealdng to an attorney.” Wipf was released from the detention center at approximately 9:30 a.m.
Wipf was convicted in municipal court of DUI. On appeal to the district court, Wipf filed a motion to suppress arguing, inter alia, that while in custody, his request to call an attorney was denied and, therefore, his blood test results should be suppressed. After a hearing on the motion, the district court suppressed Wipf s blood test results, finding Wipf expressed a desire to contact an attorney after the blood test was administered and this request was improperly denied. The City filed a notice of interlocutoiy appeal.
The material facts are undisputed. When the facts material 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 this court has unlimited review. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).
Interpretation of statutes is a question of law, and this court’s review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). In construing statutes and determining legislative intent, this court must construe the provisions of statutes together and must attempt to reconcile and bring them into workable harmony. State v. Brown, 272 Kan. 843, 847, 35 P.3d 910 (2001). Furthermore, criminal statutes must be strictly construed in favor of the accused. “Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.” State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).
Kansas has enacted an implied consent statute, which states in part:
“Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs.” K.S.A. 8-1001(a).
The person has no constitutional right to consult with an attorney regarding whether to submit to testing. K.S.A. 8-1001(f)(C). However, “after the completion of the testing, the person has 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 and physicians.” K.S.A. 8-1001(f)(I).
In suppressing Wipf s blood test results, the district court relied on State v. Kelly, 14 Kan. App. 2d 182, 786 P.2d 623 (1990). Kelly was arrested for DUI, after which Trooper Bostian read him the implied consent advisory and asked him to submit to a breath test. Kelly refused unless his attorney was present. However, after Kelly was told he did not have the right to consult with his attorney at that point, he agreed to be tested because he believed he could consult with his attorney after he submitted to testing.
After completing the breath test, Kelly requested a blood test and to see his attorney. While en route to the hospital, Kelly asked Trooper Bostian several times to have his attorney present during the blood test and at least once stated he was being denied his right to communicate with his attorney. Kelly, who was handcuffed at the time, asked both Bostian and a physician to call his attorney for him.
In reviewing the district court’s denial of Kelly’s motion to suppress, this court held:
“[A]fter submitting to the breath test, defendant said several times that he wanted his attorney present when the blood test was administered, or that he was being denied his right to communicate with his attorney. Construing the statute in favor of the accused and against the State, defendant’s requests were sufficient to invoke his statutory right to consult with an attorney.” 14 Kan. App. 2d at 189.
This court further held that the right to consult with an attorney is not limited solely to determining whether to take an additional test. 14 Kan. App. 2d at 189. Finally, the court held that the sanction imposed for denial of the right to consult with an attorney under K.S.A. 1987 Supp. 8-1001(f)(l)(E), now K.S.A. 8-1001(f)(I), is suppression of tire evidence. 14 Kan. App. 2d at 191-92.
In this case, the City argues that because Wipf refused to submit to the breath test, his right to consult with an attorney pursuant to K.S.A. 8-1001(f)(I) was not invoked. The City argues that Kelly is inapplicable because in that case, the defendant completed the breath test and, therefore, had the right to an attorney under K.S.A. 8-1001(f), while in this case Wipf never submitted to the breath test. The City contends that under K.S.A. 8-1001(f)(I), a driver must complete the testing offered by the law enforcement officer before the right to counsel is invoked.
Wipf argues he submitted to a blood test while in police custody and the City intended to use the results of that test against him; therefore, after completion of the testing, he had the right to consult with an attorney under K.S.A. 8-1001(f)(I). Alternatively, Wipf argues that in giving him the blood test, Coil violated K.S.A. 8-1001(h), which provides in part:
"If the person refuses to submit to and complete a test as requested pursuant to this section, additional testing shall not be given unless the certifying officer has probable cause to believe that the person, while under the influence of alcohol or drugs, or both, has operated a vehicle in such a manner as to have caused the death of or serious injury to another person.”
In response to Wipfs arguments, the City contends that the blood test, administered after Wipf refused tire breath test, was an independent test requested by Wipf and, therefore, the right to consult with an attorney was not invoked.
Neither the district court nor the parties discussed State v. Gray, 270 Kan. 793, 18 P.3d 962 (2001). Although the facts underlying this decision are somewhat distinguishable from Wipf s case, Gray is helpful nonetheless. Gray was arrested for DUI and transported to the police station where Officer Bailey read him the implied consent advisory. Thereafter, Gray told Bailey he did not have his glasses and, therefore, could not read the advisory form. He also requested to speak with an attorney. Bailey reread a portion of the form after telling Gray that he could not consult with an attorney regarding taking the test. Gray again requested to speak with an attorney. Upon Gray’s request, Bailey reread the form.
Although Gray never specifically stated he was refusing to submit to a breath test, Bailey determined that Gray had refused and so marked the implied consent form. After being served with a copy of the form, Gray immediately stated he would take the test. Bailey did not allow the test because Gray had been given several opportunities previously.
Gray was later charged with DUI and refusing to submit to a preliminary screening test. The district court dismissed the charges, holding he had properly rescinded his refusal to take the breath test as allowed by Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984). In concluding Gray had properly rescinded his initial refusal, the Kansas Supreme Court set forth the standards by which courts must review whether a defendant may later withdraw his or her refusal to consent to a blood alcohol test:
“ ‘An initial refusal to take a chemical test to determine the alcohol content of the blood of one arrested for driving while under the influence of alcohol may be changed or rescinded. To be effective, the subsequent consent must be made: (1) within a veiy short and reasonable time after the prior first refusal; (2) when a test administered upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request will result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.’ [Standish,] 235 Kan. 900, Syl. ¶ 1.” Gray, 270 Kan. at 797.
A review of the facts of this case shows that each of the Standish elements was met. Wipf initially refused testing at the police station. His subsequent consent to blood testing was given immediately after Coil read the implied consent advisory at the detention center. The test was administered within 2 hours of the original arrest and, therefore, still accurate. Although the blood testing equipment was not “readily available” at the detention center, Coil was willing and able to transport Wipf to the hospital, where such equipment was readily available. The testing, including the trip to and from the hospital, took less than 2 hours. There is no indication in the record that the police bore the expense of the test. In fact, Coil testified in somewhat vague terms that Wipf handled matters with the hospital. Finally, Wipf was in Coil’s custody and under observation for the whole time since arrest. See Gray, 270 Kan. at 797; Standish, 235 Kan. 900, Syl. ¶ 1.
Although Wipf initially refused to consent to any blood alcohol testing at the police station, he later withdrew this blanket refusal at the detention center by consenting to a blood test. Although K.S.A. 8-1001(h) provides that “the selection of the test or tests shall be made by the officer,” Coil acquiesced in and facilitated the administration of the blood test. Under the plain language of K.S.A. 8-1001 (f)(1), which must be construed in Wipf s favor, Wipf had the right to consult with an attorney after completion of the testing. The remedy for a violation of K.S.A. 8-1001(f)(I) is suppression of the evidence. Kelly, 14 Kan. App. 2d at 192. Therefore, the district court did not err in suppressing Wipfs blood test results.
Affirmed. | [
80,
-21,
-3,
-98,
43,
-96,
-104,
-108,
-46,
-73,
103,
115,
-17,
-6,
5,
59,
-72,
127,
117,
89,
-33,
-73,
87,
64,
-10,
-5,
58,
-61,
-77,
75,
-28,
-4,
29,
56,
-126,
29,
38,
-56,
-67,
-40,
-116,
4,
-87,
-16,
26,
-45,
32,
99,
115,
15,
49,
-114,
-13,
110,
29,
-22,
-55,
124,
75,
-87,
72,
104,
-39,
5,
-37,
22,
-94,
20,
-99,
-125,
80,
30,
-103,
115,
40,
-24,
59,
-74,
-128,
-10,
15,
-119,
-92,
102,
100,
48,
25,
-113,
-32,
-84,
-99,
47,
-99,
-121,
-103,
113,
9,
-116,
-108,
-97,
45,
54,
38,
-8,
106,
86,
93,
104,
6,
-33,
36,
-127,
15,
32,
-124,
-125,
-30,
37,
87,
113,
-57,
116,
86,
-28,
-7,
95,
-30,
-73
] |
Green, J.:
Eddie Ingram appeals from his jury trial conviction of driving under the influence of alcohol, his second offense, in violation of Section 30 of the Dodge City ordinance. This ordinance follows the wording of K.S.A. 2002 Supp. 8-1567. Ingram raises four arguments on appeal. First, Ingram argues that the officer s comments during the trial referring to the preliminary breath test violated tire trial court’s order on his motion in limine and required a mistrial. We find no abuse of discretion in the trial court’s ruling. The officer’s comment did not refer to the preliminary breath test or its results and, therefore, did not appear to violate the order in limine. Next, Ingram contends that his breath test results were improperly admitted into evidence as the foundational requirements for the Intoxilyzer breath testing machine were not met. The trial transcript in this case indicates that the certification for both the Intoxilyzer machine and the administering officer were admitted into evidence. Moreover, at oral arguments, Ingram .conceded that these certification documents had been admitted at trial. Therefore, Ingram’s argument on this issue lacks merit.
Next, Ingram asserts that the trial court erroneously refused to give his requested jury instruction concerning K.S.A. 8-1002.(b). We determine that such an instruction was not warranted under the facts of this case. Finally, Ingram argues that reversible error was committed when the prosecutor submitted improper argument to the jury. The City concedes that two comments made by the prosecutor during closing arguments were improper. We determine that these comments substantially affected Ingram’s right to a fair trial. Accordingly, we reverse and remand for a new trial.
During the early morning hours of November 7, 2002, Officer Michael Coil stopped Ingram after he noticed Ingram’s truck change lanes very slowly, drift back into the other lane a couple of times, and nearly hit the curb. Upon stopping Ingram, Coil smelled a strong odor of alcohol and noticed that Ingram’s eyes were red and watery and that his speech was slurred. When Coil asked Ingram if he had been drinking, Ingram responded that he had “had approximately two beers a little while previous.”
Coil administered several field sobriety tests including an alphabet test, a walk-and-tum test, and a one-leg balance test. In Coil’s opinion, Ingram failed the tests. Coil indicated that on the alphabet test, Ingram initially skipped several letters. After Coil asked him to repeat the test, Ingram then slurred some of the letters together. On the walk-and-tum test, Ingram started the test before Coil could finish demonstrating it, had to raise his hands to maintain his balance, and did not properly turn. On the one-leg balance test, Ingram lost his balance, almost fell, and then returned his foot to the ground. After the tests, Coil again asked Ingram how many beers he had consumed. This time, Ingram responded that he had 6, 8, or 10 beers. Ingram admitted to Coil that he had failed the field sobriety tests. Ingram further admitted that he was too intoxicated to drive. Ingram asked if Coil or another officer would give him a ride to the hotel where he was staying.
Coil arrested Ingram and took him to the police station where Coil administered a breath test. According to the times given by Coil, the breath test was given less than an hour after Ingram had been stopped. The results showed that Ingram had a breath alcohol concentration of .216, over two times the legal limit.
Ingram was convicted in municipal court of driving under the influence of alcohol. Ingram then appealed his conviction to the district court of Ford County. Coil was the only witness to testify at trial. During Coil’s testimony, the prosecutor introduced a videotape of the stop that had been taken from Coil’s car-cam. Although the times on the videotape did not coincide with those given by Coil, Coil testified that the times on the videotape-were incorrect. Coil stated that the time on the car-cams had to be changed through the manufacturer. Coil indicated that he had obtained the proper times from dispatch reports.
The jury found Ingram guilty of driving under the influence of alcohol in violation of Section 30 of the Dodge City ordinance. He was sentenced to 120 days in jail with all but 5 of those days suspended pending successful completion of recommended treatment. Ingram was placed on supervised probation for 1 -year and fined $1,000 plus costs and fees.
Motion for Mistrial
First, Ingram argues that the trial court should have, granted a mistrial based on Officer Coifs comments during tire trial regarding a prehminaiy breath test. Under K.S.A. 22-3423(l)(c), the trial court may order a mistrial when “[prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.”
“A decision on a motion for mistrial is within the trial court’s discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. [Citations omitted.] The defendant has the burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court. [Citation omitted.]” State v. Manning, 270 Kan. 674, 696, 19 P.3d 84 (2001).
There is nothing in the record to show that Officer Coil ever testified about a preliminary breath test that was given to Ingram. Instead, Coil referred to a “final test” during his testimony. Coifs comment was made in response to the prosecutor’s question concerning his conversations with Ingram before Ingram’s arrest. The following dialogue took place between the prosecutor and Coil:
Prosecutor: “You had some subsequent conversations with Mr. Ingram, at this time?”
Coil: “Yeah.”
Prosecutor: “All right. This is before his arrest; is that right?”
Coil: “Yes, the final test that we give is a —”
Prosecutor: “All right.”
Ingram later moved for a mistrial based on Coifs comment. Ingram argued that he had received only one other test which was the preliminary breath test. Ingram pointed out that he had filed a motion in limine and the trial court had ordered that no reference be made to the preliminary breath test. The trial court determined that the mention of a test was not sufficient to grant a mistrial and denied Ingram’s motion.
In addressing Ingram’s argument, we note that the trial court is in the best position to decide if its order in limine was violated and determine the degree of prejudice a violation may have caused the defendant. Its decision will not be reversed unless the defendant can show a clear abuse of discretion. State v. Whitesell, 270 Kan. 259, 281, 13 P.3d 887 (2000). We find no abuse of discretion in the trial court’s decision. Coil did not specifically refer to the preliminary breath test nor did he testify about the results that were obtained from this test. As pointed out by tire City, Coil’s nonresponsive answer was cut off by the prosecutor, and he did not mention the “final test” again. Ingram has failed to show substantial prejudice to him from Coil’s comment. Thus, we uphold the trial court’s denial of Ingram’s motion for mistrial.
Admission of Breath Test Results
Next, Ingram contends that his breath test results were improperly admitted in this case because the foundational requirements for the proper certification of the Intoxilyzer machine were not met.
An appellate court’s standard of review regarding the admission of evidence, subject to exclusionary rules, is limited to determining whether the trial court abused its discretion. State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002). “Judicial discretion is abused only when no reasonable person would taire the view adopted by the trial court. [Citations omitted.]” Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002). Moreover, “ ‘[w]hether an adequate evidentiary foundation was laid is a question of fact for the trial court and largely rests in its discretion. [Citation omitted.] So long as there is substantial competent evidence to support the finding, it will not be disturbed on appeal.’ [Citation omitted.]” State v. Rohr, 19 Kan. App. 2d 869, 870, 878 P.2d 221 (1994).
To support his argument on this issue, Ingram cites to Rohr. There, the defendant argued that the State had not provided a proper foundation for tire admission of the breath test results as the certification documents relating to the machine and to the administering officer had not been presented to the jury. The State had presented testimony from an officer that he had been certified as an operator of the machine and that the machine had also been certified. Quoting from Lincoln v. Kansas Dept. of Revenue, 18 Kan. App. 2d 635, 639, 856 P.2d 1357, rev. denied 253 Kan. 859 (1993), the Rohr court stated: “The legislature has expressly found that, for breath test results to be reliable, the testing equipment, the testing procedures, and the operator of the equipment must all be certified.” 19 Kan. App. 2d at 870. Noting that the- better practice is for the State to submit the original documents of certification into evidence, the court determined that tire officer’s oral testimony was inadmissible to establish certification as it violated the hearsay and best evidence rules.
In his brief, Ingram maintains that tire City failed to submit any documentation into evidence regarding tire certification of the Intoxilyzer breath testing machine. At oral arguments, however, Ingram conceded that both tire officer’s certification and the machine’s certification had been admitted at trial. A review of the record on appeal indicates that the certification for the Intoxilyzer machine issued by the Kansas Department of Health and Environment (KDHE) was admitted as Exhibit 4 at the jury trial. Moreover, before the breath test results were admitted into evidence, a copy of Officer Coil’s certification card for the Intoxilyzer 5000 was admitted into evidence. Because the record indicates that the proper documentation was submitted into evidence, we determine that Ingram’s argument on this issue lacks merit.
Jury Instruction
Next, Ingram asserts that the trial court improperly denied his request to instruct the jury regarding K.S.A. 8-1002(b).
“In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. [Citation omitted.]” State v. Williams, 277 Kan. 338, 356, 85 P.3d 697 (2004).
“When reviewing challenges to jury instructions, this court must consider tire instructions as a whole and not isolate any one instruction. ‘ “If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citations omitted.]” ’ ” State v. Mays, 277 Kan. 359, 378-79, 85 P.3d 1208 (2004).
The particular instruction requested by Ingram follows the language of 8-1002(b) which states:
“For purposes of this section, certification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act, and receipt of any such certification, copy or reproduction shall accord the department authority to proceed as set forth herein. Any person who signs a certification submitted to the division knowing it contains a false statement is guilty of a class B nonperson misdemeanor.” (Emphasis added.)
Ingram requested this instruction because of an inaccuracy regarding the date of the DC-27 form that was submitted as an exhibit at trial. The record on appeal does not contain the DC-27 form. Nevertheless, the prosecutor represented at trial that a statement within the form indicated that a copy of the DC-27 form had been served on Ingram on November 6. Coil testified that he had no contact with Ingram on November 6. The record indicates that the stop, arrest, and testing of Ingram actually took place on November 7.
The trial court denied Ingram’s requested instruction. The trial court indicated that the requested instruction might be confusing to the juiy. The trial court told defense counsel, however, that she could comment on the statute in closing argument.
We determine that the trial court properly refused to instruct the jury concerning K.S.A. 8-1002(b). The jury had not been empaneled to determine whether Coil was guilty of a misdemeanor under 8-1002(b). If such an instruction was given, it might have confused the jury as to its proper role in determining the actual guilt or innocence of Ingram.
Furthermore, Ingram was allowed to present his argument relating to K.S.A. 8-1002(b) to die jury. Ingram’s counsel read to the jury during closing arguments the portion of 8-1002(b) that states: “Any person who signs a certification submitted to the division knowing it contains a false statement is guilty of a class B nonperson misdemeanor.” Ingram’s defense counsel pointed.out that Coil had certified under oath that he served Ingram the DC-27 form on November 6. Ingram’s defense counsel argued that the City had not met its burden beyond a reasonable doubt concerning when the breath test was given to Ingram. Ingram’s argument essentially relates to tire credibility of a witness which is a question for the jury. See State v. Poulos, 196 Kan. 253, 264, 411 P.2d 694 (1966). Ingram was allowed to call Coil’s credibility into question during closing arguments. We find no reversible error based on the trial court’s denial of Ingram’s requested jury instruction.
Prosecutorial Misconduct
Finally, Ingram contends that reversible error was committed when tire prosecutor made improper comments during his closing argument. A two-step analysis is used to analyze allegations of prosecutorial misconduct. First, we must determine whether the comments were outside the wide latitude for language and manner that a prosecutor is allowed when discussing the evidence. The second step requires the court to decide whether tire prosecutor’s remarks constitute plain error, that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny the defendant a fair trial, requiring reversal. State v. Davis, 275 Kan. 107, 121, 61 P.3d 701 (2003).
An appellate court’s standard of review is the same whether an objection was or was not made at trial. Reversible error based on prosecutorial misconduct must show tire alleged error denied the defendant his or her right to a fair trial under the Fourteenth Amendment. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003).
During closing arguments, the prosecutor stated that defense counsel was “simply arguing smoke and mirrors” and also made a comment about “[g]rasping at straws.” In addition, the prosecutor stated to the jury that “[ojbviously [defense counsel] thinks you’re stupid.” The prosecutor made this statement when commenting on defense counsel’s argument that no evidence had been presented about the offense occurring in Dodge City. In responding to defense counsel’s argument, the prosecutor remarked:
“If you ignore your common sense, you can go in the jury room and say, ‘Are we in Dodge City, Kansas, or not?’ You can do that if you choose to, but that isn’t using your common sense.
“Obviously, Mrs. Hess thinks you’re stupid.” (Emphasis added.)
Defense counsel objected to this statement as improper argument. The trial court stated that it was improper but failed to instruct the juiy to disregard the statement.
The prosecutor then told the jury that it was the “conscience of the community” and that it had to decide whether Ingram should be in the Intoxilyzer room where he belongs:
“You have to determine. You are the fact-finders. You are the conscience of the community. You have to determine whether or not a person, such as Mr. Ingram, should be out driving, or whether he should be under arrest and in the Intoxylizer room loith Officer Coil where he belongs. That is what you have to decide. You have to decide whether Officer — whether you’re going to tell Officer Coil the next time he sees a person driving in that fashion —” (Emphasis added.)
Ingram again objected as improper argument, but the trial court overruled his objection.
The prosecutor then offered the juiy this view:
“Next time he sees somebody driving in that fashion, and that he sees is that drunk and can’t do field sobriety tests, can’t stand up, can’t even talk, and then agrees with ’em that, ‘Yes, I failed the sobriety tests. Yes, I’m too drunk to drive. And, gee, I just wish I was back at my motel room,’ whether you’re going to tell Officer Coil to give the keys back to ’em and send him on his way. That’s what you have to decide.”
I. First Prong — Were the prosecutors comments outside the wide latitude allowed when discussing the evidence?
Ingram fails to establish that the prosecutor’s comments that defense counsel was “simply arguing smoke and mirrors” and was “[gjrasping at straws” rose to the level of prosecutorial misconduct. Although Ingram cites to State v. Lockhart, 24 Kan. App. 2d 488, 947 P.2d 461, rev. denied 263 Kan. 889 (1997), the panel’s decision there does not provide authority for reversing the instant case on grounds of prosecutorial misconduct. Ingram points out that the prosecutor in Lockhart had commented that defense counsel “had attempted to penetrate the facts with 'fog, smoke, or mirrors.’ ” 24 Kan. App. 2d at 490. Although this statement by the prosecutor is contained in the facts of that case, the Lockhart panel did not mention this comment when reversing the case. Instead, this court reversed based on the prosecutor’s comments of referring numerous times to the defendant and defense counsel as liars. In this case, the prosecutor did not refer to Ingram or his counsel as a liar. Therefore, Lockhart does not support Ingram’s argument.
Moreover, anticipating what the prosecutor would say in rebuttal, Ingram’s counsel mentioned the smoke screen argument first. No prejudicial error occurs where the questionable statements by a prosecuting attorney are provoked and made in response to prior arguments or statements by defense counsel. State v. McKinney, 272 Kan. 331, 347, 33 P.3d 234 (2001). In State v. Rodriguez, 269 Kan. 633, 645, 8 P.3d 712 (2000), our Supreme Court held that the prosecutor’s “puff of smoke” comments were not improper and were a proper response to defense tactics and arguments. Similarly, we determine in this case that the prosecutor’s comments about “simply arguing smoke and mirrors” and “[gjrasping at straws,” which were invited or provoked by defense counsel, were not improper and were not outside the wide latitude allowed when discussing the evidence.
The prosecutor concedes that his arguments that defense counsel thought the jury was stupid and that Ingram should be under arrest and in the Intoxilyzer room with Officer Coil where he belonged were improper. We agree that these arguments were improper. Prosecutors are instructed not to use arguments calculated to inflame the passions or prejudices of a jury. State v. Duke, 256 Kan. 703, 719, 887 P.2d 110 (1994). The prosecutor’s comment that “[ojbviously [defense counsel] thinks you’re stupid” was inflammatory and prejudicial as it implied that defense counsel was tiying to make fools out of members of the jury. Moreover, the prosecutor’s argument that Ingram should be under arrest was an improper expression of his opinion as to Ingram’s guilt and also an improper appeal to the jury’s personal interest in the community. See State v. Jordan, 250 Kan. 180, 193, 825 P.2d 157 (1992) (prosecutor’s closing argument improper where prosecutor expressed personal belief and appealed to juror’s personal interests as member of community). As a result, the prosecutor’s comments were outside the wide latitude allowed when discussing the evidence.
Therefore, our analysis turns to the second prong of the prosecutorial misconduct test. We must determine whether the comments were so gross and flagrant as to prejudice the jury against Ingram and deny him a fair trial, which would require reversal. In State v. Tosh, 278 Kan. 83, Syl. ¶ 2, 91 P.3d 1204 (2004), our Supreme Court clarified the analysis that is used under the second prong of the test for prosecutorial misconduct. A court must consider the following three factors: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will by the prosecutor; and (3) whether the evidence is direct and overwhelming so that the misconduct would likely have little weight in jurors’ minds. None of these factors is individually controlling.
The City argues that the improper statements would not have had any likelihood of changing the result of the trial, based on the overwhelming evidence of guilt. The City’s argument relates to the third factor under Tosh. The Tosh court, however, stated that “[b]efore the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met.” 278 Kan. 83, Syl. ¶2.
The harmless error analysis set forth in K.S.A. 60-261 instructs the court that it must disregard errors that do not affect the parties’ substantial rights:
“No error in either the admission or the exclusion of'evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
The harmless error rule under K.S.A. 60-261 echoes the federal harmless error rule from Chapman, 386 U.S. 18, “which requires a court to determine that an error was harmless beyond a reasonable doubt in that it had little, if any, likelihood of having changed the result of the trial.” Tosh, 278 Kan. at 96.
We turn now to applying the harmless error tests to the prosecutor’s comments in this case. We must examine the first factor under the second prong of the test for prosecutorial misconduct. This factor requires us to determine whether the misconduct was gross and flagrant. The prosecutor made the following observation to the jury: “Obviously, [defense counsel] thinks you’re stupid.” This comment was gross and flagrant because it suggested to the jury that defense counsel was attempting to prevent the jury from using its common sense. Moreover, as discussed previously, the comment implies that defense counsel was trying to malee fools out of members of the jury.
In addition, the prosecutor pointed out to the jury that it was “the conscience of the community.” The prosecutor went on to suggest that if the jury did not find Ingram guilty, this would prevent the arresting officer from stopping future drivers who are driving erratically. This argument was gross and flagrant because it was not based on the evidence and was made to appeal to the passion and prejudice of the jury.
Next, we must consider the second factor: whether the misconduct shows ill will by the prosecutor. The prosecutor’s remark suggesting that defense counsel was attempting to obstruct the truth-seeking process of the jury was improper and showed ill will. Moreover, the prosecutor’s appeal to the jury to find Ingram guilty so that the arresting officer would be willing to stop future drivers who are driving erratically showed ill will.
Under the third factor, we find that there was direct and overwhelming evidence of Ingram’s guilt presented at trial. Ingram’s breath test results were .216, well over two times the legal limit. According to Officer Coil, Ingram had a strong odor of alcohol, red and watery eyes, and slurred speech. In addition, Ingram failed all three field sobriety tests administered by Coil. Ingram even admitted that he failed these tests and that he was too intoxicated to drive. Ingram also admitted that he had 6, 8, or 10 beers.
Nevertheless, under the facts of this case, we conclude that the harmless error tests of both K.S.A. 60-261 and Chapman, 386 U.S. 18, have not been met. The prosecutor s appeal to the jury to find Ingram guilty so that the arresting officer will stop drivers who are driving erratically in the future affected the substantial rights of Ingram. This appeal was calculated to inflame the passions and prejudices of the jury. The prosecutor s appeal implied that the arresting officer would be unwilling to stop future drivers who may be under the influence of alcohol if Ingram was acquitted. The trial court sanctioned the argument when it overruled Ingram’s objection to it. The prosecutor continued the improper argument and stated:
“Next time he sees somebody driving in that fashion, and that he sees is that drunk and can’t do field sobriety tests, can’t stand up, can’t even talk, and then agrees with ’em that, ‘Yes, I failed the sobriety tests. Yes, I’m too drunk to drive. And, gee, I just wish I was back at my motel room,’ whether you’re going to tell Officer Coil to give the keys back to ’em and send him on his way. That’s what you have to decide.”
When the trial court failed to sustain Ingram’s objection to the argument, the trial court gave its approval of the argument.
In State v. Ruff, 252 Kan. 625, 847 P.2d 1258 (1993), a similar factual situation was presented to our Supreme Court. There, during closing arguments, the prosecutor urged the jury to “not allow [the defendant’s alleged] conduct to be tolerated in our country.” 252 Kan. at 631. When defense counsel objected to tire comment, the trial court failed to sustain the objection and merely told die prosecutor: “Let’s wind it up.” 252 Kan. at 631. The prosecutor’s last comment to the jury was to send a message that the defendant’s alleged conduct would not be tolerated. Our Supreme Court found the comment to be improper. Nevertheless, our Supreme Court noted that the statement would not have been the basis for reversal if the trial judge had not approved the remark but, instead, had instructed die jury to disregard it. In reversing and remanding for a new trial, our Supreme Court stated that it was unable to con- elude beyond a reasonable doubt that the prosecutor s misconduct did not deprive the defendant of a fair trial.
In tire instant case, the trial court’s action of overruling Ingram’s objection gave the court’s full endorsement of the argument as being true. In addition, the trial court failed to instruct the jury to disregard tire prosecutor’s improper comments. After reviewing our Supreme Court’s decision in Ruff, we are unable to say beyond a reasonable doubt flrat die prosecutor’s arguments concerning the protection of the community did not deprive Ingram of a fair trial.
Moreover, the prosecutor’s suggestion that defense counsel thought the jury was composed of fools and lacked common sense was highly prejudicial. This suggestion placed defense counsel and Ingram in a very bad light before the jury. Its result was harmful and highly prejudicial. We determine that the magnitude of prosecutor’s comments and statements substantially affected Ingram’s right to a fair trial. No cautionary instructions were given to the jury to disregard these improper arguments. Although the evidence against Ingram was overwhelming, Tosh requires the reversal of Ingram’s conviction.
Reversed and remanded for a new trial. | [
-48,
-22,
-39,
-97,
63,
-64,
10,
-100,
65,
-109,
102,
115,
-81,
-37,
13,
59,
-8,
127,
117,
104,
-35,
-89,
71,
65,
-10,
-13,
122,
-42,
-73,
75,
100,
-4,
13,
96,
-110,
-107,
38,
-54,
-75,
94,
-52,
5,
-71,
112,
90,
-109,
34,
38,
23,
15,
49,
-97,
-13,
56,
25,
-53,
105,
124,
91,
-68,
72,
112,
-103,
21,
-2,
4,
-79,
20,
-100,
-127,
-8,
58,
-104,
49,
1,
-24,
122,
-74,
-126,
-12,
111,
-103,
-116,
34,
98,
32,
25,
-17,
-83,
-116,
62,
30,
-97,
-93,
-104,
89,
105,
-83,
-106,
29,
116,
22,
14,
-4,
110,
-44,
93,
124,
2,
-49,
-80,
-79,
-119,
48,
-122,
-103,
-53,
-27,
16,
81,
-49,
-26,
86,
-92,
114,
27,
71,
-108
] |
McAnany, J.:
Kansas Social and Rehabilitation Services (SRS), Linda Hale’s assignee of support rights, appeals the district court’s decision to apply Kansas law and thereby reduce the amount of an unsatisfied Oklahoma judgment for child support. Because Oklahoma law rather tiran Kansas law applies to the calculation of the collectable amount of the unsatisfied judgment, we reverse and remand.
In 1986, the district court in Oklahoma granted a decree of divorce to Linda Píale and Eugene Hale. Their 5-year-old son was placed with Linda, and Eugene was ordered to pay child support of $250 per month. Eugene paid little or no child support until his son was emancipated in 1999.
In November 2000, the Oklahoma child support order was registered in Kansas under the Uniform Interstate Family Support Act (UIFSA), K.S.A. 23-9,101 et seq. At some prior unspecified time Linda had assigned her rights in the judgment to SRS. On June 28, 2002, tire district court entered an order confirming the Oklahoma child support judgment and the arrearage of $35,790 principal plus accrued interest from November 2000.
Eugene moved for a rehearing with respect to the June 2002 order, which was granted. Following a rehearing the district court entered an amended order which applied the Kansas statute of limitation to the arrearage and reduced tire judgment to $11,000 plus interest from November 2000. This appeal follows the district court’s denial of SRS’s motion to set aside this amended order.
While tire parties have framed the issue as one of subject matter jurisdiction, the issue is not whether the district court had subject matter jurisdiction to modify a foreign child support order, but 'rather whether the district court properly interpreted the choice of law provision of UIFSA in applying Kansas law to the registration of this child support judgment. Resolution of this issue involves the interpretation of Kansas and Oklahoma statutes, matters over which our review is unlimited. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
K.S.A. 23-9,604, tire UIFSA choice of law provision, reads as follows:
“(a) The law of the issuing state governs the nature, extent, amount and duration of current payments and other obligations of support and the payment of arrearages under the order.
“(b) In'a proceeding for arrearages, the statute of limitation under the laws of this state or óf the issuing state, whichever is longer, applies.”
The duration of an enforceable judgment is normally controlled by our dormancy and revivor statutes, K.S.A. 2004 Supp. 60-2403 and K.S.A. 60-2404. These, however, are general statutes which are subservient to specific statutes. K.S.A. 23-9,604(b) is a statute specifically relating to arrearages and dormancy in UIFSA cases and, therefore, controls.
Although there are circumstances in which courts, and parties to a certain extent, may choose which state’s law will apply in a given dispute, when the choice of law is dictated by statute, courts do not have the authority to contradict such mandates. See Bezek, Conflict, of Latos in Kansas: A Guide to Navigating the Dismal Swamp, 71 J.K.B.A. 21 (September 2002).
K.S.A. 23-9,604(b) is a clear and unambiguous expression of the rules for determining which state’s law will apply in calculating an enforceable child support arrearage. When a statute is clear and unambiguous, we give effect to the intention of the legislature as expressed. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003), We therefore put aside Eugene’s arguments that address issues of public policy and apply the statute as written.
Under Kansas law, a child support arrearage becomes dormant after 5 years and becomes extinguishable after 7 years. See K.S.A. 2004 Supp. 60-2403(a)(l), (b)(1); K.S.A. 60-2404. However, there is no Oklahoma statute that renders unenforceable any portion of an unsatisfied judgment for child support. 12 Okla. St. Ann. § 95(A)(10) (2004) provides that “[c]ourt-ordered child support is . . . not subject to a statute of limitations.” 43 Okla. St. Ann. § 137(B) (2001) provides that “[a] child support judgment shall not become dormant for any purpose, except that it shall cease to be a hen upon real property five (5) years from the date it is filed.” 43 Okla. St. Ann. § 137(B)(1) (2001) provides that “[e]xcept as otherwise provided by court order, a judgment for past due child support shall be enforceable until paid in full.” The plain language of K.S.A. 23-9,604(b) required the district court to apply these provisions of Oklahoma law rather than Kansas law to this unsatisfied Oklahoma child support judgment. The district court erred in applying Kansas law and thereby reducing the amount of the unsatisfied judgment subject to execution.
Reversed and remanded with directions to reinstate the June 28, 2002, order confirming the unsatisfied Oklahoma child support judgment. | [
-48,
-20,
-27,
108,
8,
64,
10,
8,
75,
-125,
53,
-45,
43,
-54,
20,
121,
66,
59,
-13,
105,
83,
-73,
87,
73,
98,
-13,
-15,
-44,
-69,
93,
101,
-44,
78,
48,
42,
-43,
2,
-61,
-123,
24,
-82,
-123,
-119,
120,
89,
-121,
32,
97,
18,
15,
33,
47,
-73,
106,
62,
-16,
-24,
10,
89,
56,
-56,
-46,
-6,
7,
126,
65,
-79,
4,
-74,
37,
80,
-81,
-116,
57,
16,
-20,
51,
38,
-110,
116,
91,
-101,
-127,
100,
102,
-127,
5,
-60,
124,
28,
14,
-101,
-99,
-26,
-110,
88,
35,
15,
-74,
20,
124,
-106,
14,
-2,
-17,
4,
79,
-24,
-126,
-54,
-106,
-111,
-116,
85,
4,
-118,
-9,
-123,
-80,
117,
-53,
-26,
92,
67,
50,
-69,
-2,
-72
] |
Marquardt, J.:
Michael J. Duhon appeals his convictions for one count of attempted possession of a controlled substance and one count of deliveiy of a controlled substance. We affirm in part, reverse in part, and remand with directions.
Maiy Kay Green met Duhon in the winter of 1996 and immediately began an intimate relationship with him. Duhon was residing in California, and in March 1997, Duhon began talking to Green about exchanging “large quantities of marijuana.”
Green later approached Duhon about selling marijuana. During a series of telephone conversations, it was decided that Green would send money to Duhon and Duhon would mail her the ma rijuana. At some point after the fall of 1997, Green was robbed when she was attempting to sell 9 or 10 pounds of Duhon s marijuana. Green thought that she owed Duhon approximately $6,000 for the stolen marijuana. Green testified that Duhon shipped her 2 or 3 packages of marijuana during 1999. In April 2000, Green was arrested and charged with felony drug possession.
Green testified that she was hesitant to tell Duhon she would no longer be accepting shipments from him because she owed him money. Green tried to avoid Duhon’s phone calls. She was successful until May 2000 when Duhon called to tell her that a package was on its way. Green further testified that Duhon had never sent a package without it being requested. Duhon told Green that he would be going to Omaha to sell drugs and he needed to ship them to her house. Green testified that she was angry but felt there was nothing that she could do.
Richard Britain, a postal inspector, was working in May 2000 when he was alerted to a suspicious package. Britain described it as a large box weighing approximately 40 pounds. The package had characteristics that law enforcement officials believe are indications of drug activity, namely: the package size; it was sent via Express Mail; the common names used on the mailing labels; the package was being delivered from a source state to a source city; and it had an incomplete return address. Britain checked an address database and found that the package did not indicate a specific apartment number. Britain testified that this was unusual, especially given the cost for mailing the package. Britain removed the package from the mail stream and gave it to law enforcement officers with a K-9 unit. The dog alerted, indicating the package contained drugs.
Authorities arranged for a controlled delivery of the package. Green answered the door and initially denied that she was expecting anything; however, Green signed for the package. Britain gave the signal to other law enforcement officials who came forward and received consent from Green to search the package. A KBI analysis confirmed that the package contained marijuana.
After visiting with the officers at the law enforcement station, Green consented to a search of her house. This search revealed a small amount of marijuana. While the officers were in her home, Green telephoned Duhon. Duhon advised Green that he would be coming to Kansas the next day. Green showed pictures of Duhon to the officers. After providing this information, Green refused to further cooperate with law enforcement officers.
Detective Lyle Hagenbuch was assigned to conduct surveillance on Green’s residence. He saw Duhon approach Green’s apartment and knock on her door. No one answered so Duhon drove to a groceiy store and was talking on a pay phone when he was approached by law enforcement officers. Duhon identified himself with a driver’s license.
Duhon was later charged with one count of delivery of marijuana and one count of attempted possession of marijuana with the intent to sell. Duhon was convicted as charged by a jury and given the standard sentence of 30 months’ imprisonment. Duhon timely appeals his conviction and sentence.
Green was initially charged with misdemeanor possession of marijuana and possession of drug paraphernalia and was granted a diversion.
Accomplice Instruction
At trial, Duhon asked the trial court to instruct the jury on accomplice testimony because of Green’s testimony. The trial court refused to give the instruction, finding that Green was not adequately involved in the crime to warrant the instruction.
On appeal, Duhon argues that Green’s testimony clearly indicated she was involved with the drug transaction and the accomplice instruction was warranted. Duhon alleges that Green’s statements were “self-serving,” as she attempted to shift the blame for the crimes to Duhon. Duhon argues that there was no evidence presented which would have corroborated Green’s testimony.
When reviewing challenges to jury instructions, an appellate court must consider the instructions as a whole and not isolate one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. State v. Mays, 277 Kan. 359, 378-79, 85 P.3d 1208 (2004).
A trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. State v. Lutter, 27 Kan. App. 2d 858, 860, 10 P.3d 16, rev. denied 270 Kan. 902 (2000).
The instruction sought by Duhon was PIK Crim. 3d 52.18, which reads:
“An accomplice witness is one who testifies that (he) (she) was involved in the commission of the crime with which the defendant is charged. You should consider with caution the testimony of an accomplice.”
The Kansas Supreme Court stated in State v. Abel, 261 Kan. 331, 336, 932 P.2d 952 (1997), that an accomplice is one who testifies that he or she was involved in the commission of a crime. If that testimony is absent from the trial proceedings, there is no need to give the accomplice instruction.
Even though Green testified that she did not request the package of marijuana from Duhon, she knew what was in the package when she signed for it. Green could have refused the package. By accepting the package knowing its contents, Green became an accomplice.
Fading to give the accomplice instruction prejudiced Duhan. The trial court erred by not giving the accomplice instruction; therefore, we reverse and remand for a new trial.
Comment on Prior Arrest
When referring to Duhon, Green testified, “There was also a time he came to visit and got arrested for drugs in Kansas City.” The defense objected, and after the State requested the jury be admonished, the trial court instructed the jury to disregard Green’s testimony about the arrest. Duhon then moved for a mistrial, arguing that Green’s mention of the arrest lent credibility to her testimony. The request for a mistrial was denied.
On appeal, Duhon argues that the prejudicial information about his criminal record was particularly difficult for the juiy to disregard. Duhon believes that his right to a fair trial was compromised by the introduction of that testimony, and he asks this court to reverse the trial court’s decision regarding the mistrial.
A decision on a motion for mistrial is within the trial court’s discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. The defendant has the burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court. State v. Manning, 270 Kan. 674, 696, 19 P.3d 84 (2001).
In State v. Rinck, 256 Kan. 848, 853-54, 888 P.2d 845 (1995), the Kansas Supreme Court refused to reverse the denial of a motion for mistrial where the offending statement was unsolicited, a limiting instruction was offered but refused by the defendant, and no further mention of the defendant’s prior record was made during the trial. The court concluded that under the totality of the circumstances at trial, the isolated statement could not have affected tire jury’s verdict.
We believe that similar circumstances are present in this case. Green’s statement was clearly unsolicited by the State. An admonition to the jury to disregard evidence normally cures prejudice resulting from the improper submission of that evidence. State v. Vontress, 266 Kan. 248, 254, 970 P.2d 42 (1998). In the instant case, there was no additional mention of Duhon’s prior arrests or convictions. Given these facts, we have no trouble concluding that the trial court made the correct decision by refusing to grant Du-hon’s motion for mistrial.
Motion to Suppress
Prior to trial, Duhon filed a motion to suppress evidence, claiming that the postal authorities improperly seized his package without having reasonable suspicion the package contained drugs. Du-hon claimed that the postal inspector’s actions violated his constitutional right to be free of improper searches and seizures.
After hearing Britain’s testimony and researching applicable law, the trial court concluded that Britain had reasonable suspicion the package contained illegal drugs. Duhon’s motion to suppress was denied. Duhon lodged a contemporaneous objection at trial.
On appeal, Duhon argues that the factors relied upon by Britain are consistent with innocent activity. Duhon maintains that Britain’s “arbitrary application” of the drug package profile cannot support the conclusion that there was reasonable suspicion to justify the removal of his package from the mail stream.
When reviewing a motion to suppress evidence, the appellate court determines whether the factual underpinnings of the trial court’s decision are supported by substantial competent evidence. However, the ultimate legal conclusion drawn from those facts is a legal question requiring tire appellate court to apply a de novo standard of review. The appellate court does not reweigh the evidence. State v. Vandervort, 276 Kan. 164, 169, 72 P.3d 925 (2003).
The Fourth Amendment to the United States Constitution recognizes that individuals have a right to be free from unreasonable searches and seizures of items they place in the mail. United States v. Van Leeuwen, 397 U.S. 249, 251-53, 25 L. Ed. 2d 282, 90 S. Ct. 1029 (1970); United States v. Dennis, 115 F.3d 524, 531 (7th Cir. 1997). However, if government officials possess reasonable suspicion to believe that a package contains contraband, they may detain that package for a reasonable length of time while investigating. 115 F.3d at 531-32. When determining whether reasonable suspicion exists, the court evaluates the circumstances as they are commonly understood within the law enforcement field. The constitutionality of a government agent’s suspicion is intensely fact specific. United States v. Terriques, 319 F.3d 1051, 1056 (8th Cir. 2003).
The United States Postal Service maintains a narcotics package profile. Characteristics of this profile are: (1) the size and shape of the package; (2) whether the package is taped to close all openings; (3) handwritten or printed labels; (4) an unusual return name and address; (5) unusual odors coming from the package; (6) a fictitious return address; and (7) the package’s destination. In addition, postal inspectors pay special attention to the package’s city of origin and to the recipient’s name. See United States v. Cantrall, 762 F. Supp. 875, 879 (D. Kan. 1991).
In Cantrall, the court noted that any one of these elements, standing alone, might be insufficient to provide reasonable suspi cion; however, when taken in combination, those factors were sufficient to justify an interruption of the mail stream. See 762 F. Supp. at 879-80 (citing United States v. Hill, 701 F. Supp. 1522, 1528, [D. Kan. 1988], aff'd in part sub nom. United States v. Lux, 905 F.2d 1379, 1382 [10th Cir. 1990]). In Dennis, the court upheld a seizure where tire package was heavily taped, had been sent from one private person to another private person, and had been mailed from the Los Angeles area; the court also noted that Express Mail is often used by drug traffickers, due to its speed and reliability. 115 F.3d at 532. In Terriques, heavy taping and address irregularities alone were enough to warrant a seizure, given the experience of the interdiction officers. 319 F.3d at 1057-58.
Given the totality of the circumstances, we believe that -Britain had reasonable suspicion to warrant removal of the' package from the mail stream. We acknowledge that all of the elements, taken by themselves, are open to innocent interpretation. However, when combined, these clues provide reasonable suspicion for a brief detention to investigate the contents of the package. We do not find any error in the trial court’s refusal to grant Duhon’s motion to suppress.
Interstate Agreement on Detainers Act
Duhon argues that his speedy trial time should have commenced on March 18, 2003; therefore, his trial was held outside the 180-day requirement mandated by K.S.A. 22-4401, Article III (a). Resolution of this matter requires us to interpret the meaning of a statute. Accordingly, we are entitled to exercise a plenary standard of review. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
When the State charged Duhon, he was incarcerated in California. Accordingly, when an individual is incarcerated in another state at the time that person is being charged with a crime in Kansas, tire Kansas Agreement on Detainers Act (Act), K.S.A. 22-4401 et seq., has to be initiated. K.S.A. 22-4401, Article 111(a) requires drat an inmate be brought to trial within 180 days after he or she has delivered to dre Kansas prosecuting officer and the appropriate court written notice of the place of his or her imprisonment and a request for a final disposition of the Kansas charges.
A detainer is a notice filed with the confining institution that criminal charges are outstanding in another jurisdiction and the prisoner is wanted in order to stand trial. Once a detainer is lodged, the authorities having custody of the prisoner must promptly inform the prisoner of the source and contents of the detainer and shall inform him or her of the right to request a final disposition. State v. Robbins, 272 Kan. 158, 164, 32 P.3d 171 (2001); see K.S.A. 22-4401, Article 111(d).
On March 11, 2003, the Douglas County Sheriffs office transmitted a teletype to California, informing the California Department of Corrections (DOC) that Duhon had been charged in this matter. The. California DOC received the notification that same day and informed Duhon that he could request disposition of the charges. On March 17, 2003, Duhon sent a “Demand for trial under interstate detainer agreement” to the warden of the California facility where he was incarcerated. A copy of this request was received by Douglas County on March 24, 2003.
On April 2, 2003, Duhon sent a letter to the Douglas County District Attorney seeking acknowledgment of his prior correspondence and asking, “What are the proceedings for a disposition in this case being that I’m incarcerated in California?” The Douglas County District Attorney’s office informed Duhon that he needed to contact California prison officials and request that “proper documents” be prepared and delivered to Douglas County.
On April 11,2003, Duhon again contacted the warden and asked if California had followed proper procedures. California prison officials acknowledged that Duhon had filed the necessary paperwork to initiate a proper request for disposition under the California Interstate Agreement on Detainers on April 22, 2003, and the records office was processing the request. The warden indicated that once the documents were ready, they would be sent to Duhon’s counselor for Duhon’s signature and then be forwarded to the proper authorities in Douglas County. The process was completed on May 2, 2003. The Douglas County District Attorney’s office acknowledged receipt of the proper documents on May 16, 2003. Duhon’s trial commenced on October 14, 2003.
The California authorities clearly told Duhon that the only way he could request disposition of the charges was by acting in accordance with the California Interstate Agreement on Detainers. That compliance was not completed until May 2, 2003. Therefore, any communication Duhan had with Douglas County prior to May 2, 2003, did not start the running of the 180 days. Substantial compliance is sufficient under the Act. See Ekis, Petitioner v. Darr, 217 Kan. 817, Syl. ¶ 1, 539 P.2d 16 (1975). The trial court did not err when it found that Duhon was timely tried.
Criminal History
Duhon was assigned a drug criminal history score of E. Duhon argues on appeal that prior convictions which increase the penalty for a crime beyond the statutory maximum must be submitted to a juiy and proven beyond a reasonable doubt. Duhon acknowledges the Kansas Supreme Court’s holding in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). The Kansas Supreme Court has not departed from its position, and this court is duty bound to follow the Ivory holding. See State v. Jackson, 30 Kan. App. 2d 288, 299, 41 P.3d 871 (2002). Nonetheless, this issue is moot in light of our reversing and remanding the case for a new trial.
We affirm the trial court’s denial of Duhon’s motions to suppress and for a mistrial, as well as the trial court’s finding that Duhon’s trial was held within the 180-day period. We reverse Duhon’s convictions of attempted possession of a controlled substance and delivery of a controlled substance and remand the case for a new trial with directions to include an accomplice instruction.
Affirmed in part, reversed in part, and remanded with directions consistent with this opinion. | [
17,
125,
-19,
-83,
42,
-12,
46,
56,
68,
-79,
-28,
87,
-23,
-30,
-116,
41,
-76,
127,
84,
-24,
-16,
-73,
119,
66,
-6,
-37,
-86,
-43,
-73,
79,
109,
-35,
11,
52,
-118,
93,
103,
88,
-26,
83,
-118,
17,
-93,
-14,
115,
-61,
32,
43,
42,
15,
113,
15,
-29,
44,
25,
76,
77,
105,
-21,
-67,
-56,
-23,
-71,
21,
-81,
22,
-125,
5,
-100,
9,
-6,
126,
-112,
57,
0,
-24,
115,
-122,
-114,
84,
79,
-103,
-124,
96,
34,
0,
-52,
-99,
-92,
-120,
47,
62,
-66,
39,
88,
72,
8,
101,
-68,
-98,
4,
18,
38,
-16,
91,
73,
5,
-24,
-102,
-50,
-112,
-109,
15,
98,
78,
-37,
-17,
53,
9,
80,
-51,
34,
92,
100,
112,
-101,
14,
-45
] |
Malone, J.:
Craig D. Hill appeals his conviction of involuntary manslaughter which arose when he fell asleep while driving a semitrailer truck which struck and killed a road construction crew member. Hill claims there was insufficient evidence to support his conviction. We affirm.
On April 14, 2003, Hill was traveling north on U.S. Highway 69, a two-lane highway, in Miami County. He was driving a truck in the course of his job duties with Miller Paving, a construction company. Hill had delivered two backhoes to a work site in Pittsburg and was returning to Kansas City during the early afternoon.
According to Hill, he suddenly noticed a black pickup truck stopped ahead for road construction. Hill immediately began to brake, but he realized he was not going to be able to stop in time. Since there was a vehicle sitting on tire right shoulder of the road, Hill swerved into the left lane, but he was faced with oncoming southbound traffic. While attempting to return to the northbound lane, Hill’s truck rotated and “jack-knifed,” finally sliding to a stop. Hill’s truck hit the black pickup truck and also struck and lolled Susan Unger, a member of the road construction crew. When Hill was approached by witnesses, he stated, “I just fell asleep.”
On May 29, 2003, the State filed a criminal complaint against Hill for one count of involuntaiy manslaughter. At trial, Ann Smith testified that she entered northbound U.S. Highway 69 at the La Cygne exit and was driving directly behind Hill’s truck. Almost immediately, she noticed the truck was weaving on the road and mentioned it to her passenger, Lisa Ruder. According to Smith, the truck veered onto the shoulder, kicking dust into the air, and then veered back onto tire road. Smith testified this pattern occurred approximately eight times from the La Cygne exit to the scene of the accident, a distance of 9.7 miles. Smith further testified that a van in front of Hill’s truck abruptly pulled off the road onto the shoulder so Hill could pass.
Smith used her cell phone to call 911 to report Hill’s erratic driving. Smith also testified that she saw Hill’s truck cross tire center line directly into the path of an oncoming school bus. Hill’s truck swerved back into its own lane to avoid colliding with the bus. Smith testified that she thought Hill tried to get off at the Drexel exit just prior to the accident. According to Smith, Hill’s truck went over to the east side of the road at the Drexel exit and then whipped back to tire left again. If tire truck had not pulled back to the left, it would have hit the metal guardrail on the side of the road.
Smith saw Hill’s truck jackknife and slide into the construction area. Smith got out of her vehicle and went to Unger’s body lying on the road and checked for a pulse. Smith then approached Hill on the side of the road who admitted that he had fallen asleep at the wheel of his truck.
Laura Lewis testified that she was southbound on U.S. Highway 69 when she saw Hill’s truck traveling northbound in her lane. Lewis took the shoulder in order to avoid a collision. Once she came to a complete stop, she saw the cab of the truck was down in a ditch. Lewis saw two men in the ditch and approached them to check on their well-being. When she asked what happened, Hill stated that he must have fallen asleep. When Lewis asked why he had not pulled over to rest, Hill said that he was going to pull over at the Drexel exit, but he must have slept through the exit.
Ricky Smith was the driver of the black pickup truck stopped at the construction site. He testified that he was driving northbound on U.S. Highway 69 and saw that he was in a construction area. He saw flashing lights and construction signs posted before 359th Street. Right before the 359th Street bridge, he saw a sign that said “flag person ahead.” Another sign was posted at the rear of the vehicle where Unger was standing. Unger also held a sign that said “Stop.” Ricky testified that he did not have difficulty in stopping for Unger, who was standing in the center of the northbound lane.
While Ricky was stopped, he saw Hill’s truck approaching in his rearview mirror. He looked back two or three times. Ricky noticed that Hill was not slowing down, so he pulled his pickup truck as far to the right as possible. He tried to warn Unger by honking the horn and revving the motor. He heard the brakes lock up in Hill’s truck. Ricky’s pickup truck was struck in the rear by Hill’s trailer and pushed into the ditch. After Hill exited his truck, Hill apologized to Ricky and told him that he had dozed off.
Kansas Highway Patrol Trooper Shane Hovey testified that the distance from the 359th Street bridge to the accident site was just over Vz mile. He stated that it would take approximately 30 seconds to travel that distance at 60 m.p.h. Hovey took blood samples from Hill after the accident. The blood samples were negative for alcohol or drugs.
Hill testified in his own defense. He had stopped to eat on the way back from Pittsburg, but he did not recall the name of the restaurant. Hill testified that he had intended to stop at the Drexel exit because “I was just feeling kind of tired, sitting there, driving, it’s kind of boring and wanted to get out, and stretch my legs.” However, Hill stated that he did not remember passing the Drexel exit. He also did not recall swerving in and out of his lane of travel before the accident. He did recall telling someone at the scene of the accident that he had fallen asleep. He said it was the only explanation for the “void in time.” Hill testified that he had not logged an excessive number of hours in the days before the accident and had not stayed up late in the evenings prior to the accident.
In describing the accident, Hill said he suddenly saw a black pickup truck stopped on the highway and remembered thinking, “[T]his is going to be close.” He applied the brakes, including the jake brake, but he realized he was not going to be able to stop in time to avoid a collision. Hill recalled that he had his cruise control set at 60 m.p.h., which was within the posted speed limit.
Hill testified that approximately 3 months after the accident, his physician referred him to a sleep clinic where he was diagnosed with sleep apnea. He stated that he had never experienced prior episodes of falling asleep or dozing at the wheel. When asked if he had excessive daytime sleepiness prior to the collision, Hill stated, ‘Well, now it appears that way, yes. At the time I just figured daytime drowsiness was normal.” At the conclusion of his testimony, Hill stated that he had no idea that he was falling asleep or at risk for doing so at the time of the accident. He said he would not have driven if he had known that he was placing others at risk.
The trial court instructed the juiy to consider the charge of involuntary manslaughter and also to consider the lesser included offense of vehicular homicide. The jury convicted Hill of involuntary manslaughter. The trial court sentenced him to 32 months’ imprisonment. Hill timely appeals.
On appeal, Hill argues that his conviction was not supported by sufficient evidence. In support of this argument, Hill asserts that erratic driving, occasioned by the mere act of falling asleep, un accompanied by any other aggravating circumstances, is insufficient to sustain a conviction of involuntary manslaughter.
The standard of review for a challenge based on the sufficiency of evidence has been well established by the Kansas courts:
“When a defendant challenges the sufficiency of evidence, this court’s standard of review is whether, after review of all of the evidence viewed in the light most favorable to the State, the appellate court is convinced that a rational jury could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004).
When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of the appellate court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the State, supports the verdict, it will not be disturbed on appeal. “A jury is not bound to accept the defendant’s version of the incident in question and, having convicted the defendant, it is presumed to have believed the State’s evidence and to have drawn from it all inferences favorable to the State.” State v. Brunson, 13 Kan. App. 2d 384, Syl. ¶ 2, 771 P.2d 938, rev. denied 245 Kan. 786 (1989).
Hill was convicted of involuntary manslaughter requiring proof of the unintentional killing of a human being committed recklessly. See K.S.A. 2004 Supp. 21-3404(a). According to K.S.A. 21-3201(c),
“[r]eckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms ‘gross negligence,’ ‘culpable negligence,’ ‘wanton negligence’ and ‘wantonness’ are included within the term ‘recklessness’ as used in this code.”
Hill argues that the evidence was insufficient to establish that he realized the imminence of danger prior to the accident and that he consciously and unjustifiably disregarded the danger. According to Hill, he could only have been convicted of the lesser included offense of vehicular homicide, which does not require reckless conduct as an element of the crime.
In State v. Jenkins, 272 Kan. 1366, 39 P.3d 47 (2002), Jenkins was convicted of two counts of involuntary manslaughter arising from a fatal traffic accident. The State’s theory was that Jenkins recklessly drove a vehicle with the knowledge that he might have an epileptic seizure. The State provided evidence of Jenkins’ involvement in seven car accidents as a result of his susceptibility to seizures. The Kansas Supreme Court affirmed his convictions, noting that his prior accidents provided sufficient evidence of Jenkins’ knowledge of the imminent danger he created for other drivers. The court noted that if the incident had been Jenkins’ first seizure, then there would not have been evidence of recklessness. However, due to the prior incidents, the seizure was not a surprise to Jenkins. 272 Kan. at 1375.
Hill’s case is clearly distinguishable from Jenkins and, as a result, presents a much closer question of fact on whether the evidence was sufficient to support a conviction of involuntaiy manslaughter. Hill was not diagnosed with sleep apnea until after the accidént, and the evidence was undisputed that Hill had no prior experiences of falling asleep at the wheel. Hill is correct in asserting that if the only evidence against him was that he dozed off immediately before the accident, this could not support a conviction of involuntary manslaughter. There must have been some evidence, when considered in die light most favorable to tire State, that showed a realization by Hill of the imminence of danger to others and a conscious and unjustifiable disregard of that danger, in order to support a conviction of involuntary manslaughter.
Smith’s testimony was critical in order for the State to establish reckless conduct by Hill. She testified that Hill drove erratically and that his truck swerved back and forth about eight times during the 9.7-mile stretch of highway as she followed him. According to Smith, Hill’s truck swerved completely onto the shoulder of the road and then back into the oncoming lane of traffic. She saw a van in front of Hill abruptly pull over to allow Hill to pass. Smith was so concerned about Hill’s driving that she called 911. She saw Hill’s truck cross the center line directly into the path of an oncoming school bus before returning to its lane of traffic. Smith said Hill veered to the right as if to take the Drexel exit, but he was going too fast for the exit and whipped the truck back to the left.
The evidence of recklessness can be inferred from Smith’s testimony that Hill drove erratically for over 9 miles. A reasonable person could infer that Hill must have been aware that he was dozing at the wheel. Hill’s driving actions show that he was having a- difficult time staying awake and alert which continued for several minutes. Hill repeatedly swerved out of his lane and then attempted to correct himself. Therefore, he must have known that he was posing a danger to others on the road but he continued airead rather tiran pulling over. Although Hill denied that he realized he was dozing at the wheel on the day of the accident, the jury was not required to believe Hill’s version of the accident. The question of which witness’ testimony to believe was clearly a question of fact reserved for the jury. The jury was instructed that it had the right to use common knowledge and experience in regard to a witness’ testimony.
Furthermore, Hill’s own testimony helped support a finding of reckless conduct. Hill admitted that he had wánted to stop at the Drexel exit shortly before the accident because he was feeling tired; however, he failed to do so. This provided direct evidence that Hill realized he was getting drowsy while behind the wheel of a dangerous truck on the afternoon of the accident.
A jury found that Hill drove his truck recklessly, causing the death of Unger. The testimony about the 9.7 miles of erratic driving, coupled with Hill’s own admission of drowsiness, provided evidence that Hill had a conscious disregard for a known danger. When viewing this evidence in the light most favorable to the State, sufficient evidence was presented to support Hill’s conviction of involuntary manslaughter.
Affirmed. | [
80,
106,
124,
-116,
11,
-64,
26,
58,
117,
-29,
-76,
-45,
-121,
-53,
69,
41,
-74,
53,
81,
41,
-11,
-77,
39,
-103,
-78,
51,
99,
-58,
-78,
-53,
126,
-10,
75,
96,
10,
85,
-90,
72,
-27,
88,
-116,
6,
-103,
-16,
25,
19,
56,
46,
86,
15,
37,
-98,
-77,
58,
24,
-27,
-119,
44,
107,
-83,
-55,
-15,
-39,
-121,
95,
20,
-94,
-124,
-68,
9,
-40,
27,
-39,
-79,
40,
-8,
50,
-90,
-63,
-12,
105,
-103,
12,
-94,
-77,
33,
21,
-115,
-28,
-104,
46,
126,
29,
-121,
-102,
89,
83,
105,
-105,
-35,
92,
54,
12,
-8,
-18,
85,
93,
104,
-122,
-49,
-80,
-111,
-49,
52,
-122,
-7,
-21,
13,
34,
101,
-113,
-10,
94,
103,
122,
-101,
75,
-108
] |
Bukaty, J.;
Donald O’Neal Griffin appeals the summary dismissal of his K.S.A. 2003 Supp. 60-1501 petition. We reverse and remand.
On May 8, 2003, Griffin filed a pro se petition for writ of habeas corpus pursuant to 60-1501. He claimed various violations of his rights under the United States Constitution. Specifically, he alleged he had been denied access to the courts in violation of the Due Process and Equal Protection Clauses and he had been subject to deliberate indifference to his serious medical needs in violation of the Eighth Amendment. In the caption of his petition he named as respondents those individuals he believed to be responsible for violating these rights — Richard Gilchrist and other staff counselors. However, he did not name the specific custodian of his person.
The district court summarily dismissed the petition for failure to state grounds upon which relief may be granted. The court found that Griffin had not established that the respondents were the proper parties to this habeas corpus action because the respondents were not his custodians.
Griffin timely appealed. He argues his petition complied with all statutoiy requirements and that the district court erred in dismissing it.
“Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. [Citation omitted.]” State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003); see Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). The relevant statutes here are K.S.A. 2003 Supp. 60-1502 and K.S.A. 60-1503.
K.S.A. 2003 Supp. 60-1502 provides the requirements for the contents of a habeas corpus petition and states as follows:
“The petition shall be verified and state: (1) The place where the person is restrained and by whom; (2) the cause or pretense of the restraint to the best of plaintiffs knowledge and belief; and (3) why the restraint is wrongful. Individuals in the custody of tire secretary of corrections must also include a list of all civil actions, including habeas corpus actions, the inmate has filed, or participated in, in any state court within the last five years.”
Additionally, K.S.A. 60-1503 provides:
“(a) Issuance. The petition shall be presented promptly to a judge in the district court in accordance with the procedure of the court for tire assignment of court business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of tire petition and any exhibits attached thereto that the plaintiff is not entitled to relief in the district court, the petition shall be dissolved at Ore cost of tire plaintiff. If the judge .finds that the plaintiff may be entitled to relief, the judge shall issue the writ and order the person to whom the writ is directed to file an answer within the period of time fixed by the court or to take such other action as the judge deems appropriate.
“(b) Form. The writ shall be directed to the party having the person under restraint and shall command such person to have tire restrained person before the judge at the time and place specified in tire writ.”
Griffin urges that the body of his petition clearly reveals that he is in the custody of the Kansas Secretary of Corrections (SOC) at the Lansing Correctional Facility. He contends the petition also states the cause of his restraint and why it is wrongful. As such, he contends his petition meets the requirements of K.S.A. 2003 Supp. 60-1502, despite the fact that he identified as respondents those individuals he believed to be responsible for the violation of his constitutional rights rather than the agency having custody of him.
Griffin’s petition names only the various counselors he interacted with during his incarceration while participating in the Therapeutic Community Substance Abuse Program at Lansing. They are all employees of DCCCA, Inc. Based on this, respondents argue that the only claims asserted in tire petition are against these employees of DCCCA, Inc., who have no ability to give Griffin the relief he seeks because they do not have custody of him. Accordingly, respondents contend that because K.S.A. 60-1503 requires that the writ of habeas corpus issue only against the person or agency having current custody of the petitioner, the district court properly dismissed Griffin’s petition.
In In re Habeas Corpus Application of Horst, 270 Kan. 510, 14 P.3d 1162 (2000), die Kansas Supreme Court entertained a petition for writ of habeas corpus with the simple caption of “In the Matter of the Application of Kathy Horst, and Other Similarly Situated Individuals, for a Writ of Habeas Corpus.” While the facts of Horst are certainly distinguishable from the present case, the fact remains that the court considered this petition despite tire fact that no respondent who had custody of tire petitioner was listed in the caption.
Further, in Taylor v. McKune, 25 Kan. App. 2d 283, 962 P.2d 566 (1998), the plaintiff timely filed a habeas corpus petition but faded to include verification, the proper fee, a poverty affidavit, or a list of prior civil actions. The district court did not file the plaintiff s petition but returned it requesting a correction of the problems or it would not file his petition. Taylor quickly remedied the deficiencies, and his petition was filed. However, the Taylor court went on to hold that none of the deficiencies prevented the petition from being accepted by the clerk of the district court upon receipt and none of the omissions deprived the district court of jurisdiction. 25 Kan. App. 2d at 288.
Additionally, in Stewart v. Secretary of Corrections, 29 Kan. App. 2d 411, 27 P.3d 932 (2001), Stewart did not verily the petition as required by 60-1502. This court relied on Taylor to hold that tire clerk should have filed Stewart’s unverified petition and then asked the district court to send an order to correct the deficiencies. The court could then have instructed Stewart that if he did not correct the deficiencies set forth in the order of noncompliance, the case would be dismissed. However, Stewart should have been given the opportunity to correct any deficiencies before the petition was dismissed. 29 Kan. App. 2d at 413.
While these cases are distinguishable factually from the present case, they demonstrate that when a petition for habeas corpus falls somewhat short in certain respects of the statutory requirements of K.S.A. 2003 Supp. 60-1502, the appellate courts of Kansas have either been lenient and considered the petition or have given petitioner the opportunity to make the necessary corrections before summarily dismissing the petition.
Had the situation here been such that it was unclear from the petition who had custody of Griffin and it was clear the persons or agencies named in the petition did not, summary dismissal may have been appropriate. The petition in this case when read as a whole, however, clearly establishes that Griffin is in the custody of the SOC and its agent, the warden of the Lansing Correctional Facility. As such, it was the district court’s obligation under K.S.A. 60-1503 to determine whether Griffin may have been entitled to relief against the Secretary or his agents. If so, the writ should issue. If it plainly appears from the face of the petition that he was not entitled to relief, the court should dissolve the petition. Under these circumstances, however, it was error to summarily dismiss the petition on the basis of Griffin’s failure to name his custodian.
Reversed and remanded. | [
16,
-32,
-51,
63,
43,
-31,
26,
30,
67,
-77,
103,
83,
-19,
-38,
-127,
123,
-15,
101,
117,
121,
-34,
-73,
119,
-63,
50,
-6,
-112,
-43,
51,
75,
108,
52,
8,
-16,
-70,
17,
6,
-118,
-73,
-44,
-116,
7,
-71,
-40,
83,
-119,
40,
38,
30,
15,
-79,
30,
-29,
42,
58,
-61,
-119,
46,
91,
-115,
-59,
-5,
-101,
21,
75,
7,
-96,
22,
30,
99,
112,
-66,
24,
48,
1,
-24,
48,
-106,
-126,
-12,
79,
-103,
-88,
103,
114,
-127,
89,
-7,
-116,
-71,
15,
30,
-97,
-89,
-110,
88,
107,
37,
-106,
-67,
113,
20,
46,
124,
-26,
68,
125,
124,
-117,
-50,
-34,
-111,
14,
121,
-114,
-93,
-29,
-127,
-128,
113,
-99,
-90,
88,
103,
121,
-101,
-22,
-46
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied. ..
Unpublished | [
29,
105,
77,
62,
-88,
-79,
49,
62,
82,
-113,
103,
119,
-49,
-30,
-116,
-39,
-83,
103,
-76,
91,
79,
18,
127,
-27,
98,
-37,
-94,
-11,
113,
111,
-6,
56,
76,
56,
-102,
69,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-112,
-63,
36,
35,
72,
15,
17,
-44,
-15,
-114,
30,
65,
-64,
102,
-59,
-83,
-62,
-35,
-111,
23,
-65,
84,
-64,
85,
-48,
73,
-64,
110,
20,
-80,
37,
-24,
114,
102,
-121,
85,
15,
-7,
-76,
32,
10,
32,
-84,
-19,
40,
-68,
79,
94,
45,
-124,
-5,
40,
75,
121,
-101,
-3,
0,
-43,
39,
56,
34,
-124,
47,
-88,
46,
-17,
-28,
-93,
31,
40,
12,
9,
-13,
-10,
16,
53,
-49,
-9,
-52,
-78,
53,
-102,
-122,
52
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied.
50 Kan. App. 2d 731 | [
21,
107,
-19,
28,
-116,
-96,
-127,
30,
9,
-69,
101,
115,
-17,
-34,
4,
107,
-2,
47,
53,
123,
-49,
-78,
95,
72,
82,
91,
-37,
-35,
-7,
111,
-16,
-76,
76,
-8,
-86,
85,
-126,
-54,
-115,
88,
-116,
4,
-103,
76,
17,
-101,
52,
-29,
122,
7,
-111,
-105,
115,
44,
26,
-31,
-63,
124,
-53,
-67,
-24,
-7,
-103,
-105,
-36,
20,
-94,
20,
-108,
-63,
84,
126,
-112,
-112,
37,
-24,
119,
38,
-122,
116,
3,
-103,
-95,
-28,
98,
34,
40,
-19,
108,
-81,
14,
30,
13,
-90,
-109,
8,
107,
25,
-106,
-67,
120,
22,
15,
-6,
107,
-124,
79,
108,
-118,
-1,
-8,
-77,
11,
61,
12,
17,
-1,
-124,
-108,
49,
-33,
-12,
78,
-41,
49,
-102,
118,
-80
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Powell, J.;
In this appeal, we confront the question of whether drivers on our state’s highways relinquish their Fourth Amendment rights under Kansas’ implied consent statute. Following a single-vehicle fatality accident and as allowed by statute, an officer directed medical personnel to withdraw blood without a warrant from the driver of the vehicle, Aiyanna Declerck, despite her refusal. After receiving the blood test results, the Shawnee County District Attorney charged Declerck with involuntary manslaughter-DUI, a severity level 4 person felony. Declerck filed two motions to suppress, alleging the blood test results were obtained without a warrant and without probable cause. After a hearing, the district court granted Declerck’s motions.
The State subsequently filed this interlocutory appeal concerning the suppression of evidence, arguing (1) K.S.A. 2011 Supp. 8-1001 clearly authorized the blood draw, (2) the consent exception to the warrant requirement was met because Declerck had impliedly consented to the blood draw under Kansas’ implied consent statute, and (3) even if the search was prohibited by the Fourth Amendment, the good faith exception should apply to allow admission of the blood test results because law enforcement reasonably relied on the statute when obtaining Declerck’s blood.
We hold that the warrantless blood draw, though done in accordance with K.S.A. 2011 Supp. 8-1001, violated Declerck’s Fourth Amendment rights because it was not done pursuant to probable cause that Declerck had been operating her motor vehicle while under the influence of drugs or alcohol and because De-clerck’s implied consent to such a blood draw under Kansas’ implied consent statute did not constitute consent for the purposes of a valid exception to the warrant requirement under the Fourth Amendment. We decline to address the State’s good faith exception argument, asserted for the first time on appeal, because the State did not establish an adequate record below plus there are disputed facts which prevent us from properly addressing this question. Accordingly, we affirm the district court.
Factual and Procedural History
On November 5, 2011, at approximately 2 p.m., Declerck was involved in a single vehicle fatality accident in which she was the driver. The passenger, Shaylee Oxy, who was not wearing her seat-belt, was ejected from the vehicle and ultimately died from her injuries. The State subsequently charged Declerck with involuntary manslaughter while driving under the influence of alcohol or drugs pursuant to K.S.A. 2011 Supp. 21-5405(a)(3), a severity level 4, person felony.
At tire preliminary hearing, two witnesses of the accident, Tom Parish and Gregory Roy; phlebotomist Dave Cunningham, Jr.; Larry Mann from the Kansas Bureau of Investigation (KBI) Forensic Laboratory; Officer Dominic Yancy; and lead investigator Trooper Marcus Seirer testified.
Parish testified he was heading eastbound on 1-470 on November 5, 2011, when he noticed a black pickup truck coming off the right shoulder in front of him. He described Declerck’s driving as “very reckless.”
Next, Roy testified he was behind Declerck’s truck in the left turn lane on 21st street waiting to turn onto 1-470. He followed Declerck as she merged onto the highway and stayed in the right lane. There was a small sedan to the left and a vehicle in front of Declerck. Her truck slowly started to drift over to the left, so Roy slowed down because he thought Declerck’s track was going to malee contact with the sedan. The truck all of a sudden swerved over to the right and out of the lane slightly onto the right shoulder. The track then quickly whipped back to the left and crossed into die left lane. Declerck started to lose control and whipped back to the right. Declerck appeared to overcorrect; die truck’s left rear tire caught the turf or median, and the vehicle began to barrel roll. Clothes and other debris flew out of the track and littered the road. As Roy drove past the accident, he noticed an individual lying on the ground. The sedan pulled over to the right side of the road; Roy parked in front of the sedan and exited his vehicle. Roy headed towards the accident scene and noticed the driver of the sedan was still in his vehicle. Roy made a mental note of the sedan’s tag. The sedan drove off. Roy immediately approached an officer and told him that a vehicle involved in the accident drove off. The officer handed him a clipboard and asked him to record what he had seen. Roy said there was nothing irregular or reckless about Declerck’s driving.
Declerck was transported to Stormont-Vail Hospital as a result of the injuries she sustained in the accident. Seirer requested an officer obtain a blood draw from Declerck pursuant to K.S.A. 2011 Supp. 8-1001—a traffic fatality occurred and Declerck could have been cited for a traffic offense. Yancy went to Stormont-Vail to obtain a blood draw. He read and provided a copy of the Implied Consent Advisory to Declerck, but she declined to provide a blood sample.
Yancy contacted his supervising officer, who was at the scene of the accident, regarding Declerck’s declination. The officer directed Yancy to proceed with a custodial blood draw.
Cunningham drew Declerck’s blood pursuant to Yancy’s request. Cunningham gave the blood sample to Yancy who later submitted it to the KBI for testing. Mann reviewed the lab results and testified there were.marijuana chemicals in Declerck’s blood. He indicated based on the levels of THC—a psychoactive substance found in marijuana—in Declerck’s blood, there was some level of impairment.
At the conclusion of the preliminary hearing, the district court bound Declerck over for . trial.
Shortly thereafter, Declerck filed two motions to suppress evidence. The first motion dealt with law enforcement’s failure to seek a search warrant prior to drawing her blood. The motion alleged, inter alia, there were no exigent circumstances present to excuse the warrant requirement. The second motion alleged law enforcement did not have probable cause to believe Declerck was under the influence of drugs.
The district court held a suppression hearing on the two motions. The State conceded the officers did not have probable cause to support a request for a warrant. Nonetheless, the State argued the blood draw was legal pursuant to K.S.A. 2011 Supp. 8-1001(b)(2), which provides an officer shall request a test in the event of a vehicle accident that results in serious injuiy or death and the driver could be cited for any traffic infraction. Yancy and Seirer testified similar to their preliminaiy hearing testimony.
Yancy testified he read Declerck her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), after the blood draw, and she declined to speak to him. Yancy testified he was with Declerck for an hour and did not notice any signs of impairment.
Seirer testified that he arrived on the accident scene after Oxy and Declerck had been transported to Stormont-Vail. At approximately 3:17 p.m., while at the scene of the accident, Seirer learned that Oxy had passed away. At 4:21 p.m. he drove to Stormont-Vail to take a statement from Declerck. Before he met with Declerck, he talked to Yancy who was on his way out of the hospital. Yancy told Seirer that a blood draw had been taken and Declerck invoked Miranda. Seirer proceeded to Declerck’s hospital room and told her that Oxy had passed away.
Upon a search of Declerck’s truck, Officer Shawn Taylor found rolling papers and marijuana in a purse that also contained Oxy’s driver’s license. Based on eyewitness accounts and Seirer’s own investigation, he concluded that Declerck attempted to pass a white vehicle, then for some unknown reason lost control of the vehicle, entered the grassy median, and then rolled multiple times. Seirer testified that Declerck could have been cited for unsafe lane change and failure to maintain a single lane of traffic. However, Seirer’s conclusion did not indicate that Declerck was impaired from drugs or alcohol.
At the conclusion of the hearing, the district court granted the State’s request for additional time to file a written response to Declerck’s motion and to review recent caselaw. The district court also allowed Declerck to file a reply to the State’s brief.
In the State’s response to Declerck’s motions to suppress, it once again argued law enforcement had the authority to draw Declerck’s blood pursuant to K.S.A. 2011 Supp. 8-1001(b)(2)—if a vehicle has been involved in an accident involving serious injury or death and the driver could be cited for any traffic infraction—and K.S.A. 2011 Supp. 8-1001(d)(3)—law enforcement can direct medical professionals to draw blood from a person if the person refuses and the person meets the requirements of K.S.A. 2011 Supp. 8-1001(b)(2). Declerck’s reply brief again argued the evidence from the blood draw should be suppressed because she was not under arrest, no warrant was issued, and officers lacked probable cause to believe she was driving under the influence.
On March 27, 2013, the district court issued a memorandum decision and order granting Declerck’s motions to suppress. The court concluded officers had authority to order a blood draw pursuant to K.S.A. 2011 Supp. 8-1001(b)(2) and K.S.A. 2011 Supp. 8-1001(d)(3) but, based on the facts presented, the blood draw violated the Fourth Amendment and the requirements set out in Schmerber v. California, 384 U.S. 757, 766-72, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). The court concluded that, based on the evidence, officers did not have probable cause to believe that De-clerck had been driving under die influence of alcohol or drugs and suppressed the evidence from the blood draw.
On April 8, 2013, the State timely filed an interlocutory appeal challenging the suppression of the blood test.
Did the District Court Properly Grant Declerck’s Motion to Suppress Evidence of the Blood Test?
Standard of Review
When reviewing a motion to suppress evidence, appellate courts do not reweigh the evidence or reassess the credibility of the witnesses. An appellate court determines whether the factual findings underlying the district court’s decision are supported by substantial competent evidence. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). 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). However, the ultimate legal conclusions drawn from those factual findings are reviewed de novo. Martinez, 296 Kan. at 485. The State bears the burden to prove to the district court the lawfulness of a warrantless search and seizure by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008).
To the extent this appeal involves the constitutionality of K.S.A. 2011 Supp. 8-1001, appellate courts exercise unlimited review over questions of law. Moreover, appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute’s validity. Appellate courts must also interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature’s apparent intent. State v. Seward, 296 Kan. 979, 981, 297 P.3d 272 (2013).
Analysis
“Our state and federal Constitutions protect citizens from unlawful searches and seizures.” State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011). The Fourth Amendment to the United States Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or tilings to be seized.”
“We interpret § 15 of the Kansas Constitution Bill of Rights to provide the same protection from unlawful government searches and seizures as the Fourth Amendment to the federal Constitution. [Citations omitted.] ‘[R]egardless of whether the statute is challenged under the federal or state Constitution, we consider ourselves bound by United States Supreme Court precedent.’ [Citation omitted.]” 291 Kan. at 498.
“The extraction of a blood sample is both a search of the person and a seizure of an effect. The extraction implicates constitutional guarantees against unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution. Schmerber v. California, 384 U.S. [at] 767.” State v. Murry, 271 Kan. 223, 226, 21 P.3d 528 (2001). Under the United States and Kansas Constitutions, a search conducted without a warrant is per se unreasonable, unless a specifically established exception applies. State v. Damm, 246 Kan. 220, 221, 787 P.2d 1185 (1990). Those exceptions include “ ‘consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view or feel; and administrative searches of closely regulated businesses/ [Citation omitted.]” State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012).
In Murry, 271 Kan. at 227, our Supreme Court adopted the Schmerber three-part test to determine when a warrantless blood draw can be taken:
“(1) There must be exigent circumstances in which the delay necessaiy to obtain a warrant would threaten the destruction of the evidence; (2) the officer must have probable cause to believe that the suspect has been driving under the influence of alcohol; and (3) the procedures used to extract the blood must be reasonable.”
However, “while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case,... it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Missouri v. McNeely, 569 U.S. _, 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696 (2013). “Probable cause to arrest is tire reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant has committed or is committing a specific crime.” State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013). “It is the State’s burden to validate a warrantless search by fitting it within one of the recognized exceptions 297 Kan. at 223.
1. Did Probable Cause Exist to Justify the Blood Draw?
Interestingly, other than consent, the State concedes probable . cause (as well as the other exceptions) did not exist to believe that Declerck had operated or attempted to operate a motor vehicle while under the influence of drugs or alcohol at the time the custodial blood draw was taken. Instead, the State argues: “[P]robable cause is clearly set out by the statute [K.S.A. 2011 Supp. 8-1001(b)].” Accordingly, the State contends the second prong of the Schmerber test—probable cause to believe the suspect was driving under the influence—was met.
The statute at issue is K.S.A. 2011 Supp. 8-1001 and provides in relevant part:
“(a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent... to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. . . .
“(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): ... (2) if the person was operating or attempting to operate a vehicle and such vehicle has been involved in an accident or collision resulting in serious injury or death of any person and the operator could be cited for any traffic offense, as defined in K.S.A. 8-2117, and amendments thereto. The traffic offense violation shall constitute probable cause for purposes of paragraph (2).” (Emphasis added.)
The State argues that pursuant to the plain language of K.S.A. 2011 Supp. 8-1001(b)(2), Yancy and Seirer had probable cause to request a custodial blood draw because Declerck was involved in a traffic fatality accident and could have been cited with unsafe lane change and failure to maintain a single lane of traffic. However, the question on appeal is whether K.S.A. 2011 Supp. 8-1001 as enacted deprived Declerck of her rights guaranteed by the United States and Kansas Constitutions. See Ybarra v. Illinois, 444 U.S. 85, 96 n.11, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) (legislature cannot abrogate a person’s Fourth Amendment light to be free from unreasonable searches and seizures, and United States Supreme Court will not hesitate to hold such statutes unconstitutional); State v. Lambert, 238 Kan. 444, 450, 710 P.2d 693 (1985) (legislature cannot enact a statute that effectively deprives individuals of rights guaranteed by the United States Constitution); Martin v. Kansas Dept. of Revenue, 36 Kan. App. 2d 561, 566, 142 P.3d 735 (2006) (statute that defines rules in criminal, administrative, and civil cases cannot stand if statute infringes on constitutional rights), aff'd 285 Kan. 625, 176 P.3d 938 (2008).
In 2008, the Kansas Legislature amended K.S.A. 8-1001 by limiting application of the phrase “[i]f the officer has reasonable grounds to believe the person toas operating or attempting to operate a vehicle while under the influence of alcohol or drugs” to K.S.A. 8-1001(b)(1) and adding “[t]he traffic offense shall constitute probable cause for purposes of paragraph (2)” to K.S.A. 8-1001(b)(2) (Emphasis added.) L. 2008, ch. 170, sec. 1. “The reasonable grounds test of K.S.A. 2007 Supp. 8-1001(b) is strongly related to the standard for determining probable cause to arrest.” Johnson, 297 Kan. at 222.
Our Supreme Court has held: “Despite statutory language authorizing the taking of the blood sample, any such bodily invasion must still be constitutionally sound.” Murry, 271 Kan. at 226. The State argues the Kansas Legislature examined outside authority when formulating the amendments to K.S.A. 8-1001. The State cites Oklahoma Statute, Okla. Stat. tit. 47, § 10-104(B) (1998 Supp.)—Drug and alcohol testing, which states:
“B. Any driver of any vehicle involved in an accident who could be cited for any traffic offense where said accident resulted in the immediate death of any person shall submit to drug and alcohol testing as soon as practicable after such accident occurs. The traffic offense violation shall constitute probable cause for purposes of. . . this title
Okla. Stat. tit. 47, § 10-104(B) (1998 Supp.) was upheld in Guest v. State, 2002 OK CR 5, ¶ 8, 42 P.3d 289 (“[I]t is enough that Appellant was the driver of a vehicle involved in an accident, that he could be cited for a traffic offense and that the accident resulted in the immediate death of a person. Appellant’s blood was [not] withdrawn ... in violation of his constitutional rights under the Fourth Amendment.”). In Bemo v. State, 2013 OK CR 4, ¶¶ 4, 6, 298 P.3d 1190, the court noted the defendant did not properly raise a Fourth Amendment challenge to the admission of the blood test and ultimately found the blood draw was permissible because “[he] was the driver of a vehicle involved in a fatality accident; he could have been cited for a traffic offense . . . ; and ... his blood was properly withdrawn under the provisions of § 10-104(B).”
We find our sister court’s reasoning in Guest to be unsatisfying and, therefore, unpersuasive. The Court of Criminal Appeals of Oklahoma explained in detail how the blood draw in that case comported with the statute but then made the conclusory statement that the blood draw did not violate die Fourth Amendment. Guest, 2002 OK CR 5, ¶ 8. This opinion leaves us guessing as to how that is so because we still question how an injury or fatality accident by a driver who commits one or more traffic offenses, without more, constitutes probable cause that the driver was unlawfully impaired at the time he or she was operating a motor vehicle.
Moreover, every other state to consider this question, such as Alaska, Arizona, Georgia, Illinois, Indiana, Maine, Mississippi, and Pennsylvania, has found statutes similar to K.S.A. 2012 Supp. 8-1001(b) unconstitutional. See, e.g., State v. Blank, 90 P.3d 156, 161-62 (Alaska 2004) (interpreted statute similar to K.S.A. 2011 Supp. 8-1001[b][2] to incorporate requirements of Schmerber); State v. Quinn, 218 Ariz. 66, 68, 178 P.3d 1190 (Ct. App. 2008) (statute cannot authorize blood draw following traffic accident involving serious injury or fatality absent probable cause driver impaired); Cooper v. State, 277 Ga. 282, 291, 587 S.E.2d 605 (2003) (“[T]o the extent [the statute] requires chemical testing of the operator of a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities regardless of any determination of probable cause, it authorizes unreasonable searches and seizures in violation of the State and Federal Constitutions.”); King v. Ryan, 153 Ill. 2d 449, 463-64, 607 N.E.2d 154 (1992) (officer needs more than probable cause driver partially at fault for death or injuiy accident to request blood test; probable cause driver under the influence required); Hannoy v. State, 789 N.E.2d 977, 992 (Ind. App. 2003) (law enforcement may forcibly obtain blood sample from driver without warrant or consent but only when they have probable cause to believe driver was intoxicated); State v. Roche, 681 A.2d 472, 472 n.1, 475 (Me. 1996) (statute prohibits use of evidence from administrative blood draw in criminal prosecution unless State can establish independent probable cause driver impaired at time of accident); McDuff v. State, 763 So. 2d 850, 855 (Miss. 2000) (“[T]he tragic fact that a fatality arises out of a motor vehicle accident is in no way, standing alone, an indicator that alcohol or drugs were involved.”); Com. v. Kohl, 532 Pa. 152, 164, 615 A.2d 308 (1992) (drawing blood sample pursuant to implied consent law from driver who had been involved in automobile accident violated Fourth Amendment when driver was not under arrest and no probable cause driver was operating vehicle under the influence).
In light of this overwhelming and persuasive authority, we must conclude K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional to the extent it requires a search and seizure absent probable cause the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol. We are acutely aware the statute in question attempts to address the terrible toll impaired drivers inflict on our state’s highways, but we are reminded of the “truism that constitutional protections have costs.” Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). While the State does have a significant interest in preventing accidents involving drugs and alcohol on tire road, K.S.A. 2011 Supp. 8-1001(b)(2) does not further that interest. See Hannoy, 789 N.E.2d. at 984 (special needs exception inapplicable where search performed by law enforcement or for law enforcement purposes); McDuff, 763 So. 2d at 855 (statute with public safety and law enforcement purpose does not fall within special needs exception); see also State v. Childs, 275 Kan. 338, 347, 64 P.3d 389 (2003) (exclusive sanction for highly regulated business refusing entry to law enforcement is license revocation). A traffic infraction plus an injury or fatality, without more, does not constitute probable cause that drugs or alcohol were involved in the accident.
2. Does the Kansas Implied Consent Law Provide Consent to a Blood Draw?
Next, the State argues even if this court finds there was no probable cause, a valid exception to the warrant requirement applies— consent. Specifically, the State asserts that consent to a chemical test is given by every driver of a vehicle upon our state’s roads under the conditions set forth in our implied consent statute. The State concedes that it did not raise this issue below and, generally, constitutional issues cannot be raised for the first time on appeal. Nonetheless, the State argues two exceptions to the general rule apply: (1) the newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case and (2) consideration of the claim is necessaiy to serve the ends of justice or to prevent the denial of fundamental rights. We agree. Accordingly, this court shall review the State’s challenge for the first time on appeal because it involves a question of law and may be finally determinative of this case. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).
The State argues the Kansas implied consent statute is premised on the theory that anyone who operates a vehicle in Kansas consents in advance to submission to a chemical test to determine the amount of alcohol in the drivers blood. K.S.A. 2011 Supp. 8-1001(a) states in relevant part:
“Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to die provisions of this act, to submit to one or more tests of tire person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs.”
Moreover, the State, relying on precedent from our Supreme Court, contends “compulsory testing for alcohol or drugs through drivers’ implied, even coerced, consent does not violate the Constitution; it is reasonable in light of the State’s compelling interest in safety on the public roads.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 635, 176 P.3d 938 (2008); see also Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 835, 888 P.2d 832 (1995) (purpose of implied consent law to coerce submission to chemical testing through threat of statutory penalties and admission into evidence in DUI proceeding fact of test refusal). The State further asserts that because our court has previously described the Kansas implied consent law as “remedial” and one which “should be liberally construed to promote the health, safety, and welfare of the public,” Kim v. Kansas Dept. of Revenue, 22 Kan. App. 2d 319, 323, 916 P.2d 47, rev. denied 260 Kan. 994 (1996), a driver suspected of driving under the influence has no constitutional right to refuse a blood alcohol test. State v. Bussart-Savaloja, 40 Kan. App. 2d 916, 927-28, 198 P.3d 163 (2008), rev. denied 288 Kan. 833 (2009).
We have no quarrel with these authorities—as far as they go. “But the fact that people are ‘accorded less privacy in . . . automobiles because of th[e] compelling governmental need for regulation,’ [citation omitted], does not diminish a motorist’s privacy interest in preventing an agent of the government from piercing his skin.” McNeely, 133 S. Ct. at 1565. In all of the cases relied upon by the State, law enforcement had probable cause or reasonable grounds to believe the driver was operating a vehicle under the influence, and none of the cases stand for the proposition that the implied consent to chemical testing given by drivers on our state’s roads under the Kansas implied consent law constitutes consent under the Fourth Amendment.
The State’s most persuasive case to support its theory is the recently decided Kansas Supreme Court case of Johnson, 297 Kan. 210. In Johnson, the defendant was stopped at a sobriety checkpoint, and an officer noticed the defendant’s bloodshot and watery eyes and the strong odor of alcohol. The defendant admitted to drinking two beers. As he stepped out of his vehicle, he swayed from side to side, and then he exhibited signs of intoxication during two field sobriety tests. Based on tírese observations, the officer requested and the defendant consented to a breath test, which he failed. On appeal, the defendant alleged the implied consent laws violate tire Fourth Amendment. Our Supreme Court held:
“The search resulting from a test listed in K.S.A. 2007 Supp. 8-1001(a) is the product of the consent exception to the warrant requirement. The State need not make an additional showing of probable cause plus exigent circumstances in order to use the results of a warrantless K.S.A. 2007 Supp. 8-1001(a) test as evidence.” 297 Kan. 210, ¶ 8.
Our Supreme Court went on to note: “Although probable cause comes into play in determining whether the law enforcement officer shall request one of the tests listed in K.S.A. 2007 Supp. 8-1001(a), tire statute is all about implied consent to the testing.” 297 Kan. at 223.
The State fails to acknowledge, however, drat Johnson was based on K.S.A. 2007 Supp. 8-1001, which stated an officer shall request a person to submit to a test if the officer has reasonable grounds to believe the person was operating a vehicle under the influence of alcohol or drugs. Moreover, unlike in the present case, Johnson personally and specifically consented to the breath test, plus tire officer had probable cause to believe Johnson was operating a vehicle under the influence based on his observations.
Ultimately, other than the statements from Johnson referred to above, tire State presents us with no cases which have held consent is valid for Fourth Amendment purposes based on the implied consent statute alone. Without more authority, we are unwilling to take the leap the State asks us to make. And, even if we were so inclined to accept the State’s view, it is immaterial because De-clerck withdrew her consent. See United States v. Brown, No. 13-po-01557, 2013 WL 5604589, at *4 n.1 (D. Md. 2013) (unpublished opinion) (“Assuming arguendo that consent to the blood draw could be derived from the implied consent law, it is clear that the defendant withdrew that consent.”).
3. Does the Good Faith Exception to the Exclusionaiy Rule Allow for Admission of the Blood Test Results P
Finally, the State argues if K.S.A. 2011 Supp. 8-1001(b)(2) is found unconstitutional as applied in this case, then the requirements of the good faith exception to tire exclusionary rule apply. Relying on Daniel, the State argues that law enforcement’s good faith rebanee on an unconstitutional statute should prohibit application of tire exclusionary rule, a judicially created remedy designed to deter law enforcement from infringing on a person’s rights, because in this instance law enforcement would not be deterred. See Daniel, 291 Kan. at 499-500. Like its argument on consent, the State is raising this issue for tire first time on appeal.
We certainly recognize there is a good faith exception to the exclusionary rule when law enforcement reasonably relies on an unconstitutional statute. Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). However, unlike the State’s consent argument, resolving this question does not only involve questions of law. A review of the record before the district court reveals the State did not present a clear case of reliance on K.S.A. 2011 Supp. 8-1001 alone to support the blood draw, creating questions of fact. While Trooper Seirer, the lead investigator of the accident and who initially requested the blood draw, testified he relied upon K.S.A. 2011 Supp. 8-1001, he specifically stated his reason for requesting tire blood draw was the injury accident. Moreover, on the State’s redirect, Seirer testified he also relied upon the fact rolling papers were found in Declerck’s vehicle. Although Seirer testified he could have cited Declerck for a number of traffic violations, he did not assert this as a reason he requested tire blood draw.
Complicating the analysis is the fact that Seirer did not direct tire blood draw himself but requested Topeka police dispatch to send an officer to the hospital where Declerck was located; Yancy ultimately responded. Further complicating the matter is that when Yancy was confronted with Declerck’s refusal, he sought guidance from his supervisor, Zimmerman, not from Seirer. Zimmerman never testified, and we do not know the substance of the conversation between Yancy and Zimmerman other than, as a result of the conversation, Yancy proceeded to direct the blood draw.
This chain of events leaves us with factual questions that we cannot resolve on appeal. We are left to question whether Seirer was relying on the elements of K.S.A. 2011 Supp. 8-1001(b)(2) or some form of probable cause as the basis for his requesting the blood draw, and we cannot determine the import of Zimmerman’s direction to Yancy because Zimmerman did not testily. Therefore, we decline to address the State’s good faith exception argument.
The district court’s suppression of the evidence from the blood draw is affirmed. | [
-112,
-23,
113,
-116,
41,
97,
32,
18,
-47,
-69,
100,
115,
-81,
-40,
-123,
123,
-22,
127,
117,
105,
-43,
-74,
87,
-63,
-10,
51,
-16,
87,
-13,
-37,
-28,
-12,
77,
32,
-54,
21,
70,
74,
-75,
-40,
-124,
4,
-119,
112,
90,
-109,
32,
34,
114,
15,
49,
63,
-93,
42,
25,
-89,
-23,
44,
75,
-19,
-64,
112,
-7,
-105,
-33,
18,
-94,
4,
-68,
5,
-40,
27,
-104,
57,
40,
-8,
114,
-90,
-126,
116,
47,
-119,
32,
102,
99,
32,
21,
-19,
-84,
-116,
31,
123,
31,
-121,
-102,
73,
65,
-120,
-105,
-99,
117,
22,
15,
-8,
-21,
85,
95,
-20,
-119,
-33,
-80,
-109,
-49,
116,
-102,
63,
-29,
-123,
17,
113,
-63,
116,
94,
71,
112,
27,
-42,
-73
] |
The opinion of the court was delivered by
Per Curiam,-.
In this appeal, Dr. Amir Friedman asks us to reverse an order of the Kansas State Board of Healing Arts (Board) in which the Board revoked his license to practice medicine and surgery in the state of Kansas. Friedman presents several issues, including a threshold question of whether the Board had jurisdiction to initiate a revocation proceeding after Friedman’s license expired. On this threshold issue, we hold the Board had jurisdiction to revoke Friedman’s license to practice medicine and surgery because Friedman was practicing medicine under the authority of a license issued by the Board when he committed the misconduct at issue in the revocation proceeding. We also reject Friedman’s other arguments, concluding he effectively abandoned a due process argument by failing to adequately brief it and he failed to establish a lack of substantial evidence to support the administrative hearing officer’s initial order and the Board’s final order. We, therefore, affirm the Board’s order and the district court’s decision upholding that order.
Procedural Background
In 1999, the Board issued a medical license to Friedman. For several years, Friedman paid the fees for the annual renewal of his license. Then, in March 2006, Friedman requested that the Board change his license designation to inactive status, and he did not pay the annual registration fee that was due by June 30, 2006.
On July 31, 2006, the Board filed a formal disciplinary action against Friedman that resulted in an order of tire Board revoking his license. In its petition, the Board alleged Friedman was a licensee of the Board who committed acts in violation of K.S.A. 65-2836 and K.S.A. 65-2837 “while engaged in a regulated profession as a medical doctor in the State of Kansas pursuant to K.S.A. 65-2801 et seq. ”
Friedman responded to the Board’s petition by seeking dismissal of the action for lack of subject matter jurisdiction. In his motion to dismiss, Friedman argued the Board could not initiate the action against him because his license was expired on the date the petition was filed.
An administrative hearing officer, who is referred to throughout the record as the presiding officer, denied Friedman’s motion. Friedman appealed that decision to the district court, and the district court dismissed the appeal because Friedman had failed to exhaust his administrative remedies. The district court’s decision was affirmed by this court on appeal in Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 755, 199 P.3d 781 (2009) (Friedman I).
While that appeal was pending, the administrative action continued. In an amended petition, the Board alleged five counts of misconduct that arose from Friedman’s care of patients. These allegations included claims that Friedman falsified medical records. In a sixth count, the Board alleged Friedman surrendered hospital medical privileges while under investigation. After discoveiy, the presiding officer conducted an evidentiary hearing regarding the Board’s allegations. Subsequently, the presiding officer issued an order in which he found that the Board had established the alleged violations and that Friedman’s license should be revoked.
Friedman then petitioned the Board for review of the presiding officer’s initial order, and the Board granted the request. After a date for the review hearing was set, Friedman requested a continuance because he did not have a physician who could provide coverage for his patients. The Board denied the motion to continue but did allow Friedman to participate by telephone. Friedman alleges that he was called away from the hearing before he presented his oral argument and “the Board agreed that it would reschedule the hearing to provide for oral argument yet never did so.”
On October 14, 2008, the Board issued a final order in which it stated in part that based on the “agency record before it, and after hearing the arguments of the respondent pro se as well as counsel for the Board, the Board adopts tire findings of fact, conclusions of law and order as stated in the Initial Order.” The Board agreed that Friedman’s license to practice medicine should be revoked.
Friedman filed a petition in district court seeking judicial review of the Board’s order. Following proceedings in district court, the court affirmed the Board’s order, and Friedman appealed to the Court of Appeals. His appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
As a result of Friedman’s appeal, we will consider the merits of the issue not reached in Friedman I: Did the Board have jurisdiction to discipline Friedman given that he was not licensed in Kansas at the time the disciplinary petition was filed? Next, we consider another overarching issue: Did the Board violate Friedman’s right to due process? Finally, we will discuss the evidence presented regarding each count of the disciplinary petition, the presiding officer’s and the Board’s findings of fact and conclusions of law regarding those allegations, and the district court’s analysis of the Board’s order as we discuss Friedman’s arguments that there was not substantial evidence to support the presiding officer’s and the Board’s orders.
Jurisdiction
The first of these issues is whether the Board had jurisdiction to initiate the current disciplinary proceeding against Friedman on July 31, 2006. Friedman contends it did not because his license expired on June 30, 2006. The Board acknowledges that Friedman’s license was not active at the time the disciplinary petition was filed but asserts it still had jurisdiction to revoke Friedman’s license. The Board presents several arguments in support of its position, including the one on which we decide the issue, which is that the Board’s jurisdiction does not depend on the status of Friedman’s license on the date tire disciplinary petition was filed but rather on the date or dates of the alleged misconduct.
The parties’ arguments on this issue are phrased in terms of subject matter jurisdiction. Our authority to consider whether the Board had subject matter jurisdiction derives from a reading of the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 etseq. (KJRA), and the Kansas Healing Arts Act, K.S.A. 65-2801 et seq. (Act). The KJRA grants a Kansas court the authority to provide relief from an administrative agency’s action if the agency “acted beyond the jurisdiction conferred by any provision of law.” K.S.A. 77-621(c)(2). This provision applies here because the Act—the law that Friedman is alleged to have violated and the Board enforced—specifically provides that “[j]udicial review and civil enforcement of any agency action under [the Act] shall be in accordance with the [KJRA].” K.S.A. 2011 Supp. 65-285la(b); see Ryser v. State, 295 Kan. 452, 458, 284 P.3d 337 (2012) (holding the Board’s actions under the Act are subject to the KJRA). Further, the Board’s order revoking Friedman’s license is an agency action falling under K.S.A. 65-2812 (charging the Board with administration of tire Act). See K.S.A. 77-602(a) (“ ‘agency’ means a state agency”); K.S.A. 77-602(e) (defining “order” to be an “agency action”); K.S.A. 77-602(k) (defining “state agency”).
Applying the scope of review provision of the KJRA to the question of whether an agency has exceeded its jurisdiction—in other words, its statutory authority—requires interpretation of the statutes establishing and empowering the agency, which in this case is the Board. Ryser, 295 Kan. at 464. The Board’s jurisdiction is defined by the Act, and this court interprets the Act de novo just as it does all other statutes. Ryser, 295 Kan. at 457, 464; Friedman I, 287 Kan. at 751-52.
In Ryser, we recently considered whether the Act granted the Board jurisdiction to investigate a Kansas licensed physician’s conduct even though the conduct occurred in Missouri. Because the Act did not explicitly answer the question, we applied rules of statutory interpretation to divine the legislative intent. Ultimately, we answered the question by interpreting K.S.A. 2011 Supp. 65-2838(a) and K.S.A. 2011 Supp. 65-2837(e) and determining that the physician was a “licensee” as defined in the Act who was practicing under the Act when the misconduct occurred; hence, we held the Board had jurisdiction to take disciplinary action. Ryser, 295 Kan. at 465-68.
While Ryser provides us guidance in answering the question raised by Friedman, it does not directly answer the question. Nor does the Act; there is no provision that explicitly addresses whether the Board’s jurisdiction depends on the status of a license when a disciplinary action is filed. Consequently, as we did in Ryser, we must apply rules of statutory construction to discern the answer from what the Act does say. In explaining those rules, we stated:
“We first attempt to ascertain legislative intent by reading the plain language of the statutes and giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. But when the statute’s language or text is unclear or ambiguous, we ‘employ canons of construction, legislative history, or other background considerations to divine the legislature’s intent and construe the statute accordingly. [Citation omitted.]’ Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 564-65, 276 P.3d 188 (2012).” Ryser, 295 Kan. at 458.
Also in Ryser, because there was an ambiguity that arose from the lack of an explicit answer in the statute, we examined the purpose and policy of the Act and recognized that the State of Kansas has broad authority to regulate the practice of medicine, the Act implements that authority, and the Board administers the Act. Ryser, 295 Kan. at 464. In the Act, the Kansas Legislature explained that the ultimate purpose is “that the public shall be properly protected against unprofessional, improper, unauthorized and unqualified practice of the healing arts and from unprofessional con duct by persons licensed to practice under this act.” K.S.A. 65-2801.
Given this purpose, it is significant that other states, as does Kansas, allow endorsement or reciprocal licensing of health care providers. The Kansas statute, for example, provides that an applicant is “entitled” to an “endorsement” license upon presenting proof that the applicant is duly licensed in another state following passage of an examination that was “at least equal in quality to the examination required in this state” and that the license “has never been limited, suspended or revoked [or] that the licensee has never been censured or had other disciplinary action taken.” K.S.A. 65-2833. Hence, a Kansas licensee can obtain a license in another state and, once that license is obtained, allow the Kansas license to expire. Then, if Friedman’s interpretation of the Act is correct, the former Kansas licensee could use the fact that the license had been allowed to expire as a shield from disciplinary action and, in doing so, avoid the consequences of misconduct committed before the Kansas license expired. Such an interpretation would be contrary to the purpose of the Act. Friedman disputes the application of this public policy to his case because he asserts there is no showing in the record that he attempted to circumvent the policy. Such a showing is not necessary because, regardless of intent, the purpose of the Act would be to protect the public by disciplining a licensee for misconduct.
Even with this stated policy, however, there must be a provision in the statute that would allow the Board to assert its jurisdiction over Friedman. That provision is K.S.A. 2011 Supp. 65-2838(a), which provides that the Board “shall have jurisdiction of proceedings to take disciplinary action authorized by K.S.A. 65-2836 and amendments thereto against any licensee practicing under [the Act].” The phrase that is significant to the issue before us is “licensee practicing” under the Act. The other term “licensee” is defined in the Act to include “persons issued a license, permit or special permit pursuant to [tire Act].” K.S.A. 2011 Supp. 65-2837(e). This definition is worded in the past tense—persons issued a license—rather than present tense—persons who have a license. Thus, the focus is not on the status of the licensee at the time of the disciplinary proceeding. Additionally, the term “practicing” in K.S.A. 2011 Supp. 65-2838(a) makes the critical time period the point at which the misconduct occurs.
In light of that language and the Board's power to protect the public, we hold K.S.A. 2011 Supp. 65-2838(a) grants the Board jurisdiction to implement a disciplinary proceeding if tire person was a licensee of the Board practicing under the Act at the time of the alleged misconduct. Jurisdiction does not depend on the status of a person’s license on the date a disciplinary proceeding is filed.
Applying this holding to this case, it is undisputed that (1) the Board had issued a license to Friedman pursuant to the Act and (2) the acts that gave rise to the disciplinary proceeding in this case occurred while Friedman was a licensee practicing under the Act. Because these two facts are undisputed, we conclude the Board had jurisdiction to initiate tire disciplinary proceeding against Friedman and to revoke his license to practice medicine.
Due Process
The other overarching issue stated by Friedman in his appellate brief is whether the “Board violated Petitioner’s due process rights by denying his opportunity to present his case in its Review Hearing.” Even though Friedman stated this issue at the beginning of his brief, he did not separately argue the issue in the body of his brief.
In the Board’s brief, it asserts that Friedman waived this issue by not presenting argument or caselaw support for his contention. The Board cites, among other authorities, McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002), in which this court held that “ ‘[w]here the appellant fails to brief an issue, that issue is waived or abandoned.’ [Citations omitted.]” Friedman responds to this argument in his reply brief by simply asserting: “Under K.S.A. 77-527(e), Appellant had a due process right to present oral argument to the Board’s hearing panel of experts but was not permitted to do so.” He asserts' that he preserved this issue by stating that he had been called away before he could present his argument, the Board agreed to schedule a time for his argument, and yet the Board issued its order without giving him die opportunity to complete the hearing.
There are several problems with Friedman’s argument. First, the accuracy of Friedman’s factual contention is disputed as reflected by the Board’s final order, which indicates die Board heard “the arguments of the respondent pro se.”
Second, Friedman has not cited any factual support for his contention that the Board agreed to schedule subsequent arguments. He merely cites to die point in the record where he made the same assertion before the district court. His assertion caused the district court to consider the argument, but die court rejected the claim and concluded Friedman “was provided more than a meaningful opportunity to be heard throughout the agency proceedings.” Our rules of procedure are not as forgiving as was the district judge when he accepted Friedman’s assertion. “ It is well-settled that die burden is on a party to designate a record sufficient to present its points to the appellate court and to establish its claims.’ [Citation omitted.]” Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1275, 221 P.3d 588 (2009). When facts are necessary to an argument, the record must supply those facts and a party relying on those facts must provide an appellate court with a specific citation to the point in the record where the fact can be verified. See Supreme Court Rule 6.02(a)(4) (2012 Kan. Ct. R. Annot. 39) (appellant’s brief must include concise statement of facts material to disposition of appeal and “facts included in the statement must be keyed to die record on appeal by volume and page number;” the appellate court “may presume tiiat a factual statement made without a reference to volume and page number has no support”). Friedman has not met this burden.
Third, even if we were to overlook this factual omission because the district court considered die issue, Friedman fails to present any authority establishing a due process right to present an oral argument. The only citation he provides is K.S.A. 77-527, which outlines the procedure to be followed when an agency reviews an initial order. The portion of that statute regarding oral argument, K.S.A. 77-527(e), states that the agency head “may afford each party an opportunity to present oral argument.” (Emphasis added.) This court has stated that the word “may” is usually “ ‘employed to imply permissive, optional or discretional, and not mandatory action or conduct.’ [Citations omitted.]” State ex rel. Secretary of SRS v. Jackson, 249 Kan. 635, 642, 822 P.2d 1033 (1991). Friedman offers no appellate argument regarding why a different meaning should be given the word in this context or, more generally, why the provision grants him a due process right to present an oral argument.
Finally, even though Friedman cited several other due process concerns in his arguments to the district court and has sprinkled his appellate arguments with references to evidentiary and discovery rulings that resulted in the exclusion of evidence proffered by Friedman, he has not developed tiróse arguments before us. For example, he does not explain why the rulings were erroneous or why the rulings resulted in a due process violation. A failure to support an argument with pertinent authority or to show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. Therefore, an argument that is not supported with pertinent authority is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011); State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). Further, an argument raised incidentally in a brief and not argued therein is also deemed abandoned. Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 71, 274 P.3d 609 (2012).
Friedman has failed to support his due process argument with a factual record or legal authority and, as a result, has effectively abandoned this due process issue on appeal. Consequently, his due process argument will not be further considered.
Substantial Evidence
Finally, Friedman identifies two issues that address the nature of the evidence on which the presiding officer and the Board relied. He contends: (1) “The Presiding Officer’s order was biased because it was not based on material and reliable evidence,” and (2) “The Board’s order was not supported by substantial competent evidence in light of the record as a whole.” After listing these as separate issues, Friedman discusses the two issues together.
In doing so, Friedman cites to only one scope of review provision provided for in the KJRA, K.S.A. 77-621(c)(7). This provision allows a court to grant relief if it is established that the agency’s action “is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole.” Friedman’s issue relating to the Board’s order is phrased in terms that echo this standard of review. As to the other issue regarding die presiding officer’s order, Friedman uses the terms “biased” and “material and reliable evidence”—terms that do not echo any of the eight scope of review provisions in K.S.A. 77-621(c). Because of Friedman’s failure to identify the scope of review or separately brief die issue, the Board argues that Friedman has also abandoned the issue regarding the presiding officer’s order. In his reply brief, Friedman asserts he has argued the issue by discussing the evidence of the case. He further notes:
“An agency’s action is ‘arbitrary and capricious’ if it is unreasonable or ‘without foundation in fact.’ Pork Motel, Corp. v. Kansas Dept. of Health and Environment, 234 Kan. 374, 673 P.2d 1126 (1983). . . . [T]he hearing officer failed to apply the law; relied on contradictory evidence; misrepresented Appellant’s letters; capriciously discredited expert witnesses; and disregarded the fact that the Board withheld essential medical records from its own expert witness in order to bolster its own case.”
Even with this additional argument, Friedman does not specify which of the scope of review provisions of K.S.A. 77-621(c) he asserts as a basis for appellate review. As we have previously noted,
“Such specification is important because a court reviewing an administrative agency’s action may grant relief only if it determines one or more of those provisions is violated. K.S.A. 77-621(c); cf. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 406-07, 204 P.3d 562 (2009) (‘it is a better practice for the language in the petition for judicial review to mirror the statutory basis for the specific relief requested.’); Pittsburg State University v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 45, 36 P.3d 853 (2001), rev. denied 273 Kan. 1036 (2002) (‘specificity in pleading under the KJRA is necessary to give focus to the asserted agency error and to give the reviewing court a proper understanding of the type of relief sought’).” Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 697, 216 P.3d 170 (2009).
The lack of specification is particularly problematic in this case because Friedman’s arguments could fall into multiple provisions of K.S.A. 77-621(c). Friedman’s use of the phrase “arbitrary and capricious” in his reply brief appears to invoke K.S.A. 77-621(c)(8), which allows a court to grant relief if the agency action is “unreasonable, arbitrary or capricious.” This court has recognized that this provision “can cover a number of things.” Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 275, 75 P.3d 226 (2003) (Blue Cross). Sorting through the various possibilities, in Blue Cross we determined an argument that findings are arbitrary and capricious because they are unreasonable and without foundation in fact should be analyzed under the standard stated in K.S.A. 77-621(c)(7) because the gravamen of such an issue is whether the evidence is substantial. Blue Cross, 276 Kan. at 275. Similarly, in this case Friedman’s arguments address the weight and credit to be given the evidence, which is essentially the same argument as would be brought under the substantial evidence standard of review in K.S.A. 77-621(c)(7). Plus, the Board adopted the presiding officer’s findings, meaning the analysis of one order is an analysis of the other. Consequently, we will examine whether the findings of both the Board and the presiding officer are supported by evidence that is substantial when viewed in light of the record as a whole.
In citing to the substantial evidence standard in K.S.A. 77-621(c)(7), Friedman and the Board rely on a version of the statute that was adopted after the Board’s final order revoking Friedman’s license. At the time of the Board’s final order in October 2008, K.S.A. 77-621(c)(7) required review of the agency’s determination for evidence “that is substantial when viewed in light of the record as a whole.” Utilizing this standard, an agency’s decision is upheld if there is substantial evidence that supports the agency’s finding. This is true even if the record contains evidence supporting contrary findings. Redd v. Kansas Truck Center, 291 Kan. 176, 183-84, 239 P.3d 66 (2010).
A different standard was adopted by the Kansas Legislature after tire Board’s order was filed in this case. L. 2009, ch. 109, sec. 28. Through these amendments, which were effective July 1, 2009, tire KJRA requires a court to review all evidence supporting and contradicting tire Board’s findings, the administrative hearing officer’s credibility determinations, and the agency’s explanation of why the evidence supports its findings. Redd, 291 Kan. at 182.
Friedman seeks application of this new standard, particularly focusing on the requirement that we consider evidence contrary to the presiding officer’s and the Board’s findings. This new standard does not apply in this case, however, because we have held that the 2009 amendments do not apply retroactively. Rather, the amendments only apply in those cases where the agency’s action became final after July 1, 2009, when the amendments took effect. Redd, 291 Kan. at 183. Therefore, Friedman’s request for review of tire Board’s October 2008 order must be evaluated under the former statutory standard of whedrer a determination of fact is supported by evidence that is substantial when viewed in light of the record as a whole. This statutorily defined standard of review applies to bodr tire district court’s and this court’s review of the Board’s action. See Frick Farm Properties, 289 Kan. at 697. Friedman, as the party asserting the invalidity of the Board’s order, bears the burden of establishing that the order is invalid. K.S.A. 77-621(a)(1) (“The burden of proving the invalidity of agency action is on the party asserting invalidity.”); Frick Farm Properties, 289 Kan. at 704.
In past decisions, we have explained the substantial evidence standard of the version of K.S.A. 77-621(c)(7) that was in effect prior to July 1, 2009, by stating:
“Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. [Citation omitted.] An appellate court views all the evidence in a light most favorable to the prevailing party, and it does not reweigh competing evidence or assess the credibility of witnesses. [Citation omitted.] This court must accept all evidence and inferences that support or tend to support the findings as true, and this court must disregard all conflicting evidence. [Citations omitted.]” Frick Farm Properties, 289 Kan. at 709-10.
Contrary to this standard of review, Friedman essentially asks us to focus on the evidence that conflicts with the Board’s findings rather than on the evidence that tends to support the findings. Further, he asks us to reweigh and discredit the Board’s evidence even though we are prohibited from doing so under our standard of review. This is especially critical in this case because the presiding officer explicitly found much of the evidence on which. Friedman relies, including large portions of Friedman’s own statements, to lack credibility.
Applying our standard of review reveals substantial evidence to support the presiding officer’s and the Board’s findings, although die evidence supporting the Board’s findings is disputed. This conclusion is more fully explained by a review of the evidence as to each of the six counts alleged in the amended disciplinary petition.
Count I
Count I relates to Friedman’s care of an obstetrical patient, who we will refer to as Patient I. In the amended petition, the Board alleged that Friedman had a physician-patient relationship with Patient I and had provided patient care to her throughout her pregnancy. Patient I came to Coffeyville Regional Medical Center (CRMC) at approximately 2 a.m. on July 9, 2004, in active labor.
In the amended petition, the Board alleged that when Patient I came to the hospital Friedman was in Tulsa, Oklahoma, and had not provided CRMC with the name of a covering physician. The Board also alleged that Friedman arrived at'CRMC after the baby was delivered, but Friedman’s “subsequent documentation in Patient [I] ’s CRMC medical record indicates that he was present for the delivery of Patient [I] ’s baby, when in fact he was not present.” These actions, according to the Board, violated K.S.A. 65-2836(b), which provides in part:.
“A licensee’s license may be revoked ... upon a finding of the existence of any of the following grounds:
“(b)The licensee has committed an act of unprofessional or dishonorable conduct or professional incompetency, except that the board may take appropriate disciplinary action or enter into a non-disciplinary resolution when a licensee has engaged in any conduct or professional practice on a single occasion that, if con- timied, would reasonably be expected to constitute an inability to practice the healing arts with reasonable skill and safety to patients or unprofessional conduct as defined in K.S.A. 65-2837, and amendments thereto.” K.S.A. 2011 Supp. 65-2836(b).
The Board cited to five paragraphs of K.S.A. 65-2837 as the basis for the claim of professional incompetency and unprofessional conduct. Those provisions state:
“(a) ‘Professional incompetency’ means:
(2) Repeated instances involving failure to adhere to the applicable standard of care to a degree which constitutes ordinary negligence, as determined by the board.
(3) A pattern of practice or other behavior which demonstrates a manifest incapacity or incompetence to practice the healing arts.
“(b) ‘Unprofessional conduct’ means:
(17) The use of any false, fraudulent or deceptive statement in any document connected with the practice of tire healing arts including the intentional falsifying or fraudulent altering of a patient or medical care facility record.
(24) Repeated failure to practice healing arts with that level of care, skill and treatment which is recognized by a reasonably prudent similar practitioner as being acceptable under similar conditions and circumstances.
(25) Failure to keep written medical records which accurately describe die services rendered to the patient, including patient histories, pertinent findings, examination results and test results.” K.S.A. 2011 Supp. 65-2837.
To prove the claims, the Board called fact witnesses—nurses and physicians—-to explain what happened after Patient Ts arrival at CRMC. The Board also presented expert testimony regarding the standard of care from Jonathan Daniels, M.D., who is certified by the American Board of Obstetrics and Gynecology.
Friedman defended the claims regarding Patient I by asserting that he maintained staff privileges at CRMC as a courtesy staff member rather dian as an active member of the medical staff and did so because he lived in Independence, Kansas, which is 47 minutes from CRMC. According to Friedman, under CRMC’s bylaws and tire federal Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd (2006), and accompanying regulations, CRMC was obligated to provide physician care for his patients because he lived more than 30 minutes from the hospital. He asserted that at the time he applied for courtesy staff privileges, he designated Dr. Stephen Miller as his active staff designee to provide “standing coverage.” Because of these circumstances, Friedman contended he could not be held responsible for any adverse outcomes related to a delay in treatment because CRMC should have called an active staff member to care for Patient I. He, however, did not present an expert to counter the expert opinion testimony presented by the Board that Friedman failed to meet the applicable standard of care.
As to Patient I, the Board found:
“1. The Respondent provided obstetric services to Patient No. I. On July 8, 2004, the Respondent called Coffeyville Regional Medical Center (CRMC) in Coffeyville, Kansas, to advise that Patient No. 1 would be admitted for an induction on July 9, 2004.
“2. At tire time the Respondent called CRMC to inform them that Patient No. I would be seen for an induction on July 9, 2004, he advised that he was in Tulsa, Oklahoma, and he provided some Tulsa phone numbers to CRMC. . . .
“3. In the early morning hours of July 9, 2004, Patient No. I presented herself at CRMC. Patient No. I was in labor and the Respondent was contacted.
“4. The Respondent immediately began driving toward Coffeyville, Kansas, and attempted to manage the care of Patient No. I via cell phone.
“5. During Patient No. I’s labor, the nursing staff at CRMC had concerns regarding the baby developing signs of fetal distress. Ultimately, another physician was contacted to deliver Patient No. I’s baby.
“6. At no time did tire Respondent advise CRMC that he was not available for delivery of the baby nor did the Respondent advise CRMC to contact another physician because he was too far away.
“7. The Respondent appeared at CRMC shortly after the other physician delivered the baby.
“8. Dr. Jonathan Daniels testified that the Respondent did not adhere to tire applicable standard of care. Dr. Daniels testified that the Respondent attempted to manage the care of Patient No. I via phone and that he should have ‘immediately turned her care over to another physician.’
“9. Regarding Respondent’s assertion that he only had courtesy privileges at CRMC, Dr. Daniels still was of the opinion that regardless of the courtesy status of tire Respondent’s privileges, the Respondent did not meet the standard of care because he did not have a specific physician covering for this patient.
“10. The actions of the Respondent also belie his assertion that as a courtesy physician he did not have to have another physician covering him. The actions of the Respondent clearly show that he was the only physician providing medical care to Patient No. I until it was necessary for CRMC to contact another physician because the Respondent was not available.
“11. Dr. Daniels also testified that the Respondent’s medical notes were misleading. The notes indicate that the Respondent was present and providing care to Patient No. I.
“Conclusions of Law
“1. The action of the Respondent regarding Patient No. I constitutes a failure to adhere to the applicable standard of care. The Respondent’s medical records were misleading. Pursuant to K.S.A. 65-2836 and K.S.A. 65-2837, departure from the applicable standard of care constitutes ordinaiy negligence. The Respondent’s medical records were misleading and constitute unprofessional conduct.
“2. The Respondent’s arguments that he was never contacted by CRMC and that it was only when he called CRMC that he learned that Patient No. I had been admitted is totally without merit. The Respondent would have die Presiding Officer believe that he was sitting around his residence in Independence, Kansas, during the early morning hours of July 9, 2004, and that he contacted CRMC on a mere whim to see if any of his patients appeared for treatment. This defies logic and is not credible.
“3. The Board has established that the Respondent did not adhere to the applicable standard of care and that his medical records were misleading.”
After Friedman appealed the Board’s order pursuant to the KJRA, the district court concluded there was substantial evidence to support the Board’s findings. The court noted that Friedman’s “story regarding Count I was inconsistent with the facts and . . . not always logical.” The court concluded that the evidence boiled down to a credibility determination, which the presiding officer had resolved against Friedman. We agree with the district court’s determination for several reasons.
First, Friedman does not fully address the Board’s rationale for its decision, which was based on two conclusions: (1) Friedman’s care deviated from the standard of care and (2) his medical records were misleading. In his appellate brief, Friedman focuses on the first conclusion but does not address tire second. Friedman’s failure to address the Board’s second conclusion means he has abandoned any arguments relating to it. See Superior Boiler Works, 292 Kan. at 889; Berriozabal, 291 Kan. at 594. We, therefore, accept that Friedman violated K.S.A. 65-2837(b)(25), which provides it is unprofessional conduct to fail “to keep written medical records which accurately describe the services rendered to tire patient, including patient histories, pertinent findings, examination results and test results.”
Second, relating to the standard of care rationale, Friedman responds to only one of the two deviations testified to by the Board’s expert, Daniels. Daniels’ testimony is succinctly summarized in his written report, in which he wrote:
“Although Dr. Friedman was out of town, the nurse was able to contact him by phone. He then began driving to the hospital in the middle of the night. First he made a mistake in not arranging for coverage at Coffeyville before leaving the area. Secondly he used poor judgment in trying to manage the patient by phone while traveling by car. When first contacted by the nurse he should have immediately made arrangements for one of the physicians in town to cover for him until he could get there.”
Friedman’s appellate arguments largely ignore the second deviation.
Third, as the district court found, Friedman’s arguments regarding the focus of his contention—that he was not required to provide notice of coverage—largely devolved into a credibility contest and the presiding officer clearly stated he discredited Friedman’s evidence. On this point, Friedman’s argument begins with several correct premises: He was a courtesy staff member at CRMC, the bylaws provided for standing coverage for courtesy staff members in certain situations, and the hospital had obligations to follow federal regulations implemented pursuant to the EMTALA. As to the standing coverage premise, the CRMC bylaws address coverage issues for courtesy staff members by stating:
“The Courtesy Medical Staff member shall notify the Administrator of the hospital of his/her choice of a member of the Active Staff who may be called in the event a patient is admitted to the hospital and the Courtesy Medical Staff member cannot be reached, or that such patient should need emergency treatment.” (Emphasis added.)
From that point, however, the record does not fully support Friedman’s argument.
The first bylaw contingency for calling an active staff member arises if the courtesy staff member cannot be reached. The evidence regarding whether this contingency arose was highly disputed. According to the CRMC nurse, she was able to reach Fried man, who gave orders. Her testimony establishes that Fxiedman was actively managing the patient’s care as he was driving to the hospital. Friedman argues the nurse’s testimony lacks credibility because his cell phone records do not evidence any calls to or from Coffeyville until 4:22 a.m., approximately 2 hours after the patient had been admitted, and that call was initiated by Friedman. The presiding officer considered Friedman’s arguments regarding the discrepancy in the cell phone records and the nurse’s testimony and concluded that Friedman’s version of events was unbelievable and defied logic. The Board and the district court agreed. This conclusion is a reasonable inference based on the evidence presented, including tire Board’s findings that Friedman had given the hospital contact numbers in Tulsa where he could be reached— meaning his cell phone records were not dispositive—and the nurse’s testimony that “in one of the conversations with him regarding tire order for the antibiotics ... he said I’m in Tulsa, I’m on route, or something to that effect, I’m on my way.”
As we have discussed, the standard of review that applies in this case does not allow us to reweigh credibility. Frick Farm Properties, 289 Kan. at 697. While highly disputed, there is substantial evidence that the nurse was in communication with Friedman.
As to the second bylaw condition—the existence of an emergency—there is some evidence that when the nurse recognized an emergency, another physician, Dr. Miller, assumed the patient’s care. Perhaps, as Friedman argues, the nurse should have contacted Miller at an earlier point in time. Nevertheless, the possibility of negligence by the nurse and hospital does not mean that Friedman did not also deviate from the standard of care as Daniels opined.
Friedman did not counter Daniels’ expert testimony with his own expert. Instead, in responding to Daniels’ opinion that Friedman’s actions caused confusion that led to a delay in treatment, Friedman argues he was not responsible for the confusion. He relies on the fact that when he applied for courtesy staff privileges he designated Miller as the active staff member who could be called to cover his patients, and he argues CRMC should have known this. Friedman’s designation of Miller is supported by the record. But the record also reveals confusion regarding whether that coverage was still in effect at the time of Patient Ps care. Miller testified he had been designated when Friedman first applied for privileges, but in July 2004 when Patient I was admitted, the arrangement was that he would cover for Friedman if Friedman “would check out and, you know, let me know if he’s gone.”
Friedmans own statements to the Board’s investigator support the inference from Miller’s testimony that he was not always on call to cover Friedman’s patients. In his initial response letter dated January 20, 2006, Friedman wrote:
“I informed die nurse on L+D drat I was out of town, and liad signed out for the evening to a covering physician where I am an active member. I informed the nurse diat I would drive in, but tiiat during diis time, if she could call Dr. [Daniel] Chappell who generally provided coverage for me at Coffeyville. She stated that Dr. Miller was right there, and could cover. Altiiough my relationship with Dr. Miller had been strained, I accepted the coverage without talking to him directly.”
He also noted that the patient
“unexpectedly showed up at Coffeyville for delivery. An obstetrician was present on the floor, and the nurse involved with the delivery communicated to me that this obstetrician will cover. If this physician did not want to cover, then he should have stated this to me directly and I would have had Dr. Chappell cover or the patient transferred.”
Then in a letter dated August 4, 2006, Friedman wrote that he informed the nurse “he was out of town and that the covering physician had to be called, that I will come post haste but since my travel will taire some time, the covering physician Dr. Chappell from that locale was responsible for management.”
Given Friedman’s changing statements regarding whether Chappell or Miller should have been called, we have no trouble concluding there is substantial evidence supporting Daniels’ conclusion that Friedman’s actions caused confusion. This testimony substantiates Daniels’ expert opinion that Friedman deviated from the standard of care by not making it clear when he was called that the patient’s care should be turned over to another physician.
In Friedman’s reply brief, he argues this opinion is not “substantial” because Daniels did not take EMTALA regulations, CRMC’s bylaws, or hospital policies into account when forming his opinion. Contrary to this argument, in Daniels’ report he acknowledged Friedman’s position that he did not have to arrange coverage because of his courtesy status. Daniels concluded Friedman’s position was undercut by Friedman’s own actions of attempting to manage the patient care from his car. Hence, even if Daniels had not seen the actual language of the bylaw, he was aware of the issue and accounted for Friedman’s position in forming his opinion.
In summary, even though Friedman disputes some of the facts relating to Count I, under the appropriate standard of review the Board’s findings on this count are supported by evidence diat is substantial when viewed in light of the record as a whole.
Count II
Count II relates to the care of Patient II, who was admitted to Mercy Hospital in Independence, Kansas, on September 8, 2004, for labor induction on Friedman’s orders even though he was performing surgery in another hospital. In tire amended petition in the disciplinary proceeding, the Board alleged Friedman violated K.S.A. 65-2836(b) and K.S.A. 65-2637(a)(2), (a)(3), and (b)(24), which are quoted above.
The Board made the following findings regarding Friedman’s care of Patient II:
“2. The Respondent ordered a Pitocin induction for Patient No. II who was pregnant at Mercy Hospital. While Patient No. II was induced, the Respondent was performing elective surgery at Wilson County Hospital in Neodesha, Kansas.
“3. The Respondent ordered the induction of Patient No. II at 8:00 a.m. Patty Fienen, a registered nurse, was providing care for Patient No. II during tire induction. Ms. Fienen was aware that the Respondent was going to be in surgery, but believed he would be performing surgeries at Mercy Hospital and not at Wilson County Hospital.
“4. During the induction of Patient No. II, the baby experienced deceleration and after contact was made with the Respondent, he ordered a Cesarean Section for Patient No. II.
“6. During the course of Patient No. II’s treatment, Ms. Fienen learned that tire Respondent was performing surgeries not in Mercy Hospital but at Wilson County Hospital. During the course of preparing Patient No. II for surgeiy, Nurse Fienen was directed to get an ultrasound for the baby’s fluid and fetal weight.
“7. There is nothing in the record to indicate that any other physician would be providing medical care for Patient No. II.
“8. Because the Respondent ordered a Cesarean Section, Patient No. II was prepared for that Cesarean Section even though the Respondent was at Wilson County Hospital in Neodesha, Kansas, and not at Mercy Hospital in Independence, Kansas.”
On appeal, Friedman focuses on evidence that he had coverage and asserts it was not necessary to have that coverage documented in the medical record. He points out that Dr. Larry Atwood sent a letter to the Board in defense of Friedman and then testified regarding the letter at the hearing. The relevant portion of the letter stated: “I was available to provide coverage for his patient, [Patient II.] Doctor [Soheila] Sohaei was also available to provide [cesarean]-section coverage for me, as this was our usual arrangement when I was covering [obstetrics] for Doctor Friedman.” On cross-examination, Atwood clarified that he had agreed to cover that day but he had never been contacted about Patient II.
Friedman’s argument misses a distinction made by Daniels in expressing his expert opinion that Friedman deviated from the standard of care. Daniels did not focus on whether there was a physician available to cover but on the delay that would result because Friedman had not assured that coverage would be readily available in case of an emergency. Daniels explained that Patient II’s history meant she was “just the land of patient that will often develop fetal distress and require an emergency Cesarean Section.” Because quick action would be required if such an emergency developed, it was, in his opinion, “very poor judgment” to induce labor when Friedman was not “readily available.” In his view, Friedman should have been at the hospital or have arranged for another physician to be readily available, as opposed to merely being available to call to come to the hospital. The failure to make these arrangements meant there was “almost certain . . . delay in either getting him back to the hospital or finding another available [physician].” In other words, Atwood’s testimony that there had not been communication regarding the patient is consistent with, rather than contradictory to, Daniels’ point that Friedman had failed to assure ready availability of a covering physician. The resulting delay was verified by the nurse’s testimony.
Friedman disputes the nurse's testimony regarding her lack of knowledge regarding his unavailability. He asserts she was aware of his location before the patient was ready for surgery, phone logs do not support her timeline, other records bring her testimony into question, and the hospital had a notification system for on-call availability of physicians. Much of his argument goes to the credibility of the nurse, and it is not our role to reassess credibility. See Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 697, 216 P.3d 170 (2009). The nurse's testimony provides substantial evidence of the Board’s factual conclusions regarding the events.
Friedman’s other arguments seek to undercut the weight of Daniels’ opinion, and essentially suggest that the opinion did not account for the custom and practice of a rural hospital. Nevertheless, Friedman did not present contradictory opinion testimony and, as we have discussed, Daniels’ concern for delay was valid in light of the nurse’s testimony that delay occurred because she was not aware that Friedman was at a different hospital. Hence, there was evidence the surgery was delayed because of Friedman’s actions. Accepting all evidence and inferences that support or tend to support the Board’s findings, we conclude there is substantial evidence to support the Board’s findings regarding Count II.
Count III
On October 2, 2005, Patient III presented at Mercy Hospital at 20 weeks pregnant with complaints of bleeding and leaking amniotic fluid. A nurse tended to the patient. While at the hospital, Patient III received several tests and an ultrasound was also ordered. All tests were ordered by Friedman over the phone.
The on-call hospital sonogram technician refused to come in to perform an ultrasound on Patient III, reasoning that at 20 weeks the fetus was not viable and thus, Patient III did not meet hospital protocol for an on-call procedure. Friedman tiren spoke with Patient III by phone about her options and ordered that she be discharged home. Friedman told Patient III he could not do anything until after 6 p.m. because of Bosh Hashanah, but that she could come to his office at that time. He also recommended that she go to Wesley Medical Center in Wichita, Kansas, where they could perform the ultrasound. The nurse who treated Patient III testified that all of Friedman’s treatment orders were made over the phone and that Friedman did not see Patient III during her stay at Mercy.
In the Board’s amended petition, it alleged that Friedman documented a note in Patient Ill’s medical record so that it appeared Friedman was present and examined the patient when he had not. The Board also alleged the failure to examine the patient deviated from the standard of care. These actions, the Board alleged, violated K.S.A. 65-2836(b), K.S.A. 65-2837(a)(2), K.S.A. 65-2837(a)(3), K.S.A. 65-2837(b)(17), K.S.A. 65-2837(b)(24), and K.S.A. 65-2837(b)(25), all of which are quoted above.
Hence, in large part, the allegations regarding Friedman’s care of Patient III focused on whether he actually examined the patient. At the hearing, this fact was disputed. Patient III testified that Friedman did perform an examination on her that day. The patient testified that she wrote a letter to that effect. However, this evidence is contrary to the medical records and the nurse’s testimony. In addition, the patient’s testimony is contrary to Friedman’s own written words in response to the Board’s investigation of the case in which he repeatedly acknowledged he did not come in to examine foe patient that day.
Daniels, the Board’s expert, starting with the premise that Friedman did not actually examine Patient III, opined that Friedman’s treatment of Patient III fell below foe applicable standard of care. Daniels reasoned that Friedman should have come in to perform a sterile speculum examination to establish a diagnosis. He disagreed with Friedman’s contention that an ultrasound was foe best diagnostic tool citing foe American College of Obstetricians and Gynecologists (ACOG) Practice Bulletin on Premature Rupture of Membranes.
The Board made the following findings of fact:
“1. The action of the Respondent regarding Patient No. Ill constitutes a failure to adhere to tire applicable standard of care and the medical records were misleading. Pursuant to K.S.A. 65-2836 and K.S.A. 65-2837, the Respondent’s departure from tire applicable standard of care constitutes ordinary negligence. The Respondent’s note made 19 days following the patient’s admission was unprofessional conduct.
“2. The Respondent and Patient No. Ill both testified at the hearing of this matter. Both alleged that the Respondent did come to Mercy Hospital to examine Patient No. III. This testimony of the Respondent and Patient No. Ill flies in the face of Exhibit No. 18A, which is a letter from the Respondent to the Board’s inspector. In this letter, the Respondent deals with the care of Patient No. Ill on the day in question. In this letter, Respondent writes:
‘My not coming in did not result in physical injury to the patient or her fetus.’
“3. Similarly, in Exhibit No. 21, which is Mercy Hospital’s review of the care of Patient No. Ill, tire Respondent writes:
‘The patient left upset because a sonogram could not be obtained. She wrote me a letter complaining of this, and I recommended die MEC ask the patient for a copy of this letter. I also suggest the MEC clarify the patient’s real concern as both the patient and her husband have conveyed to me upon direct questioning that they were not upset that I did not come in.’
“4. Finally, the Respondent alleges that he came to Mercy Hospital to examine a patient. No one saw the Respondent there. It would seem highly unusual that a physician would go to a hospital and see a patient, but not ask the nursing staff or the medical records staff for the patient’s chart. Yet, the Respondent alleges that he did so. As stated above, this flies in tire face of his written statements to both the Board and to Mercy Hospital regarding his care of Patient No. III.”
Once again, Friedman asks us to reweigh this evidence and, in doing so, argues his written statements were taken out of context because they were meant to convey that he did not immediately come to the hospital because of Rosh Hashanah, not that he never examined the patient. Yet, as we have discussed, our standard of review requires us to limit our role to examining whether the Board’s findings are supported by substantial evidence. The discrepancy between Patient Ill’s and Friedman’s testimony and the rest of the record, including Friedman’s more contemporaneous writings, left a credibility determination to be made by the presiding officer, and under our standard of review we do not assess credibility. See Frick Farm Properties, 289 Kan. at 709. Accepting all evidence and inferences that support or tend to support the Board’s findings, we conclude the findings of tire Board regarding Count III are supported by the record.
Count IV
Patient IV was a regular patient of Friedman’s between 2002 and 2005. She complained repeatedly of irregular vaginal bleeding. During that time, Friedman saw her for multiple appointments where he took samples for cultures, but according to Patient IV did not obtain a pap smear. He continued to treat her with antibiotics and bed rest.
Frustrated, Patient IV decided to see another doctor, Dr. Sohaei. Sohaei immediately obtained a pap smear and, after viewing Patient IV’s cervix, referred her to a gynecology oncologist. Patient IV was subsequently diagnosed with stage IV cancer; cancer was found in her cervix, bladder, and lungs. Treatment was unsuccessful, and Patient IV died.
The Board alleged that Friedman’s failure to perform pap smears at appropriate intervals and his failure to recognize and diagnose the patient’s cervical cancer violated K.S.A. 65-2836(b), K.S.A. 65-2837(a)(2), K.S.A. 65-2837(a)(3), and K.S.A. 65-2837(b)(24). Friedman defended the allegations with testimony from two experts. Dr. William Manion, M.D., Ph.D., who was the Chief of Pathology at Virtua Health, testified that the patient’s cancer was a poorly differentiated transitional cell carcinoma of the bladder, not cervical cancer. Dr. Michael Gold, M.D., who was an associate professor of gynecologic oncology at die University of Oklahoma Health Center, testified that Friedman’s care met die standards of care for detection of cervical cancer.
The Board made the following findings of fact and conclusions of law:
“2. Patient No. IV was a female patient of the Respondent’s. Patient No. IV first saw the Respondent in August of 2002. At that time, Patient No. IV had a pap smear done. However, the results of the 2002 pap smear are not in the patient’s chart.
“3. On February 11,2003, tire Respondent performed a pap smear and cultures on Patient No. IV. Patient No. IV was pregnant at the time and on the specimen source it was listed as ‘vaginal.’ The February 11, 2003, pap smear was negative.
“4. During the course of the Respondent’s care and treatment of Patient No. IV, Patient No. IV complained of pain and vaginal bleeding. She also complained of post-coital bleeding.
“5. On July 15, 2004, the Respondent saw Patient No. IV, who complained of post-coital bleeding. This was approximately one and one-half years since the patient’s last pap smear. Patient No. IV was seen 15 times by the Respondent from October of 2004 through November of 2005. During each of the visits, Patient No. IV complained of vaginal bleeding and/or vaginal pain or discharge. Patient No. IV was not bleeding from the vagina on February 10, 2005, but no pap smear was done. The last pap smear was approximately two years prior to February 10, 2005.
“6. In December of 2005, Patient No. IV presented to a different physician. Her complaints were of vaginal bleeding and she had lost weight. A pap smear was done and the cervix was examined.
“7. The pathology repoit that followed the December 2005 pap smear indicated ‘high grade squamous intraepithelial lesion encompassing moderate to severe dys-plasia.’ Patient No. IV was referred to Douglas Horbelt, M.D., in Wichita, Kansas. Dr. Plorbelt performed a cervical biopsy as well as a pap smear. Patient No. IV received treatment for cervical cancer, but ultimately treatment was not successful and Patient No. IV is now deceased.
“Conclusions of Law
“1. The action of the Respondent regarding Patient No. IV constitutes a failure to adhere to the applicable standard of care. Pursuant to K.S.A. 65-2836 and K.S.A. 65-2837, the Respondent’s departure from the applicable standard of care constitutes ordinary negligence.
“2. While the Respondent presented expert testimony as to Count No. IV from Dr. Manion and Dr. Gold, the effectiveness of the testimony of Dr. Manion and Dr. Gold is diminished. In light of the evidence before the Presiding Officer, it is clear that the Respondent has been less than truthful. (See Count No. II and Count No. III. The fact that the Respondent writes letters acknowledging certain matters and then he comes to this hearing and testifies in direct opposition to the writings casts serious doubt to the Respondent’s credibility.) In light of that, what representations the Respondent has made to both Dr. Manion and Dr. Gold must be questioned.”
The district court noted the experts’ disagreement regarding tire type of tumor but concluded it could not substitute its own judgment for that of the presiding officer in determining which of the experts’ opinions was entitled to be believed. Friedman argues, however, that the district court erred because the facts do not support the Board’s expert opinions. Once again, his arguments fail to acknowledge the correct standard of review.
As noted in the Board’s conclusions, resolution of this count came down to a battle of the experts, and Friedman’s side of that battle was weakened by the presiding officer s opinion that statements made by Friedman to his experts lacked credibility. Further, there were other reasons for the presiding officer to accept the view of the Board’s experts Daniels and Dr. John Pfeifer. Daniels, testifying for the Board, stated that postcoital bleeding is a well-known symptom of cervical cancer and that failing to do even one pap smear in the 16 pelvic examinations he performed between 2004 and 2005 was far below the standard of care. He noted that Friedman’s assertion that he could not do a pap smear because the patient was bleeding during every office visit was contrary to the medical records. Daniels noted:
“It is almost inconceivable that a well trained gynecologist could do 16 pelvic examinations on a patient during more than a year while she was developing stage IV cervical cancer and not notice anything abnormal about her cervix. When she was seen by Dr. Sohaei the tumor was being described as fungating and ulcerated. Dr. Horbelt described it as being 4-5 cm in size. Clearly, Dr. Friedman did not even meet the standard of care to do cervical cancer screening much less recognize the symptoms and abnormal appearance of a developing malignant tumor of the cervix.
“In my opinion Dr. Friedman should have arrived at the proper diagnosis when he saw her in July 2004. . . . Failure to follow the proper Pap smear screening recommendations or to recognize an abnormal appearing cervix, resulted in almost an 18 month delay in diagnosis and a much more advanced cancer than it would have been.”
Daniels also testified that the review of samples by Friedman’s expert Manion was not as accurate as could be determined through alternative and more traditional methods of analysis than the method used by Manion.
Finally, the Board called Pfeifer as a rebuttal witness to Manion’s testimony. Pfeifer testified that his review of the samples and the record indicated the type of cancer Patient IV had was cervical cancer. He completed his analysis utilizing a method that Daniels had opined was more accurate than Manion’s method.
Friedman argues we should give weight to his experts over those of the Board. He argues several reasons for discounting Pfeifer’s opinion and presents several other factual arguments. These arguments establish that there is some support for Friedman’s po sition, but they do not mean that there is not substantial evidence to support the Board’s findings. Again, we must accept all evidence and inferences that support or tend to support the findings as true, and must disregard conflicting evidence. Frick Farm Properties, 289 Kan. at 709.
In these arguments, Friedman does discuss what he views as the apparent bias of the presiding officer and asks us to ignore the presiding officer’s credibility determinations. Yet, there is support for the presiding officer’s credibility determinations in the form of conflicting testimony, records, and Friedman’s own statements. More significantly, the hearing officer clearly considered tire testimony of Manion and Gold, and their testimony was countered by other qualified experts who presented substantial evidence contrary to Friedman’s and his experts’ view of the evidence. The Board’s experts’ opinions presented substantial evidence that Friedman violated the applicable standard of care in his care of Patient IV.
Count V
Patient V began seeing Friedman for prenatal care in June 2005. Early in her treatment, a routine blood screen was done. The Board alleged that the screen was positive for anti-C and anti-D antibodies. The laboratory report containing tírese results notes that the antibodies can cause “hemolytic disease of the newborn.” Although the test was allegedly positive for the antibodies, the results were recorded in Friedman’s prenatal record of patient care as negative.
Patient V continued seeing Friedman for her prenatal care until he moved. She then went to Dr. Chappell to continue her care. At that time, she informed Chappell that she had not felt the fetus move for 2 days. After Chappell could not find fetal heart tones, Patient V was given two ultrasounds that confirmed the fetus did not survive.
In its amended petition, the Board alleged Friedman deviated from the standard of care when he failed to review the results of the antibody screen or failed to identify abnormal screen results. In response, Friedman argued there was a laboratory report in his original chart that confirmed negative antibodies but that the chart sent to the Board after he left Kansas omitted the report.
Portions of tire Board’s conclusions of law are as follows:
“1. The action of the Respondent regarding the care and treatment of Patient No. V constitutes a failure to adhere to the applicable standard of care. Pursuant to K.S.A. 65-2836 and K.S.A. 65-2837, the Respondent’s departure from the applicable standard of care constitutes ordinary negligence.
“2. At various times regarding Patient No. V, the Respondent suggested, argued, or otherwise stated that this file had been either tampered with or had been changed. While perhaps that is an interesting theory, it ignores the fact that the lab report was provided back to the Respondent on July 8, 2005. He continued to treat the patient through November of 2005. The Respondent offered nothing to explain why he ignored the lab results.”
Before us, Friedman insists the original file would show he correctly read the laboratory results. He argues the Board pieced together his chart from the records of other physicians and the hospital; the hospital would not have allowed the shot if it was contraindicated; nurses, whose testimony was suppressed, would have testified that the test results were negative; and there are multiple reasons that suggest the stillbirth was not caused by his actions. He further contends Daniels’ opinions were based on faulty assumptions.
As noted by the Board, however, the record includes an exhibit of 12 pages of Patient V’s medical record; all 12 pages show a facsimile machine recording that reads: “Jan. 10, 2006-1:54 PM-Dr. Friedman.” This allows the inference that these records were from Friedman’s chart. On the third page, which is a preprinted form, there is a section that is formatted in four columns that are labeled “INITIAL LABS,” “DATE,” “RESULT,” “REVIEWER.” One of lines under “INITIAL LABS” is preprinted on the form to read, “ANTIBODY SCREEN.” Next to “ANTIBODY SCREEN,” someone wrote that the test was administered on June 28, 2005, and that the result was “neg.” The “REVIEWED” column is blank. Following that page are several LabOne reports, including a report showing a testing date of June 28, 2005. This is the report that indicates Patient V tested positive for anti-C and anti-D antibodies and warns of the potential for hemolytic disease. Hence, even if as Friedman asserts there is a laboratoiy. record that would verify his account, tire record establishes there was also a laboratoiy record in his chart that shows Patient V tested positive for anti-C and anti-D antibodies on June 28, 2005. Friedman does not explain why he took no action to reconcile allegedly conflicting laboratoiy results.
Additionally, the Board relies in large part on the testimony and report of Daniels. Daniels noted that tire ultimate responsibility for knowledge of the laboratoiy results rests with Friedman and his failure to properly review Patient V’s laboratoiy results and to treat her appropriately in light of the June test results were deviations from the applicable standard of care. In his written report he concluded: Friedman “failed to review and act on a very important laboratoiy test result. Had he acted on tire results of this test tire baby might not have been stillborn.”
In response, as with some other counts, Friedman attempts to point blame at others—in this circumstance, his office staff, the hospital and various labs. Once again, however, even if others were negligent, Friedman can also have deviated from the standard of care applicable to him. Because, our standard of review requires us to accept all evidence and inferences that support or tend to support the Board’s findings and to disregard conflicting evidence, we conclude there is substantial evidence to support the Board’s findings. See Frick Farm Properties, 289 Kan. at 709.
Count VI
The final disciplinary count against Friedman alleged Friedman surrendered his privileges at CRMC during an ongoing investigation of his conduct in violation of K.S.A. 65-2836(u), which provides:
“A licensee’s license may be revoked... upon a finding of the existence of any of the following grounds:
“(u) The licensee has . . . agreed to a limitation to or restriction of privileges at any medical care facility or has surrendered the licensee’s membership on any professional staff or in any professional association or society while under investigation for acts or conduct - similar to acts or conduct which would constitute grounds for disciplinary action under this section.”
The Board made tire following findings of fact and conclusions of law regarding this count:
“2. Prior to April 22, 2005, the Respondent had privileges at CRMC in Cof-feyville, Kansas.
“3. During the time in which the Respondent had these privileges, he had been called before the Medical Executive Committee on a number of occasions.
“4. On April 18, 2005, the Credentialing Committee for CRMC met regarding the Respondent’s reappointment to the CRMC staff. At that meeting, die committee voted unanimously not to renew the Respondent’s staff status and privileges that he had at CRMC. The committee considered various concerns as well as a Level 3 violation in making its decision not to reappoint the Respondent.
“5. A letter was mailed to the Respondent on April 20, 2005, advising him of the committee’s decision recommending non-renewal to the Medical Executive Committee. On April 22, 2005, the Respondent sent a letter resigning his privileges at CRMC.
“Conclusions of Law
“1. By surrendering his privileges at CRMC while under an investigation for various acts and conduct, the Respondent violated K.S.A. 65-2836(u).
“2. The Respondent argues that he was not under any investigation at the time he submitted his resignation. That is not true. It is clear that he was under investigation. Further, it is highly questionable that he was not aware of the fact that he was under investigation since he was notified by letter on April 20, 2005, and his resignation is dated April 22, 2005.”
Friedman argues there is no evidence in the record that shows an investigation was ongoing at the time he resigned. Specifically, he states that there was no active investigation against him until 14 months after his resignation.
Contrary to this assertion, Laura Robson, CRMC’s quality risk manager, testified at the hearing that there was an ongoing peer review of Friedman at the time he resigned. This is verified by documents in the record.
Significantly, the April 20, 2005, letter informed Friedman that the Bylaws and Credentials Committee’s recommendation was only the first stage of the credentialing decision. The letter informed Friedman that the Bylaws and Credentials Committee’s recommendation would be reviewed by the Medical Staff Executive Committee on April 25, 2005, and if the Medical Staff Executive Committee concurred in the credentialing committee’s recommendation, Friedman had “hearing and appellate review rights as outlined in the enclosed Medical Staff Bylaws Article VII.” In other words, the hospital’s investigation into Friedman’s application was ongoing at the time of his resignation with at least one and potentially two more steps in the investigating process yet to be completed.
In addition, in Robson’s incident report to the Board regarding the medical records of Patient I, Robson wrote that she was given discretion “to start gathering data regarding possible trends in charting issues” when the Medical Staff Executive Committee considered Friedman’s care of Patient I at its August 23, 2004, meeting. Then, according to the minutes of the April 18, 2005, Bylaws and Credentials Committee meeting, “[questionable charting practices were discussed” as one of the reasons for the committee’s unanimous recommendation that Friedman’s privileges not be renewed. This review continued despite Friedman’s resignation, and on May 23, 2005, the Medical Staff Executive Committee concluded Friedman falsified Patient I’s medical records. That conclusion led to the reporting of the incident to the Board. These documents provide substantial evidence of an ongoing investigation.
Finally, Friedman argues there is no evidence that he was aware of the investigation. The presiding officer, however, pointed to circumstantial evidence arising from the sequence of events—the Bylaws and Credentials Committee made its decision not to allow Friedman credentials on April 18, 2005, and a letter communicating that decision was sent to Friedman on April 20,2005. Friedman focuses on the fact that his resignation letter was sent before the credentialing committee’s recommendation was acted on by the Medical Staff Executive Committee, and his resignation was effective before the Medical Staff Executive Committee took any formal action. Assuming that such knowledge is even necessary, Friedman’s argument ignores the inference that can be drawn from the fact that the Bylaws and Credentials Committee had taken negative action that would be submitted to the Medical Staff Executive Committee for final action, and the investigation continued as long as the credentialing action was not final. As this court has often stated, “circumstantial evidence and the logical inferences there from can be sufficient to support a conviction of even the most serious crime. [Citations omitted.]” State v. Herron, 286 Kan. 959, 967, 189 P.3d 1173 (2008). The same is true in civil review of agency actions.
Affirmed.
Mike Keeley, District Judge, assigned. | [
-80,
-22,
-33,
28,
26,
65,
-78,
2,
85,
-85,
55,
115,
-83,
-117,
-123,
107,
-29,
111,
48,
113,
86,
-78,
71,
-56,
-74,
-9,
-38,
-41,
-79,
110,
-12,
-35,
73,
48,
-118,
85,
70,
-125,
-55,
-48,
-126,
4,
-119,
104,
81,
-63,
-72,
35,
82,
2,
49,
31,
-31,
8,
27,
-57,
-20,
44,
123,
-84,
81,
-112,
-69,
-115,
111,
4,
-96,
52,
28,
-121,
-40,
46,
-120,
57,
17,
-8,
113,
-90,
-126,
100,
79,
-71,
40,
98,
98,
33,
29,
-19,
-72,
-84,
30,
24,
29,
-89,
-103,
88,
105,
-116,
-106,
-67,
101,
22,
15,
126,
-12,
-43,
31,
-84,
12,
-50,
-60,
-79,
-33,
57,
-116,
68,
-17,
-57,
-112,
21,
-99,
116,
125,
70,
18,
30,
-6,
-80
] |
Malone, C.J.:
Charles E. Shelly appeals the district court’s findings that none of the exceptions to the requirement of filing a timely notice of appeal set out in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), apply to his case. Specifically, Shelly argues that his sentencing judge failed to properly inform him of his right to appeal. He also argues that his retained counsel failed to file a direct appeal of the sentence even though Shelly asked him to do so. We agree with the district court’s findings that none of the Ortiz exceptions apply to Shelly’s case, which results in the dismissal of his appeal.
On March 5, 2012, pursuant to a plea agreement, Shelly pled no contest to one count of unlawful distribution of a drug precursor, a severity level 2 drug felony, and one count of unlawful possession of a drug precursor, also a severity level 2 drug felony. The district court found Shelly guilty of both crimes and, on April 6, 2012, sentenced him to concurrent terms of 56 months’ imprisonment for unlawful distribution of a drug precursor and 49 months’ imprisonment for unlawful possession of a drug precursor. The district court also ordered Shelly to register as a drug offender. At the conclusion of the hearing, the judge advised Shelly that he had the right to appeal his sentence within 14 days of the hearing and that an attorney would be appointed to help with the appeal if he could not afford one. Shelly did not file a timely direct appeal.
At both his plea hearing and his sentencing hearing, Shelly had been represented by retained counsel, Robert E. Arnold, III. On July 2,2012, Arnold filed a motion for leave to withdraw as counsel, which the district court granted. That same day, Shelly filed a pro se K.S.A. 60-1507 motion. In the motion, Shelly argued that his sentence should be modified based on the recent Kansas Supreme Court decision in State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012). The Snellings court had found that the crime of possession of ephedrine with intent to manufacture a controlled substance, a severity level 2 drug felony, has identical elements as the crime of possession of drug paraphernalia with intent to manufacture a controlled substance, a severity level 4 drug felony. 294 Kan. at 158. Shelly alleged that, under Snellings, he should be resentenced for a severity level 4 drug felony. He also noted that Snellings was issued the day he. was sentenced and asserted there was. no opportunity for him to present his argument earlier.. Shelly’s motion made no claim of-ineffective assistance of counsel against Arnold.
The district court appointed counsel to represent Shelly and held a hearing on the motion on August 6, 2012. Shelly argued that the district court should resentence him on both his convictions based on Snellings. The State argued that the Snellings decision only applied to Shelly’s conviction of possession of a drug precursor and not to his conviction of distribution of a drag precursor. The State also argued that the only chance for Shelly to obtain relief under Snellings would be for him to proceed with a motion to file a direct appeal out of time under Ortiz. After hearing arguments of counsel, the district court found that Snellings applied to unlawful possession of a drug precursor but not to unlawful distribution of a drug precursor. Accordingly, the district court resentenced Shelly only for unlawful possession of a drag precursor, modifying his sentence on that count to 11 months’ imprisonment. The district court made no findings under Ortiz.
On August 17, 2012, Shelly filed a notice of appeal, stating he was appealing from the district court’s orders, “including but not limited to finding of guilt and the sentence entered herein.” The State did not cross-appeal tire district court’s modification of Shelly’s sentence. Shelly docketed an appeal with this court and, on April 17, 2013, filed a motion for remand to the district court. In that motion, Shelly acknowledged that he had not filed a timely notice of appeal from his sentencing in April 2012 but only from his resentencing in August 2012. Shelly asserted, however, that he had asked his attorney to appeal his original sentencing but that his attorney had failed to do so. Thus, Shelly asked this court to remand to the district court for a hearing pursuant to Ortiz, which sets forth exceptions to the requirement of filing a timely notice of appeal.
On May 1, 2013, this court granted Shelly’s motion, stayed the appellate briefing schedule, and remanded the case to district court for a determination of whether tire Ortiz exceptions apply to his case. The order stated that if the district court determined the Ortiz exceptions did not apply, Shelly could appeal that determination to this court.
The district court held the remand hearing on May 17, 2013. At the hearing, Shelly testified that after his sentencing in April 2012, he asked his retained attorney, Arnold, “What are our appeal options?” and Arnold replied that there was nothing to appeal. Shelly also testified that his mother e-mailed Arnold after learning about Snellings, but that Arnold told his mother to tell Shelly to “stop being a jailhouse lawyer.” On cross-examination, Shelly acknowl edged that the sentencing judge specifically informed him of his right to appeal. Shelly also acknowledged that he had filed an appeal in a separate criminal case in tire past, so he was aware of how to instruct his lawyer to file an appeal. Shelly conceded that, after Arnold told him there was nothing to appeal, he did not further direct Arnold to file an appeal.
Arnold testified at the hearing and stated that both before and after sentencing, he discussed with Shelly his right to appeal and he recalled “there being a decision not to proceed with any appeal.” Although Arnold admitted that Shelly later sent him communications about other cases that might impact his sentence, Arnold testified “there was never an agreement reached to file any type of additional request for relief from that sentence.” Arnold unequivocally stated that Shelly did not direct him to file an appeal within 14 days of sentencing.
After reviewing the transcript of Shelly’s sentencing hearing on April 6, 2012, the district court found that the sentencing court had advised Shelly of his right to appeal within 14 days of the hearing, that Shelly had counsel for the purpose of affecting the appeal, and that the sentencing court had told Shelly that if he could not afford counsel, one would be appointed for him. Based on the testimony at the hearing, the district court found that Shelly did not direct Arnold to perfect an appeal of the initial sentence. Thus, the district court found that none of the Ortiz exceptions applied to the circumstances of Shelly’s case. Shelly timely appealed from this determination.
In the sole issue on appeal, Shelly claims the district court erred in finding that none of the Ortiz exceptions applied to the circumstances of his case to permit an untimely appeal from the district court’s sentencing order on April 6, 2012. “[W]e review the factual findings underlying a trial court’s Ortiz ruling for substantial competent evidence, but . . . we apply a de novo standard of review when reviewing the ultimate legal determination of whether those facts fit within an Ortiz exception. [Citation omitted.]” State v. Gill, 287 Kan. 289, 293, 196 P.3d 369 (2008). Substantial evidence is 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 filing of a timely notice of appeal is jurisdictional. Generally, the failure to file a timely notice of appeal requires dismissal of the appeal. [Citations omitted.]” Albright v. State, 292 Kan. 193, 197, 251 P.3d 52 (2011). In Ortiz, the Kansas Supreme Court recognized three exceptions to this general rule that allow an untimely direct appeal from a conviction and sentence if the “defendant either (1) was not informed of the right to appeal at sentencing or by counsel, (2) was indigent and not furnished counsel to perfect an appeal, or (3) was furnished counsel for that purpose who failed to perfect and complete an appeal.” Albright, 292 Kan. at 198. Shelly argues that the first and third exceptions apply to his case.
The First Ortiz Exception
Shelly claims tire district court erred in finding that the first Ortiz exception did not apply to the circumstances of his case. The first Ortiz exception allows an untimely direct appeal from a conviction and sentence if the defendant was not informed of the right to appeal at sentencing or by counsel. Albright, 292 Kan. at 198. Shelly acknowledges that the sentencing judge advised him that he had a right to appeal within 14 days of the hearing and that an attorney would be appointed for the appeal if he could not afford one. But Shelly points out that neither his attorney nor the sentencing judge specifically advised him that he had a right to appeal the severity level of the sentence. Shelly contends this omission means that he was not properly informed about his right to appeal, citing State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008).
In Patton, the defendant sought leave to file an untimely appeal in order to take advantage of the Kansas Supreme Court’s ruling in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). The McAdam court had held that unlawful manufacturing of a controlled substance in violation of K.S.A. 65-4159(a), a drug severity level 1 felony, was identical to unlawful compounding of a stimulant in violation of K.S .A. 65-4161(a), a drug severity level 3 felony; thus, a defendant convicted of the greater offense can be sentenced only under tire lesser penalty provision. 277 Kan. at 146. Based on the McAdam ruling, the defendant in Patton was attempting to challenge the severity level of his conviction of attempted manufacture of methamphetamine. 287 Kan. at 204-05. In discussing the application of tire first Ortiz exception, the Patton court stated:
“[A] district judge must inform a criminal defendant at sentencing, regardless of whether the defendant has entered a plea or gone to trial, that: (1) a right to appeal the severity level of the sentence exists; (2) any such appeal must be taken within [14] days [citations omitted]; and (3) if the defendant is indigent, an attorney will be appointed for the puipose of taking any desired appeal. [Citation omitted.]
“The evidentiary burden of showing that the district judge failed to communicate one or more of these three pieces of information at sentencing is on the defendant, who must demonstrate deficiency from the transcript of the sentencing healing.” (Emphasis added.) 287 Kan. at 220.
As Shelly contended at the Ortiz hearing and now contends on appeal, there is no evidence that the sentencing judge specifically advised him that he had a right to appeal the severity level of the sentence. Nor was there any evidence at the Ortiz hearing that Shelly’s lawyer so advised him. Based on the court’s language in Patton, Shelly claims that he was not properly informed of the right to appeal at sentencing or by counsel; thus, he is entitled to file an untimely appeal under the first Ortiz exception.
At first blush, Shelly’s argument appears to have merit. The transcript of the sentencing hearing on April 6, 2012, reflects that the sentencing judge advised Shelly of his right to appeal as follows:
“Mr. Shelly, you have a right to appeal the sentence I’ve handed down, but you must file a written notice of appeal within 14 days from today with the clerk of the district court. If you cannot afford to hire an attorney to help you with the appeal, one will be appointed for you.”
But as Shelly points out, the sentencing judge did not expressly advise him of his right to appeal the severity level of the sentence. The language used by the court in Patton would seem to make this a requirement at sentencing. 287 Kan. at 220.
In reaching its decision in Patton, the Kansas Supreme Court cited three Kansas statutes that provide specific procedural safeguards of the right to appeal by criminal defendants, including K.S.A. 22-3424(f), which states:
“After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of die defendant's right to appeal and of the right of a person who is unable to pay the costs of an appeal to appeal in forma pauperis.”
K.S.A. 22-3424(f) requires a sentencing court to advise the defendant of his or her “right to appeal” at sentencing even if the defendant is unable to pay the costs. Similarly, K.S.A. 22-4505 requires the district judge to inform an indigent felony defendant of die “right to appeal the conviction” and the right to have an attorney appointed to prosecute the appeal. Here, the transcript of Shelly’s sentencing hearing on April 6, 2012, shows that the sentencing judge satisfied these statutory requirements.
Despite the language used by the Supreme Court in Patton, we do not interpret the court’s decision in that case as requiring a sentencing judge to specifically advise the defendant of his or her right to appeal the seventy level of the sentence. The defendant in Patton happened to be challenging the severity level of his conviction and sentence. Thus, in ruling that a sentencing judge must advise the defendant of the right to appeal the severity level of the sentence, the Supreme Court was only using language applicable to the facts of that particular case.
We do not believe that the court’s holding in Patton intended to broaden the language of K.S.A. 22-3424(f) or the language of K.S.A. 22-4505 by imposing a duty on a sentencing judge that is not expressly contained within the statutory language. These statutes only require a sentencing judge to advise the defendant of his or her “right to appeal” the district court’s judgment and the right to have appointed counsel if the defendant cannot afford to hire an attorney. There is no statutoiy requirement for a sentencing judge to specifically advise the defendant of his or her right to appeal the severity level of the sentence. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
To further illustrate this point, we note that a defendant who has been sentenced under the Kansas Sentencing Guidelines has an express statutory right to appeal his or her criminal history classification as well as the severity level of the crime of conviction. See K.S.A. 21-4721(e)(3). It would make no sense to require a sentencing judge to advise the defendant of his or her right to appeal the severity level of the sentence without also requiring the sentencing judge to advise the defendant of his or her right to appeal the criminal history classification. In fact, requiring a sentencing judge to advise the defendant of his or her right to appeal the severity level of the sentence could mislead the defendant into believing that a challenge to the severity level is the only issue that can be raised on appeal.
We conclude that the Supreme Court in Patton never intended to broaden the plain language of the controlling statutes by requiring a sentencing judge to specifically advise the defendant of his or her right to appeal the severity level of the sentence. This is in keeping with other Supreme Court decisions addressing the sentencing court’s obligation to inform the defendant of his or her right to appeal. See State v. Phinney, 280 Kan. 394, 402, 122 P.3d 356 (2005) (trial court is required to advise the defendant of his or her right to appeal and of the right of an indigent to appeal in forma pauperis); State v. Willingham, 266 Kan. 98, 100, 967 P.2d 1079 (1998) (defendant must be advised either by the court or by defense counsel of his or her right to appeal).
In summary, the transcript of Shelly’s sentencing hearing on April 6, 2012, shows that the judge advised Shelly of his right to appeal his sentence within 14 days and that an attorney would be appointed for the appeal if he could not afford one. The sentencing judge satisfied the statutory requirements in terms of informing Shelly of his right to appeal. Thus, the district court did not err in finding that the first Ortiz exception did not apply to the circumstances of Shelly’s case.
The Third Ortiz Exception
The third exception to the general rule requiring a timely direct appeal from a conviction and sentence exists if the defendant “was furnished counsel for that purpose who failed to perfect and complete an appeal.” Albright, 292 Kan. at 198. The Patton court clarified that this exception exists whether counsel is retained or appointed. See 287 Kan. at 224. Shelly now argues that the district court erred in finding that this exception did not apply to the circumstances of his case.
Shelly testified as follows regarding his conversations with his retained attorney, Arnold, about filing an appeal:
“Q. Did you ask Mr. Arnold to file an appeal?
“A. Yes. I asked him after our sentencing. We were in the small courtroom, and I asked him, What are our appeal options? He told me, We took a plea bargain. We were sentenced in the grid box. You know, we didn’t—There was nothing to appeal.
“Q. Okay. Did Mr. Arnold file a notice of appeal?
“A. No.
“Q. Did you exchange any communication letters or anything as—other than your meeting immediately after sentencing regarding taking an appeal?
“A. Um, no, not directly. I mean, not, you know, right then. I—We did contact him after I got to prison and found out about the Snellings ruling. And he—He e-mailed my mom back, told her to tell me to stop being a jailhouse lawyer, that he would see me in 18 months.”
On cross-examination, Shelly admitted that after Arnold told him there was nothing to appeal, he did not further direct Arnold to file an appeal. Also, Arnold testified that he spoke with Shelly about his appeal rights both before and after sentencing. Arnold stated they talked about “if we were going to appeal, how much would it cost, and I recall there being a decision not to proceed with any appeal.” Later, Arnold testified:
“At different points, I would receive communications for, you know, months and months later, and he had quoted some other cases that he wanted to change his appeal, because there was a change in tire law in terms of what the sentencing recommendations would be for precursors. And there was never an agreement reached to file any type of additional request for relief from that sentence, one, because they didn’t pay any additional funds for a private attorney to do that, and that’s my recollection.”
The testimony at the remand hearing provides substantial competent evidence to support the district court’s finding that Shelly did not direct Arnold to perfect an appeal of the sentencing order on April 6, 2012. Thus, it cannot be said that Shelly was furnished counsel for the purpose of an appeal who failed to perfect and complete the appeal. Rather, the evidence supports the district court’s finding that Shelly simply decided not to pursue a timely appeal. Accordingly, the district court did not err in finding that the third Ortiz exception did not apply to the circumstances of Shelly’s case.
Shelly acknowledges he is entitled to relief under Snellings only if he is allowed to pursue an untimely direct appeal of the district court’s sentencing order on April 6, 2012. See State v. Barnes, 278 Kan. 121, 127, 92 P.3d 578 (2004) (appellate decision applying longstanding principle of law to circumstances not previously addressed applies to cases pending on direct appeal as of date of the decision). We express no opinion on whether the holding in Snell-ings would apply to Shelly’s conviction of unlawful distribution of a drug precursor. Because none of the Ortiz exceptions allow Shelly to pursue an untimely direct appeal of his original sentence, this court is without jurisdiction to consider the merits of Shelly’s appeal. Albright, 292 Kan. at 197.
Appeal dismissed. | [
-48,
-28,
-43,
29,
27,
96,
58,
20,
75,
-29,
-92,
83,
111,
-14,
-123,
123,
-15,
63,
52,
107,
89,
-73,
119,
-63,
-30,
-5,
11,
85,
-69,
79,
-20,
-66,
8,
80,
-126,
53,
-26,
-56,
98,
88,
-114,
1,
-120,
109,
81,
11,
42,
110,
23,
14,
49,
31,
-77,
10,
28,
-54,
-119,
105,
91,
61,
-56,
-15,
-69,
13,
109,
50,
-93,
20,
-105,
-123,
-40,
47,
-104,
25,
0,
105,
51,
38,
-126,
116,
79,
-87,
4,
100,
98,
-95,
29,
-51,
-20,
-116,
46,
126,
-99,
-25,
-103,
81,
66,
-123,
-65,
-97,
116,
54,
33,
126,
106,
-122,
17,
124,
-110,
-41,
-112,
-109,
15,
112,
86,
-13,
-1,
-124,
32,
97,
-52,
-26,
90,
87,
112,
62,
-50,
-42
] |
Leben, J.:
In the early morning hours of November 2, 2011, debris from a two-car accident on 1-35 in Lenexa caused authorities to shut the interstate to traffic. While Kansas Highway Patrol Trooper Nicholas Wright was working the accident, a car driven by Heather Miller came toward hirn—it was the only car on a roadway that Wright thought was still closed to vehicle traffic. So he stopped Miller for the apparent violation of a state law requiring drivers to comply with traffic-control directions.
It turned out that the officers who Wright thought were still blocking the roadway had been diverted briefly to another spot, and Miller simply drove onto the interstate without disregarding any officers, emergency flares, or traffic cones. Unfortunately for her, once the trooper stopped her car, he quickly suspected she was under the influence of alcohol—a suspicion that was confirmed through field-sobriety testing and an evidentiary breath test.
Miller argued in the district court that the evidence against her should be suppressed because she had done nothing wrong by driving onto the scene, thus she shouldn’t have been stopped in the first place. The district court agreed. Though the court said the officer was “honestly mistaken” and showed no bad faith in stopping Miller, the court concluded that the officer nonetheless was mistaken and shouldn’t have made the stop. The court suppressed the evidence found after the stop, including the evidence that Miller was driving while intoxicated.
The State has appealed, contending that an officer’s action isn’t invalidated for a mistake of fact so long as the officer had a reasonable belief that facts existed that would have justified the traffic stop. We agree.
On appeal from a district court’s order on a motion to suppress evidence, we accept the district court’s factual findings if they are supported by substantial evidence. But we independently review its legal conclusions, without any required deference. State v. Sanchez-Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012). Here, other than saying that the officer was “honestly mistaken,” the district court really made no specific factual findings. We will discuss the basic facts of the case, which do not appear to be in dispute, and then consider independently whether the evidence should have been suppressed.
Trooper Wright was the officer in charge at the accident scene, and he had directed closure of the interstate while the accident was investigated since there was debris scattered over the roadway. He had personnel from the Kansas Department of Transportation block traffic by forcing southbound vehicles to exit at 95th Street, and he had Lenexa police officers block the 95th Street entrance ramp going onto the interstate southbound. Wright observed those roadblocks in place. While working at the scene for 1 hour and 20 minutes, Wright saw no unauthorized vehicles come through.
He then saw Miller s car coming toward him. His understanding of police procedure was that the interstate would remain blocked until he—as the officer in charge of the investigation—ordered it to be reopened. Accordingly, he initially thought the vehicle was a police or Department of Transportation vehicle, but he testified that he was “shocked” to see that it was a private vehicle. Wright said he believed the driver either drove around traffic cones that were blocking the highway or drove around the Lenexa police officers who were blocking the entrance ramp. So he initiated a traffic stop.
Miller seemed confused when Wright asked her what she was doing. That reaction was understandable since Miller said there hadn’t been any police cars blocking the entrance ramp. And that proved to be true—Lenexa officers later came to the scene and told Wright that they’d left their post on the entrance ramp briefly because they had to deal with a disturbance involving a trucker.
By that time, however, Wright had begun to suspect that Miller was driving while intoxicated. He arrested her after she performed poorly on some field-sobriety tests, and her evidentiary breath test resulted in a .122 reading, well above the legal limit of .08.
So where does this leave us legally? Based upon what Trooper Wright knew at the time, he believed that Miller had committed a traffic infraction. It’s a violation of K.S.A. 8-1503 to refuse to comply with an officer’s traffic-control directives, and an officer may conduct a traffic stop where an officer knows of specific and artic-ulable facts—facts that can be clearly expressed—that create a reasonable suspicion that a person has violated a traffic law. See State v. Coleman, 292 Kan. 813, 817-18, 257 P.3d 320 (2011); State v. Marx, 289 Kan. 657, 661-62, 215 P.3d 601 (2009).
The State argues that Wright gave specific facts supporting reasonable suspicion—a particularized and objective basis for suspecting that the person stopped is involved in criminal activity. See Coleman, 292 Kan. at 817-18. Indeed, Wright identified several facts supporting his belief that Miller had disobeyed an officer’s traffic instructions:
• Wright had directed that the interstate highway be closed to traffic while he carried out the accident investigation and cleanup.
• He understood that die standard policy was to keep the road closed until the officer in charge of the investigation—in this case, himself—had directed the road to be reopened.
• He had seen that police officers had taken positions blocking the entrance ramp and drat otiier personnel had placed cones directing traffic already on the interstate to exit before the accident site.
• Other than emergency and law-enforcement vehicles, Miller’s vehicle was the first—and only—car he had seen driving on tire closed section of tíre interstate in more than an hour, and he had not reopened the roadway to traffic.
Those facts, specific and articulated by Wright, provided reasonable suspicion that Miller had violated K.S.A. 8-1503, thus justifying a traffic stop.
Of course, we now know that Wright’s overall conclusion—that Miller had disobeyed an officer’s instructions—was wrong. But drat doesn’t negate reasonable suspicion. So long as the officer operates in good faith, a reasonable mistake of fact can still provide the reasonable suspicion required to make a traffic stop. See Houston v. Clark County Sheriff Deputy John Does, 174 F.3d 809, 813 (6th Cir. 1999); United States v. Ornelas-Ledesma, 16 F.3d 714, 718 (7th Cir. 1994), vacated on other grounds 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 [1996]); United States v. Bailey, 417 F.3d 873, 877 (8th Cir. 2005); United States v. Shareef, 100 F.3d 1491, 1505-06 (10th Cir. 1996); State v. Trammell, No. 1 CA-CR 10-0489, 2011 WL 2306697, at *3 (Ariz. App. 2011) (unpublished opinion).
We should point out, however, that an officer can make one type of mistake that won’t provide reasonable suspicion, and that’s a mistake of law. Officers are charged with knowledge of the law, and they don’t have reasonable suspicion to stop someone when they mistakenly believe that there’s a law that a person’s actions would have violated when, in fact, such a law doesn’t exist. See United States v. Chanthasouxat, 342 F.3d 1271, 1279-80 (11th Cir. 2003); United States v. Ramstad, 219 F.3d 1263, 1267 (10th Cir. 2000).
As would be expected, since the principles at issue come from cases interpreting the United States Constitution, Kansas caselaw is in in line with these cases from other jurisdictions.
Our Supreme Court made the point in Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 638-39, 176 P.3d 938 (2008), that a mistake of law can negate reasonable suspicion, noting that a police officer must be held to a more demanding standard of legal knowledge than are tire citizens who are subject to the officer’s authority. In Martin, an officer stopped a vehicle because one of its three rear-brake lights wasn’t working. But it turned out that the law only required two working rear-brake lights, so the officer made a legal error in thinking that the vehicle didn’t comply with legal requirements. Accordingly, the court found that the officer had no authority to stop the vehicle; there was no traffic infraction, and the officer’s conclusion that there was one was based on a mistake of law.
A similar situation arose in State v. Knight, 33 Kan. App. 2d 325, 104 P.3d 403 (2004). There, a police officer stopped a vehicle that turned from a grocery-store parking lot onto a public street without using a turn signal. The officer mistakenly believed that city traffic ordinances required the use of a turn signal, but our court determined that the ordinance had no requirements for signals when turning from a private driveway or parking lot onto a public street. Since diere was no traffic violation—and the officer s suspicion of a traffic violation was based on a mistake about what the law was, not what the officer had factually observed—our court ruled tíiat the stop was unlawful.
Though we are not aware of a specific Kansas case noting that an officer can be factually in error and still have reasonable suspicion, that interpretation is consistent with another tenet of reasonable-suspicion analysis: In determining whether reasonable suspicion existed, a court must consider all the circumstances that existed when the officer made the stop and may not eliminate factors that might have an innocent explanation. See Coleman, 292 Kan. at 817-18. That’s true even when, as here, an officer later learns that diere was an innocent explanation.
Here, Trooper Wright made a mistake of fact, not one of law. Wright reasonably believed—factually—that officers were still in place on die entrance ramp, blocking cars from entering and directing them elsewhere. Wright wasn’t mistaken that it would have been illegal for Miller to go around those officers; he was mistaken factually that those officers were still in place. Accordingly, the traffic stop was based on reasonable suspicion of a traffic infraction, and the district court should not have suppressed the evidence based on Miller’s claim that the stop was improper.
Miller makes one final argument in an attempt to avoid this result. Citing State v. Niblock, 230 Kan. 156, 161, 631 P.2d 661 (1981), she notes that the knowledge of one officer may be imputed to others—meaning that if one officer knows something, odier officers should also be assumed to have knowledge of it. Thus, Miller argues, since the police officers who left their roadblock position knew they had done so, Trooper Wright should be deemed to have known tiiat too. With that imputed knowledge, Wright would have had no reason to stop Miller’s car.
The rule for imputing knowledge from one officer to another is known variously, as the collective-knowledge doctrine or the fellow- officer rule. Under the doctrine, one officer may stop, search, or arrest a suspect at the direction of another officer or police agency, even if the officer does not have firsthand knowledge of the facts that would provide the necessary level of suspicion to permit the given action. United States v. Williams, 627 F.3d 247, 252 (7th Cir. 2010). In Williams, the Seventh Circuit stated a three-part test for the application of this doctrine, starting with something that didn’t occur in Miller’s case—transmission of information from officers away from the scene to the officer who takes the action in question:
“In order for the collective knowledge doctrine to apply, (1) the officer taking the action must act in objective reliance on the information received, (2) the officer providing the information—or the agency for which he works—must have facts supporting the level of suspicion required, and (3) the stop must be no more intrusive that would have been permissible for the officer requesting it.” 627 F.3d at 252-53.
The collective-knowledge doctrine applies when one officer acts based on the instructions from another officer. Under the doctrine, the instructing officer need not share all of the underlying facts that form the basis for the instruction; it’s enough that some officer has that information. Thus, in the Niblock case that Miller cites, there was no problem where one police officer stopped a robbery suspect when the arresting officer had no personal knowledge of the facts and had merely received a description of the suspect vehicle and driver from a police dispatcher over the radio.
But in Niblock, there was communication from one officer to another, and under tire collective-knowledge doctrine, the officer taking action must have acted in objective reliance on some information received from another. Williams, 627 F.3d at 252-53. Here, the officers at the roadblock hadn’t communicated any information—directly or indirectly—to Wright about their having left their post before Wright stopped Miller’s car. There is no basis to apply the collective-knowledge doctrine here. See United States v. Lyons, 687 F.3d 754, 767 (6th Cir. 2012) (approving Seventh Circuit’s three-part test for application of collective-knowledge doctrine); United States v. Massenburg, 654 F.3d 480, 492-96 (4th Cir. 2011) (limiting collective-knowledge doctrine to situations in which one officer acts on information and instructions received from other officers).
The district court’s judgment is therefore reversed, and the case is remanded for further proceedings. | [
-15,
-22,
104,
-84,
45,
96,
18,
42,
65,
-107,
-3,
19,
-17,
-54,
29,
51,
-82,
-13,
116,
9,
-41,
-73,
83,
-119,
-10,
-45,
-14,
-49,
55,
-49,
124,
-12,
79,
48,
-118,
-43,
36,
75,
-123,
-40,
-114,
22,
-120,
-15,
64,
-112,
-92,
42,
-42,
15,
49,
15,
-29,
26,
24,
-57,
-87,
44,
-49,
-83,
-95,
112,
-35,
21,
94,
0,
-77,
20,
-100,
1,
-40,
59,
-112,
49,
97,
120,
115,
-76,
-48,
-12,
35,
-119,
-116,
-90,
96,
33,
61,
-83,
-92,
-116,
6,
58,
15,
38,
-102,
9,
105,
-123,
-105,
-71,
117,
50,
78,
104,
-6,
69,
95,
124,
31,
-53,
48,
-111,
77,
52,
-110,
-11,
-17,
-127,
50,
33,
-49,
-10,
94,
-59,
82,
-101,
-57,
-106
] |
Denied; cross-petition granted.
Unpublished | [
-105,
105,
109,
63,
-86,
-127,
58,
30,
0,
-119,
111,
119,
-17,
-38,
-100,
-37,
-17,
103,
-92,
123,
-49,
-78,
127,
65,
114,
-45,
-30,
117,
-15,
-17,
-8,
48,
76,
-72,
-102,
85,
102,
-64,
-115,
88,
-122,
23,
-104,
-116,
-111,
-45,
52,
99,
88,
15,
49,
-108,
-15,
44,
30,
65,
-56,
100,
-53,
-83,
-45,
-3,
-107,
7,
-33,
68,
-62,
84,
16,
-55,
-112,
46,
16,
48,
53,
-24,
118,
118,
-122,
87,
10,
57,
-107,
36,
42,
35,
-28,
-27,
-120,
-80,
94,
90,
13,
-92,
-45,
28,
75,
57,
-110,
-65,
16,
-110,
39,
58,
106,
-123,
47,
-20,
46,
-49,
-10,
-77,
95,
8,
12,
9,
-21,
-2,
16,
52,
-59,
117,
-36,
-9,
53,
-37,
-34,
-78
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Granted. ,.
Unpublished | [
-107,
105,
-99,
31,
-88,
49,
59,
-98,
-58,
-113,
102,
127,
-49,
-21,
28,
-47,
-89,
103,
-108,
83,
76,
3,
55,
-59,
-30,
83,
-77,
81,
81,
102,
-66,
-72,
78,
-96,
-102,
61,
-26,
-56,
-51,
-39,
-126,
-107,
-120,
-124,
-48,
65,
32,
35,
-55,
15,
81,
-43,
112,
-86,
30,
65,
-116,
62,
-57,
-105,
81,
-24,
-99,
3,
-1,
-108,
-126,
85,
28,
-21,
-64,
-18,
25,
56,
5,
-86,
114,
-26,
-125,
87,
15,
-21,
-80,
4,
10,
112,
-68,
-3,
-84,
-76,
71,
-50,
-83,
-122,
43,
73,
106,
121,
90,
121,
-120,
16,
43,
-68,
99,
-127,
47,
-94,
42,
-33,
102,
-93,
95,
44,
12,
11,
-5,
-65,
35,
55,
-57,
118,
-52,
114,
45,
-62,
-62,
119
] |
The opinion of the court was delivered by
Rosen, J.:
Matthew M. Hines appeals the Court of Appeals’ decision to reverse the sentencing court’s imposition of a controlling, downward durational departure sentence of 24 months’ im prisonment for his convictions of attempted second-degree intentional murder and aggravated battery in State v. Hines, 44 Kan. App. 2d 373, 236 P.3d 568 (2010). We conclude that based on the facts of this case, the reason cited by the sentencing court for imposing the departure sentence (the victim’s request for leniency) does not constitute a substantial and compelling reason to depart from the presumptive sentences for each of Hines’ convictions. Thus, we hold that the sentencing court abused its discretion in imposing the 24-month sentence. Accordingly, we affirm the Court of Appeals’ decision, vacate the sentence imposed, and remand for resentencing.
Facts
According to the probable cause affidavit filed in this case, on May 29, 2008, Wichita police were dispatched to tire residence Hines shared with his wife, Charmaine, and their four children. When police arrived, they discovered that Charmaine had suffered significant lacerations to the front of her neck and chest. As a result, Charmaine was transported to the hospital by ambulance.
At the hospital, Charmaine told law enforcement that she arrived home that afternoon and told Hines that she wanted a divorce. While their four children played outside, Charmaine and Hines argued in their bedroom. Hines eventually told Charmaine, “If I can’t have you nobody will.” He then placed his hands around Charmaine’s neck and began choking her. When one of their children walked into the bedroom, Hines let go of Charmaine and told the child to go back outside. Once the child left, Hines resumed strangling Charmaine but stopped again when the child returned to the room. At that point, Charmaine escaped from the bedroom and ran out of the house to a neighbor’s house across the street. While standing on the neighbor’s front porch, Charmaine began yelling for the neighbor’s help.
The neighbor eventually came out onto her porch and began speaking to Charmaine, but Hines, who followed Charmaine to the neighbor’s home, started arguing with Charmaine. Hines eventually pulled a utility knife out of his pocket and held it up to Charmaine’s neck. He then grabbed her hair and pulled her off tire porch and onto the neighbor’s yard, where Charmaine fell to the ground. According to the neighbor, Hines got behind Charmaine and elevated her head with one hand while holding the utility knife with the other. Hines then proceeded to cut Charmaine’s neck with the knife from side to side. Hines looked up at the neighbor after she told him to stop, but he proceeded to slash Charmaine again across her neck and on her chest. At least two of Hines’ children witnessed him cutting Charmaine. After the brutal attack, Hines ran to his vehicle and drove away. Police arrested Hines later that day.
The State initially charged Hines with attempted first-degree murder but later amended die information to add one count of aggravated lddnapping and two counts of domestic battery. Eventually, Hines and the State entered into a plea agreement where Hines agreed to plead gnilty to the amended counts of attempted second-degree intentional murder and aggravated battery in exchange for tire State’s' promise to dismiss the remaining counts. As to sentencing, the State would be allowed to argue for imposition of the aggravated prison sentence in the applicable grid box for each conviction as well as argue for consecutive sentences. Finally, the parties’ agreement allowed Hines to argue at sentencing for a downward dispositional departure (which the State could oppose), but the agreement prohibited Hines from arguing for a downward durational departure or for concurrent sentences.
At the plea hearing, Hines pleaded guilty to each count. With regard to the factual basis for each count, Hines agreed that he had cut Charmaine twice across the neck with a utility knife with tire intent of committing second-degree murder and that he had also intentionally caused Charmaine great bodily harm or disfigurement—supporting the count of aggravated battery. Accordingly, the seirtencing court- found that there was a factual basis supporting each of Hines’ guilty pleas and, thus, found him guilty of attempted second-degree intentional murder and aggravated battery.
Prior to sentencing, a presentence investigation was' conducted which determined that Hines’ criminal history score was an H, resulting in an applicable sentencing range of 61-66-71 months’ imprisonment for the primary offense of attempted second-degree murder, a severity level 3 felony. For aggravated battery, a severity level 4 felony, the applicable sentencing range was 38-41-43 months’ imprisonment. See K.S.A. 21-4704(a).
Hines filed a motion requesting a dispositional departure sentence. In support of his motion, Hines listed the following mitigating factors: (1) his admission of guilt; (2) probation would promote his reformation given his age of 31; (3) probation would allow him to continue with the anger management and counseling that he was already undergoing; (4) he had no prior felony convictions; (5) his crimes involved a single individual, indicating that he does not pose a threat to society as a whole; (6) Charmaine did not want Hines to be sent to prison and wished for the district court to show leniency; (7) Hines was under duress when he committed the crimes because prior to attacking Charmaine, she had admitted to him that she was having an affair and wanted a divorce; and (8) community based programs would promote Hines’ reformation as well as protect the safety interests of society.
At sentencing, Charmaine made a statement in support of Hines’ request for a dispositional departure sentence:
“I’m asking the Court to please, you know, as far as my husband, if he could get probation. I’m not saying that what he did wasn’t wrong, but I feel like he really wasn’t trying to harm me. And I just ask the Court to think about his children, as far as his sentencing. He’s really not a—as far as wliat people are trying to make him out to be. He’s a loving father, a loving husband. And I’m just asking the Court, please, to give him probation, to think of his kids.”
After Charmaine made her statement, defense counsel argued in favor of granting a dispositional departure sentence, noting that Charmaine and Hines were currently separated and, thus, this was “not a situation where . . . the victim wants to get back together with the defendant and pretend this didn’t happen, these individuals are not going to be back together.” Defense counsel also pointed out that Hines did not have any piior convictions for any violent offenses and that he pleaded guilty to the two crimes in order to take responsibility for his actions and to have the opportunity to request probation. Furthermore, defense counsel noted that Hines was currently attending counseling for anger management, that he had the support of his family, and that his actions in this case were an isolated event that was explained by the fact that Charmaine had told him she was having an affair and wanted a divorce.
In addition to defense counsel’s statements, Hines addressed the court and expressed sorrow for what he had done to Charmaine and asked the court to grant him probation.
The State responded by contending that a departure sentence was not appropriate based on the facts of the case. The State argued that the aggravated number in tire applicable grid box should be imposed for both convictions and the sentences should be ordered to run consecutive.
After hearing statements from all the parties, the sentencing judge stated:
“All right. Well, I’ve reviewed the file pretty carefully, went over the criminal history and the motion for departure. The plea agreement was worded in kind of a unique way, where I think there was an anticipation that there would be a request for probation, but for some reason there was an agreement that we would be running these cases consecutive and that there wouldn’t be a request for a durational departure.
“Fortunately, I have the ability to deviate somewhat from a plea agreement, even where they don’t really agree on final disposition. I will tell you that, you know, the crime that was committed here—and I appreciate the victim being here and testifying and asking that Mr. Hines be given an opportunity on probation, and I am going to take into account the victim’s wishes, but I don’t think that I’m going to be able to grant Mr. Hines probation.
“I will take into account all the facts and circumstances of the case and enter a durational departure. In regard to the motion for departure, I’m going to find that there are substantial and compelling reasons to enter a durational departure. And the reason being that the victim has appeared here today and is requesting leniency for Mr. Hines. But I can’t simply ignore the fact that Mr. Hines, on this day, tried, to kill Mrs. Hines. And in fact, is charged with two counts, not just the attempted second degree murder, but also the aggravated batteiy.” (Emphasis added.)
Ultimately, the sentencing court imposed downward durational departure sentences of 24 months’ imprisonment for the attempted second-degree murder and aggravated battery convictions and ordered the sentences to run concurrent.
The State filed a notice of appeal to challenge the sentencing court’s decision to impose a downward durational departure sen tence. Before the Court of Appeals, the State argued that the court’s stated reason for granting the durational departure sentence—the victim’s request for leniency—was not legally sufficient for two reasons. First, the State contended that the basis for Charmaine’s request for leniency (i.e., her belief that Hines was not trying to harm her) was not supported by substantial competent evidence because (1) Hines pleaded guilty to crimes that proscribed intentional conduct; (2) the facts alleged in the probable cause affidavit indicated that Hines had acted with the intent to kill Charmaine; and (3) the district court explicitly found at sentencing that Hines had tried to ldll Charmaine. Second, the State argued that even if Charmaine’s request for leniency was supported by substantial competent evidence, a victim’s request for leniency, standing alone, can never be considered a substantial and compelling basis to grant a departure motion. In support of this contention, the State cited State v. Favela, 259 Kan. 215, 233, 911 P.2d 792 (1996).
Finally, the State argued that if the Court of Appeals determined that a downward durational departure sentence was warranted in this case, then the Court of Appeals should find that the extent of the departure was inappropriate, given the fact that the 24-month sentence was less than half of the presumptive mitigated sentence (61 months’ imprisonment) in the applicable grid box (3-H) for Hines’ attempted second-degree murder conviction.
In addressing the State’s arguments, the Court of Appeals first noted that in State v. Heath, 21 Kan. App. 2d 410, Syl. ¶ 3, 901 P.2d 29 (1995), it had held that testimony from a victim or his or her family may furnish a substantial and compelling reason for a departure. But the court ultimately concluded that Charmaine’s request for leniency did not constitute a substantial and compelling reason for a departure in this case because the facts established that Hines had acted with the intent to ldll Charmaine. Accordingly, the Court of Appeals reversed the downward durational departure sentence and remanded for resentencing. Hines, 44 Kan. App. 2d at 376-79. We granted Hines’ petition for review.
Analysis
Hines first contends that the Court of Appeals erred when it determined that the sentencing court relied solely on Charmaine’s request for leniency as the basis for imposing a durational departure sentence. He argues that the transcript of the sentencing hearing reveals that the court, in addition to Charmaine’s request for leniency, also considered the reasons listed in his dispositional departure motion as reasons for imposing a downward durational departure sentence—namely, he took responsibility for his actions, he sought out and participated in anger management counseling, he had no prior felonies, and he posed no threat to society.
K.S.A. 21-4716(a) states:
“[T]he sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines for crimes committed on or after July 1, 1993, unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall slate on the record at the time of sentencing the substantial and compelling reasons for the departure." (Emphasis added.)
In addition to requiring a sentencing court to state on the record the basis for imposing a departure sentence, K.S.A. 21-4718(a)(4) states that “[i]n each case in which tire court imposes a sentence that deviates from the presumptive sentence, the court shall make findings of fact as to the reasons for departure.” This court stated in State v. Blackmon, 285 Kan. 719, 729, 176 P.3d 160 (2008), that “[ujnder the mandate of these provisions, the court’s findings at the time of sentencing govern as to the reasons for departure.”
Again, in granting Hines a downward durational departure sentence, the sentencing judge stated:
“I will take into account all the facts and circumstances of the case and enter a durational departure. In regard to the motion for departure, I’m going to find that there are substantial and compelling reasons to enter a durational departure. And the reason being that the victim has appeared here today and is requesting leniency for Mr. Hines." (Emphasis added.)
Although the sentencing court noted that it had “take[n] into account all the facts and circumstances of the case,” the court explicitly stated that Charmaine’s request for leniency was “the reason” for imposing a downward durational departure sentence. Fur thermore, contrary to Hines’ assertion on appeal, the sentencing court did not find that the reasons stated in his dispositional departure motion constituted substantial and compelling reasons for granting the motion. The court clearly stated that it was imposing a durational departure sentence due to Charmaine’s request for leniency. That reason now governs as the sole basis for the sentencing court’s decision.
We next determine whether a victim’s request for leniency can ever be a substantial and compelling reason for imposing a departure sentence in any case. This issue raises a question of law subject to unlimited review. See State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011).
In the case of a downward departure, K.S.A. 21-4716(c) contains a nonexclusive list of substantial and compelling mitigating factors. “Sentencing courts may consider other, nonstatutory factors when imposing a departure sentence as long as there is evidence in the record to support such factors and the use of the factors would be consistent with the intent and purposes of die sentencing guidelines. [Citations omitted.]” Blackmon, 285 Kan. at 725. K.S.A. 21-4703(n) defines “mitigating factors” as
“substantial and compelling reasons justifying an exceptional sentence whereby the sentencing court may impose a departure sentence outside of the standard sentencing range for an offense. Mitigating factors may result in dispositional or durational departures and shall be stated on the record by the court.”
We have stated that in order for a mitigating factor to be substantial, “the reason must be real, not imagined, and of substance, not ephemeral.” Blackmon, 285 Kan. at 724. In order to be compelling, the mitigating factor “must be one which forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.” Blackmon, 285 Kan. at 724.
Various constitutional and statutory mandates indicate that a victim’s request for leniency can constitute a substantial and compelling reason to impose a departure sentence. Article 15, § 15 of the Kansas Constitution provides that victims of crime have a right “to be heard at sentencing or at any other time deemed appropriate by the court.” With regard to a sentencing departure hearing, K.S.A. 21-4718(a)(l) provides that “[t]he victim of a crime or the victim’s family shall be notified of the right to be present at the hearing.” This statute further requires that “[t]he court shall review the victim impact statement.” Finally, K.S.A. 21-4716(d) states:
“In determining aggravated or mitigating circumstances, the court shall consider:
(1) Any evidence received during the proceeding;
(2) the presentence report;
(3) written briefs and oral arguments of either tire state or counsel for the defendant; and
(4) any other evidence relevant to such aggravating or mitigating circumstances that the court finds trustworthy and reliable.”
In Heath, the Court of Appeals cited these constitutional and statutory provisions in support of its conclusion that a “trial court may consider the statements of -crime victims or their families as evidence of either aggravating or mitigating circumstances.” Heath, 21 Kan. App. 2d at 416-17. Cases from other jurisdictions support this proposition. See State v. Eastridge, 5 So. 3d 707, 709 (Fla. Dist. App. 2009); State v. Carter, 254 S.W.3d 335, 345-46 (Tenn. 2008); People v. Washington, No. 235,241, 2004 WL 243369, at *2-3 (Mich. App. 2004) (unpublished opinion).
The State contends that this court’s decision in Favela established as a matter of law that a victim’s request for leniency cannot, by itself, be a substantial and compelling reason to impose a departure sentence. In that case, the defendant had witnessed his brother being stabbed by Willard LaGrange. After taking his brother to the hospital, the defendant returned to the scene of the stabbing and brandished a gun, threatening to kill LaGrange but not pointing his gun at any person. Eventually, he surrendered to the police without firing the weapon. He pleaded no contest to attempted second-degree murder, which, with a criminal history of H, carried a presumptive prison sentence of 51 to 59 months.
The defendant filed a motion for departure from the presumptive sentence, listing six mitigating factors that he contended justified a departure sentence. One of these factors was his claim that no harm resulted from his offense and, thus, the harm was signif icantly less than typical for attempted second-degree murder. Ultimately, the district court found that the six mitigating factors listed in the defendant’s motion were substantial and compelling reasons justifying a departure sentence. Accordingly, the court sentenced the defendant to an underlying sentence of 14 months’ imprisonment and placed the defendant on probation for 36 months.
This court granted the defendant’s petition for review after the Court of Appeals vacated the defendant’s sentence and remanded for resentencing based on its conclusion that the district court’s reasons for departing were not substantial and compelling. This court reversed the Court of Appeals’ decision. Employing the standard then applicable for reviewing a departure sentence, the Favela court found that substantial competent evidence supported each of the district court’s reasons for departing and tiren concluded that each reason (other tiran the fact that the defendant was 17 when he committed the crime) constituted a substantial and compelling reason justifying departure as a matter of law. Favela, 259 Kan. at 224-39.
In determining that substantial competent evidence supported the factual finding that no harm resulted from the defendant’s offense and, thus, the harm was significantly less than typical for attempted second-degree murder, the Favela court noted that the presentence investigation report contained a statement from LaGrange, the victim, where he stated: " 1 feel that the crime [the defendant] has been charged with is wrong—he only threatened me.’ ” Favela, 259 Kan. at 231. The Favela court found that LaGrange’s statement indicated “that he was not harmed either emotionally or physically by the crime.” Favela, 259 Kan. at 231. The court then proceeded to state, rather ciyptically, that
“[i]n deciding to depart downward, the trial court could, as part of the whole picture, consider the facts concerning the attempt as well as the victim’s thoughts on the crime as to how the defendant should be sentenced. Standing alone, the court’s finding woidd be insufficient to show a substantial and compelling reason to depart. However, common sense and experience tells us that this is not a typical attempted second-degree murder case and that the victim’s attitude is not a typical victim’s attitude in an attempted second-degree murder case. Therefore, the trial court should be able to consider it as part of the overall picture. The trial court did not commit reversible error in considering the degree of harm as a departure factor.” (Emphasis added.) Favela, 259 Kan. at 231-32.
The State contends that the italicized portion of the quote establishes that a victim’s request for leniency cannot, by itself, constitute a substantial and compelling reason to depart from the sentencing guidelines. The State reads too much into the quote. If anything, that language implies that the district court’s “finding” (i.e., no harm resulted from the defendant’s offense and, thus, the harm was significantly less than typical for an attempted second-degree murder) would not, by itself, constitute a substantial and compelling reason to grant a departure sentence. But this conclusion would be contrary to the Favela court’s subsequent statement in the opinion regarding the district court’s lack of finding harm.
“The trial court found the fact that no harm resulted from the defendant’s offense and, as such, the harm was significantly less than typical for such an offense was a substantial and compelling reason justifying departure. This factor is based on the mitigating circumstance found in K.S.A. 1994 Supp. 21-4716(b)(1)(E). Again, die [Court of Appeals] dissent found that since this factor was based on a specifically listed mitigating circumstance, it should be given great deference. The dissent found this reason constituted a substantial and compelling reason justifying departure. [Citation omitted.] The factor indicates tire defendant is not a serious or violent offender and, thus, the factor furthers one of the purposes of the guidelines. As such, this factor is a substantial and compelling reason as a matter of law and justifies departure.” (Emphasis added.) Favela, 259 Kan. at 238-39.
Regardless of how one interprets the Favela court’s inharmonious statements regarding the lack of harm factor, the Favela opinion did not explicitly state or imply that a victim’s request for leniency can never constitute a substantial and compelling reason to grant a departure sentence. Accordingly, the State’s argument regarding Favela is without merit. Based on the constitutional and statutory provisions cited above, this court’s decision in Blackmon, and the Court of Appeals’ decision in Heath, if a victim’s request for leniency is substantial, then the request for leniency can, in and of itself, justify a sentencing court’s decision to impose a departure sentence. See Blackmon, 285 Kan. at 725 (If any of the factors articulated by the sentencing court would justify the departure, the decision will be upheld on appeal.).
Accordingly, we now determine whether the sentencing court erred in concluding that Charm aine’s request for leniency constituted a substantial and compelling reason to impose a durational departure sentence in this case. We apply an abuse of discretion standard of review in determining this issue. Spencer, 291 Kan. at 807.
“Judicial discretion is abused if judicial action (1) is arbitraiy, 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 the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Again, in order for a mitigating factor to be substantial, “the reason must be real, not imagined, and of substance, not ephemeral.” Blackmon, 285 Kan. at 724. In order to be compelling, die mitigating factor “must be one which forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.” Blackmon, 285 Kan. at 724. In State v. McKay, 271 Kan. 725, 730, 26 P.3d 58 (2001), we recognized that mitigating factors which may in one case justify departure may not in all cases justify a departure.
The Court of Appeals decision in Heath offers some insight into when a victim’s statement can provide a substantial and compelling reason for imposing a departure sentence. Defendant Danny Heath was a driver of a car involved in an accident resulting in the death of his coworker and friend, Kord Cole. Testing determined that Heath’s blood-alcohol level was .151 percent. Heath ultimately pleaded no contest to involuntaiy manslaughter, a severity level 5 person felony.
At sentencing, both of Cole’s parents asked the court for leniency, specifically requesting that Heath be given probation. The sentencing court departed from the presumptive sentence of imprisonment and placed Heath on probation for 60 months. In support of its decision, the court cited the parents’ statements as one of the reasons for imposing the dispositional departure sentence. On appeal, tire Court of Appeals held that based on the facts of the case, the parents’ request for leniency was a substantial and compelling reason justifying the departure sentence. The court stated:
“The facts of this case give die statements of die victim’s parents reliability and trustworthiness. Heath had worked witii the victim for two years preceding the accident. On the day of the accident, the two were working together on a construction site in Wichita. They made a daily commute together from Hutchinson to Wichita to get to work. In addition to their working relationship, Heath and die victim were also social friends. After leaving work on the day of the accident, they went to a tavern adjacent to the work area and had a couple of beers. After driving 25 to 35 miles back to Hutchinson, Heath swerved to miss an object—a piece of a tire—in the roadway, causing the car to slide off the road into a utility pole.
“Other events in this case also demonstrate the support the victim’s family showed for Heath. The day Heath was released from the hospital, the victim’s parents came to his residence, at which time he promised them he would never drink alcoholic beverages again. The victim’s sister also visited Heath after he was released from the hospital and showed her support by sitting beside Heath’s wife at the preliminary hearing. Last, before entering the courtroom on the day of the departure hearing, the victim’s mother came up to Heath, hugged him, and told him he needed to take care of his family.
“Finally, Heath also showed remorse for what he had done. He continuously recognized his responsibility in causing the death of his close friend, Kord Cole. Heath’s parents and his brother had died prior to the accident, so he testified he knew the pain and the hurt the victim’s family were going through and he was sony he caused it. Further, Heath testified he had not consumed alcohol since the accident, and he assured the court he could realistically live up to his pledge of abstinence from alcohol.” Heath, 21 Kan. App. 2d at 417.
The parents’ request for leniency was obviously motivated by their son’s close relationship with Heath and the fact that Cole’s death was accidental. Furthermore, because the parents advocated on behalf of Heath at sentencing, they likely found his expression of sorrow and his vow to abstain from alcohol to be sincere. As the Court of Appeals found, foe record clearly supported foe finding of substantial and compelling evidence supporting the trial court’s reasons justifying departure. Accordingly, a reasonable person could conclude that there was substance behind the parents’ request for leniency and that their reason for requesting leniency would force a court, based on foe facts of foe case, to abandon foe status quo and to depart from the sentencing guidelines. See Blackmon, 285 Kan. at 724
In this case, the sentencing court imposed a durational departure sentence upon Hines based solely on Charmaine’s request for leniency. The judge failed to state on the record what he found persuasive about Charmaine’s request for leniency, but tire transcript of sentencing shows that Charmaine’s request for leniency was based on her feeling that Hines “wasn’t trying to harm” her on the day of the altercation and that Hines was a loving father and husband.
Notably, the court found at sentencing that Hines was trying to kill Charmaine on the day of the altercation, indicating that the judge did not find Charmaine’s claim to the contraxy believable. And without Charmaine elaborating on what makes Hines a loving father and husband, the facts of this case would force a reasonable person to simply not reach that conclusion about Hines. According to tire probable cause affidavit filed in conjunction with the original complaint, Hines strangled Charmaine two separate times in their bedroom before Charmaine escaped from the couple’s house and ran to a neighbor’s house seeking help. Hines followed Charmaine onto the neighbor’s front porch and, after briefly arguing with her, pulled a utility knife from his pocket and held it to the side of Charmaine’s neck as he grabbed her by her hair. He then forced her to walk down the porch stahs and onto the neighbor’s front yard where he (in front of his neighbors and two of his children) proceeded to cut Charmaine twice across her neck from side to side and then slashed her from the bottom of her neck to the top of her breast bone. Charmaine sustained significant lacerations to the front of her neck and chest, resulting in her being transported to the hospital by ambulance. As a result of these actions, Hines pleaded guilty to attempted second-degree intentional murder and aggravated battery. He conceded at his plea hearing that he cut Charmaine two times across her neck with the intent to kill her and that he also intentionally caused great bodily harm or disfigurement to Charmaine.
A reasonable person would certainly not find much substance behind Charmaine’s request for leniency based on her belief that Hines is a loving husband, given the fact that he strangled her twice and cut her with a utility knife with the intent of killing her. See State v. Powell, 696 So. 2d 789, 791 (Fla. Dist. App. 1997) (“In the context of domestic violence, the victim may have many conflicting emotions. A defendant and other family members could easily pressure the victim to request leniency. We would not wish to encourage trial courts to rely upon this reason for a downward departure sentence in a case involving domestic violence.”). Furthermore, without more explanation from Charmaine, one cannot put much weight on her belief that Hines is a loving father; he certainly had no qualms about battering, stabbing, and attempting to kill Charmaine in the presence of his children. To the contrary, the brutality perpetrated by Hines upon the mother of his children raises great concern regarding his ability to adequately control his violent impulses in light of the stresses and strains encountered in parenting. Cf. State v. Chrisco, 26 Kan. App. 2d 816, 818-20, 824-25, 995 P.2d 401 (1999) (court stated that “[w]hile we agree that supporting a family may be a proper departure factor in certain cases, its application is questionable when there is reason to believe a defendant may harm the very children he is supporting”).
Unlike the parents’ request for leniency in State v. Heath, 21 Kan. App. 2d 410, 413, 901 P.2d 29 (1995), there appears to be little substance behind Charmaine’s request for leniency here. And based on the record currently before us, Charmaine’s request for leniency would certainly not force a reasonable person to abandon the status quo and impose sentences less than what are prescribed by the sentencing guidelines. Accordingly, we conclude that the sentencing court abused its discretion when it decided to impose a durational departure sentence based solely on Charmaine’s request for leniency.
In Blackmon, we stated that
“when a sentencing court fails to state substantial and compelling reasons for a downward departure from a presumptive sentence on the record at an initial sentencing hearing and as a result the sentence is vacated on appeal, upon remand tire sentencing court may cite appropriate reasons justifying tire imposition of a downward departure sentence and may impose such a sentence subject to the usual review process.” Blackmon, 285 Kan. at 732.
The record on appeal indicates that the sentencing court may have had additional reasons for departure, but it did not clearly state those reasons on the record at the sentencing hearing. Accordingly, we vacate Hines’ sentences and remand for resentencing. If the court determines at resentencing that there are substantial and compelling reasons for imposing a departure sentence (which can include a request for leniency from Charmaine if she chooses to make such a request at resentencing and gives additional reasons for why she is requesting leniency), then the court may impose such a sentence, but it should clearly state on the record all the reasons why it is imposing a departure sentence. If the sentencing court chooses to impose a departure sentence, the court’s decision would naturally be subject to appellate review pursuant to K.S.A. 2011 Supp. 21-6820.
The judgment of the Court of Appeals reversing the district court is affirmed. The sentences are vacated, and the case is remanded to the district court with directions. | [
-16,
-32,
-35,
-66,
27,
-31,
-54,
112,
114,
-5,
103,
115,
-83,
-10,
17,
123,
-101,
15,
85,
105,
85,
-73,
103,
-63,
-26,
-13,
115,
-48,
-77,
94,
-9,
-33,
9,
96,
-126,
85,
102,
-54,
81,
-48,
-114,
15,
-88,
-60,
80,
-126,
38,
107,
92,
7,
49,
-114,
-77,
42,
16,
-18,
-88,
40,
91,
-75,
-60,
-7,
27,
15,
-49,
0,
-77,
-124,
-66,
-90,
-8,
39,
-100,
57,
32,
-24,
-13,
-122,
-106,
117,
77,
-117,
13,
99,
107,
1,
77,
-26,
-88,
-104,
47,
118,
-99,
-61,
-40,
88,
2,
68,
-106,
-7,
117,
54,
42,
124,
-26,
12,
95,
-28,
-128,
-113,
-104,
-111,
73,
117,
-106,
104,
-29,
-91,
34,
97,
-113,
-88,
92,
-63,
115,
-1,
-98,
-106
] |
On July 10,1992, this court suspended the respondent, Paul W. Dwight, from the practice of law in Kansas for a period of 1 year. See In re Dwight, 251 Kan. 588, 834 P.2d 382 (1992). Before reinstatement, the respondent was required to pay the costs of the disciplinary action and comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379).
On November 20, 2012, the respondent filed a renewed petition for reinstatement with this court for reinstatement to the practice of law in Kansas. The renewed petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380). The Disciplinary Administrator affirmed that the respondent met all requirements set forth by the court.
The court, after carefully considering the record, grants the respondent’s petition for reinstatement.
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 that this order of reinstatement of Paul W. Dwight shall be published in the Kansas Reports, and the costs of the reinstatement proceedings are assessed to the respondent.
Dated this 12th day of December, 2012. | [
-112,
-17,
-98,
-34,
12,
68,
50,
-106,
113,
-13,
35,
83,
-19,
-45,
5,
105,
66,
109,
81,
105,
-63,
-74,
127,
-55,
100,
-69,
-39,
-45,
-68,
127,
-27,
-35,
74,
-80,
2,
-107,
6,
-54,
-47,
92,
-114,
7,
73,
-44,
89,
-127,
52,
45,
-106,
15,
49,
86,
-13,
104,
24,
-57,
-56,
44,
63,
-81,
17,
-112,
-101,
5,
123,
21,
-79,
21,
60,
5,
120,
-81,
-104,
-71,
8,
-20,
51,
-78,
-126,
100,
79,
-103,
-87,
102,
98,
-78,
1,
-90,
-72,
-72,
14,
-8,
29,
-26,
-103,
88,
99,
5,
-106,
-67,
116,
20,
7,
-4,
-26,
-123,
31,
108,
15,
-50,
-48,
-77,
-33,
117,
-106,
-104,
-1,
-123,
-80,
69,
-124,
-12,
94,
-29,
115,
-109,
-82,
-73
] |
The opinion of the court was delivered by
Nuss, C.J.:
Steve Moses directly appeals the district court’s summary denial of his motion to withdraw his guilty pleas. We affirm the court’s denial because Moses’ motion was untimely.
Facts
In 1992, the State charged Steve Moses with first-degree murder and aggravated robbery for the strangulation death of his 81-year-old next-door neighbor. Later that year he filed a petition to enter a guilty plea to both charges. At the time of his plea bargain, Moses was represented by John Duma. In return for entering a plea, the State agreed not to seek the hard 40 sentence.
The district court accepted Moses’ pleas that same day. He was later sentenced to life imprisonment on the first-degree murder conviction and 15 years to life on the aggravated robbery conviction. The sentences were ordered to run consecutive to each other and consecutive to sentences imposed in two cases by the State of Arkansas for which Moses had been on parole at the time of the neighbor’s death.
Approximately 12 years later, after an unsuccessful habeas petition under K.S.A. 60-1507 and an unsuccessful motion to correct an illegal sentence under K.S.A. 22-3504, Moses filed a pro se motion to withdraw his guilty pleas under K.S.A. 2004 Supp 22-3210. In the memorandum of law supporting his June 25, 2004, motion, Moses primarily argued that he should have been allowed to withdraw his pleas because the district court did not advise him of various constitutional rights in open court contrary to the mandate of K.S.A. 2004 Supp. 22-3210(a)(3). Moses’ appointed counsel, Patrick D’Arcy, filed a supplemental memo making substantially the same legal arguments. The district court denied his motion, and we affirmed that court in State v. Moses, 280 Kan. 939, 127 P.3d 330 (2006) (Moses I).
On May 20, 2010, approximately 4 years after we issued our opinion in Moses I, Moses filed a second motion to withdraw pleas. He primarily argued that counsel D’Arcy was ineffective in arguing Moses’ first motion to withdraw pleas. He also alleged he told his trial attorney, Duma, that he wanted to go to trial and that his pleas were not voluntarily made. Based primarily on Moses I, the district court summarily denied Moses’ second motion to withdraw pleas. Moses timely appealed, invoking our jurisdiction under K.S.A. 22-3601(b).
Analysis
Generally, we review for abuse of discretion a district court decision to deny a postsentence motion to withdraw plea under K.S.A. 2012 Supp. 22-3210(d)(2). State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011). But Moses’ motion was summarily de nied without argument and additional evidence. So we apply the same procedures and accompanying standards of review used in cases involving K.S.A. 60-1507. See State v. Jackson, 255 Kan. 455, 459, 874 P.2d 1138 (1994) (“The K.S.A. 60-1507 procedure governing hearings should apply to motions to withdraw guilty plea filed after imposition of sentence.”)- And we exercise de novo review because we “have the same access to the motion, records, and files as the district court.” State v. Neal, 292 Kan. 625, 629, 258 P.3d 365 (2011). Like the district court, we must determine whether Moses’ “motion, records, and files conclusively show that he is entitled to no relief.” See Neal, 292 Kan. at 629.
In Moses’ brief he argues that his counsel D’Arcy was ineffective when D’Arcy argued Moses’ first motion to withdraw pleas.. But we do not address the merits of his argument because his second motion to withdraw pleas was untimely filed and is procedurally barred.
Moses filed his second motion to withdraw pleas on May 20, 2010. On April 16, 2009, the legislature amended K.S.A. 22-3210 to require that a motion to withdraw plea be brought within 1 year of alternate occurrences:
“(A) The final order of die last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (B) the denial of a petition for a writ of certiorari to the United States [Sjupreme [Cjourt or issuance of such court’s final order following the granting of such petition.” K.S.A. 2009 Supp. 22-3210(e)(l).
We have previously determined that the time began to run for preexisting claims on the date the statute became effective: April 16, 2009. State v. Szczygiel, 294 Kan. 642, 644, 279 P.3d 700 (2012). So Moses had until April 16, 2010, to file his motion to withdraw pleas. But he filed outside that time frame. We acknowledge the district court may extend the time limitation “upon an additional, affirmative showing of excusable neglect by the defendant.” See K.S.A. 2009 Supp. 22-3210(e)(2). But Moses does not attempt to make an affirmative showing of his excusable neglect. His motion to withdraw pleas is therefore untimely and procedurally barred.
Affirmed. | [
84,
-20,
-108,
-97,
10,
-64,
58,
8,
81,
-73,
102,
115,
-19,
90,
1,
123,
51,
63,
85,
-31,
85,
-73,
103,
-31,
-78,
-13,
-104,
-43,
-77,
-35,
-68,
-97,
76,
64,
-18,
69,
70,
74,
111,
-36,
-114,
1,
-120,
-44,
120,
3,
48,
35,
70,
11,
49,
30,
-13,
107,
27,
-22,
-55,
44,
91,
-65,
80,
-103,
-99,
-113,
-1,
36,
-93,
36,
-98,
-122,
112,
62,
-36,
49,
0,
-24,
113,
-74,
-122,
116,
77,
-117,
12,
-90,
99,
2,
89,
-17,
-68,
-127,
62,
31,
-99,
-122,
-8,
120,
74,
5,
-105,
-67,
59,
20,
13,
114,
111,
4,
105,
108,
-126,
-114,
-80,
-79,
95,
61,
6,
-21,
-5,
5,
34,
117,
-49,
-30,
92,
118,
121,
-69,
-98,
-48
] |
PlERRON, J.:
Petromark Drilling, LLC and Ace Fire Underwriters Insurance Company (Petromark) appeal from the Workers Compensation Board’s (Board) reversal of the administrative law judge’s (ALJ) denial of David C. Williams’ workers compensation claim. Petromark argues that Williams’ injuries are not compen-sable under either K.S.A. 2010 Supp. 44-508(f)’s going-and-coming rule or K.S.A. 2010 Supp. 44-501(d)(l)’s “willful failure to use a guard” rule. We agree on the issue of the going-and-coming rule and reverse tire Board’s finding.
Facts
At the time of his automobile accident, Williams was 23 years old. Pie had been working as a back-up hand for Petromark since September 28, 2010. On his first day of work he signed a form, the back of which contained the following policy: “Seat belts will be used by all employees and all occupants of vehicles driven on of ficial business. This requirement applies to all personal vehicles (which receive reimbursement for mileage) used by employees which are used to transport crews from home to the rig site and back.”
Williams worked from 7 a.m. to 3 p.m. on driller Kenneth Roach’s crew. The crew consisted of a back-up hand, Williams, who worked under the chain man, Shane Link, who worked under the derrick man, Garrett Schneip, who worked under the supervisor, Roach. The crew travelled to remote drill sites, all within a 10-mile radius of Bazine, Kansas. It took approximately a week to drill an oil well. When the drilling was completed, the rig was disassembled, loaded onto a truck, moved to a new drill site, and reassembled. Williams testified his job required him to travel to die drill sites. Roach testified his crew members could live anywhere but had to be willing to travel to the drill sites.
Roach and Link lived in Great Bend, which was about 50 miles from the drill site; Williams lived in Pawnee Rock, which was about 60 miles from the drill site; and Schneip lived near Bazine. Roach provided his crew members optional transportation to the drill sites from Great Bend. Williams traveled from his home in Pawnee Rock to Link’s home in Great Bend. Link and Williams rode in Roach’s personal vehicle from Link’s home to die drill site and back. Williams then traveled from Great Bend to Pawnee Rock. Schneip drove his personal vehicle to and from the drill site. Roach was paid mileage because he was transporting his crew members. Whether they rode with Roach or drove their personal vehicles, tire crew members were not compensated for the trips to and from the drill site—no hourly wage, no mileage, no per diem. Williams’ pay started when he arrived at the drill site and ended when he clocked out at the site.
On October 10,2010, Williams rode with his wife to Great Bend. He then rode with Roach to the drill site. Williams got Roach’s permission to ride directly back to Pawnee Rock with Christopher LaMaster, who was tilting in for Link. Williams did this for his own convenience—LaMaster’s route was more direct and Williams would not have to wait for transportation from Great Bend. Roach did not tell them which route to take from the drill site to Pawnee Rock.
The tires on LaMaster’s personal vehicle were low so he aired them up before leaving the drill site. LaMaster drove and Williams rode in the passenger seat with his seatbelt on. LaMaster did not deviate from the route to Pawnee Rock and stopped only once to air up a back tire on his vehicle that had gotten low. Williams exited the vehicle to help LaMaster air up the tire with a cigarette lighter pump. They only aired up the tire for 10 minutes, or halfway, because LaMaster was in a hurry to get home. Williams did not fasten his seatbelt upon reentering the vehicle—he testified he did not know why he did not fasten it, LaMaster did not ask him to fasten it, and he was unaware of Petromark’s seatbelt policy. Before they reached Pawnee Rock, the tire blew out and the vehicle rolled over. Williams was ejected from the vehicle and suffered injuries. He called Roach from the emergency room that evening to report the accident and his injuries.
Williams filed a workers compensation claim on January 12, 2011. On December 12, 2011, the ALJ entered a decision in favor of Petromark. The ALJ concluded that Williams’ injuries were not compensable because they did not arise out of and in the course of his employment:
“At the time of the accident giving rise to [Williams’] injuries, he had left work for the day and was on his way home, as a passenger in a co-worker’s vehicle. He was not being paid or performing any services or duties for his employer. His accident did not occur ‘in the course of his employment. [Williams’] duties on the drilling rig did not include driving. [Williams’] injuries did not ‘arise out of his employment with Respondent.
“Even though [Williams] was an oilfield worker, travel was no more intrinsic to his employment than any other commuter on the highway. At the time of his accident, [Williams] was not traveling between well sites, and he was not performing any services for his employer or advancing his employer’s interests. He was simply on his way home at the end of the work day.”
The ALJ also concluded that Williams’ claim would not have been barred due to his failure to wear a seatbelt:
“Here, there is no evidence of ‘intractableness, the headstrong disposition to act by tire rule of contradiction.’ There is no evidence [Williams] was ever disci plined for failure to wear his seatbelt. The evidence is simply that he was not wearing it at the time of the accident, as a result of his oversight. In any event, the company policy does not appear to apply, as the LaMaster vehicle was not a company vehicle, was not being used in official company business, and LaMaster was not being paid or reimbursed mileage for his use of the vehicle.”
On April 26, 2012, the Board reversed the ALJ’s decision and entered an award in favor of Williams. Three members of the Board concluded that Williams’ injury did arise out of and in the course of his employment:
“[Williams’] job as an oil drilling crew member required that he travel from drill site to drill site. He was not paid wages when traveling from his home to whatever site the crew was working on, nor was he reimbursed for his mileage expense if he drove his own vehicle. Nevertheless, the very nature of the work necessitated travel to ever-changing locations. Travel was inherent to the job. When travel is inherent to or an integral part of the job, the going and coming rule does not apply. As such, [Williams’] accident, which occurred while [Williams] was in a vehicle travelling from the drill site to his home, arose out of the nature, conditions, obligations and incidents of his employment with respondent.”
The Board also concluded that Williams’ claim was not barred by his failure to wear a seatbelt:
‘When the accident occurred, [Williams] was not wearing a seat belt. Respondent’s policy was that all employees use the seat belt when travelling in a company owned vehicle on any official business. The seat belt policy expressly provided that the requirement applied to employee travel in personal vehicles used to transport crews from home to tire rig site and back and which received reimbursement for mileage. Although [Williams] was a passenger in a personal vehicle being used to transport members of the crew to their homes, mileage for the trip was not being reimbursed. Accordingly, by its terms, the respondent’s seat belt policy did not apply to tire trip where [Williams] was injured. The language of the policy itself is, however,'further evidence of the inherent nature of travel to the employment.”
Petromark timely appeals.
Analysis
Petromark argues that Williams’ injuries were not compensable either because they did not arise out of and in the course of his employment or because they resulted from his failure to use a seatbelt. The facts regarding Williams’ employment and accident appear to be undisputed.
This case involves the review of the Board’s determination that the accident occurred within the course and scope of Williams’ employment, as well as the Board’s interpretation and application of the going-and-coming rule, as set forth in K.S.A. 2010 Supp. 44-508(f).
Generally, the issue of whether an employee’s accident arose out of and in the course of employment is a question of fact. Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013). But it may be determined as a matter of law if die evidence can lead to only one factual finding. See Scott v. Hughes, 294 Kan. 403, 413-16, 275 P.3d 890 (2012). We review the Board’s factual findings to determine whether they are supported by substantial evidence in light of the record as a whole. K.S.A. 2010 Supp. 77-621(c)(7), (d); Quintana v. H.D. Drilling, LLC, Nos. 106,126, 106,127, 106,131, 2012 WL 1759430, at *2 (Kan. App. 2012) (unpublished opinion). Whereas the issue of whether the Board erroneously interpreted or applied the law is reviewed de novo. K.S.A. 2010 Supp. 77-621(c)(4); Craig v. Val Energy, Inc., 47 Kan. App. 2d 164, 166, 274 P.3d 650 (2012), rev. denied 297 Kan. 1244 (2013).
In order to receive workers compensation benefits, an employee must show that his or her accidental injury arose “out of and in the course of employment.” K.S.A. 2010 Supp. 44-501(a). The phrase “out of’ employment requires a showing of a causal connection between the accidental injury and tire conditions under which the work is required to be performed, and the phrase “in the course of’ employment requires a showing that the injury happened while the worker was at work in the employer’s service. Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2005).
An injury is not considered to have arisen out of and in the course of employment if it occurred while the employee was “on the way to assume the duties of employment or after ieaving such duties, the proximate cause of which injury is not the employer’s negligence.” K.S.A. 2010 Supp. 44-508(f). This is referred to as the going-and-coming rule. See Hughes, 294 Kan. at 413-14. The rule is based upon the premise that “while on tire way to or from work, the employee is subjected only to the same risks or hazards as those to which the general public is subjected.” Sumner v. Meier's Ready Mix, Inc., 282 Kan. 283, 289, 144 P.3d 668 (2006). Therefore, such risks are not causally related to tire employment. 282 Kan. at 289.
Kansas courts have long recognized an exception to die going- and-coming rule where travel is an intrinsic part of the employee’s job. See Hughes, 294 Kan. at 414 (citing Bell v. A.D. Allison Drilling Co., 175 Kan. 441, 264 P.2d 1069 [1953]). While caselawdeems inherent travel an exception to the going-and-coming rule, “it appears the analysis is really whether travel has become a required part of the job such that the employee actually assumes the duties of employment from the moment he or she leaves the house and continues to fulfill the duties of employment until he or she arrives home at the end of the workday.” Craig, 47 Kan. App. 2d at 168-69 (rejecting argument that judicially created inherent-travel exception to K.S.A. 44-508(f) not viable after Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009), because it contradicts clear statutory language); Quintana, 2012 WL 1759430, at *6-7 (same; noting Kansas Supreme Court has not departed from any cases recognizing inherent-travel exception since Bergstrom).
In support of its application of the inherent-travel exception to the going-and-coming rule, the Board majority cited Craig, 47 Kan. App. 2d 164, and Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984). The dissenting Board members distinguished Craig and Messenger, found LaRue v. Sierra Petroleum Co., 183 Kan. 153, 325 P.2d 59 (1958), to be more analogous, and voted for application of the going-and-coming rule.
In Messenger, a drilling crew member died in a truck accident that occurred on his way home from a drill site. The relevant facts were: (1) The drilling company did not hire a new crew near each drilling site; (2) it was tire customary practice in the oil well drilling business that crew members lived at some distance away and traveled daily to reach the job sites; (3) crew members had no permanent job site but, instead, were expected to be amenable to travel to and from drilling sites, sometimes over 200 miles away; (4) crew members were required to provide their own transpor tation, for which they were paid mileage at the rate of 200 per mile; and (5) the drilling company benefited from the industry’s customary transportation arrangements and when crew members agreed to travel. The Messenger court held that the inherent-travel exception was applicable because the drilling crew’s willingness to travel furthered the interests of their employer. In doing so, the court relied on Bell, 175 Kan. 441 (travel inherent because employee was engaged in obligatory service of procuring drilling crew, which was beneficial to both employee and employer). Messenger, 9 Kan. App. 2d at 439-40.
In Craig, a driller was injured in an automobile accident that occurred on his way home from the drilling company’s shop. The relevant facts were: (1) Craig was driving a crew member home at the time of the accident; (2) Craig used his personal vehicle to drive his crew to the oil rig site and back; (3) Craig would not have been hired if he had not been able to transport his crew; (4) Craig was paid mileage for the trips to his crew members’ houses, the shop, and tire oil rig site; (5) Craig was also paid a per diem for showing up and $24 per day for every crew member who showed up; (6) the drilling company sent Craig to the shop to fix the broken oil rig; and (7) Craig’s work at the shop was temporary. The Craig court held that the inherent-travel exception was applicable. In doing so, the court found Messenger to be analogous based on the mileage reimbursement, lack of permanent work site, transportation of a crew member, and mutually beneficial transportation arrangement. Craig, 47 Kan. App. 2d at 170-71.
In LaRue, a drilling crew member died in a car accident that occurred on his way home from a drill site. The relevant facts were: (1) The crew was staying near the drill site; (2) the driller and LaRue decided to travel home, over 100 miles away, and meet the rest of the crew at the new drill site in the morning; (3) the driller was driving LaRue home at the time of the accident; (4) the drilling company did not provide transportation for crew members or authorize the driller to provide such transportation; (5) crew members were not paid mileage; and (6) the proximate cause of LaRue’s death was not the negligence of the drilling company. The LaRue court held that because the travel was strictly personal and did not further the employer s interests, the employee’s death did not arise out of and in the course of employment. See 183 Kan. at 156-58.
The recent Court of Appeals case of Quintana is instructive. Quintana, a drilling crew member, was injured in an automobile accident that occurred on his way home from a drill site. The relevant facts were: (1) Quintana was being driven home by his supervisor, the driller, at the time of the accident; (2) the crew member who drove the crew was paid mileage; (3) the crew members were paid a per diem of $8; and (4) the drilling company benefited from having the driller drive the crew, as was customary in the industry, because the crew would arrive on time and it would not have to hire new workers whenever the rig moved locations, which was every 15 to 20 days.
The Quintana court held that the inherent-travel exception was applicable. In doing so, the court found Messenger to be analogous:
“Quintana was expected to travel considerable distances from his home to the job site. II.D. Drilling, LLC chose not to hire new workers at each new job site location but, rather, relied on the same crew to travel together between the different job sites. Because of this, Quintana was exposed to an increased risk of injury and was injured while engaging in an activity contemplated hy his employer. [Citation omitted.] Quintana’s willingness to travel furthered H.D. Drilling, LLC’s interests. Thus, in his travels, Quintana was performing a benefit for his employer, and therefore his injuries arose out of and in the course of his employment.” 2012 WL 1759430, at *7 (Emphasis added.)
Scott, 294 Kan. 403, is also helpful. Hughes, a driller, got into an automobile accident while he was driving his crew members to a drill site, killing one crew member. The relevant facts were: (1) The crew members could choose to ride with the driller or drive themselves to the drill site, which was about 90 miles away and changed every 12 to 16 days; (2) crew members customarily rode with the driller so that everyone arrived at the same time; (3) the drilling company paid mileage to one driver for the trip to the drill site and back, but not for picking up crew members who lived off the direct route; (4) crew members were paid hourly beginning upon arrival at the drill site; (5) the crew returned home after each workday because the drilling company did not provide lodging or a food stipend; and (6) crew members were paid $15 “ride time” if the drilling site was over 100 miles one way.
The Scott court held that the evidence could only support one finding—that travel was an intrinsic part of the driller s job. But in doing so, the court noted that there was evidence to support a finding that travel was not an intrinsic part of a crew member s job—the crew members were asleep and not being paid for their ride time. The court examined its past oil driller cases for pertinent factors to determine whether the inherent-travel exception to the going-and-coming rule applied. The court’s conclusion was based on two main facts: Hughes was paid mileage—the drilling company’s “explicit recognition that his driving was of benefit to its enterprise” —and he was not on a personal mission. 294 Kan. at 420-22 (noting that the “[pjayment of mileage was critical to the outcome in Messenger”).
The facts of this case are undisputed. Petromark did not hire a new crew at every drill site. Williams, a crew member, had no permanent work site. Instead, he was required to travel to ever-changing drill sites. Roach, tire driller, was paid mileage for driving his crew members to and from the drill site. Whether they drove themselves or rode with Roach, crew members like Williams and LaMaster were not paid for their travel to and from the drill site.
The key to resolution of this case is whether Williams’ travel, at the time of his accidental injury, was furthering Petromark’s interests. There was a mutually beneficial transportation arrangement between Williams (free ride to and from the drill site) and Petro-mark (did not have to pay for crew’s food or lodging or find a new crew at every drill site). But Williams chose to ride from the drill site with LaMaster instead of Roach. Roach’s travel was definitely inherent to his employment because it furthered Petromark’s interests. The same cannot be said of Williams’ travel at the time of his accidental injury. He was on a personal mission to get home sooner. The proximate cause of Williams’ injury was LaMaster’s rather than Petromark’s negligence.
The Board misapplied the law to the facts of this case. The ALJ correctly found that Williams’ claim was barred by the going-and-coming rule. The Board erred by reversing the ALJ and finding the inherent-travel exception to tire going-and-coming rule was applicable.
We reverse the Board’s award and affirm the judgment of tire ALJ that Williams’ injuries were not compensable because they did not arise out of and in the course of his employment.
Reversed. | [
84,
120,
80,
-100,
28,
96,
59,
58,
121,
-41,
101,
19,
-49,
-17,
9,
43,
-29,
117,
85,
3,
-109,
-93,
7,
80,
-58,
-13,
-71,
-56,
56,
75,
36,
84,
72,
16,
10,
-47,
-122,
8,
69,
92,
-114,
4,
-101,
-23,
89,
1,
40,
106,
48,
15,
33,
-124,
18,
14,
16,
79,
13,
46,
107,
-84,
-39,
112,
-5,
7,
126,
16,
-125,
4,
-70,
111,
-36,
26,
-104,
-71,
120,
-88,
82,
-74,
-46,
-12,
99,
-101,
-124,
40,
115,
33,
28,
-27,
-20,
-72,
31,
-38,
-113,
-123,
-80,
57,
51,
59,
-105,
-107,
90,
20,
116,
-2,
-30,
85,
95,
105,
-121,
-57,
-46,
-128,
79,
97,
-100,
-119,
-21,
7,
-93,
103,
-54,
-30,
93,
71,
114,
31,
87,
-78
] |
The opinion of the court was delivered by
Per Curiam:
This appeal raises first-impression issues regarding the burden of proof when a criminal defendant asserts immunity from criminal prosecution under the justified use of force provisions of K.S.A. 21-3219. We hold that the burden of production to negate a claim of immunity rests with the State and the controlling standard of proof is probable cause. Applying those holdings to the facts of this case, we conclude the district court erred in requiring the defendant to prove by a preponderance of the evidence that the use of force was lawful. Nevertheless, we hold this error was harmless.
In another issue we consider alternative means arguments relating to the aggravated battery statute, K.S.A. 21-3414. We hold the Kansas Legislature did not state alternative means of committing aggravated battery by separately referring to “bodily harm” and “(disfigurement” in K.S.A. 21-3414(a)(2)(A) or “causing bodily harm . . . with a deadly weapon” and “causing bodily harm . . in any manner whereby great bodily harm, disfigurement or death can be inflicted” in K.S.A. 21-3414(a)(2)(B).
In response to other issues raised by the defendant, we conclude: The district court did not commit error by not giving a unanimity instruction because the defendant did not commit multiple acts of battery against the victim at issue in count II and, while the district court may have erred in denying the defendant the right to cross-examine witnesses regarding why they did not honor their subpoenas, the error was harmless beyond a reasonable doubt. Accordingly, we affirm.
Facts and Procedural History
Manuel Ultreras directly appeals his convictions for three counts of aggravated battery. In count I, Ultreras was convicted of the aggravated battery of Miguel Mendoza by recklessly causing great bodily harm or disfigurement in violation of K.S.A. 21-3414(a)(2)(A). In counts II and III, Ultreras was convicted of the aggravated battery of two brothers—Victor Urbina-Gonzales and Oscar Urbina, respectively. Count II was also a violation of K.S.A. 21-3414(a)(2)(A) while count III was a violation of K.S.A. 21-3414(a)(2)(B), which prohibits “recklessly causing bodily harm ... to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
The convictions stem from a fight on the night of June 2, 2007, at a bar owned by Ultreras’ father where Ultreras worked. Around 10 p.m., a group of men, including the three victims, arrived at the bar. Several of the men in the group were underage; consequently, the bar employees kept a close watch on the men to make sure those who were underage were not drinking. When two security guards saw Urbina-Gonzales, who was underage, drink from another person’s alcoholic beverage, Ultreras’ brother, who also worked at the bar, approached Urbina-Gonzales. Urbina-Gonzales denied drinking and refused a request to leave. The security guards began to physically escort Urbina-Gonzales out of the bar. Urbina-Gonzales resisted, and Urbina rushed to help him. A fight broke out.
According to testimony from the employees, Urbina-Gonzales punched one of the security guards in the face and Urbina picked up a pool stick as he approached the group. A security guard grabbed the pool stick and shoved Urbina against a ledge. The bar employees continued to move the group to the door.
Ultreras was behind the bar and near the door as the scuffle moved past him. He picked up a metal baton and joined in the fight, which moved outside to the sidewalk. The bar employees testified that, once outside, the group of men kept coming toward them. The employees tried to block the door, but individuals grabbed the door, threw punches, and refused to leave.
Urbina-Gonzales testified the security guards put him in a headlock and Ultreras hit him on “my head, my ribs, my arms,” causing him to “blackout” for a “[c]ouple of seconds, 20, 20 seconds, 15-20 seconds.” He explained he was inside tire club when he blacked out and “[t]he next thing I know we were outside the club. They were still attacking us [on] the sidewalk.” At that point, Ultreras hit him with the metal baton, causing him to lose one tooth and reduction of two other teeth to form a crown.
Urbina testified that when he came to his brother s defense, he told the security guards he would remove his brother from the bar. The bar employees pushed him out of the bar and, once outside on the sidewalk, Ultreras hit him with the metal baton. Urbina testified that after he and his brother moved toward their car, he came back and asked if he could go back inside to retrieve his brother s cell phone. Ultreras denied the request and swung the baton at Urbina’s head. Urbina raised his arm in defense, and the resulting blow to his arm led to a bump that Urbina still had at the time of the trial.
A third victim, Mendoza, testified that he voluntarily left the club after Urbina-Gonzales and Urbina had been removed. Once outside, Mendoza walked across the street, away from the altercation but, after watching the Urbina brothers take additional blows on the sidewalk, he walked to the middle of the street and yelled for the Ultreras brothers and the security guards to stop. Ultreras then approached Mendoza in the middle of the street and said in Spanish, “Oh, you want some too, fucking cowboy.” Ultreras then struck Mendoza in the testicles with the baton, causing Mendoza to double over in pain. According to Mendoza, Ultreras hit him with the baton three more times.
When the police arrived at the scene, several people were “fighting or arguing” in the street. According to officers’ testimony, all three victims were on their feet, agitated, and excited. All three victims refused medical treatment at that time, but a short’ time later Mendoza went to a hospital. He was diagnosed with severe trauma to his right testicle. He remained under a urologist’s care for several months, during which he continued to experience pain and swelling. Approximately 80 days after the incident, he required surgery because of a growing mass in his testicle that was caused by the trauma.
Ultreras was ultimately charged with three counts of aggravated battery. Before trial, Ultreras filed a motion to dismiss claiming immunity from criminal prosecution under K.S.A. 21-3219. He argued his actions were justified in defense of others or property other than a dwelling.
The district court held a hearing on tire motion. At the hearing, the parties argued about who had the burden of proof for the motion and what the proper procedure was for raising an immunity claim under K.S.A. 21-3219. The district court acknowledged that there was very “little law which [gave] . . . any guidance on this particular statute.” Relying in part on a Colorado decision, the court concluded Ultreras, as the movant, had the burden to prove by a preponderance of the evidence that his use of force was necessary. The district court then determined that Ultreras had failed to meet that burden. The court rejected Ultreras’ reliance on defense of property, noting that Ultreras’ testimony indicated that he had not acted in an attempt to prevent property damage as the fight progressed toward the door or because of an attempt to protect the bar’s license. The judge then addressed Ultreras’ claim that he was defending himself or others, stating:
“So really were looking based on your testimony and your brother’s testimony whether or not you have met by a preponderance of the evidence that use of force was necessary in defense of a person. The law does not allow someone to use force to protect someone and then become an aggressor. There is evidence in the record that would support,. .. you did maybe initially get involved in this incident to protect your security guards and your brother, but then once it moved outside you became an aggressor. But that’s ultimately something a jury is going to have to decide. I have to decide merely if there’s enough evidence here by a preponderance that you are entitled to statutory immunity under defense of a person.
“It appears to me that based even on you and your brother’s testimony that you and the security guards were able to handle this situation in a non particularly violent manner. I’m sure there [were] hands on each other and pushing and shoving but you were able to get this group of people outside. You could have shut the door behind you and the situation would have been over. You chose to stay out on the side and by your own testimony that’s when you began hitting the one person you have identified you struck with the metal [baton]. Therefore, based on that evidence it does not appear by a preponderance that you are entitled to statutory immunity
Consequently, the case proceeded to trial, during which the jury was instructed on Ultreras’ theories of defense of others and defense of property. After apparently rejecting Ultreras’ defense, the juiy convicted him on all three counts. His direct appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
Immunity Under K.S.A. 21-3219
Ultreras complains that the district court improperly interpreted tire requirements for establishing immunity from criminal prosecution under K.S.A. 21-3219. He challenges the court’s finding that the burden to prove immunity by a preponderance of the evidence rested with him, argues the court improperly factored his failure to retreat into the immunity consideration, and ultimately disagrees with the district court’s finding drat tire evidence did not prove his use of force was justified.
His arguments require us to interpret and apply K.S.A. 21-3219. Issues of statutoiy interpretation present questions of law over which this court exercises unlimited review. State v. Brown, 295 Kan. 181, 193-94, 284 P.3d 977 (2012); Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 557, 276 P.3d 188 (2012).
K.S.A. 21-3219 provides:
“(a) A person who uses force which, subject to the provisions of K.S.A. 21-3214, and amendments thereto, is justified pursuant to K.S.A. 21-3211, 21-3212 or 21-3213, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer’s official duties and die officer identified the officer’s self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, ‘criminal prosecution’ includes arrest, detention in custody and charging or prosecution of the defendant.
“(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but the agency shall not arrest the person for using force unless it determines that there is probable cause for the arrest. •
“(c) A county or district attorney or other prosecutor may commence a criminal prosecution upon a determination of probable cause.”
In this case, questions of the application of the statute arose after an information and complaint were filed, a summons was issued, and a detached magistrate found probable cause at Ultreras’ first appearance. Hence, procedurally, the case had moved past the stages of prosecution addressed in K.S.A. 21-3219(b) (arrest) and K.S.A. 21-3219(c) (commencing a criminal prosecution). Ultreras, therefore, was seeking immunity from continued prosecution, apparently based on the last sentence of K.S.A. 21-3219(a) that defines “criminal prosecution” to include “charging or prosecution of the defendant.”
He argues that once he raised the issue of immunity under K.S.A. 21-3219 it became the State’s burden to prove that his use of force was not justified. The State argues that a probable cause determination related to the prosecution had been repeatedly made—by the prosecutor before filing the case and by the magistrate who authorized the issuance of a summons. Regarding the first of these determinations, the State suggests that K.S.A. 21-3219(c), which allows a prosecutor to prosecute upon a determination of probable cause, merely incorporates the well-established burden on the State to make a probable cause determination before starting a criminal prosecution. See Kansas Rules of Professional Conduct (KRPC) 3.8 (2012 Kan. Ct. R. Annot. 602) (“The prosecutor in a criminal case shall: [a] refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”). Regarding the second finding of probable cause, K.S.A. 22-2302 requires a magistrate to find probable cause before issuing a warrant or summons. Accordingly, the State contends the legislature must have intended that the probable cause determination in K.S.A. 21-3219 already include a finding that the defendant’s use of force was not justified because, otherwise, subsection (c) would be useless or redundant. See State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006) (“it is presumed that tbe legislature does not intend to enact useless or meaningless legislation”). Once the probable cause determination is made, the State argues that the burden then shifts to the defendant to challenge that decision by filing a motion to dismiss, which should be granted if tire defendant shows by a preponderance of the evidence that his or her use of force was justified.
Ultreras responds that such an interpretation of subsection (c) is “absurd” because the State’s discretion about whether to prosecute exists regardless of the statute. He urges this court to view the statute as providing additional protection for persons justified in the use of force. Specifically, he contends that the only way the statute makes sense is by placing the burden on the party seeking to overcome immunity before subjecting the party seeking immunity to further prosecution.
Case Authority
As the parties point out, there has been only one opinion issued in this jurisdiction addressing K.S.A. 21-3219, McCracken v. Kohl, 286 Kan. 1114, 1120, 191 P.3d 313 (2008), and it is of little assistance to the analysis of the issues presented in this appeal. In that case, McCracken had been charged and had received a preliminary hearing before he filed a writ of habeas corpus claiming he was immune from criminal prosecution under K.S.A. 21-3219. The State filed a motion to dismiss the writ, arguing that a habeas petition under K.S.A. 60-1501 was an improper method for raising the immunity claim because it was a collateral attack on the outcome of the preliminary hearing. The State asserted that the defendant’s claim of immunity must be raised prior to the judicial determination of probable cause. The district court denied the State’s motion and concluded that the writ of habeas corpus was both proper and timely. Nevertheless, after holding an evidentiary hearing, the district court concluded that McCracken had failed to meet'his burden to prove by a preponderance of the evidence that he qualified for immunity under K.S.A. 21-3219.
This court, on direct appeal, declined to address the district court’s denial of the State’s motion to dismiss- regarding the appropriateness of the procedural aspects of the case—that is, the use of the K.S.A. 60-1501 motion to claim immunity and the timing for filing an immunity claim—because the State had' failed to file a cross-appeal raising those issues. McCracken, 286 Kan. at 1119-20. Significant to our consideration, the McCracken court noted: “[W]e have not been presented with any challenge to K.S.A. 21-3219. Therefore, we do not offer any opinion on the statute’s provisions or the burden of proof anomalies which it might create.” McCracken, 286 Kan. at 1120. The court “narrowly restrict[ed]” its decision to the issue as presented by the parties that incorporated, without argument, a preponderance of the evidence standard. McCracken, 286 Kan. at 1120.
Consequently, this court has not addressed tire burden of proof issues regarding which party has the burden of production or determined what standard of proof applies when a defendant seeks immunity under K.S.A. 21-3219 from continued prosecution of a pending criminal case. (For a note on terminology, see Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. 91, 100 n.4, 131 S. Ct. 2238, 180 L. Ed. 2d 131 [2011] [discussing “burden of proof’ and distinguishing “burden of persuasion” that “specifies] which party loses if the evidence is balanced,” “burden of production” that “specifies] which party must come forward with evidence at various stages in tire litigation,” and “standard of proof’ that specifies the “ ‘degree of certainty by which the factfinder’ ” or a reviewing court must be persuaded by the party bearing the burden of production]; State v. Ward, 292 Kan. 541, 562, 567-69, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012].)
Courts in three other states, applying similar statutes, have addressed these questions; however, the results have not been uniform. The Colorado Supreme Court, whose decision was relied upon by the district court in this case, and the Florida appellate courts have held a defendant carries the burden of persuasion and must establish by a preponderance of the evidence that the use of force was lawful. On the other hand, the Kentucky Supreme Court has imposed the burden on the prosecutor to establish probable cause that the use of force was not lawful. A discussion of the rationale of these cases is helpful to our analysis.
The earliest decision is People v. Guenther, 740 P.2d 971 (Colo. 1987). The Colorado Supreme Court began its analysis by acknowledging that the Colorado Constitution prohibits allocating to a de fendant the burden of proving an affirmative defense at trial. The court held that this rule did not apply to Colorado’s immunity from prosecution provisions found in Colo. Rev. Stat. § 18-1-704.5(3) (1986), which provided: “ ‘Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.’ ” Guenther, 740 P.2d at 974. Unlike the Kansas statute, the Colorado statute does not impose a probable cause—or any other—standard for arrest or prosecution. In determining that a defendant should bear the burden of production in establishing that this immunity applied, the Colorado Supreme Court noted:
“There is a constitutionally significant difference in land between requiring a defendant, on the one hand, to bear the burden of proving a claim of pretrial entitlement to immunity from prosecution and, on the other, to carry the burden of proof at trial on an affirmative defense to criminal charges. Section 18-1-704.5(3) creates a benefit to a defendant far greater than an affirmative defense. If the statute is found to apply to the facts of the case, it will completely prohibit any further prosecution of charges for which, but for the statute, the defendant would otherwise be required to stand trial.” Guenther, 740 P.2d at 980.
Given the extraordinary nature of the remedy, the Colorado Supreme Court concluded it was “reasonable to require the accused to prove his entitlement to an order of dismissal on the basis of statutory immunity.” Guenther, 740 P.2d at 980. The court noted that a criminal defendant usually bears the burden of establishing his or her entitlement to dismissal of criminal charges at the pretrial stage of a case and concluded it was appropriate to impose the same burden when a defendant claimed justified use of force immunity. The Colorado Supreme Court also noted that “the accused presumably has a greater knowledge of the existence or nonexistence of the facts which would call into play the protective shield of the statute and, under these circumstances, should be in a better position than the prosecution to establish the existence of those statutory conditions which entitle him to immunity.” Guenther, 740 P.2d at 980.
In determining the standard of proof to be imposed on the defendant, the Colorado Supreme Court weighed the relative merits of a reasonable doubt and a preponderance of the evidence standard; there was no mention of a probable cause standard. The court chose the preponderance standard because it was used if a defendant filed other pretrial motions and a less rigorous standard was consistent with tire expressed legislative intent of ensuring that citizens were afforded maximum safety in their own homes. Guenther, 740 P.2d at 980-81; see People v. Janes, 982 P.2d 300, 302 (Colo. 1999).
The Florida Court of Appeal relied heavily on the Guenther decision in Peterson v. State, 983 So. 2d 27 (Fla. Dist. App. 2008), even though the Florida justified use-of-force immunity statute, Fla. Stat. § 776.032 (2006), differs from the Colorado statute. The Florida statute includes a provision that is almost identical to K.S.A. 21-3219(a). In addition, the Florida statute includes a second subsection that is similar to K.S.A. 21-3219(b). Subsection (2) of the Florida statute provides that “[a] law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.” Fla. Stat. § 776.032(2). The Florida statute does not include a provision similar to K.S.A. 21-3219(c), which the State relies upon in this case.
Citing Guenther, the Florida Court of Appeal held it was the defendant’s burden to show how the immunity attaches by a preponderance of the evidence. Peterson, 983 So. 2d at 29. Once that burden has been met, the trial court may dismiss the action even where issues of material fact remain disputed. 983 So. 2d at 29-30 (trial court must weigh the factual disputes and may not deny a motion simply because those disputes exist). That holding was a departure from Florida’s more general rules of criminal procedure, which required the denial of a motion to dismiss if there were disputed material facts. See Fla. R. Crim. Proc. 3.190(b), (c)(4). In addition, the court noted that a pretrial denial of a defendant’s motion did not preclude the defendant from raising statutory immunity as an affirmative defense at trial. Peterson, 983 So. 2d at 29.
Subsequently, in Dennis v. State, 51 So. 3d 456 (Fla. 2010), the Florida Supreme Court approved the Florida Court of Appeal’s procedural holding in Peterson that allowed a pretrial evidentiary hearing on a motion to dismiss and rejected the State’s contention that the pretrial hearing on immunity should test whether the State has probable cause to believe the defendant’s use of force was not legally justified. The Florida Supreme Court noted that before passage of Florida’s immunity provision the law already required a pretrial nonadversarial probable cause determination by a judge, either before or shortly after a defendant was taken into custody. Hence, the court reasoned that a probable cause standard would malee the grant of immunity meaningless. “Accordingly, the grant of immunity from ‘criminal prosecution’ in section 776.032 must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided to the defendant by rule.” Dennis, 51 So. 3d at 463.
On the other hand, the Kentucky Supreme Court came to the opposite conclusion regarding the burden of production and the standard of proof that apply under that state’s immunity provision. In Rodgers v. Com., 285 S.W.3d 740 (Ky. 2009), the court extensively analyzed the relevant Kentucky statute, which is almost identical to the Florida statute. At trial, Rodgers had relied on Guenther to argue he was entitled to a pretrial evidentiary hearing where he would have the burden to prove by a preponderance of the evidence that his use of deadly force was justified. The court rejected tire argument, finding that the defendant was not entitled to dismissal based on the immunity provision because there were disputed material facts regarding justification.
The Rodgers court rejected most of Guenthers analysis but did conclude that the statute “in effect creates a new exception to the general rule that trial courts may not dismiss indictments prior to trial” because the legislature “has made unmistakably clear its intent to create a true immunity, not simply a defense to criminal charges. This aspect of the new law is meant to provide not merely a defense against liability, but protection against the burdens of prosecution and trial as well.” Rodgers, 285 S.W.3d at 753. The Kentucky court concluded the legislature had clearly stated its intent to create an immunity from defending against criminal charges by defining “criminal prosecution” to include “charging or prosecuting” a defendant. Rodgers, 285 S.W.3d at 753; Ky. Rev. Stat. Ann. § 503.085(1) (Michie/Bobbs-Merrill 2006).
This meant, according to the Kentucky Supreme Court, that courts “may also be called upon to determine whether a particular defendant is entitled” to self-defense immunity. Rodgers, 285 S.W.3d at 754. But, the court noted that the only standard of proof mentioned in the statute is probable cause. Hence, “[r]egardless of who is addressing the immunity claim”—a law enforcement agency making an arrest decision, a prosecutor bringing charges or seeking an indictment; or a court—“the controlling standard of proof remains ‘probable cause,’ ” which could not be established without a determination that the use of force was not justified. Rodgers, 285 S.W.3d at 754. The court explained:
“ ‘[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.’ Just as judges consider the totality of tire circumstances in determining whether probable cause exists to issue a search warrant, they must consider all of the circumstances then known to determine whether probable cause exists to conclude that a defendant’s use of force was unlawful. If such cause does not exist, immunity must be granted and, conversely, if it does exist, the matter must proceed.” Rodgers, 285 S.W.3d at 754-55.
The Kentucky Supreme Court also concluded a- defendant should be able' to invoke' the immunity provision “at the earliest stage of the proceeding” because it was “designed to reheve a defendant from the burdens of litigation.” Rodgers, 285 S.W.3d at 755. In setting out the procedure to be followed, the court directed that once a. defendant raises the issue of immunity, the State has the burden to establish probable cause “and it may do so by directing the court’s attention to the evidence of record including witness statements, investigative letters .prepared by law enforcement officers, photographs and other documents of record.” Rodgers, 285 S.W.3d at 755. The Rodgers court declined to accept the defendant’s argument that he should be allowed to use a procedure like the one approved in Guenther. The court reasoned:
“Although Rodgers advocates an evidentiary hearing at which the defendant may counter probable cause with proof ‘by a preponderance of the evidence’ that the force was justified, this concept finds no support in the statute. The legislature did not delineate an evidentiary hearing and the only standard of proof against which a defendant’s conduct must be measured is the aforementioned probable cause. We decline to create a hearing right that the statute does not recognize. . . .” Rodgers, 285 S.W.3d at 755.
The Rodgers court then distinguished Guenther based on the fact that the Colorado provision related only to home invasion cases and did not define immunity from criminal prosecution as beginning with arrest. Because of this, the Rodgers court concluded that Guenther addressed a far more limited immunity, evaluated only by the courts, and implied that the burden of proof required by the Colorado statute was different than the probable cause standard in Kentucky. Rodgers, 285 S.W.3d at 755-56.
Rodgers also reasoned that other types of pretrial hearings— such as suppression hearings or competency proceedings—were distinguishable because they did not involve proof of the crime charged but instead dealt with ancillary issues such as search and seizure requirements and competency issues. Rodgers, 285 S.W.3d at 755. The court noted that placing the burden on the defendant to prove immunity would create a minitrial and would result in the case being determined in a bench trial. Rodgers, 285 S.W.3d at 755 (“In RCr 9.26 this Court has evinced its strong preference for jury trials on all elements of a criminal case by providing specifically that even if a defendant waives a jury trial in writing, tire court and the Commonwealth must consent to a bench trial.”).
Analysis
As we begin our analysis of K.S.A. 21-3219, we observe, as did the Colorado, Florida, and Kentucky courts, that immunity statutes like K.S.A. 21-3219 provide little guidance as to the procedural aspects of how to apply them. Thus, it is understandable that the district court in this case would look to tire decisions in other jurisdictions and apply Colorado’s analysis. Nevertheless, our study of these cases and a comparison of those states’ statutes to Kansas’ statute lead us to conclude that the probable cause standard rationale in Rodgers and its requirement that tire prosecution carry the burden of production is more consistent with the rules of statutory interpretation that are used in Kansas.
A basic tenet of those rules is that tire intent of the legislature governs if it can be ascertained. To divine legislative intent, a court begins by examining and interpreting the language the legislature used. Only if that language is ambiguous does a court rely on any revealing legislative history, background considerations that speak to legislative purpose, or canons of statutory construction. Generally, a court should not read language into a provision. Brown, 295 Kan. 181, Syl. ¶ 5; Stewart Title, 294 Kan. at 557.
Applying those considerations to the language used by the legislature in K.S.A. 21-3219, the only standard of proof referenced in K.S.A. 21-3219 is to the standard of probable cause. To impose a preponderance of the evidence standard, we would have to add words to the statute. We recognize that both the Colorado and Florida Supreme Courts chose to do so, but we conclude the reasoning of those courts is not persuasive in light of the differences in those states’ statutes as compared to the Kansas statute. In Colorado’s circumstance, it is not surprising that the Colorado Supreme Court found it necessary to add a standard of proof because the Colorado statute, unlike the one in Kansas, makes no mention of any standard. The Florida statute, like the Kansas statute, does refer to a probable cause standard, but only in reference to an arrest; it does not include language like that found in K.S.A. 21-3219(c) providing that a “prosecutor may commence a criminal prosecution upon a determination of probable cause.” With no mention of the standard for initiating a prosecution, the Florida court felt the need to specify one and, in doing so, employed a commonly recognized rule of statutory construction that legislation should not be interpreted in a way that makes it meaningless. Dennis, 51 So. 3d at 463; see Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006) (“‘There is a presumption that the legislature does not intend to enact useless or meaningless legislation.’ ”). In contrast to the Florida statute, however, K.S.A. 21-3219(c) attaches the probable cause standard to the prosecution of a criminal case. Given that legislative direction, it is not necessary for us to guess at what the legislature may have intended.
In addition, contrary to the situation in Florida, applying a probable cause standard in Kansas does not mean that K.S.A. 21-3219 is useless. Generally, a detached Kansas magistrate considering whether to issue a warrant or summons merely determines “that there is probable cause to believe both that a crime has been committed and that the defendant has committed it.” K.S.A. 22-2302(1). Under K.S.A. 21-3219, however, once a defendant raises justified use-of-force immunity before a court, a probable cause determination must also include a determination that the defendant’s use of force was not justified under K.S.A. 21-3211, K.S.A. 21-3212, or K.S.A. 21-3213. Hence, the statute as written with a probable cause standard adds an additional requirement and is meaningful. Consequently, we find no justification to add language not adopted by the Kansas Legislature.
Likewise, K.S.A. 21-3219 does not refer to a burden on a defendant; the statute—specifically K.S.A. 21-3219(b) and (c)—imposes a burden on a law enforcement agency before arrest and on a prosecutor before initiating a prosecution. The plain language infers that tire prosecutor should maintain that burden in prosecuting a defendant. It would be contrary to the language of K.S.A. 21-3219(b) and (c) to impose a burden of production on a defendant to prove immunity before arrest or even before prosecution. As a practical matter, a defendant who was entitled to statutory protection from arrest or prosecution would never be able to obtain that benefit. Such a result would be unreasonable—a consequence we must avoid in construing a statute. See State v. Trautlaff, 289 Kan. 793, 797, 217 P.3d 15 (2009) (courts should construe statutes to avoid unreasonable results). Further, requiring the State to maintain the burden of production is consistent with the burden of production that applies when the issue of justified force is raised as a defense at trial. See State v. Cooperwood, 282 Kan. 572, 582, 147 P.3d 125 (2006) (While the defendant must raise the affirmative defense, the State remains burdened to prove the crime beyond a reasonable doubt.). Evidence of justification simply becomes a consideration in deciding whether the State has met that burden. To impose the burden on the defendant would carve one portion of the proceeding from the general requirement that the State carry the burden of production and that carving would result in a confusing situation of shifting burdens and is not justified by the provisions of the statute. Accordingly, we find that placing the burden with the State to negate a claim of immunity in establishing probable cause is the most reasonable interpretation.
In summary, we find that the standard of proof for whether a defendant is entitled to immunity from criminal prosecution under K.S.A. 21-3219 is probable cause. We further find that the State bears the burden of establishing proof that the force was not justified as part of the probable cause determination required under K.S.A. 21-3219(b) and (c). Because those questions are not before us, we reach no holdings regarding the procedures by which the immunity defense should be presented to or resolved by the district court.
Harmless Error
Based on our holding, the district court in this case erred by imposing the burden of production on Ultreras and by imposing a higher standard of proof than probable cause. Ultreras also argues that the district court erred in failing to recognize that he did not have a duty to retreat and in weighing the facts. We need not discuss these last two claims of error because we conclude that even if the district court erred in all aspects of the immunity ruling, the error was harmless.
We agree with the Florida Supreme Court’s holding in Dennis that the application of an erroneous standard and burden of proof when ruling on a motion to dismiss that is based on a claim of immunity may be harmless error. Dennis, 51 So. 3d at 463; see generally Ward, 292 Kan. 541. Because the claimed error was in application of a statutory right, under the harmless error test of K.S.A. 60-261 and K.S.A. 60-2105, an appellate court must be persuaded there is no reasonable probability the error affected the outcome of the trial in order to find the error harmless. Ward, 292 Kan. at 564-65.
In weighing the impact of the error under Florida’s harmless error standard, the Dennis court noted that the trial court’s pretrial ruling did not limit the defendant’s ability to present his claim of self-defense at trial or otherwise cause the trial to be unfair. Nor was there any indication the evidence in a pretrial proceeding would have been different from the evidence presented at trial. Rather, the issue of self-defense was fully litigated at trial, allowing the jury to weigh all available evidence. Based on that evidence, the jury rejected the defendant’s self-defense arguments and determined beyond a reasonable doubt that the defendant was guilty. In light of those considerations, the court deemed the error harmless. Dennis, 51 So. 3d at 464.
For the same reasons, we conclude the error in this case was harmless. In addition, Ultreras has not argued that there were errors in the jury instructions or suggested any reason to conclude tire juiy did not appropriately consider justified use of force. Yet, in applying the evidence in light of the juiy instructions, the jury rejected Ultreras’ arguments and found him guilty beyond a reasonable doubt. This verdict is supported by substantial evidence that would allow a juror to conclude that Ultreras’ use of force was unreasonable. See K.S.A. 21-3211(a) (“A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessaiy to defend such person or a third person against such other’s imminent use of unlawful force.”). Gonzales-Urbina testified he was awakening from a state of unconsciousness when Ul-treras hit him. Urbina testified he repeatedly said he would remove his brother from the premises but was still attacked, and Mendoza testified he had not been involved in the fight and was standing in the middle of the street away from the altercation on the sidewalk when Ultreras approached him and hit him with the metal baton.
Thus, the record supports a determination that the State offered evidence sufficient for a person of “ordinary prudence and caution to conscientiously entertain a reasonable belief’ of Ultreras’ guilt despite his claim of justified use-of-force immunity. See State v. Puckett, 240 Kan. 393, 395, 729 P.2d 458 (1986) (stating probable cause standard). There was nothing offered at the preliminary hearing, the hearing on the motion for immunity, or the trial that undermined a finding of probable cause. Because the evidence presented by the State meets the probable cause standard, Ultreras was not entitled to immunity from prosecution afforded by K.S.A. 21-3219, and any error in the imposition of an erroneous standard and burden of proof or in the district court’s application of a justified use-of-force defense, including potentially failing to recognize that under K.S.A. 21-3218 Ultreras did not have a duty to retreat, was harmless.
Sufficient Evidence of Alternative Means
Next, Ultreras argues his aggravated battery convictions in count I—for recklessly causing great bodily harm to or disfigurement of Mendoza under K.S.A. 21-3414(a)(2)(A)—and count III—for recklessly causing bodily harm to Urbina with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death could be inflicted under K.S.A. 21-3414(a)(2)(B)—must be reversed because the evidence was insufficient to support a finding of guilt on each of the alternative means for committing the crimes on which the juiy was instructed. To support his argument, Ultreras cites State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), and State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994).
In Timley, the court established what we have referred to as the alternative means rule and its corollary super-sufficiency requirement when it held: “ ‘[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.’ ” Timley, 255 Kan. at 289 (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]). More recently, in Wright, this court explained that the Timley alternative means rule/super-sufficiency requirement “is the only choice to ensure a criminal defendant’s statutory entitlement to juiy unanimity.” Wright, 290 Kan. at 206.
Although Ultreras demands application of the alternative means rule, he does not cite any authority for the proposition that the legislature included alternative means of committing aggravated battery within K.S.A. 21-3414(a)(2)(A) or K.S.A. 21-3414(a)(2)(B). Recently, in State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), we clarified that an appellate court’s first task when faced with an alternative means/super-sufficiency argument is to analyze whether alternatives in a jury instruction define material elements of a crime in a distinct-—-meaning separate or different—manner. Only then do the alternatives state alternative means of committing the crime. Brown, 295 Kan. at 189-90. We have not applied the Brown analytical framework to K.S.A. 21-3414. Cf. State v. Kelly, 262 Kan. 755, 942 P.2d 579 (1997) (considering alternative means arguments under prior version of K.S.A. 21-3414 that varied in wording and structure from version in effect at time of Ultreras’ crimes).
In Brown, we emphasized that “[¿Identifying an alternative means statute is more complicated than spotting the word ‘or’ ” because “ ‘[t]he mere use of a disjunctive in a statute does not an alternative means crime make.’” Brown, 295 Kan. at 193 (quoting State v. Peterson, 168 Wash. 2d 763, 770, 230 P.3d 588 [2010]). We further explained that in determining whether the legislature defined alternative material elements, a court examines if the legislature has prohibited distinct alternative acts, omissions, or possessions—the actus reus element—or distinct alternative states of mind that a defendant must have when committing the act, omission, or possession—the mens rea element. In some crimes, the legislature may also state a causation element by defining the harm or result that must arise from a defendant’s act or omission and may state distinct alternatives. Brown, 295 Kan. at 195 (citing K.S.A. 2011 Supp. 21-5201[a]; K.S.A. 2011 Supp. 21-5202[a]; Peterson, 168 Wash. 2d at 771-72). The crime of battery, as it is typically defined, is a crime that includes a causation element. See Black’s Law Dictionary 162 (8th ed. 2004).
If the legislature has created alternatives as to any one or more of these material elements of the crime, it has created alternative means. Brown, 295 Kan. at 194-95. If, however, the legislature has stated alternatives that merely describe or define a material element or a factual circumstance that would prove the crime, these are secondary matters that state options within a means rather than alternative means subject to the super-sufficiency requirement. Brown, 295 Kan. at 194, 196-99.
In Brown, we discussed some guideposts for determining whether the legislature intended to create alternative means, as opposed to merely options within a means. We noted that in conducting this analysis and determining the legislature’s intent, ordinary rules of statutory construction apply. Brown, 295 Kan. at 193-94. In addition, “[t]ypically, ... a legislature will signal its intent to state alternative means through structure, separating alternatives into distinct subsections of the same statute.” Brown, 295 Kan. at 196 (citing State v. Smith, 159 Wash. 2d 778, 784-86, 154 P.3d 873 [2007]). “Regardless of such subsection design, however, a legislature may list additional alternatives or options within one alternative means of committing the crime.” Brown, 295 Kan. at 196. For further guidance on how to analyze when those additional options are alternative means as opposed to options within a means, we looked to the caselaw of the State of Washington after noting that our alternative means caselaw was based on a similar super-sufficiency requirement imposed by the courts in that state. The Washington courts have determined that options do not state alternative means if the language merely (a) defines other statutory language in a way that elaborates on or describes a material element or (b) describes factual circumstances that prove the crime. Brown, 295 Kan. at 198-200.
With these guidelines in mind, it is helpful to look at the structure of K.S.A. 21-3414 before examining the specific language of subparagraphs (a)(2)(A) and (a)(2)(B). K.S.A. 21-3414 states:
“(a) Aggravated battery is:
(1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or
(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
(2)(A) recklessly causing great bodily harm to another person or disfigurement of another person; or
(B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
The structure of the statute signals that the legislature has defined at least five alternative means of aggravated battery. The five alternatives are divided into two subsections based on alternative, distinct mental states, with subparagraph (1) requiring proof that the defendant acted intentionally and subparagraph (2) requiring proof that the defendant acted recklessly. See K.S.A. 21-3414; State v. O’Rear, 293 Kan. 892, 896, 270 P.3d 1127 (2012). Subparagraphs (1) and (2) are divided into subparts with the causation element— the nature or severity of harm that results from defendant’s action—being the gravamen of each subpart and the feature distinguishing one subpart from another.
There is language in each subpart that expands beyond these basic elements, however, and the questions posed by Ultreras demand that we examine whether this additional language creates distinct elements or merely states options within a means.
Count I and US.A. 21-3414(a)(2)(A)
As to count I, Ultreras argues K.S.A. 21-3414(a)(2)(A) states alternative means by using the phrase “great bodily harm to another person or disfigurement of another person.” (Emphasis added.) We disagree because “disfigurement” is merely a factual circumstance by which “great bodily harm” can be proved.
This court has summarized cases regarding the meaning of the phrase “great bodily harm of another or disfigurement” by stating:
“[T]he term ‘great’ distinguishes the bodily harm necessary from slight, trivial, minor, or moderate harm, and does not include mere bruising, which is likely to be sustained by simple battery. State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877 (1984); State v. Sanders, 223 Kan. 550, 552, 575 P.2d 533 (1978). The same is true with regard to ‘disfigurement.’ ‘Disfigurement’ has no single technical meaning or single definition and should be considered in the ordinary sense. State v. Chandler, 252 Kan. 797, 804, 850 P.2d 803 (1993).” State v. Moore, 271 Kan. 416, 419, 23 P.3d 815 (2001), disapproved of on other grounds by State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003).
While this informs us that the term “great” means the harm or disfigurement cannot be slight, trivial, minor, or moderate, and that disfigurement does not have a single definition, it does not define “bodily harm.” We cannot look to statutes to supply the definition because the legislature did not include a definition in either the aggravated batteiy statute, the statute defining terms in the criminal code, or in the many other statutes using the term. See Paida v. Leach, 260 Kan. 292, 299-300, 917 P.2d 1342 (1996) (construing Protection from Abuse Act, K.S.A. 60-3101 et seq., and citing dictionary definitions, including Black’s Law Dictionary’s definition, of “serious bodily injury” in absence of statutory definition of “bodily injury”); State v. Brown, 181 Kan. 375, 389, 312 P.2d 832 (1957) (in absence of statutory definition of “bodily harm” in G.S. 1949, 21-449, which defined the elements of aggravated kidnapping, defining phrase to mean “any touching of a victim against [the victim’s] will, with physical force, in an intentional, hostile and aggravated manner, or the projecting of such force against the victim by the kidnaper”); see also State v. Sanders, 225 Kan. 156, 158-59, 587 P.2d 906 (1978) (applying definition from Brown); State v. Taylor, 217 Kan. 706, 713-15, 538 P.2d 1375 (1975) (same).
In the absence of a statutory definition for the phrase “great bodily harm” in the aggravated battery statute, the rules of statutory construction direct us to apply the terms’ ordinary meaning because the phrase “great bodily harm” consists of common words. See State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009) (The first step in ascertaining legislative intent is to examine the statutory language, “giving ordinary words their ordinary meanings.”). Hence, as this court did in Paida, we turn to Black’s Law Dictionary, where the editors list the definition under an entry for “serious bodily injury,” noting that phrase is synonymous with “serious bodily harm,” “grievous bodily harm,” and “great bodily injury.” Black’s Law Dictionary 802 (8th ed. 2004); see Paida, 260 Kan. at 300 (noting that “harm” is synonymous with “injury”). Black’s Law Dictionary 802 (8th ed. 2004) defines “serious bodily injury” to mean “[s]erious physical impairment of the human body; esp., bodily injury that creates a substantial risk of death or causes serious, permanent disfigurement or protracted loss or impairment of the function of any body part or organ.” (Emphasis added). This definition of the phrase suggests that the use of disfigurement in K.S.A. 21-3414 merely describes a factual circumstance that proves great bodily harm.
We discussed a similar definition in Brown, 295 Kan. at 199. There, we noted words describing a factual circumstance that proves a statutory element are options within a means and not alternative means, and, in doing so, we looked to Washington case-law to provide an example. We observed that die Washington Court of Appeals had applied the guideline in State v. Laico, 97 Wash. App. 759, 987 P.2d 638 (1999), while discussing a statute Üiat defined first-degree assault as the act of assault that “inflicts great bodily harm/ ” Laico, 97 Wash. App. at 762 (quoting Wash. Rev. Code § 9A.36.011[1][c] [1999]). Washington had another statute tíiat defined “great bodily harm” as “ ‘bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ/ ” (Emphasis added.) Laico, 97 Wash. App. at 762 (quoting Wash. Rev. Code § 9A.04.110[4][c] [1999]).
In explaining the Laico decision, we stated:
“In Laico, die Washington Court of Appeals explained Üiat die Washington assault statute’s description of ‘great bodily harm’ to include ‘ “bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of die function of any bodily part or organ” ’ did not raise an alternative means issue when it was incorporated.into a jury instruction. Laico, 97 Wash. App. at 762. These alternate factual circumstances, the court reasoned, are ‘merely descriptive of a term that constitutes, among other things, an element of the crime of first degree assault.’ Laico, 97 Wash. App. at 763.” Brown, 295 Kan. at 199.
The Laico court’s analysis, which was subsequently approved by the Washington Supreme Court in Smith, 159 Wash. 2d at 788, was based, in part, on the Washington Supreme Court’s guideline that definitions stated in a.separate statute from an elements statute typically do not state alternative means. The Kansas statute does not have this separate definitional provision. Nevertheless, given that the common meaning of the phrase “great bodily harm” includes “disfigurement,” we conclude the term “disfigurement” merely describes a factual circumstance that proves great bodily harm and, as such, is an option within a means and not an alternative means.
Consequently, the super-sufficiency requirement does not apply to tire alternatives stated in K.S>A. 21-3414(a)(2)(A), and Ultreras’ argument that the State failed to prove sufficient evidence of a violation of that provision fails. Ultreras concedes in his brief that Mendoza suffered great bodily harm. Clearly, a reasonable juror could conclude that Mendoza suffered great bodily harm because he suffered an injured right testicle that required months of medical treatment and surgery to remove a mass caused by Ultreras’ hitting Mendoza with a metal baton. See State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012) (reviewing sufficiency of evidence requires examination of evidence in light most favorable to prosecution and determination of whether a rational factfinder could find defendant guilty beyond a reasonable doubt).
Count III and K.S.A. 21-3414(a)(2)(B)
Next, Ultreras raises a super-sufficiency argument regarding his conviction for the crime alleged in count III—recklessly causing bodily harm to Urbina with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death could be inflicted under K.S.A. 21-3414(a)(2)(B). The gravamen of this offense is the level of harm caused under the specified circumstances. Ultreras argues these circumstances state two alternatives—one through the phrase “with a deadly weapon” and a second through the phrase “in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
The initial appeal of this argument evaporates in light of the fact that the phrase “causing bodily harm to another person with a deadly weapon” is synonymous with the phrase “causing bodily harm to another person ... in any manner whereby great bodily harm, disfigurement or death can be inflicted.” The equivalency of the two phrases is revealed in the manner in which this court has defined “deadly weapon.” For example, in State v. Hanks, 236 Kan. 524, 537, 694 P.2d 407 (1985), superseded by statute on other grounds as stated in State v. Borthwick, 255 Kan. 899, 916, 880 P.2d 1261 (1994), this court, in the context of an aggravated battery case, defined a deadly weapon as “an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.” In other words, a deadly weapon is an instrument that can inflict death or great bodily harm, which includes disfigurement. See State v. Anderson, 281 Kan. 896, 912, 136 P.3d 406 (2006) (in determining legislative intent, court can presume the legislature knows the law). Thus, the phrase “with a deadly weapon” describes a factual circumstance that proves bodily harm was caused in a “manner whereby great bodily harm, disfigurement or death can be inflicted” and, as such, is an option within a means rather than an alternative means.
Consequently, Ultreras’ super-sufficiency argument fails. There was evidence that Ultreras used the baton in a manner calculated or likely to produce great bodily harm, disfigurement, or death. Urbina testified that Ultreras tried to hit him in the head, but Urbina raised his arm in defense and the baton hit his arm with sufficient force to cause a bump that was still present at the time of trial. The targeting of Urbina’s head and the level of force with which tire battery occurred present circumstantial evidence that Ultreras used the baton in a manner calculated or likely to inflict great bodily injury, disfigurement, or death. See State v. Murdock, 286 Kan. 661, 669-70, 187 P.3d 1267 (2008) (holding that eyewitness testimony stating the defendant had been wearing brass knuckles and the victim’s testimony stating that he felt something hard and solid hit his head provided circumstantial evidence sufficient “that a rational factfinder could have found the defendant guilty of aggravated battery” when viewed in a light most favorable to the prosecution).
Jury Unanimity
Ultreras claims the aggravated battery charge involving Urbina-Gonzales (count II) was predicated upon multiple acts because the State alleged he struck Urbina-Gonzales while inside the bar and while outside the bar, and his actions inside can be viewed as separate and distinct from those outside the bar. He argues this means there were multiple acts and the district court erred by failing to give a unanimily instruction for count II.
We have explained:
“In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). ... In order to ensure jury unanimity as to the specific act for which the defendant is charged, tire trial court must either require the State to elect the particular criminal act upon which it will rely for the conviction or instruct the jury that all jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt. State v. Voyles, 284 Kan. 239, Syl. ¶ 2, 160 P.3d 794 (2007).
“In Voyles, this court set out a three-part test to determine when a multiple acts situation has occurred such that the jury must agree on the same underlying criminal act. First, the court must determine if the case truly involves multiple acts, i.e., whether the defendant’s conduct was part of one act or represents multiple acts which are separate and distinct from each other. Second, the court must consider whether error occurred, i.e., whether there was a failure by the State to elect an act or a failure by the trial court to instruct. Third, the court must determine whedrer the error is reversible.” State v. Colston, 290 Kan. 952, 961-62, 235 P.3d 1234 (2010).
Discussing the final step, the Voyles court determined that the “clearly erroneous” provision of K.S.A. 22-3414(3) should apply. State v. Voyles, 284 Kan. 239, 245-47, 160 P.3d 794 (2007). The Voyles court 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 there 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 court is firmly convinced that diere is a real possibility the jury would have returned a different verdict if the instruction had been given.” Voyles, 284 Kan. at 253.
Ultreras seeks to advance the unified defense question, which we have traditionally examined during the third step of the analysis, to a consideration impacting the first step of the analysis by arguing there were multiple acts because a juror could have believed Ul-treras acted in defense of property while inside the bar and in defense of himself or others while outside the bar. He suggests the different motivations could lead to the conclusion that Ultreras acted with a different impulse inside the bar than outside. Fresh impulse is a factor traditionally considered in step one of the analysis—the question of whether there are multiple acts, i.e., acts which are factually separate and distinct. See State v. Kesselring, 279 Kan. 671, 683, 112 P.3d 175 (2005). The full list of factors we use when determining whether there is unitary conduct or multiple acts are whether: “(1) the acts occurred at or near the same time; (2) the acts occurred at the same location; (3) a causal relationship existed between the acts, in particular whether an intervening event separated the acts; and (4) a fresh impulse motivated some of the conduct.” State v. Sprung, 294 Kan. 300, 307, 277 P.3d 1100 (2012); accord State v. Schoonover, 281 Kan. 453, 507, 133 P.3d 48 (2006).
Although Ultreras suggests there was a fresh impulse, he concedes die incidents are otherwise not factually separate. Indeed, a review of the record shows that Ultreras’ actions occurred at or near the same time, at the same location, and there was a causal relationship between the acts, which were part of an overall design or objective to remove Urbina-Gonzales from the premises. There is no evidence of a fresh impulse. See State v. Bischoff, 281 Kan. 195, 203, 131 P.3d 531 (2006) (noting that when individual acts are part of an overall “design or objective” they represent a continuing course of conduct). Bar employees other than Ultreras started physically moving Urbina-Gonzales toward the door and a “big wrestling match” ensued. This wrestling match continued past the bar area, and at that point Ultreras joined in with the metal baton. Ultreras’ brother testified they tried to get Urbina-Gonzales out as quickly as possible, and one of the security guards testified they exited not long after they got to the door. All of the bar employees who testified indicated their objective was to move Urbina-Gonzales from inside the bar to outside the bar. Once outside, Ultreras’ brother testified that Urbina-Gonzales was still trying “to throw a big ole fight.” Thus, there was not a break in the action or an intervening act between the course of conduct inside and outside the bar. See State v. Foster, 290 Kan. 696, 714, 233 P.3d 265 (2010) (even though acts of criminal threat were interrupted by other criminal acts, this did not break causal relationship between them or demonstrate fresh impulses). The availability of both the defense of property and the defense of persons, at least under the facts of this case, does not present an interruption in the continuous course of conduct that suggests multiple acts.
Accordingly, we conclude Ultreras cannot meet tire first requirement of the Voyles analysis for establishing multiple acts. Conse quently, we hold that the district court did not err when it did not give a unanimity instruction for the aggravated battery charge involving Urbina-Gonzales.
Opportunity for Cross-Examination
On the first morning of trial, Urbina and Urbina-Gonzales failed to appear as required by their subpoenas. When Ultreras sought to cross-examine the witnesses regarding their failure to honor the subpoenas, the district court refused to allow the testimony, concluding it was not relevant. Ultreras claims the evidence was relevant, his proposed questions were permissible under K.S.A. 60-420 as extrinsic evidence relevant to the witnesses’ credibility, and the district court erred in refusing to allow the testimony.
The threshold determination for the admission of evidence in any proceeding is relevance. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Relevance is established by a material or logical connection between the asserted facts and the inference or result they are intended to establish. Rioja's, 288 Kan. at 383. Relevant evidence, as defined in K.S.A. 60-401(b), is “evidence having any tendency in reason to prove any material fact.” In State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008), we explained that this definition of “relevance” contains both a materiality element and a probative element. There, we held that an appellate court reviews a district court’s determination of materiality de novo and the assessment of probative value under an abuse of discretion standard. Reid, 286 Kan. at 508-09. Here, the district court’s determination seems to have been based on finding, .that the evidence was not material.
Ultreras argues that evidence that the witnesses failed to honor a subpoena is material because a reluctance to testify or general disdain for lawful orders impairs a witness’ credibility.-.The State contends there is no evidence in the record as to why they failed to honor the subpoena, nor is there any evidence indicating they were reluctant to testify. The State argues that the credibility of a witness should not be questioned simply because the State requested a material witness warrant.
We agree with Ultreras’ argument that a failure to honor a subpoena, regardless of the reason, impacts a witness’ credibility. The presence of reasonable explanations would impact the weight of the evidence—its probativeness—rather than its materiality. Accordingly, we conclude drat the district court erred in denying Ul-treras’ request to question dre witnesses as to why they failed to honor their subpoenas.
Typically, the next step of analysis regarding the admissibility of evidence is to apply the statutory rules controlling the admission and exclusion of evidence. Riojas, 288 Kan. at 383. In this case, however, other dran the defendant’s passing reference to K.S.A. 60-420, which indicates that admissibility under that provision is “[s]ubject to K.S.A. 60-421 and 60-422,” die parties have provided no analysis. Given that, we likewise will not determine whether the district court’s ruling may have been correct for a different reason because we conclude the error was harmless.
The parties did not discuss harmless error and, therefore, have not suggested which standard—the constitutional or die statutory harmless error standard—applies in this case. Again, we do not find a need to break this ground on our own because even if we apply the constitutional harmless error standard, which holds the State to the most rigorous burden and thus has the most potential of providing the defendant relief, we conclude the error was harmless. Under this standard, the State, as the party benefitting from the error, has the burden to establish beyond a reasonable doubt that the error “will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, 568-69, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
We have previously stated that
“ ‘[w]hether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, tire presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.’ ” State v. Atkinson, 276 Kan. 920, 930, 80 P.3d 1143 (2003) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 [1986]).
Ultreras contends that exclusion of the credibility evidence was reversible error because the prosecution’s case was built entirely on the credibility of the victims’ testimony. Indeed, credibility was essential and the testimony might have damaged the victims’ credibility, but that does not mean that evidence of a failure to abide by the subpoenas would have affected the outcome of the trial.
We conclude any damage would have been minimal for several reasons. First, Urbina’s and Urbina-Gonzales’ trial testimony regarding the events of the night in question was consistent with their testimony at the preliminary hearing and with their statements to law enforcement officers on the night of the incident. Second, the three victims provided consistent testimony about what occurred that night. Finally, defense counsel was allowed to cross-examine both Urbina and Urbina-Gonzales fully on all other areas of their testimony.
Given the nature of the excluded evidence and the testimony at trial, we hold that exclusion of tire credibility testimony was harmless beyond a reasonable doubt. See Ward, 292 Kan. 541, Syl. ¶ 6.
Affirmed. | [
-48,
-18,
-15,
-65,
11,
97,
57,
-104,
75,
-77,
116,
83,
109,
-38,
-123,
121,
122,
61,
85,
120,
65,
-73,
23,
-55,
-74,
115,
-111,
85,
51,
75,
-18,
-4,
9,
112,
74,
85,
102,
10,
-11,
92,
-114,
0,
-87,
-48,
-61,
2,
-92,
102,
112,
6,
49,
-114,
-13,
10,
26,
-61,
73,
44,
75,
-67,
-127,
-71,
-23,
21,
-36,
16,
-93,
-122,
-100,
35,
80,
43,
-104,
57,
0,
-20,
114,
-90,
2,
-12,
111,
-85,
-88,
102,
98,
33,
-72,
-51,
-24,
-88,
47,
118,
-97,
-89,
-105,
72,
-21,
44,
-106,
-71,
117,
54,
46,
-6,
-11,
12,
31,
108,
-106,
-49,
-112,
-77,
-113,
112,
90,
-6,
-21,
37,
-112,
113,
-58,
-26,
92,
65,
24,
-101,
-98,
-106
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Granted
Unpublished | [
-123,
105,
-99,
31,
-86,
33,
58,
-98,
70,
-113,
98,
95,
-113,
-21,
28,
-39,
-89,
103,
-92,
83,
-36,
7,
119,
101,
-30,
-45,
-77,
-47,
113,
109,
-2,
-48,
78,
-96,
-102,
61,
-26,
-52,
-51,
88,
-122,
23,
-120,
-83,
-48,
97,
36,
35,
-56,
15,
81,
84,
96,
-82,
31,
81,
-52,
62,
-25,
-115,
81,
-19,
-99,
3,
-69,
-108,
-126,
85,
-100,
11,
-64,
102,
-112,
56,
37,
-86,
114,
-26,
-121,
85,
15,
-69,
-95,
4,
26,
48,
-68,
-3,
-80,
-84,
7,
-50,
45,
-92,
-119,
121,
75,
121,
27,
93,
8,
-108,
39,
124,
-29,
-123,
45,
34,
43,
-33,
102,
-93,
95,
40,
12,
11,
-5,
-73,
2,
54,
-49,
-74,
-36,
-30,
37,
11,
-62,
-73
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, James T. Barker, II, of Blue Springs, Missouri, an attorney admitted to the practice of law in Kansas in 1995.
On July 24, 2014, 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 did not file an answer. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 28, 2014, where the respondent did not appear. The hearing panel determined that respondent violated KRPC 5.5(a) (2014 Kan. Ct. R. Annot. 650) (unauthorized practice of law); 7.1 (2014 Kan. Ct. R. Annot. 662) (communications concerning a lawyer s services); 7.5(a) (2014 Kan. Ct. R. Annot. 669) (firm names and letterhead); 8.1(b) (2014 Kan. Ct. R. Annot. 670) (failure to respond to lawful demand for information from disciplinary authority); 8.4(d) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct prejudicial to tire administration of justice); Kansas Supreme Court Rule 207(b) (2014 Kan. Ct. R. Annot. 342) (failure to cooperate in disciplinary investigation); Kansas Supreme Court Rule 208(c) (2014 Kan. Ct. R. Annot. 356) (failure to notify Clerk of the Appellate Courts of change of address); and Kansas Supreme Court Rule 218(a) (2014 Kan, Ct. R. Annot. 414) (notification of clients upon suspension).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“8. On July 31, 2013, the respondent forwarded the annual registration form and associated fee to the Clerk of the Appellate Courts. However, because the fee was received after July 31, 2013, the respondent was assessed a late fee. The Clerk of the Appellate Courts notified the respondent that if he did not pay the late fee, his license to practice law would be suspended.
“9. On August 9, 2013, the respondent entered his appearance on behalf of R.K. in an off-grid felony criminal case in Johnson County District Court, case number 13CR1658, before Judge Kevin Moriarty. Thereafter, Judge Moriarty scheduled the preliminary hearing for October 1, 2013.
“10. The respondent failed to pay the late fee and, as a result, on September 18, 2013, the Kansas Supreme Court issued an order suspending the respondent’s license to practice law. The respondent did not file a motion to withdraw nor did he notify the court, counsel, and his client that his license to practice law had been suspended, as required by Kan. Sup. Ct. R. 218.
“11. On October 1, 2013, the respondent appeared with R.K. for the'prelim-inaiy hearing before Judge Moriarty. The respondent represented R.K. during the preliminary hearing. Additionally, that day, the respondent wrote a letter to the prosecutor requesting a plea offer.
“12. On October 21, 2013, the respondent forwarded the late fee to the Clerk of tire Appellate Courts and requested that his license to practice law be reinstated. On October 31, 2013, the Kansas Supreme Court entered an order reinstating the respondent’s license to practice law.
“13. In December, 2013, Judge Moriarty learned that the respondent’s license to practice law had been suspended from September 18, 2013, through October 31, 2013. Judge Moriarty held a telephone conference with the respondent and the prosecutor. Judge Moriarty gave the respondent the opportunity to investigate the matter and provide a response by December 20, 2013. The respondent failed to provide Judge Moriarty with a response by December 20, 2013.
"14. On December 23, 2013, the respondent wrote to Judge Moriarty, responded in part to the issue, and informed the judge that he was continuing to investigate the matter.
“15. On December 24, 201[3], the prosecutor filed a complaint with the disciplinary administrator’s office. On January 9, 2014, the disciplinary administrator wrote to the respondent and directed the respondent to provide a written response to the complaint within 20 days. The respondent failed to provide a written response to the complaint as directed.
“16. On March 6, 2014, and April 21, 2014, William Delaney, special investigator with the disciplinary administrator, wrote to the respondent and directed him to provide a written response to the complaint. Finally, on April 28, 2014, the respondent sent Mr. Delaney a written response to the complaint.
“17. In his response, the respondent admitted that he practiced law while his license was suspended from September 18, 2013, to October 31, 201[3]. The respondent’s response was written on his letterhead. According to his letterhead, ‘The Law Office of James T. Barker’ is located at ‘605 U.S. Highway 40, Suite 164, Blue Springs, MO 64014.’ However, the respondent does not have a law office at that address. Rather, that address is a UPS Store. The respondent has rented a mailbox at the UPS Store.
“18. On July 24, 2014, the disciplinary administrator filed the formal complaint and notice of hearing. On that date, a copy of the formal complaint and notice of hearing was mailed to the respondent at his last registration address, certified delivery, postage prepaid. The package containing the formal complaint and notice of hearing was returned to the disciplinary administrator and marked, ‘RETURN TO SENDER UNABLE TO FORWARD.’
“Conclusions of Law
“19. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 5.5(a), KRPC 7.1, KRPC 7.5(a), KRPC 8.1(b), ICRPC 8.4(d), Kan. Sup. Ct. R. 207(b), Kan. Sup. Ct. R. 208(c), and Kan. Sup. Ct. R. 218(a), as detailed below.
“20. The respondent failed to appear at the hearing on the formal complaint. It is appropriate to proceed to hearing when a respondent fails to appear only if proper service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon the respondent of tire formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorneys most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the formal complaint and the notice of hearing, via certified United States mail, postage prepaid, to the address shown on the respondents most recent registration. The hearing panel concludes that the respondent was afforded the notice that the Kansas Supreme Court Rules require.
“KRPC 5.5(a)
“21. 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 represented R.K. at the preliminary hearing held on October 1, 2013. Additionally, that same day, the respondent wrote a letter to the prosecutor requesting a plea agreement in R.K.’s case. As such, the hearing panel concludes that the respondent violated KRPC 5.5(a).
“KRPC 7.1 and KRPC 7.5(a)
“22. KRPC 7.1 provides:
‘A lawyer shall not malee a false or misleading communication about the lawyer or the lawyers services. A communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.’
And, KRPC 7.5(a) provides:
‘A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.’
The respondent violated KRPC 7.1 and KRPC 7.5(a) when he used letterhead which made it appear as though he had a physical office located at 605 U.S. Highway 40, Suite 164, Blue Springs, MO 64014, when, in fact, that address is a UPS Store. The respondent’s letterhead is materially false. As such, the hearing panel concludes that the respondent violated KRPC 7.1 and KRPC 7.5(a).
“KRPC 8.4(d)
“23. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he practiced law at a time when his license to do so was suspended. The respondent’s conduct required the court and opposing counsel to examine whether the preliminary hearing in an off grid felony case had to be heard for a second time. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d).
“KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b)
“24. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a]... disciplinary authority,....’ KRPC 8.1(b).
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
Kan. Sup. Ct. R. 207(b). The respondent knew that he was required to timely forward a written response to the initial complaint—he had been repeatedly instructed to do so in writing by the disciplinary administrator and the special investigator. Because the respondent knowingly failed to provide a timely written response to tire initial complaint filed by the prosecutor, the hearing panel concludes that the respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“Kan. Sup. Ct. R. 208(c)
“25. All attorneys are required to provide a current address to the Clerk of the Appellate Courts. Kan. Sup. Ct. R. 208(c) provides:
‘On or before June 1 of each year the Clerk of the Appellate Courts shall mail to each individual attorney then registered in this state, at his or her last known address, a statement of the amount of the registration fee to be paid on or before July 1. Failure of any attorney to receive a statement from tire Clerk shall not excuse the attorney from paying tire required fee. Every registrant shall within thirty days after any change of address notify the Clerk of such change.’
The hearing panel concludes that the respondent failed to notify the Clerk of the Appellate Courts of his current address, because mail sent to that address was returned with a note drat the post office was unable to forward the mail. Therefore, the hearing panel concludes that the respondent failed to update his address with dre Clerk of the Appellate Courts and, in doing so, violated Kan. Sup. Ct. R. 208(c).
“Kan. Sup Ct. R. 218(a)
“26. Upon suspension or disbarment, attorneys must take certain action. Kan. Sup. Ct. R. 218(a) provides the requirements in this regard:
‘Attorney’s Duty. When dre Supreme Court issues an order or opinion suspending or disbarring an attorney or striking the attorney’s name from the roll of attorneys, the attorney must, witirin 14 days of the order or opinion:
(1) notify each client, in writing, that the attorney is suspended, disbarred, or is no longer autirorized to practice law and the client should obtain new counsel;
(2) notify all opposing counsel, in writing, that tire attorney is suspended, disbarred, or is no longer autirorized to practice law;
(3) notify all courts where the attorney is counsel of record and tire chief judge of the district in which tire attorney resides, in writing, that tire attorney is suspended, disbarred, or is no longer authorized to practice law;
(4) file a motion to withdraw in each case in which the attorney is counsel of record; and
(5) notify each jurisdiction, in writing, where the attorney is or has been authorized to practice law that the attorney is suspended, disbarred, or is no longer autirorized to practice law.’
Thus, upon suspension, the respondent was required to notify his clients, opposing counsel, and the courts of the suspension of his license to practice law. The respondent never notified R.K., the prosecutor, or the court of his suspension. Accordingly, the hearing panel concludes that the respondent violated Kan. Sup. Ct. R. 218(a).
“American Bar Association Standards for Imposing Latoyer 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, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“28. Duty Violated. The respondent violated his duly to his client and the legal system to comply with court rules and properly attend to the registration requirements of the practice of law.
“29. Mental State. The respondent knowingly violated his duties.
“30. Injury. As a result of the respondent’s misconduct, the respondent caused potentially serious injury to the legal system.
“Aggravating and Mitigating Factors
“31. 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:
“32. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 5.5(a), KRPC 7.1, KRPC 7.5(a), KRPC 8.1(b), KRPC 8.4(d), Kan. Sup. Ct. R. 207(b), Kan. Sup. Ct. R. 208(c), and Kan. Sup. Ct. R. 218(a). Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
“33. Substantial Experience in the Practice of Lato. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1995. At the time of the misconduct, the respondent has been practicing law for more than 18 years.
“34. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found no circumstances present.
“35. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘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 injuiy or potential injury to a client, the public, or the legal system.’
“Recommendation
“36. The disciplinary administrator recommended that the respondent be indefinitely suspended from the practice of law.
“37. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be indefinitely suspended.
“38. Costs are assessed against the respondent in an amount to be certified by the Office of tire 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) (2014 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of tire 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]).
The respondent was given adequate notice of the formal complaint, to which he did not file an answer; he filed no exceptions to the hearing panel’s final hearing report. With no exceptions before us, the panel’s findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2014 Kan. Ct. R. Annot. 383). Furthermore, the evidence before the hearing panel establishes the charged misconduct in violation of KRPC 5.5(a) (2014 Kan. Ct. R. Annot. 650) (unauthorized practice of law); 7.1 (2014 Kan. Ct. R. Annot. 662) (communications concerning a lawyer’s services); 7.5(a) (2014 Kan. Ct. R. Annot. 669) (firm names and letterhead); 8.1(b) (2014 Kan. Ct. R. Annot. 670) (failure to respond to lawful demand for information from disciplinary authority); 8.4(d) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct prejudicial to the administration of justice); Kansas Supreme Court Rule 207(b) (2014 Kan. Ct. R. Annot. 342) (failure to cooperate in disciplinary investigation); Kansas Supreme Court Rule 208(c) (2014 Kan. Ct. R. Annot. 356) (failure to notify Clerk of the Appellate Courts of change of address); and Kansas Supreme Court Rule 218(a) (2014 Kan. Ct. R. Annot. 414) (notification of clients upon suspension) by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions.
The only remaining issue before us is the appropriate discipline for respondent’s violations. At the hearing before this court, at which the respondent did not appear, the office of the Disciplinary Administrator recommended that the respondent be indefinitely suspended. The hearing panel also recommended that respondent be indefinitely suspended. It is important to note that respondent was served with notice of the hearing before this court by the clerk’s office by certified mail which respondent signed showing his receipt and acceptance of same. When a respondent fails to appear before this court when facing recommendations of indefinite suspension, a sanction greater than that recommended by the Disciplinary Administrator or panel, even up to disbarment, may be warranted. Certainly, the lack of an appearance at a hearing before this court qualifies as an additional aggravator of these circumstances under consideration. See In re Batt, 296 Kan. 395, 294 P.3d 241 (2013). We also note that had the respondent been candid with the district court in December 2013 and followed through with the opportunity to clarify his licensing status at that time, this matter would not likely be before us at all today. However, given the circumstances of this case as it now stands coupled with the Disciplinary Administrator’s continued recommendation of indefinite suspension despite respondent’s absence, we hold indefinite suspension to be appropriate in this case.
Conclusion and Discipline
It Is Therefore Ordered that James T. Barker, II be indefinitely suspended from the practice of law in the state of Kansas, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2014 Kan. Ct. R. Annot. 306).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2014 Kan. Ct. R. Annot. 414), and in the event the respondent would seek reinstatement, he shall com ply with the requirements of Supreme Court Rule 219 (2014 Kan. Ct. R. Annot. 415).
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. | [
-112,
-24,
-33,
93,
-118,
97,
48,
46,
93,
-45,
103,
87,
-23,
-58,
4,
107,
-47,
41,
-112,
123,
69,
-74,
122,
-64,
38,
-5,
-8,
85,
-71,
111,
-28,
-99,
72,
48,
-126,
-43,
6,
-54,
-47,
-36,
-94,
2,
9,
-32,
-39,
65,
48,
105,
19,
15,
17,
-74,
-93,
46,
17,
67,
104,
104,
-3,
-83,
-47,
-47,
-97,
21,
122,
20,
-93,
-115,
-104,
-121,
84,
127,
-120,
56,
35,
-24,
115,
-78,
-118,
101,
79,
-103,
-87,
102,
98,
35,
9,
-91,
-80,
-84,
15,
-80,
29,
38,
-111,
89,
67,
-116,
-106,
-35,
117,
6,
39,
124,
-28,
4,
17,
44,
14,
-50,
-48,
-109,
-97,
101,
-52,
-110,
-17,
-58,
16,
17,
-120,
-26,
95,
-42,
50,
27,
-66,
-75
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.