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The opinion of the court was delivered by
Beier, J.:
This appeal arises out of a dispute over whether the mineral interest conveyed by a 1970 mineral deed terminated after 15 years, despite its recitation that it was “subject to” a continuing oil and gas lease covering the same property. We hold that the mineral deed terminated and thus reverse the district court and the Court of Appeals.
Factual and Procedural Background
Plaintiffs-appellants Larry Netahla and Janet Netahla Curtis are the sole heirs of Joe and Rose Netahla, the grantors. Defendants-appellees Mike Netahla and Debra Francis are the sole heirs of Frank Netahla, the grantee.
On November 24, 1969, grantors and Mack Oil Company entered into an oil and gas lease covering the property. The lease stated, in pertinent part:
“2. Subject to the provisions herein contained, this lease shall remain in force for a term of five (5) years from this date (called ‘primary term’) and as long thereafter as oil, liquid hydrocarbons, gas or other respective constituent products, or any of them, is produced from said land or land with which said land is pooled.
“3. . . . [A]t any time either before or after the expiration of the primary term of this lease, if there is a gas well or wells on. the above land . . . and such well or wells are shut in before or after production therefrom, lessee or any assignee hereunder may pay or tender annually at the end of each yearly period during which such gas well or gas wells are shut in, as substitute gas royalty, a sum equal to the amount of delay rentals provided for in this lease for tire acreage then held under this lease by die party making such payments or tenders, and if such payments or tenders are made it shall be considered under all provisions of this lease that gas is being produced from the leased premises in paying quantities.”
Less than 7 months later, grantors entered into a “Sale of Oil and Gas Royalty,” i.e., a mineral deed, covering the same properly. They conveyed to grantee:
“an undivided one-half interest in and to all of the oil gas and other minerals in and under, and that maybe produced from [description of land], together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas, and other minerals and removing the same therefrom, widi the right at any time to remove any or all equipment in connection therewith.”
The document also contained the following clause, which addressed the existing lease agreement.
“Said land being now under an oil and gas lease executed in favor of, as appears of record, it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes one-half of all the oil royalty, and gas rental or royalty due and to be paid under the terms of said lease.
“It is understood and agreed that one-half of die money rentals which may be paid to extend die term widiin which a well may be begun under the terms of said lease is to be paid to the said Grantee and in the event that die above described lease for any reason becomes cancelled or forfeited dien and in die event an undivided one-half of the lease interests and all future rentals and bonuses on said land for oil, gas and other mineral privileges shall be owned by the said Grantee Frank Netahla owning one-half of all oil, gas, and other minerals in and under said lands, together with one-half interest in all future events.” (Emphasis added.)
The mineral deed concluded with the following limitation on the conveyance:
“TO HAVE AND TO HOLD die above described property, together with all and singular the rights, appurtenance thereto in anywise belonging unto the said Grantee, herein, his heirs and assigns for a period of the next IS years from June 1, 1970 and as long thereafter as oil and/or gas is produced from these premises or the property is being developed or operated and grantors do hereby bind themselves, their heirs, executors and administrators to warrant and forever defend all and singular the said property unto said Grantee herein, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, and agree that the Grantee shall have the right at anytime to redeem for Grantors by payment, any mortgage, taxes or other items on the above described lands, in the event of default of payment by Grantors, and be subrogated to the rights of the holder thereof.” (Emphasis added.)
An affidavit of production was executed on December 3, 1970, stating that a well capable of producing oil or gas had been drilled on the property. The well was later declared a shut-in gas well, and no oil or gas was produced from it from June 1, 1985, until 2003. In 2003, Vess Oil Corporation took over the operation of the lease and began to produce oil or gas from the well.
In August of 2012, plaintiffs filed the declaratory judgment petition underlying this appeal. They sought a declaration that the royalty interest held by defendants had terminated. The district court judge granted the defendants’ motion for summary judgment, declaring that the mineral interest remained “in full force and effect.”
On appeal, a panel of the Court of Appeals affirmed, concluding:
“Because the Mineral Deed specifically states that it is subject to the terms of the oil and gas lease which was already in effect, and the landowner, or Grantor, was a party to both the lease and the mineral deed which were entered within a few months of each other, we find the parties intended that they be read together.” Netahla v. Netahla, 49 Kan. App. 2d 396, 402, 307 P.3d 269 (2013).
The panel further held that “production” as defined in the lease was the same as “production” as defined in the mineral deed; thus “production” could either be actual or constructive. 49 Kan. App. 2d at 402. As a result, “the determinable fee mineral interest ere- ated from the Mineral Deed would also extend beyond its primary term through constructive production.” 49 Kan. App. 2d at 402.
Discussion
Our review of a district judge’s ruling on a motion for summary judgment is “de novo as a question of law, granting no deference to the district court’s judgment.” Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). In this case, resolution of the issue requires us to interpret two written instruments, the lease and the mineral deed. “The interpretation and legal effect of a written instrument is a matter of law over which an appellate court exercises unlimited review.” Hamel v. Hamel, 296 Kan. 1060, Syl. ¶ 2, 299 P.3d 278 (2013).
Defendants argue that “constructive production, via the shut-in provisions of the Lease, . . . peipetuate[s] the Sale of Oil and Gas Royalty’s term interest” because the “subject to” clause in the mineral deed incorporates the lease’s shut-in royalty provision. Plaintiffs, on the other hand, argue that the “subject to” clause is not an incorporation provision. Rather, the “purpose of the ‘subject to’ clause is to protect tire grantor from breach of warranty.”
Generally, “[t]he event which perpetuates the term of the mineral interest must be found in the instrument creating it.” Classen v. Federal Land Bank of Wichita, 228 Kan. 426, Syl. ¶ 4, 617 P.2d 1255 (1980). “A deed or other instrument conveying oil and gas in place for a fixed term of years and so long thereafter as oil and/or gas is being produced from the property or tire property is being developed or operated creates a base or determinable fee.” 228 Kan. 426, Syl. ¶ 3.
This court has previously addressed similar language in another mineral deed.
In Dewell v. Federal Land Bank, 191 Kan. 258, 258-59, 380 P.2d 379 (1963), the landowner conveyed fee simple title to a tract of land by warranty deed but reserved “an undivided one-half interest in the minerals for a term of twenty years ... and ‘so long thereafter as oil, gas and/or other minerals or any of them are produced therefrom, or the premises are being developed or operated.’ ” After that conveyance, both the grantor and grantee executed oil and gas leases covering their one-half interest in the land for a primary term of 10 years “with the usual contingency for perpetuation by production, a shut-in royalty clause, and a provision for unitization.” 191 Kan. at 259. After the leases had been entered into, a well was completed; an affidavit of production was filed; and then shut-in royalty payments were made by the lessee and accepted by both lessors.
The issue in Dewell was whether “the payment of shut-in royalty was the equivalent of ‘being produced or developed’ as tire term is used in the mineral reservation for the purpose of extending the primary term.” 191 Kan. at 260. The parties “conceded that the reserved mineral interest would have expired by its terms ... in the absence of production.” 191 Kan. at 260. The Dewell grantor contended “that the mineral reservation and the separate oil and gas leases executed by the appellant and appellee should be construed together for the purpose of determining die intent of the parties,” citing
“authority to the effect that where two or more instruments are executed by the same parties contemporaneously or at different times in the course of the same transaction and concern the same subject matter, they are to be construed together if doubt is entertained as to the intent of the parties.” 191 Kan. at 261.
This court rejected the argument because “[t]he instruments were not executed by the same parties.” 191 Kan. at 261.
The court noted that
“[t]he shut-in royalty clause contained in the leases was for the sole benefit of the lessee. It is a privilege granted the lessee in lieu of production. It does not purport to convey any estate or rights to anyone else. Neither does it purport to extend the interest of tire holders of the mineral rights.” 191 Kan. at 261.
The court also noted that
“ *[i]t is well settled in this jurisdiction that when a mineral deed has terminated because of failure to produce oil or gas, the court will not extend the term or revive rights which the parties themselves have definitely fixed by their contract . . . and when a mineral deed has terminated because of cessation of production, it is not revived by subsequent production of oil even though it be in the same well.’ ” 191 Kan. at 261. (quoting Wagner v. Sunray Mid-Continent Oil Co., 182 Kan. 81, 318 P.2d 1039 [1957]).
The court concluded:
“The owner of a defeasance mineral interest cannot change the conditions by which the interest is to continue beyond the primary term, by any provision in an oil and gas lease to which the landowner is not a party.
“The payment of shut-in royalty is not the equivalent of production or ‘being developed or operated.’ As the land was not being produced, developed or operated, the mineral interest was not peipetuated or extended beyond the primary term.” Dewell, 191 Kan. at 263.
The case before us today differs from Dewell because the lease here was entered into before the mineral deed, and defendants urge us to rely on this factual distinction to hold that the “subject to” clause in this case did function as an incorporation clause. We decline to do so, finding support in two Texas decisions in circumstances materially identical to those here.
In Kokernot v. Caldwell, 231 S.W.2d 528, 528-29 (Tex. Civ. App. 1950), an oil and gas lease conveyed a mineral interest “for a period of five years ‘and as long thereafter as oil or gas, or either of them is produced from said land by foe lessee.’ ” After the lease was signed, the owner of the land conveyed an interest in the minerals by mineral deed “for a period of 20 years air undivided one-half interest in and to all of the oil, gas and other minerals, in and under, and that may be produced from foe following described land 231 S.W.2d at 529. The mineral deed also contained a “subject to” clause, which stated: “ ‘[I]t is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes one-half of all of the oil royalty, and gas rental or royalty due and to be paid under the terms of said lease.’ ” 231 S.W.2d at 529. At the end of foe 20-year term, a dispute arose over rights to the lease royalties.
The Kokernot grantees made several arguments to support a continuation of their royalty interest past the 20-year term.
Their first argument asserted that
“the mineral rights created and conveyed to them by the amended mineral deed consisted of two separate and distinct estates, first, a one-half mineral estate in tire land described ... for a definite term of 20 year's . . . and, second an interest in one-half of the royalty under the . . . lease which exists so long as oil, gas and minerals are produced under said lease according to its terms.” 231 S.W.2d at 530-31.
See Williams & Meyers, Manual of Oil and Gas Terms 1088 (15th ed. 2012) (attributing “two-grant theoiy” to Hoffman v. Magnolia Petroleum Co., 273 S.W. 828 [Tex. Civ. App. 1925], which held “subject to” clause of mineral, royalty deed referring to existing lease may have effect of second grant “so that the grantee will have one interest in production under the existing lease and a different interest in production under future leases”).
The grantees also argued that “the reference to the lease in the royalty deed incorporates in that deed all provisions of the lease, including the term for which the royalty is to continue.” (Emphasis added.) 231 S.W.2d at 530-31.
The Kokemot court rejected both of the grantees’ “subject to” arguments, holding the mineral interests terminated at the expiration of 20 years. 231 S.W.2d at 532-33. The court noted:
“The term ‘subject to’ as used in the mineral deed has a well recognized meaning. ‘The words “subject to,” used in their ordinary sense, mean “subordinate to,” “subservient to” or “limited by." There is nothing in the use of the words “subject to,” in their ordinary use, which would even hint at the creation of affirmative rights.’ Englestein v. Mintz, 345 Ill. 48, 177 N.E. 746, 752. Shell Oil Co. v. Manley Oil Corporation, 7 Cir., 124 F.2d 714.
“ ‘Subject to,’ as used in conveyances, is a term of qualification and not of contract. Cox v. Butts, 48 Okl. 147, 149 P. 1090; Consolidated Coal Co. v. Peers, 166 Ill. 361, 46 N.E. 1105, 38 L.R.A. 624.
“The last part of the paragraph, ‘* * *, but covers and includes one-half of all of the oil royalty, and gas rental or royalty due and to be paid under the terms of said lease,’ is not a part of the granting clause and there is nothing in the granting clause itself which it could supplement. It was necessary to place this paragraph in the deed in order that appellees would be protected under the general warranty clause; and appellants were entitled (in connection with, and as a part of, the ‘subject to’ clause) to assure themselves that they would receive their share of the royalty under the lease to which their mineral interest, recited in tire granting clause, entitled them.” Kokernot, 231 S.W.2d at 531.
Investors Royalty Co. v. Childrens Hospital Med. Ctr., 364 S.W.2d 779, 780 (Tex. Civ. App. 1963), writ refused n.r.e. (May 8, 1963), reached the same result when a lease had been entered into before a mineral deed, and the mineral deed contained a “subject to” clause.
The conveyance in the mineral deed was “for a period of fifteen (15) years from date hereof and as long thereafter as oil, gas or other minerals, or either of them is produced or mined from the lands described herein, in paying or commercial quantities.” The lease, in contrast, allowed for the payment of shut-in royalties to be the equivalent of production. Grantor argued that the “production” referred to in the mineral deed was actual production, not the constructive production that is the byproduct of payments of shut-in royalties. The court agreed.
“When we look to that paragraph, the term royalty deed terminated after fifteen years plus the period of actual production. The shut-in royalty was paid under the terms of the lease, for a period of thirteen months. During that time there was no actual production. As we understand Archer County v. Webb, supra, this was not a mere temporary cessation of actual production.” Investors Royalty Co., 364 S.W.2d at 78.
The court rejected the grantee’s argument that the “subject to” clause conveyed “something more” and relied on Kokemot in doing so. Investors Royalty Co., 364 S.W.2d at 78.
Defendants urge us to rely instead on Cockrell v. Texas Gulf Sulphur Co., 157 Tex. 10, 299 S.W.2d 672 (1956), as an example of a case in which a “subject to” clause was viewed as an incorporation clause. We are unpersuaded by Cockrell because its subject conveyances and the issues they gave rise to were substantially different from those before us and from those before the court in the Texas cases discussed above.
In Cockrell, the owner of a 729.7 acre tract held in fee simple leased the mineral rights to the whole of the land. The lease contained an entirety clause, which stated:
“ ‘It is further agreed that all the conditions and terms herein shall extend to the heirs, executors, legal representatives, successors in interest and assigns of the parties hereto; but no change of ownership of the land, or part thereof, shall impose any additional obligations or burden on the Lessee, and to that end Lessors hereby covenant for themselves, their heirs, assigns and successors in interest, that in case of any change of ownership of said land, or part thereof, whether by conveyance, will, inheritance, partition or otherwise, all rentals and royalties accruing hereunder shall be paid to the new owners in proportion to their ownership of the whole of the land hereby leased so that no owner of a segregated part of said land shall be entitled to the whole royalties accruing from developments on said segregated tract, but only to such part of such royalty as the acreage in his tract is to the whole acreage embraced in this lease; this covenant shall be taken and construed as a covenant running with the land and binding on all successors in interests to Lessors herein.’ ” (Emphasis added.) 157 Tex. at 13.
After the lease was executed, the owner conveyed portions of the mineral and royalty interests until she “owned, subject to the outstanding leases, ⅛ of the mineral fee interest under the west 400 acres of the 729.7 acres and one-half of the mineral fee interest on the east 329.7 acres of the tract.” 157 Tex. at 12-13. The owner of the land then conveyed the entire 729.7 acre tract by warranty deed to Gulf Production Company. The owner had, however, expressly reserved “ ‘6½ cents per ton ... on all sulphur produced and marketed from the West 400 acres’ ” and “ ‘25 cents per ton ... on all sulphur produced and marketed from the East 329.7 acres.’ ” 157 Tex. at 13-14.
The plaintiff in Cockrell held all the rights that the owner had reserved in the conveyance to Gulf Production. Sulphur had been produced from the west 400 acres, but the east 329.7 acres had been nonproductive. The disputed question was whether the plaintiff was entitled to a royalty based on the entirety clause of the lease or based on the reservation clause of the deed.
The court began its analysis by noting that “a deed can pass no greater estate than that owned by tire grantor” and “that a warranty deed will pass all of the estate owned by the grantor at the time of conveyance unless there are reservations or exceptions which reduce the estate conveyed.” 157 Tex. at 15. It then calculated the royalty interest the owner held in each tract at the time of conveyance to Gulf Production. On the west 400 acres, the owner had conveyed ⅞ mineral interest and retained ⅛ interest. Based on the ownership of the west tract, the owner was entitled to 3.42606551 cents per long ton produced anywhere on the 729.7 acre tract. On the east 329.7 acres, the owner had retained a ½ mineral interest. This entitled her to 11.295737796 cents per long ton produced anywhere on the 729.7 acre tract. The owner’s actual royalty interest would therefore be less than that claimed to be reserved in the mineral deed, but die court observed that it was “clear that [owner] and her grantee could not make a contract for royalty payments which would affect the rights of previous purchasers from [owner], not parties to such contract.” 157 Tex. at 16.
The court then addressed three references in die mineral deed making its conveyance “subject to” the existing lease. The grantee argued that the purpose of the “subject to” clauses was to protect the owner on her warranty. 157 Tex. at 17. The court rejected this argument, however, because of the particular language relating to the individual “subject to” clauses and the fact that the owner had attempted to reserve a larger royalty interest than she actually owned. 157 Tex. at 17. This allowed the court to give effect to the entirety clause of the lease without completely setting aside the sulfur reservations made in the deed. 157 Tex. at 17.
The court concluded:
“Since a ‘subject to’ clause is a limiting clause, and a qualifying term, Kokemot v. Caldwell, supra, the entirety clause of the leases and conveyances referred to [owner’s] deed to Gulf Production Company. To hold with tire defendants is to hold that a repugnancy exists between the entirety clause in the leases and the reservations in the deed, which results in setting aside die entirety clause. It also is to hold that [owner] reserved in her deed more royalty dian she owned at the tíme of the conveyance. To hold that the entirety clause limited and qualified the sulphur royalty reserved will give effect to all parts of die deed, and will not be a holding that [owner] attempted to reserve more royalty dian she owned.” Cockrell, 157 Tex. at 17-18.
Although the Cockrell court ostensibly incorporated the lease into the deed, it did so under circumstances completely distinct from those presented here. And, rather than dealing with the duration of the mineral interest conveyed in a deed, Cockrell addressed apportionment of royalty interests, which had been specifically restricted by the lease. The deed in Cockrell attempted to reserve for the owner a larger mineral interest in the land than was actually owned, and the court was reluctant to give effect to that reservation because it would affect die rights of third parties whose royalty interests had been determined under the lease.
In light of the caselaw cited above, we hold that the “subject to” clause in the mineral deed here did not incorporate the provisions of the lease. We therefore look only at the provisions of the mineral deed itself to determine whether defendants’ mineral interest has terminated.
In Dewell, we established that, absent a provision in a mineral deed stating otherwise, the payment of shut-in royalties pursuant to a lease is not the equivalent of actual production or development. Standing alone, the mineral deed at issue here required actual production for its term to perpetuate. Because it is undisputed that there was no actual production as of June 1, 1985, the defendants’ mineral interest did not continue past its 15-year term.
Conclusion
Under tire authorities and the rationale described above, we reverse the decision of the Court of Appeals panel and the judgment of the district court.
Johnson, J., not participating.
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Atcheson, J.:
In 1992, Beuford Rickabaugh executed a will dividing his estate equally between his granddaughters and, thus, effectively disinheriting their father and his son Everett Rickaba-ugh. When Beuford died 20 years later and the will was presented for probate in the Greenwood County District Court, Everett launched a multifaceted attack aimed at keeping the document from being enforced—meaning he would inherit the estate, likely worth millions of dollars, through intestate succession. The district court rebuffed each of the procedural and substantive challenges from Everett and directed disbursement of Beuford’s estate to An-gella Glasgow and Lisa Rickabaugh, the granddaughters, in accordance with the will. Everett has appealed on a host of grounds. Those points trade on vaiying degrees of infirm legal argument and present no sound reasons for upsetting the judgment in favor of Angella and Lisa. We, therefore, affirm.
The parties to the will contest are well familiar with the exhaustive district court record, including a lengthy evidentiary hearing. Much of that material hasn’t any direct bearing on the issues on appeal. We dispense with any effort to catalogue those proceedings before turning to what Everett claims as error. Everett’s attacks on the will may be broadly characterized as either substantive challenges based on the meaning of the document and its efficacy or procedural challenges arising from ostensible flaws in the probate action. Before turning to the legal arguments, we outline some pertinent factual and procedural signposts in this case. We tiren take up the substantive challenges to tíre will followed by the procedural challenges.
Factual and Procedural Signposts
After a brief hospitalization, Beuford died on April 4, 2012. He was 84 years old. His surviving direct lineal descendants were Everett, Lisa, Angella, and two great-grandchildren. (The will and some court documents spell Angella’s first name in the more common way as “Angela.” The double-l spelling, however, is correct.)
Twelve days after Beuford’s death, a lawyer for the executor of the estate filed a petition to probate the 1992 will and begin the administration of the estate. As the appellate record reflects, the lawyer representing the executor contacted the district magistrate judge’s office and set a hearing on the petition for May 14. No written request for a hearing date was filed, and no written order was entered confirming the hearing date. The lawyer mailed copies of the petition, the will with two codicils, and the notice of hearing to Everett and furnished copies to other interested parties, including Lisa and Angella. The lawyer also had the notice published in a local newspaper on April 19, April 26, and May 3, 2012. A copy of the published notice was filed with the district court 3 days before the hearing. The record does not reflect a written order of the district court directing how and to whom notice should be given.
Everett did not appear at the hearing on May 14. The district magistrate judge admitted the will to probate.
On June 25, 2012, Everett filed a petition to set aside the order admitting the will to probate, asserting an array of reasons. Shortly afterward, the lawyer for the executor filed an affidavit confirming proper service and publication of notice—a filing that should have been made before the May 14 hearing. The lawyer then withdrew from the case.
Everett’s motion marked the first court skirmish as he battled Angella and Lisa over whether Beuford’s will ought to be probated and, if so, how it disbursed the estate assets. With legal teams in tow, both sides undertook discoveiy, filed briefs, and otherwise jockeyed to advance their views on the will’s viability.
In June 2013, the district court entered a lengthy written order rejecting Everett’s procedural challenges—with one exception. The district court found that tire will was not self-proving and no evidence had been submitted at the May 14, 2012, hearing from the witnesses to the will. The district court, therefore, set aside the district magistrate’s order admitting the will to probate and scheduled a new hearing. At the new hearing, the district court reviewed affidavits from the witnesses to the will and other evidence and ruled the will to have been proved. The district court then entered a new order admitting the will to probate, subject to Everett’s remaining challenges.
The district court conducted a 2-day bench trial on those issues in mid-August 2013 and issued another lengthy written ruling in January 2014 rejecting Everett’s contentions, finding the will to be enforceable, and directing tire assets of the estate be distributed to Lisa and Angella. As we have indicated, the bulk of the testimony and other evidence at trial bore on issues Everett has not pursued on appeal in fight of the district court’s adverse factual findings. Everett has timely appealed other substantive and procedural points.
Legal Analysis
1. Substantive Challenges to Beuford’s Will
A. Construction of 1992 Will
Beuford’s 1992 will consists of four double-spaced, typewritten pages, the last of which is taken up with the signatures and declarations of Beuford and two witnesses. The will calls for the payment of Beuford’s debts and expenses with the rest of his estate to go to his wife. Beuford’s wife died before he did. In that circumstance, the will expressly provides that the estate be equally divided between his granddaughters Angella and Lisa, who were then preteens.
The will further provides that the estate assets should be held in trust for Angella and Lisa, and as each turns 30 years old, she should receive half the estate. If either of them were to die before turning 30 years old, her share of the estate would go to her children or if she had no children to her surviving sister. If both Angella and Lisa were to die before turning 30 years old without having children, Beuford names a veterinarian in Emporia as his sole heir. The balance of the will concerns administration of the trust for the benefit of Angella and Lisa and identifies an executor of the estate. The will makes no mention of Everett.
Beuford executed two codicils to the will, the first in 1997 and the second in 2001. The codicils expressly refer to and ratify the 1992 will and name substitute trustees and executors. By the time Beuford died in 2012, Angella and Lisa had passed their 30th birthdays, so the will no longer imposed a trust on the estate assets. The will, however, did not contain a single, explicit description of how the estate should be handled or distributed if Beuford died after his granddaughters turned 30 years old.
Everett seizes on that omission to argue the will simply takes no account of that situation, and, therefore, the bequest must have been conditional on Beuford’s dying before Angella and Lisa turned 30 years of age. In turn, Everett says because the condition failed—Beuford actually lived past both granddaughters’ 30th birthdays'—the bequest terminated, so the pertinent property (effectively the whole estate) should pass by intestate succession. If Beuford died intestate, his assets would go to Everett by operation of law as his only surviving child. K.S.A. 59-506. Angella and Lisa would receive nothing. Everett’s position, however, runs counter to settled Kansas law.
The construction of a written instrument, including a will, presents a question of law when the document, analyzed in its entirety or to its four corners, contains no pertinent ambiguity. In re Estate of Cline, 258 Kan. 196, 199, 898 P.2d 643 (1995); In re Estate of Shoemaker, 22 Kan. App. 2d 444, 446, 917 P.2d 897 (1996). If a survey of the will’s language makes the testator’s intent clear, the document is unambiguous and should be enforced consistent with that intent. In re Estate of Haneberg, 270 Kan. 365, 371, 14 P.3d 1088 (2000); In re Estate of Berryman, 226 Kan. 116, 118-19, 595 P.2d 1120 (1979); CoreFirst Bank & Trust v. Herrman, No. 106,708, 2012 WL 3822858, at *2 (Kan. App. 2012) (unpublished opinion), rev. denied 298 Kan. 1201 (2013). The court need not look to rules of construction or outside evidence. In re Estate of Haneberg, 270 Kan. at 371. Ultimately, “the primaiy function of the court is to ascertain the testator’s intent from the four corners of the will and to carry out that intent if possible!.]” 270 Kan. at 372. As a general matter, a will should be construed so as to avoid intestacy—hardly an astonishing proposition, since that’s the purpose of a will. Parsons v. Smith, Trustee, 190 Kan. 569, 573, 376 P.2d 899 (1962); In re Estate of Crenshaw, 15 Kan. App. 2d 273, 279, 806 P.2d 1014 (1991).
Applying those standards, especially the principle calling for a review of the entire will to discern intent and meaning, the district court correctly rejected Everett’s argument. Even if both grand daughters died before age 30 without children, Beuford declared that his estate should go to a named third party—the Emporia veterinarian—rather than to Everett. Beuford’s desire to disinherit Everett couldn’t have been too much more obvious. Beuford wanted to cut his son out of the will itself (by not mentioning him) and out of his estate (by providing all of the assets be directed to other persons).
Often wills contain provisions explicitly leaving nothing to an identified relative or acquaintance who otherwise might be considered a natural recipient of a portion of the testator’s estate. Such a clause succinctly states that intention and dispels any notion the individual had been inadvertently overlooked in the drafting of the will, especially when, the testator included bequests, large and small, to numerous people of significance to him or her. But that’s not the situation here. And no affirmative statement of disinheritance is required. See In re Estate of Randall, 167 Kan. 62, 66-67, 204 P.2d 699 (1949). There is no ambiguity about what Beuford intended to bequeath Everett—in a word, nothing. See In re Estate of Lester, 191 Kan. 83, 87, 379 P.2d 275 (1963) (disinheritance of relative may be found by “necessary implication” where language of will is such that a contrary intent could not be supposed).
In the same vein, looking at the four corners of the will, there can be no real question Beuford intended that Angella and Lisa share equally his estate if they survived him. The will might have been more direct if it had a specific clause stating Beuford meant for his granddaughters to taire free of the trust if he lived to see them celebrate their 30th birthdays. But the omission didn’t sink Beuford’s intent in a wallow of ambiguity. There was neither a lack of clarity to the will nor an omission of a term critical to its operation if Beuford lived that long.
More to the point, as far as Everett’s argument goes, the bequest was neither conditional nor did it become unenforceable in the absence of a specific clause encapsulating what the whole of the will established. The argument improperly blurs Beuford’s testamentary intent that his granddaughters receive all of the estate assets to the exclusion of Everett with the trust Beuford imposed delaying his granddaughters’ unrestricted access to the assets. The bequest was not conditional in the sense Angella and Lisa were to be divested of the estate property if Beuford lived past their 30th birthdays. Rather, in that circumstance, the limitation he imposed on their control of the estate property would become superfluous.
In other words, the creation of the trust and the detailed discussion of its operation in the will were not directions as to who should receive a portion of tire estate but simply temporary restrictions on how the recipients—Angella and Lisa—could deal with the property should they be less than 30 years old. The intended recipients were indisputably apparent from the overall construction of the will. So if Angella and Lisa inherited under the will after they turned 30 years old, the trust would never become operational and, thus, could impose no condition or limitation on their use of their bequests.
Contrary to Everett’s argument, nothing in the will suggests Beuford intended to divest Angella and Lisa of any inheritance should he still be alive after both of them turned 30 years old. Or, even more oddly, that he intended his will to be of no legal effect in that circumstance, meaning Everett would get eveiything by default. Endorsing Everett’s position would contravene the rule of four-corners interpretation and ignore the presumption against intestacy. Moreover, intestacy in this case would not only violate that presumption, it would obliterate the clear intent of Beuford to leave everything to his living granddaughters to tire exclusion of Everett. The point lacks merit.
Beuford did consult with a lawyer about changing the 1992 will after Angella and Lisa entered adulthood. The lawyer testified during the probate proceedings. According to the lawyer, as early as 2007, Beuford had discussed a new will that would have made comparatively modest bequests to Angella and Lisa, along with provisions covering the cost of college for their children. Beuford had also talked about a similarly modest bequest to Everett. The bulk of the estate ultimately would have gone to charity. The lawyer drafted another will and related trust documents along those lines in 2007 and delivered them to Beuford. She then prepared at least a couple of revised versions oyer die next several years. But Beu-ford never signed them and seemingly demonstrated no great urge to do so, suggesting some ambivalence about the changes and continued satisfaction with the 1992 will. The communications between Beuford and the lawyer have no legal significance in determining the validity or construction of the 1992 will. See K.S.A. 59-611; In re Estate of Rinker, 158 Kan. 406, 415, 147 P.2d 740 (1944) (To revoke a properly executed will, a later will must be “ Valid and effective in every particular/ ”) (quoting Hill v. Kennedy, 134 Kan. 560, 564, 7 P.2d 88 [1932]). What Beuford might have been contemplating in talks with the lawyer had no bearing on his testamentary intent in executing die 1992 will 15 years earlier—a will he left intact as his duly executed testamentary directive.
B. Superseding Will
For his second substantive challenge on appeal, Everett tries to conjure up a phantom 1997 will he says negated the 1992 will. During the probate proceeding, Lisa testified she found an envelope with the phrase “1997 will” written on it among Beuford’s papers. Lisa said she did not open the envelope and gave it to the lawyer representing the executor of the estate. The lawyer testified she did not recall receiving the envelope and was unaware of any superseding will.
To support his argument, Everett offers a chain of inferences that goes this way:
The envelope had “1997 will” written on it. The envelope must have had something in it, and that something must have been a will executed in 1997. The 1997 will would have revoked the 1992 will. Nobody has offered the 1997 will for probate. So Beuford died intestate.
But the links of the chain have been constructed of speculation rather than facts and evidence. And, as such, the argument reflects a classic example of impermissible inference stacking. See State v. Rice, 261 Kan. 567, 586, 932 P.2d 981 (1997) (“ ‘Presumption and inferences may be drawn only from facts established, and presumption may not rest on presumption or inference on inference.’ ”) (quoting State v. Doyle, 201 Kan. 469, 488, 441 P.2d 846 [1968]); Estate of Vredenburg v. National Catastrophe Restoration, Inc., No. 90, 974, 2005 WL 1561032, at *3 (Kan. App.) (unpublished opinion), rev. denied 280 Kan. 982 (2005). The existence of a 1997 will cannot be assumed from testimony that an envelope bore writing identifying the unknown contents to be such a document. (The evidence actually requires a preliminary inference the envelope contained a document and wasn’t empty. But it may be reasonable to infer that a sealed envelope holds something.)
The envelope, of course, easily could have been mislabeled. Here, there is strong circumstantial evidence to that effect. As we have noted, Everett produced no direct evidence of a 1997 will— somebody who had seen it—or corroborating circumstantial evidence—somebody who had heard Beuford speak of it. Very possibly the envelope contained the 1997 codicil to the 1992 will, thereby accounting for the imprecise and technically inaccurate label. The 2001 codicil offers a compelling refutation of Everett’s venture into nearly boundless theorizing. That codicil expressly reaffirmed Beuford’s 1992 will and, rather conspicuously for these purposes, makes no mention of a 1997 will. So the existence of a 1997 will looks to be Everett’s chimera or, in legal terms, an impermissible inference.
Even if it were permissible to infer the envelope contained a will Beuford executed in 1997 (a proposition we doubt), that alone would not carry tire day for Everett. A later will does not automatically revoke an earlier will. Revocation requires either an explicit statement to that effect in the later will or so material a conflict in the terms of the two documents that the testator necessarily must have intended to revoke the earlier one. Boucek v. Boucek, 297 Kan. 865, 874-75, 305 P.3d 597 (2013); In re Estate of Rinker, 158 Kan. at 415-16. Wills executed at different times may be taken together to reflect the testator s intent if they are compatible rather than contradictory. 158 Kan. at 415-16. To say the elusive 1997 will included language revoking the 1992 will either explicitly or by implication of operation would impermissibly pyramid an inference on an inference. Surmising the precise content of a 1997 will nobody saw or heard about—a document the very existence of which is merely an inference—goes way too far. In turn, Everett’s argument doesn’t go nearly far enough to invalidate Beuford’s 1992 will.
2. Procedural Challenges to Probating Beuford’s Will
Everett asserts that deficient procedures in the district court kept Beuford’s will from being timely or otherwise properly admitted for probate, preventing the district court from giving the document legal effect. Were that true, Beuford’s estate would pass by intestate succession to the otherwise disinherited Everett. The district court turned aside those procedural challenges. Although the procedural arguments Everett has reprised on appeal have not been framed with precision, they share a common denominator—none of them warrants relief.
A. Lack of Order Confirming Hearing Date Imposes No Bar
Everett first contends the district court erred in allowing Beu-ford’s will to he probated because the lawyer filing the petition on behalf of the executor never obtained an order from the district court confirming the May 14 hearing date. We perceive no disputed facts related to the contention. There was no order. The legal implications of the settled factual circumstances require interpretation of the probate code and present attendant questions of law. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010) (statutory interpretation question of law); Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011) (legal effect of undisputed facts question of law). We answer those questions without any particular deference to the district court. Amett, 290 Kan. at 47; Estate of Belden, 46 Kan. App. 2d at 258-59.
(1) Filing Petition to Probate Will Sufficient to Avoid Time Bar
Everett characterizes the absence of a separate written order establishing the hearing date for a petition to admit a will to probate as a jurisdictional defect negating die district court’s authority to do anything. District courts are statutorily vested with subject matter jurisdiction over probate proceedings, and the absence of an order setting a hearing date for any sort of petition would not strip away that jurisdiction. See K.S.A. 20-301; In re Estate of Heiman, 44 Kan. App. 2d 764, 766-67, 241 P.3d 161 (2010). Everett’s argument really goes to whether the petition properly presented the will for probate within 6 months after Beuford’s death. As provided in K.S.A. 59-617, a will won’t be enforced if it is filed in the district court more than 6 months after its author has died. As we discuss, the plain language of K.S.A. 59-617 undoes Everett’s argument, since filing is sufficient to meet the deadline. The petition, of course, was filed less than 2 weeks after Beuford died.
Essentially, Everett argues that a petition to probate a will must satisfy the requirements of K.S.A. 59-2204 to be timely, and he says those requirements demand both the filing of the petition and a district court order confirming the hearing date for die petition. As we explain, he is wrong all the way around. Under the current probate code, K.S.A. 59-617 governs die timely filing of a petition to probate a will. Even if K.S.A. 59-2204 were applicable, it does not require a district court order confirming a hearing date.
As die foundation for his argument, Everett relies on In re Estate of Reed, 157 Kan. 602, 612-13, 142 P.2d 824, 831 (1943), and In re Estate of Thompson, 24 Kan. App. 2d 321, 323, 962 P.2d 564, rev. denied 263 Kan. 886 (1997). But Reed considered an earlier and materially different version of K.S.A. 59-617, so the case no longer has precedential weight. Neal v. United States, 516 U.S. 284, 295-96, 116 S. Ct. 763, 133 L. Ed. 2d 709 (1996) (force of precedent or stare decisis construing statute undercut when legislative body later materially changes statutory language); Firstar Bank, N.A. v. Faul, 253 F.3d 982, 989 (7th Cir. 2001) (court should apply stare decisis and adhere to precedential decisions unless “subsequent statutory changes . . . have rendered them infirm”)- And Thompson simply made a mechanical and, thus, mistaken application of Reed without mentioning or appreciating the intervening change in K.S.A. 59-617. In re Estate of Thompson, 24 Kan. App. 2d at 322-23.
To frame die proper interpretation of the present version of K.S.A. 59-617, we first outline the governing principles of statutory construction and then consider die language of that statute as an integrated part of the Kansas Probate Code. In construing a comprehensive statutory scheme such as the probate code, an appellate court must, as a first priority, strive to honor the legislative intent and purpose. In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014). The court should look initially to the words of the statutes to discern legislative intent. Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 725-26, 317 P.3d 70 (2014). If particular language is open to more than one reasonable interpretation, a court may consider the overall statutory purpose and favor a reading that comes to a “consistent, harmonious, and sensible” result effectuating that purpose. In re Marriage of Traster, 301 Kan. at 98; see John M. Denman Oil Co., Inc. v. Kansas Corporation Comm’n, 51 Kan. App. 2d 98, 104, 342 P.3d 958 (2015) (statute reasonably construed to impose joint and several liability on parties responsible for plugged or abandoned oil wells as “supporting] tire obvious statutory purpose of avoiding [water] pollution”). Judicial interpretation should not add something to the statutory language or take away something already there. Casco v. Armour Swift-Eckrich, 283 Kan. 508, Syl. ¶ 6, 154 P.3d 494 (2007). A court, of course, may also deploy those analytical tools to debunk a suggested interpretation of a statute as improbable, particularly when die suggestion would undermine legislative purpose.
The overarching purpose of probate law—and the Kansas Probate Code—is to promptly marshal the assets and liabilities of a dead person with the aim of paying any legitimate debts and distributing what’s left in accordance with the wishes of that person as expressed in a properly executed will or, in the absence of a will, by a statutorily prescribed formula to surviving heirs. The law, then, intends to provide an orderly and timely accounting of the deceased’s financial affairs culminating in the disbursal of assets. See In re Estate of Beason, 248 Kan. 803, 811, 811 P.2d 848 (1991); In re Estate of Thompson, 164 Kan. 518, 190 P.2d 879 (1948). To accomplish that objective, the law places a premium on honoring the declared desire of the deceased as to how his or her net assets be distributed, whether to close relatives, dear acquaintances, or distant charities. In re Estate of Blank, 182 Kan. 426, 431, 320 P.2d 775 (1958) (intention of testator, as expressed in will, must prevail “ 'consistent with tire rules of law’ ”) (quoting In re Estate of Schnack, 155 Kan. 861, Syl. ¶ 2, 130 P.2d 591 [1942]). The process need not be contentious, although, as Everett reminds us in his briefing and by his actions, it may turn adversarial when the representative of an estate disputes asserted debts or when expectant legatees challenge a will they perceive as indecorously slighting them financially.
As provided in the probate code, any “application in a probate proceeding” for district court action must be made “by petition” unless presented orally during a hearing. K.S.A. 59-2201. In turn, a probate proceeding is “commenced ... by filing a petition and causing it to be set for hearing.” K.S.A. 59-2204. And “[w]hen a petition is filed, the court shall fix the time and place for the hearing on it.” K.S.A. 59-2204. Under the probate code, a district court has a range of options in ordering how notice should be given to interested parties and others who potentially may have some stake in or claim against estate assets. K.S.A. 59-2208 (general notice provision requires that “the court shall order notice be given . . . in such manner and for such length of time as the court considers reasonable”); K.S.A. 59-2209 (governing notice by publication and by mail to designated parties when ordered by court or required by statute and directing publication for 3 consecutive weeks beginning within 10 days after “the order fixing the time and place of the hearing”). Those statutes form the procedural skeleton for handling probate petitions generally.
As we have said, a petition to probate a will must be filed within 6 months of the testator’s death—a comparatively short limitations period intended to hasten the pace in settling estates and distributing assets. The current version of K.S.A. 59-617 provides: “No will of a testator . . . shall be effectual to pass property unless a petition is filed for the probate of such will within six months after the death of the testator[.]” The statute, thus phrased in the negative, states when a will can no longer be enforced because it has been presented to the district court too late. The converse positive rule must likewise be true. That is, an otherwise proper will cannot be time barred if a petition to probate has been filed during the 6-month period. The plain meaning of K.S.A. 59-617 dispels Everett’s argument that Beuford’s will should not have been probated for want of a district court order setting or confirming a hearing date. To require more than filing would read something into K.S.A. 59-617 that can’t be found in the statutory language.
Everett’s rebanee on In re Estate of Reed is misplaced. In that case, decided 4 years after the adoption of the probate code, the court construed the original version of K.S.A. 59-617 that contained different operative language. See G.S. 1941 Supp. 59-617; In re Estate of Reed, 157 Kan. at 606. The statute then stated: “No will of a testator . . . shall be effectual. . . unless an application is made for the probate of such will within one year after the death of the testator.” (Emphasis added.) G.S. 1941 Supp. 59-617. In what the decision acknowledged to be dicta, albeit on an issue the parties had presented, the court construed the original version of K.S.A. 59-617 in context with the procedural sections of the probate code. An “application,” the specialized term used in K.S.A. 59-2201, refers to a petition initiating a probate proceeding. In turn, under K.S.A. 59-2204, a proceeding is “commenced ... by filing a petition and causing it to be set for hearing.” The Reed court, then, reasonably read G.S. 1941 Supp. 59-617 to require the commencement of a petition to admit a will to probate to satisfy the time limitation. 157 Kan. at 613. And commencement entails both filing a petition and setting it for hearing. So if K.S.A. 59-617 were now as it was in 1943, when the court decided Reed, Everett would have at least die start of a colorable argument. But it isn’t, and he doesn’t.
The legislature amended K.S.A. 59-617 in 1972 by replacing the requirement that “an application [be] made” to satisfy the time limitation for presenting a will for probate with a requirement that “a petition [be] filed.” L. 1972, ch. 215, sec. 1. The amendment didn’t simply swap synonymous terms; it materially altered the language. Courts presume legislatures intend purposeful change when they revise statutes. Martin v. Kansas Parole Board, 292 Kan. 336, 341, 255 P.3d 9 (2011); Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, 464, 228 P.3d 403 (2010). The amendment effectively negated the dicta in Reed and permitted a district court to consider a petition to probate a will so long as it had been filed within the statutoiy time limit. The current wording of K.S.A. 59-617 is plain and requires only the filing of the petition to avoid the time bar.
As amended in 1972 and effective today, K.S.A. 59-617 operates as a self-contained provision that sets the length of the limitations period for submitting a will for probate and tolls that period upon the filing of a petition to do so. To that extent, K.S.A. 59-617 is a specific statute distinguishing petitions to probate wills from other petitions generally governed by K.S.A. 59-2204. So in addition-to ignoring the plain meaning of K.S.A. 59-617, Everett’s argument elevates K.S.A. 59-2204, as a general statute, over K.S.A. 59-617, a specific statute in contravention of a recognized rule of construction. Merryfield v. Sullivan, 301 Kan. 397, 398,343 P.3d 515 (2015) (specific statute controls over general statute).
Although a court’s assessment of the legislative wisdom behind a statute has no bearing on the construction to be given clear statutory language, see Miller v. Johnson, 295 Kan. 636, 646, 289 P.3d 1098 (2012), an interpretation advancing a sensible purpose does suggest a reasonable reading, cf. State v. James, 301 Kan. 898, 903, 349 P.3d 457 (2015) (court should construe statute “to avoid unreasonable or absurd results”); Siruta v. Siruta, 301 Kan. 757, 763, 348 P.3d 549 (2015) (statute should not be interpreted so part of it becomes surplusage). A degree of preferred treatment for petitions presenting wills for probate furthers the ultimate goal of distributing estate assets in conformity with a testator’s desires expressed in a properly executed will. The limited preference in K.S.A. 59-617 does not otherwise significantly impede the efficient disposition of estates. The will, of course, must be presented to the district court within 6 months of a testator’s death. In the run of cases, tlie recipients of the bequests would have financial incentives to press for prompt action on the petitions. If a petition languished—tlie situation in Reed—a district court could dismiss for a failure to prosecute upon fair notice to the petitioner and other interested parties. See Frost v. Hardin, 218 Kan. 260, 263, 543 P.2d 941 (1975) (district court has inherent authority to dismiss matter for failure to prosecute subject to any statutory requirements). In short, our reading of K.S.A. 59-617 conforms to the plain statutory language, creates no absurdity, and advances the purposes of the probate code.
In its time, Reed correctly construed K.S.A. 59-617 as part of the probate code, but its time passed in 1972. Unburdened by Reed, we hold K.S.A. 59-617 disposes of Everett’s claim because the statute provides that filing a petition to probate a will suffices to avoid the 6-month time bar. Beuford’s will was timely presented.
(2) Even if Petition Must Re Commenced under K.S.A. 59-2204 to Avoid Thne Bar, Order Confirming Hearing Date Not Required
Everett’s claim fails for a second reason. Even if commencing a petition under K.S.A. 59-2204 were necessary to satisfy the 6-month deadline in K.S.A. 59-617, his position demands that the phrase “causing [the petition] to be set for hearing” be read to mean “filing a court order confirming a hearing date.” Particularly in the context of the probate code, the two are not synonymous. Everett’s argument, therefore, depends upon an impermissible judicial rewrite of K.S.A. 59-2204. Although another panel of this court recently endorsed that rewrite in considering a creditor’s petition to open an estate, see In re Estate of Clare, 51 Kan. App. 2d 886, 357 P.3d 303 (2015), we take a different view.
The requirement in K.S.A. 59-2204 obligating a petitioner to cause a petition to be set for hearing does not include having tire district court file a written order stating the hearing date. The court in Reed, 157 Kan. at 612, spoke of the requirement as having the petition “set down” for hearing—a phrase with an old fashioned sound but a distinct legal meaning. See Black’s Law Dictionary 1580 (10th ed. 2014) (“set down” described as having 18th century origins and defined as “[t]o schedule ... for trial or hearing, [usually] by making a docket entry”). Consistent with K.S.A. 59-2204, a petitioner must secure a hearing date from tire district court, effectively placing the petition on a calendar or docket—something that doesn’t require or result in an order. The district court acknowledged that understanding to be the common practice among probate lawyers, at least in the Thirteenth Judicial District.
The practice also conformed to Kansas Supreme Court Rule 131 (2011 Kan. Ct. R. Annot. 224) governing notices of hearing in the district courts at tire time the lawyer set the petition to probate Beuford’s will for hearing. Under tire rule, the party requesting the hearing was to give notice of the hearing date to all other parties unless the clerk, at the direction of the district court, furnished notice. The rule did not require the filing of a court order establishing or confirming dre hearing date. Rule 131 has since been repealed, and the process for scheduling hearings has been incorporated into Kansas Supreme Court Rule 133 (2014 Kan. Ct. R. Annot. 248). Rule 133 does not specifically require a district court order confirming a hearing date.
What does require an order of the district court under the probate code is the way a petitioner must then give notice of the hearing, as set out in K.S.A. 59-2208. Had the legislature intended “commencing” a probate proceeding under K.S.A. 59-2204 to include tire filing of both a petition and an order setting a hearing date, that’s what the statute would have said. But it does not. Conversely, the language of K.S.A. 59-2208 expressly provides the district court “shall order notice to be given” in the manner it “considers reasonable” or as “required by law,” thus incorporating notice by publication outlined in K.S.A. 59-2209. The legislature drew a distinction between setting a petition for hearing and obtaining a district court order directing the manner of giving notice.
The probate code, thus, establishes three distinct steps a petitioner must take to request judicial action: filing of a petition outlining the action sought; “causing” the petition to be “set” for hearing; and then giving notice of the petition and hearing in the manner the district court orders. The statutory language does not require a distinct district court order establishing a hearing date— the hearing date will be incorporated into the notice a district court does order in tire last step of the process. The order directing how the petitioner must give notice, therefore, places the hearing date “of record” in tire district court file. But an order is unnecessary to commence the proceeding under K.S.A. 59-2204.
All of that can be fairly and rather easily drawn from the language of K.S.A. 59-2204 and tire procedures outlined in the probate code. In that respect, K.S.A. 59-2204 is unambiguous, so there is no reason to apply canons of construction to excavate comprehensible meaning from ambiguity. See Sanchez v. U.S.D. No. 469, 50 Kan. App. 2d 1185, 1200-01, 339 P.3d 399 (2014) (no need to resort to canons of construction if statutory language clear, although court should still endeavor to avoid unreasonable interpretation). The Clare panel sought to settle a misperceived ambiguity in K.S.A. 59-2204 by unnecessarily invoicing in pari materia for that purpose. See 51 Kan. App. 2d at 892. The canon of in pari materia calls for related statutes to be construed in a harmonious way, reconciling apparent conflicts, if possible, to effectuate legislative intent. See Neighbor v. Westar Energy, Inc., 301 Kan. 916, 919, 349 P.3d 469 (2015); Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1123, 307 P.3d 1255 (2013).
The Clare decision and Everett’s argument functionally collapse the second and third steps in the probate process into a single requirement with troubling results. Under their approach, die probate code contains a technicality in the form of a written order confirming a hearing date the absence of which would prevent a creditor’s petition to open an estate, as in Clare, or an executor’s petition to probate a will from being timely presented. See K.S.A. 59-2239(1) (creditor’s claim barred if estate not otherwise opened within 6 mondis of death); K.S.A. 59-2219 (content of petition for administration of estate); K.S.A. 59-2204 (commencement of probate petition).That would be true even if the petitioner otherwise secured a hearing date and then gave notice of the hearing in conformity with a court order entered after the 6-month limitation in K.S.A. 59-617 or in K.S.A. 59-2239(1).
As we have discussed, such a reading of the probate code undercuts the fundamental goal of giving legal effect to wills and avoiding intestate distribution of an estate whenever possible. Second, it creates an anomaly in which a petition could be barred because a district court fails to promptly enter an order confirming a hearing date. For example, were a petitioner to present an order to the district court confirming a hearing for a petition to probate a will several days before the 6-month deadline, the petition would nonetheless be time barred if the order didn’t get signed and filed until the following week. The testator s will would become unenforceable because a proposed order sat unattended in a district court office.
Everett, thus, angles to evade Beuford’s testamentary decision to disinherit him by reading into the probate code a requirement for an order that can’t be found in the statutory language and then turning that phantom technicality into a potentially lethal trap. As Everett and the Clare panel would have it, a petitioner seeking to probate a will could be divested of that ability as the result of the district court’s laxity in filing an order—something over which the petitioner has no direct control. Although the Clare decision dealt with a creditor’s petition, its construction of K.S.A. 59-2204 would be equally applicable to a petition to probate a will if we are mistaken about how the 6-month time limitation in K.S.A. 59-617 operates.
We doubt the legislature intended to craft a procedural code in which a foreseeable bureaucratic foul-up carries such dire consequences. To the contraiy, the legislature aimed to prevent that land of catastrophe. Hence, the legislature chose contrasting statutory language in K.S.A. 59-2204 and K.S.A. 59-2208, reflective of the differing purposes of those statutes. Causing a petition to be set for hearing—commencing a probate proceeding—requires no order and effectively places the initiation of the proceeding within the petitioner’s direct control. A district court’s determination on how to give notice of the hearing on the petition requires the filing of a confirming order, a separate and later step intended to insure a fair hearing on the disposition of the petition.
The Clare panel, then, ostensibly reads in pari materia tire requirement in K.S.A. 59-2204 to set a petition for hearing (that makes no mention of an order) with statutes in the probate code referring to orders memorializing district court directions on giving notice of the petition and the hearing. 51 Kan. App. 2d at 893. But K.S.A. 59-2204 deals with the initiation of a probate proceeding, and the other statutes address the disposition of a proceeding— substantively different steps in the process.
Although the language in the procedural statutes is not perfectly symmetrical, tire statutory scheme fails to support the idea the legislature intended a petitioner to obtain a district court order confirming a hearing date to commence a petition under K.S.A. 59-2204. The legislature would have clearly required an order if that were its intent, just as it actually did with regard to giving notice. See Casco, 283 Kan. 508, Syl. ¶ 6; SW General, Inc. v. N.L.R.B., 796 F. 3d 67, 75 (D.C. Cir. 2015) (“ ‘[W]e have repeatedly held that where different terms are used in a single piece of legislation, tire court must presume that Congress intended tire terms to have different meanings.’ ”) (quoting Vonage Holdings Corp. v. F.C.C., 489 F.3d 1232, 1240 [D.C. Cir. 2007]). Moreover, the Clare panel’s holding would inevitably thwart a fundamental purpose of probate law—the payment of legitimate debts—without serving any particularly worthy objective. See In re Marriage of Traster, 301 Kan. at 98. Those principles of statutory interpretation hold far greater sway here than an awkward application of the in pari materia canon and should prevail.
Perhaps the best argument for an in pari materia reading of the procedural probate statutes derives from language in K.S.A. 59-2209, governing notice by publication. The statute kicks in when another probate statute specifically requires notice by publication. Part of K.S.A. 59-2209 provides that the first publication of the notice must be “made within 10 days after the order fixing the time and place of the hearing.” The Clare panel cites that provision to support its idea that causing a petition to be set for hearing requires the filing of a confirming district court order. And, in turn, that idea upends the meaning of K.S.A. 59-2204. Slip op. at 12.
The sounder in pari materia construction of the language in K.S.A. 59-2209 would look principally to K.S.A. 59-2208, the closely related statute governing notice generally. As provided in K.S.A. 59-2208, the district court must enter an order directing that notice be given as “required by law”—situations mandating publication under K.S.A. 59-2209—or as otherwise “deemed necessary.” An order issued in conformity with K.S.A. 59-2208 is to set forth “such manner and . . . such length of time” required for appropriate notice. For notice by publication, that order necessarily must include the time and place for the hearing, since that time dictates the date of initial publication. So the order referred to K.S.A. 59-2209 as fixing the time and date presumably would be the one required by K.S.A. 59-2208. Applying the in pari materia canon that way reasonably reconciles the procedural provisions of the probate code and offers a harmonious reading of them. Moreover, the reconciliation avoids the thunderous effects of Clare in imputing a doubtful meaning to the causing-to-be-set-for-hearing language in K.S.A. 59-2204 and in preventing petitions from being decided for want of orders confirming hearing dates, a procedural obligation found nowhere in the code. Assuming the statutes need to be viewed using in pari materia at all, the Clare panel seems to look through the wrong end of the telescope.
For further support, the Clare panel draws on the analogy from In re Estate of Reed likening the commencement of civil actions under Chapter 60 to the commencement of probate proceedings. Slip op. at 6-8. The Reed court first pointed out Chapter 60 plaintiffs not only had to file petitions but also had to issue summonses for the defendants and then completed the analogy by concluding a probate petitioner had to file a petition and cause it to be set for hearing to commence a proceeding. In re Estate of Reed, 157 Kan. at 612-13. The court, however, merely invoked the statutory language of K.S.A. 59-2204 and never elaborated on the mechanics of causing a petition to be set for hearing. We think the analogy simply meant to illustrate that a probate petitioner had to take a step beyond filing the petition—not that the step entailed securing an order of the district court. Just as a Chapter 60 plaintiff can issue a summons without a district court order, a probate petitioner can cause the petition to be set for hearing without an order. The Clare panel overextends the analogy to create a requirement in K.S.A. 59-2204 beyond the direct control of the petitioner.
In sum, the language of K.S.A. 59-2204 does not require the filing of a district court order confirming a hearing date on a petition to commence a probate proceeding. Both Everett and the Clare panel misconstrue the statute to say otherwise. The absence of such an order here did not render the executor’s petition to probate Beuford’s will untimely and the will unenforceable.
B. Late Filing of Affidavit of Service Does Not Bar Will
The lawyer for the executor of Beuford’s estate did not file an affidavit confirming service of notice for the May 14, 2012, hearing to probate the will until after the hearing. The filing was indisputably delinquent. See K.S.A. 59-2211 (affidavit of service of notice to be filed before hearing). Everett argues the late filing of the affidavit of service prevents the will from being admitted for probate. The requested relief is extravagant, and the argument lacks merit. As with the first procedural point, we don’t perceive any disputed facts related to this contention. The issue, therefore, presents a question of law.
The affidavit avers notice of the May 14 hearing was sent to Everett well before then. In its order of June 6, 2013, the district court made a factual finding that Everett received actual notice in advance of the May 14 hearing, although he did not appear personally or through counsel. Under those circumstances, Everett could not have been prejudiced, so we fail to see how he could claim any relief based on the tardy filing of the affidavit of service.
Giving Everett every benefit, however, we put all of that aside and assume he received no advance notice of the May 14 hearing. Our gratuitous assumption favoring Everett leaves the question of remedy. At best, Everett would be entitled to set aside the order from the May 14 hearing admitting Beuford’s will and to insist on adequate notice of a new hearing to take up the petition. That remedy would afford Everett constitutional due process and protect his rights in the probate proceeding. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ [Citation omitted.]”); State v. King, 288 Kan. 333, 354, 204 P.3d 585 (2009); Winston v. Kansas Dept. of SRS, 274 Kan. 396, 409-10, 49 P.3d 1274, cert. denied 537 U.S. 1088 (2002). And it would impose strict compliance with die probate code. Everett would be entitled to no more. There is no legal or logical basis to say the petition to admit the will to probate should have been dismissed-—-and the will, thus, rendered ineffective—because interested parties had not received adequate notice of the hearing on the petition. See In re Estate of Dumback, 195 Kan. 26, 29, 402 P.2d 779 (1965) (defect in notice of hearing on petition to probate will did not deprive court of subject matter jurisdiction and, at most, made notice voidable).
Moreover, the district court did, in fact, order a new hearing on the petition because Beuford’s will was not self-proving and the executor presented no evidence from the witnesses at the May 14 hearing. As a practical matter, Everett actually got as much relief as he could possibly have been entitled, albeit for reasons other than the dubious merits of his argument. In short, Everett has not shown any prejudice as a result of the late filing of the affidavit of service. Under no circumstance would he have been entitled to prevent Beuford’s will from being probated because of the late affidavit. The district court ruled correctly, and we affirm that ruling.
C. No Written Request for Hearing Date Required
For the first time on appeal, Everett contends the petition to probate Beuford’s will was improperly before the district court because the lawyer for the executor never filed a written request for a hearing date. We could reject the argument because Everett did not assert it in the district court. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). His position, however, is meritless. The probate code contains no such requirement. Even if it did, Everett cannot show he suffered any actual prejudice as a result. As the record amply demonstrates, the district court gave him a full and fair opportunity to assail the efficacy of Beu-ford’s will. The probate code does not brook the subversion of a testator’s otherwise valid will based on technicalities. See K.S.A. 59-2211 (“No defect in any notice or in its service, not affecting the substantial rights of the parties, shall invalidate any proceedings after such notice and the proof of its service have been approved by the court.”); Dumback, 195 Kan. at 29.
D. District Court’s Order for New Hearing to Admit Will to Probate Does Not Result in Time Bar
Finally, Everett fashions a strange argument based on K.S.A. 60-260(b) to the effect that the district court’s ruling setting aside the original order admitting Beuford’s will to probate somehow voided the petition itself—requiring tire executor to file a new petition that would have been time barred. Everett cites no authority for this point. We aren’t surprised, since the very recitation of the proposition suggests waywardness.
Under K.S.A. 59-2213, an interested party may act to set aside an order or judgment as provided in K.S.A. 60-260(b). In turn, K.S.A. 60-260(b) outlines five specific bases on which a court “may relieve a party . . . from a final judgment, order, or proceeding” and a sixth catch-all provision covering “any other reason” warranting relief. Everett’s request to set aside the order admitting Beuford’s will for probate following the May 14 hearing came within K.S.A. 59-2213 and was, therefore, governed by K.S.A. 60-260(b). As the district court found, Everett correctly asserted Beu-ford’s will was not self-proving and no evidence was presented at the May 14 hearing to otherwise prove its validity. The district court set aside the order and scheduled a new hearing.
Everett contends tire district court invoked the wrong relief under K.S.A. 60-260(b). And that’s where his argument ventures into legal fantasy. Everett says the petition to admit Beuford’s will “merged” into the order entered following the May 14 hearing and, as a result, ceased to exist for any legal purpose. So, according to Everett, when tire district court set aside that order, the executor of Beuford’s estate had to file a second petition to admit the will to probate and that petition would have been outside the 6-month deadline in K.S.A. 59-617.
The lynchpin of Beuford’s argument is the ostensible merger of the petition and tire order, thereby treating the two as inextricably bound with respect to the remedy. But neither K.S.A. 60-260(b) nor its federal counterpart, Fed. R. Civ. P. 60, operates that way. A successful request for relief vacates the order or judgment but leaves the underlying case and the original pleadings intact. See Price v. Wyeth Holdings Corp., 505 F.3d 624, 631-32 (7th Cir. 2007) (under Rule 60[b] [4] court must vacate judgment rather than dismiss action); United States v. Certain Property Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1318 (11th Cir. 1997) (appellate court applied Rule 60[b][6] to vacate default judgment entered against property owners in forfeiture proceeding but did not order dismissal of action). The Kansas appellate courts regularly look to federal authority construing Fed. R. Civ. P. 60 for guidance. See Montez v. Tonkawa Village Apartments, 215 Kan. 59, 62-63, 523 P.2d 351 (1974); In re Marriage of Mullokandova and Kikirov, No. 108,601, 2013 WL 5422358, at *3 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1269 (2014).
Accordingly, Everett has no legitimate claim to relief on the notion that die district court’s ruling vacating the May 14 proceedings and the resulting order admitting Beuford’s will to probate rendered the original petition a legal nullity. We reject the point.
Conclusion
Having thoroughly considered the arguments of the parties and the record on appeal, we find no sound legal grounds for disturbing the rulings of the district court admitting Beuford Rickabaugh’s will to probate and ordering the distribution of the estate assets to Angella Glasgow and Lisa Rickabaugh in conformity with the will.
Affirmed.
Although Beuford’s testamentary intent embodied in the 1992 will is clear, the will doesn’t address what should happen if either or both granddaughters were to die before Beuford but after turning 30 years old. Those circumstances are not the facts of this case, and that hypothetical possibility doesn’t dimmish Beuford’s intent. Rather, the will could have resulted in a lapsed bequest had the world taken such a turn. See In re Estate of Haneberg, 270 Kan. at 372 (lapse occurs when person named as beneficiary dies before testator); 80 Am. Jur. 2d Wills § 1408 (circumstances resulting in lapse of bequest entail death of individual beneficiary or dissolution of corporate beneficiary rendering testamentary gift impossible). The Kansas anti-lapse statute would have substituted the children of the granddaughters as beneficiaries had either of them predeceased Beuford after turning 30 years old. K.S.A. 59-615(a). But Everett might have had an argument for taking through intestate succession based on lapse had Angella and Lisa died without children after turning 30 years old, since the will had no applicable residuary clause. See In re Estate of Haneberg, 270 Kan. at 373. Because Angella and Lisa survived Beuford there was no lapse. As we have explained, the bequests to them were not conditional—Beuford plainly intended his granddaughters to share his estate if they survived him.
The ruling in Thompson, endorsing Reed, does not itself impose a prece-dential barrier for us, since one panel of this court is not bound by a published decision of another panel. See State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010); Osterhaus v. Toth, 39 Kan. App. 2d 999, 1008, 187 P.3d 126 (2008), aff'd 291 Kan. 759, 249 P.3d 888 (2011).
Over tire past 75 years, the Kansas Legislature has regularly, if infrequently, shortened the time for submitting a will for probate. The probate code, adopted in 1939, cut the time from 3 years to 1 year. In 1972, the legislature reduced the time to 9 months. L. 1972, ch. 215, sec. 1. The time was trimmed to the current 6 months in 1985. L. 1985, ch. 191, sec. 8.
Before completing our excursion into history, we mention that until court unification in 1977, specially designated probate courts had exclusive original jurisdiction over probate matters. Unification disbanded various specialized courts with limited subject matter jurisdiction and consolidated jurisdiction in the district courts. See generally In re Estate of Heiman, 44 Kan. App. 2d at 766-68. Unification itself did not alter the state’s substantive probate law, 44 Kan. App. 2d at 771, and has no particular bearing on the issues in this case.
As we have indicated, In re Estate of Thompson, 24 Kan. App. 2d at 322-23, doesn’t help Everett. Not to belabor the point, the brief panel opinion in Thompson simply applied the dicta in Reed construing G.S. 1941 Supp. 59-617 without considering the material change the legislature made to the statute with the 1972 amendment. The Thompson decision did not independently consider, construe, or apply the controlling version of K.S.A. 59-617, and it offered no rationale for the result apart from the authority of Reed. Because Reed no longer had prece-dential force precisely because of the statutory amendment, the decision in Thompson is likewise unpersuasive, even though it was issued well after tire amendment. | [
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McAnany, J.:
Our legislature has provided a procedure found in K.S.A. 65-4901 et seq. for evaluating medical malpractice claims either before suit is brought on the claim or after a medical malpractice action has been commenced. The procedure calls for the district court to convene a screening panel. The nonvoting chairperson of the panel is an attorney appointed by the court. When suit has not yet been brought, the panel members shall consist of a health care provider selected by the complainant, a health care provider selected by the person or entity against whom the claim is made, and an additional health care provider jointly appointed by the claimant and the opposing person or entity. The panel thus constituted then meets and determines whether, in the panels opinion, the person or entity against whom the claim is made breached the applicable standard of care and, as a result, caused damages to the claimant. The panels written report may be admitted into evidence at any subsequent legal proceedings on the claimants claim.
This appeal arises out of the district courts decision to dismiss a medical malpractice screening panel requested by Daniel Macias, an inmate at the Lansing Correctional Facility. Macias requested a screening panel “to evaluate his case and render an opinion regarding tire incompetence of C.C.S. and its [sic] contract physicians in this matter.” C.C.S. is Correct Care Solutions, Inc., which is alleged to have contracted with tire Kansas Department of Corrections to provide health care to Kansas prison inmates. The “contract physicians” Macias referred to are Drs. Lawhorn, Corbier, Harrod, and two “John/Jane Doe” physicians.
Macias sought a screening panel to evaluate the treatment he received during the period 2004 through 2012 for sinus infections and abdominal pain. He received various medications for these conditions, but he does not make any specific claim that providing any of these medications for his conditions was negligent other than a generalized claim that prescribing these drugs for him was a “guinea pigging of medications.”
Macias claims Dr. Sunderland recommended nasal septal reconstruction surgery but that Dr. Lawhorn denied this surgery in 2008. Macias does not contend that Dr. Sunderland was right and Dr. Lawhorn was wrong in this recommendation.
An ultrasound and CAT scan were performed to diagnose Macias’ stomach problems. Macias also refers to receiving an EGO which we assume to be an EGD—an esophagogastraduodenoscopy or an upper GI endoscopy. He does not contend these procedures were negligently ordered or performed. His generalized claim of fault is that “C.C.S. and all of their contract physicians have refused to take the proper medical steps to resolve plaintiff’s medical problems and allay his extreme pain and suffering, simply because they wish to cut corners and not spend the money required for specialists and surgery.”
Macias asked the district court to convene a screening panel. In response, the district court gave notice to Macias and C.C.S. and to the court-appointed panel chairperson, attorney Carol Hall, that a panel was being convened. The court instructed Macias to designate a screening panel member and notify Hall of his choice within 10 days. The court also provided to Macias a copy of the screening panel statutes and Supreme Court Rule 142 (2015 Kan. Ct. R. An-not. 249), which explained the procedures and requirements for a medical malpractice screening panel.
One of these statutes the court provided to Macias, K.S.A. 2014 Supp. 65-4901(c), specifically states that the state agency which licenses health care providers is responsible for maintaining and making available a fist of health care providers who are willing to serve on the screening panel. Macias had the ability to contact directly the appropriate State licensing agency to obtain a fist from which he could select a panel member. Nevertheless, Macias never appointed a screening panel member. Though he claims that Hall sent him a letter indicating she would provide him with a list of potential panel members, there is no such letter in the record on appeal. It was Macias’ responsibility to appoint a screening panel member. Under K.S.A. 2014 Supp. 65-4902, the only time a district judge may select a panel member is when the parties are supposed to jointly designate a panel member but cannot agree on a selection. That provision did not apply.
Supreme Court Rule 142, which relates to medical and professional malpractice screening panels, defines “plaintiff’ to include a party who has filed suit and a party who has not yet brought suit. Supreme Court Rule 142(b)(1)(A). Supreme Court Rule 142(d) required Macias to provide medical authorizations authorizing his health care providers to release his medical records to members of the screening panel. Supreme Court Rule 142(h) required him to provide to the screening panel “all medical records, medical care facility records, x-rays, test results, treatises, documents, tangible evidence, and written contentions on which the plaintiff relies.” Supreme Court Rule 142(j) required that Macias’ contentions set forth the legal and factual issues and briefly state die applicable law, including citations. Macias did not explain to the district court why he did not provide medical authorizations, contentions, medical records, x-rays, test results, treatises, and other documents as required. Macias had not accomplished any of these tasks prior to the district court’s hearing on the matter.
At this point we pause to note that this proceeding was not a K.S.A. 60-1501, a habeas corpus, a K.S.A. 60-1507, or a criminal proceeding in which courts grant some procedural leeway to pro se criminal defendants. This was a strictly civil matter, and Macias was required to follow the same rules of procedure which were binding upon C.C.S. and the physicians who were represented by counsel. See Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, 595-96, 730 P.2d 1109 (1986).
The physicians and C.C.S. moved the court to set aside its order convening a screening panel. Macias was provided notice of the pending motions, but he did not respond. The motions were set for hearing, and a notice of hearing was served on all the various participants, including Macias, more than a month before tire scheduled hearing date.
Macias did not request to be transported from the prison in Lansing to the court in Leavenworth to attend the hearing, so he was not present at the hearing. Counsel for C.C.S. advised the court that she had called the prison and confirmed that Macias did not request that he be transported to court for the hearing.
At the hearing, the district court granted all of the defendants’ motions to dismiss. The court adopted the grounds cited in the movants’ briefs in dismissing the proceedings. The court based its decision primarily on Macias’ failure to designate a screening panel member, his failure to provide his contentions of medical negligence against C.C.S. and the doctors, his failure to provide his medical records, and tire expiration of the statute of repose on most of Macias’ possible claims. The court reasoned:
“The Court also finds that Mr. Macias has failed to prosecute this action, not before June of 2014, but after June of 2014, when there was the convening of the Medical Malpractice Screening Panel by failure to designate a screening panel [member], failure to provide the contentions and the records, and to do those things that a claimant would be required to do.
“The Court would note that common to all these claims is that [his] Petition, which I now have access to those images and I reviewed that Petition again just a moment ago, begins reciting facts that go back to 2004. And . . . the statute of repose for professional negligence claims for healthcare issues is four years.
“So, anything more than four years prior to the initiation of the Medical Malpractice Screening Panel in August of 2013, any claims related to that would have been extinguished by the statute of repose and, so, really the only thing that, even had he prosecuted the matter, that the Court would be considering would be tiróse allegations that occurred within four years of the initiation of the Medical Malpractice Screening Panel. So, that limits a number of the claims.
“In addition to that, a number of these claims do not malee any allegation, or even an inference of an allegation, about providing medical care, or healthcare services by a healthcare professional that deviated from the required standard of care. They relate to allegations regarding administrative matters about potential or recommended treatment that was disapproved.
“And if this states a malpractice claim, then, every insurance company’s decision on approval or dismissal of recommended medical treatment would involve a medical malpractice claim and that’s clearly not the law.”
Macias objected to the proposed journal entry memorializing the court’s rulings. The court overruled Macias’ objection, noting that the order dismissing the screening panel did not affect Macias’ right to pursue any claims for medical malpractice. Macias appealed.
This court ordered the parties to show cause as to why this appeal should not be dismissed on the grounds that no suit for medical negligence had been commenced. Macias failed to respond. C.C.S. and the doctors responded that there is no statutory right to appeal an order dismissing a screening panel, and this court lacked jurisdiction to consider Macias’ appeal.
Thereafter, we dismissed this appeal. Macias then moved to reinstate the appeal, citing K.S.A. 2014 Supp. 60-2102(a) and claiming the district courts order was appealable as “[a]n order that discharges, vacates, or modifies a provisional remedy.” He argued that provisions for a screening panel were enacted to aid in the early resolution of medical malpractice claims without the expense and delay of actual litigation. We restored die appeal, and the matter is now before us for a decision.
We have the duty to question subject matter jurisdiction on our own initiative. When the record discloses a lack of subject matter jurisdiction, we must dismiss the appeal. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 916, 296 P.3d 1106 (2013). Whether we have subject matter jurisdiction over this appeal is a question of law for which our review is unlimited. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013).
The right to appeal is purely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statute. Board of Sedgwick County Comm'rs v. City of Park City, 293 Kan. 107, 111, 260 P.3d 387 (2011). Kansas does not recognize any equitable exceptions to this rule. 293 Kan. 107, Syl. ¶ 3; see Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609-10, 244 P.3d 642 (2010).
The Kansas Medical Malpractice Screening Panels Act, K.S.A. 65-4901 et seq., provides for convening screening panels and sets forth the procedures for appointing panel members and the panel’s operating procedures thereafter. None of the statutes governing screening panels conveys or suggests the existence of a right to appeal the convening or disbanding of a screening panel, the appointing of a panel chairperson, or any other court involvement in the screening panel process. The only provision for relief from an adverse decision regarding a screening panel is found in K.S.A. 65-4905, which provides that if a party rejects the final determination by the screening panel, “the plaintiff may proceed with the action in the district court.”
K.S.A. 2014 Supp. 60-254(a) states that “[a] judgment is the final determination of the parties’ rights in an action.” Macias appears to concede that the dismissal of the screening panel is not a final judgment. We find no statutory provision that gives us the authorily to review the district court’s dismissal of a screening panel.
But Macias claims that K.S.A. 2014 Supp. 60-2102(a)(l) permits this appeal because it is from “[a]n order that discharges, vacates or modifies a provisional remedy.” A provisional remedy is “[a] temporary remedy awarded before judgment and pending tire action’s disposition, such as a temporary restraining order, a preliminary injunction, a prejudgment receivership, or an attachment.” Black’s Law Dictionary 1485 (10th ed. 2014). A screening panel provides no comparable relief for a litigant or prospective litigant. In fact, it does not provide any relief at all. A medical malpractice screening panel is not intended to provide a temporary remedy to the plaintiff. Its decision is not an enforceable judgment. Its decision does not compel setdement of a claim or pending suit. It may be introduced in later proceedings on the claim, but a future factfinder is free to accept or reject its conclusions. Thus, screening panels do not provide relief in the form of a remedy that serves as an appeal-able order. They do not provide a provisional remedy. It logically follows that the dismissal of a screening panel is not an appealable order.
But both our Supreme Court and panels of this court have previously decided issues arising directly from a district court order regarding a screening panel independent of any court action regarding an accompanying medical malpractice action. In Johnson v. Mehta, 266 Kan. 1060, 974 P.2d 597 (1999), the Supreme Court took up the question whether the district court erred in dismissing a screening panel because the plaintiff failed to prepay a costs deposit or file an affidavit of indigence or hardship.
In Cutler v. Sosinski, 34 Kan. App. 2d 647, 122 P.3d 405 (2005), a screening panel concluded that the respondent doctor did not depart from the applicable standard of care. The claimant complained to the court that the panel did not cite “ ‘corroborating references’ ” as required by the statute, so the court should convene a new panel. 34 Kan. App. 2d at 648. The district court declined to do so and accepted the panel’s report. The claimant moved the court to reconsider, but the court declined and told the claimant that her remedy was to file suit on her claim. On appeal, this court determined that the district court did not abuse its discretion in denying the claimant’s motion to reconsider. 34 Kan. App. 2d at 651.
In another decision by this court, Webber v. Schmidt, No. 93,681, 2005 WL 2347803 (Kan. App. 2005) (unpublished opinion), this court affirmed the district court’s order quashing the screening panel order on two grounds: (1) a screening panel is not required when the targeted health care provider owed no duty to the person alleged to have been injured; and (2) a certified nurse’s aide is not subject to the statutory screening panel provisions applicable to medical or professional licensees.
None of these cases considered whether the district court’s action with respect to a screening panel was an appealable order. In most cases, an issue involving the medical malpractice screening panel is addressed as part of the appeal of a final judgment in a medical malpractice lawsuit. See e.g. Smith v. Graham, 282 Kan. 651, 147 P.3d 859 (2006); Lawless v. Cedar Vale Regional Hosp., 252 Kan. 1064, 850 P.2d 795 (1993); Heronemus v. Correct Care Solutions, No. 107,644, 2013 WL 388064 (Kan. App. 2013) (unpublished opinion). In these few cases in which the appellate court considered claims of error by the district court in the disposition of a screening panel’s work, we have no indication that the issue of statutory subject matter jurisdiction was ever raised or considered by the appellate court. Thus, we consider ourselves unconstrained in considering this issue in the present context.
For the reasons discussed earlier, we conclude that a decision from a medical malpractice screening panel is not binding on the parties and does not provide a remedy to either party. Rather, it facilitates negotiations and settlement prior to or during the early stages of a medical malpractice lawsuit. Because a party cannot receive a binding decision or remedy from a medical malpractice screening panel, it is not a final order for which our legislature has provided a right to appeal to our appellate courts. The remedy for an unsatisfied claimant or plaintiff is to proceed with civil litigation on the merits of the medical malpractice claim.
Because there is no statutory right to appeal the dismissal of a request for a medical malpractice screening panel, this court lacks jurisdiction to review the order dismissing the screening panel in this case.
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Granted.
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The opinion of the court was delivered by
JOHNSON, J.:
A jury convicted Luis Aguirre of capital murder, based on his premeditated intentional killing of two persons: his ex-girlfriend and their 1-year-old son. During two separate interrogations by law enforcement officers, Aguirre made incriminating statements which he later unsuccessfully moved to suppress. On appeal, Aguirre contends that his confessions should have been suppressed for two reasons: (1) The interrogating officers refused to terminate the questioning when Aguirre invoked his rights under Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); and (2) the officers’ interrogation techniques rendered his confessions involuntary. In addition, Aguirre complains that the prosecutor misstated the law in closing argument with regard to &e manner in which the jury is to consider lesser included offenses. Because the law enforcement officers refused to allow Aguirre to terminate the questioning, as he had been advised that he could, the district court erred in denying the sup-
pression of Aguirre’s statements made after the Miranda violation. Accordingly, we reverse and remand for a new trial.
Factual and Procedural Overview
In 2007, while living in Chicago, Aguirre had a relationship with Tanya Maldonado, tiren age 16, with whom he fathered a child, Juan. Later, while going through National Guard training in Alabama, Aguirre began a relationship with a soldier, Dulce Mendez. By February 2009, Mendez was stationed at Fort Riley Military Reservation, and Aguirre moved in with Mendez and her son, David, in nearby Ogden, Kansas. Mendez was deployed to Iraq in August 2009, and, subsequendy, Aguirre and David relocated to Austin, Texas, where Mendez’ parents lived.
Notwithstanding his relationship widi Mendez, Aguirre maintained email contact with Tanya after the birth of their son. By early 2009, Tanya began asking Aguirre for money and urging him to see his son and acknowledge paternity. Aguirre assured Tanya that he intended to provide for Juan, but by May, when Aguirre had not seen the child or paid any support, Tanya threatened to take legal action. Tanya’s threats continued through July and August, culminating in her ultimatum that Aguirre had until September 20 to decide what he wanted to do.
Aguirre was in Chicago on September 19 and 20, 2009, for National Guard drills. Tanya and Juan had been living at a Chicago homeless shelter, but they left the shelter on September 20. Tanya had told her case manager that Juan’s father, who was in the military, was coming to pick them up and take them to Texas to live as a family. She had also told the security guard that Juan’s father was on his way, and the security guard said Tanya left with a young man driving a gray 4-door SUV. Mendez owned a tan Jeep Cherokee that she let Aguirre use.
The following month, on October 25,2009, Tanya and Juan were found dead in a shallow grave in a remote area near Ogden. The pathologist would testify that he could not determine the cause of death, although both bodies displayed injuries consistent with the application of force from either a major fall or something striking the victims. An expert would testify that an analysis of the vege tation indicated the grave had been dug approximately 4 to 6 weeks prior to its discovery and that the stacking of leaves under the bodies indicated the grave had been open for a period of time, perhaps as much’ as a few days, before the bodies were deposited in it.
Because of Aguirre’s relationship with the victims and his prior residency in Ogden, the Riley County investigating detectives traveled to Austin to interview Aguirre on October 30, 2009. When arranging the interview, the detectives did not reveal that they knew that Tanya and Juan were dead but rather they told Aguirre that they were tiying to locate Tanya. Aguirre voluntarily met with the police.
At first, Aguirre said he had not seen Tanya in months and that she had talked of moving to California. After the detectives said they knew Tanya had been in Kansas, Aguirre said that she had been to the door of his apartment accompanied by an unknown man on or about September 17, 2009. When the detectives revealed that they knew that Tanya was dead, Aguirre admitted that he was involved. But he related various versions of what transpired, indicating that Tanya’s death was either accidental or caused by Aguirre in self-defense. Likewise, he gave multiple descriptions of how Juan died accidentally. Ultimately, Aguirre wrote a statement of the events that he said had occurred on September 17, reiterating that he did not mean to kill either Tanya or Juan. After taking the written statement, the detectives arrested Aguirre.
On November 3, before Aguirre was returned to Kansas, the detectives contacted Aguirre at the jail, advising him they had additional questions. They transported him to the police department, had him read his Miranda rights aloud, and began tire interview by saying they knew Aguirre had been in Chicago on September 19 for a National Guard drill. Eventually, Aguirre admitted that he had picked up Tanya and Juan at the shelter on September 20 and that they had driven to Kansas, arriving in Ogden the afternoon of September 21. He said the deaths occurred that evening, again describing scenarios in which the deaths were accidental.
The State tried Aguirre for capital murder and sought the death penalty. As part of its case-in-chief, the State presented video re cordings of the detectives’ two interrogations of Aguirre. It also admitted emails sent by Aguirre to Tanya’s address after the deaths, purporting to inquire about her future plans for herself and Juan. The medical examiner testified that the victims’ injuries were not consistent with Aguirre’s accidental death scenarios and that the chances of Tanya and Juan simultaneously dying accidentally were “vanishingly small.” Aguirre did not testify or present any evidence in his defense.
The jury convicted Aguirre of capital murder but did not impose the death penalty. The court sentenced Aguirre to a life sentence without the possibility of parole, and he timely appealed directly to this court. See K.S.A. 2014 Supp. 22-3601(b)(3) (direct appeal to Supreme Court where maximum sentence of life imprisonment has been imposed for murder).
Invocation of Miranda Rights
The rules governing an accused’s constitutional rights during a custodial interrogation are well established: “The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent.” State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003) (citing Miranda, 384 U.S. at 479). Moreover, in Kansas, “[n]o person shall be a witness against himself [or herself].” Kan. Const. Bill of Rights, § 10. “[A] suspect’s invocation of his or her right to remain silent must be scrupulously honored and cuts off further interrogation elicited by express questioning or its functional equivalent.” State v. Scott, 286 Kan. 54, 69-70, 183 P.3d 801 (2008) (citing State v. Catty, 231 Kan. 282, 286, 644 P.2d 407 [1982]).
Aguirre’s first challenge to the admissibility of his interrogation statements is his contention that the detectives conducting the questioning failed and refused to honor his invocation of his Miranda rights during the first interrogation, which constitutional violation also tainted his statements during the second interview. When reviewing a district court’s decision on a motion to suppress, we bifurcate our analysis, first assessing whether the factual findings below are supported by substantial competent evidence and then applying a de novo standard to the ultimate legal conclusion to be drawn from those facts. State v. Sanchez-Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012).
First Interview
Our resolution of this issue will initially turn upon the clarity with which Aguirre communicated to the interrogating officers that he was invoking his rights during the first interrogation, after he had initially waived them orally and in writing. Accordingly, we need to look at what Aguirre said and the context in which he said it.
As noted above, the interrogation began under the guise that the officers were simply trying to locate Tanya. But the questioning intensified as the detectives began refuting Aguirre’s answers, becoming especially aggressive after the detectives confronted Aguirre with their knowledge that Tanya was dead. The interrogators told Aguirre that they knew he was lying about having no knowledge of Tanya’s death and that lying would make him look worse than if he told the truth. They fed Aguirre the suggestion that Tanya’s death might have been accidental, that Aguirre was probably bothered by the knowledge of what happened, and that it was time for Aguirre “to let it off [his] shoulders.” They also used the tack of urging Aguirre to tell what happened so Tanya’s family could find some peace. Then, the following exchange occurred, with emphasis added to the portions relevant to this issue:
“DETECTIVE RUNYAN: It’s okay, Luis.
“DETECTIVE LEWIS: Come on. Seriously man.
“DETECTIVE RUNYAN: I know it’s tough. I’m listening.
“MR. AGUIRRE: I’m in a proposition right now though. I want to go and turn in David to his family and then I will be here as long as you want me to afterwards.
“DETECTIVE LEWIS: Well okay. We can help you take care of David and help you get him to his family.
“DETECTIVE RUNYAN: Let me just ask you this. Let me just ask you this. Could it have been like an accident? Was that possible? I’m trying to understand it. Because the intent is the whole deal here.
"MR. AGUIRRE: This is—I guess lohere I, I’m going to take my rights and I want to turn in David to his family and I’ll be back here. I mean, I would like to keep helping you guys I just ivant to—
“DETECTIVE RUNYAN: Okay. We do appreciate that help. But I’m going to have to explain a few things to you first. We also have some search warrants. We have a search warrant for your DNA. Okay. And for a scent. And we also have a search warrant for the Cherokee. And the Cherokee is coming back with us to Kansas. And we’ve also got a search warrant for the trailer. So I don’t know if they are out there searching right now. But we do have search warrants signed by a judge. And I believe they’ve already called the family of David. And that’s already been taken care of. Now I don’t think you’re going home, But I think there is probably something there that we need to just understand so maybe it’s not as bad as what it looks. That’s why I’m here. Because if it’s not as bad as it looks, dren, you know—
“DETECTIVE LEWIS: And maybe we can help you explain things. If this was an accident, maybe she went ballistic when things got there and things got out of hand and you didn’t mean for this to happen, but it still happened. That’s what we need to know. But you got to be willing to talk with us and explain to us what happened.
“DETECTIVE RUNYAN: The day you left—
“DETECTIVE LEWIS: Are you willing to do that for us, Luis? Do you not want to look at that picture (indicating)?
“MR. AGUIRRE: (Shakes head from side to side.)
“DETECTIVE LEWIS: Okay. Are you willing to help us figure this out, Luis?
“DETECTIVE RUNYAN: Maybe it’s just not as bad as it looks.
“DETECTIVE LEWIS: And explain it?
“DETECTIVE RUNYAN: I’ll be back.
“DETECTIVE LEWIS: Luis, I know filis is tough. Okay? All right. Are you still wanting to help us on this thing?
“MR. AGUIRRE: (Nods head up and down.)
“DETECTIVE LEWIS: Yeah? Can I hear a yes?
“MR. AGUIRRE: Yes.”
Aguirre contends that when he said that he was going to take his rights and leave with David, the detectives were required to terminate the interrogation and the district court should have suppressed everything that Aguirre said after invoking his rights. The argument is founded upon a long-standing rule of law: If a suspect invokes the right to remain silent during questioning, that interrogation must cease. Michigan v. Mosley, 423 U.S. 96, 100, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975) (quoting Miranda, 384 U.S. at 473-74). Thereafter, “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Mosley, 423 U.S. at 104.
More recently, law enforcement’s duty to scrupulously honor a suspect’s decision to invoke his or her Miranda rights has been conditioned upon the suspect’s ability to communicate that decision without any .ambiguity or equivocation. See Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010) (suppression only required for denial of unambiguous invocation of Miranda rights; objective inquiry). This court has said that we test the clarity of a Miranda rights invocation by determining whether a reasonable police officer under die circumstances would understand the suspect’s statement as an assertion of a Miranda right. State v. Cline, 295 Kan. 104, 113, 283 P.3d 194 (2012).
Notwidistanding that rather straightforward, objective test, we must recognize that, in some of our prior cases, this court discerned an ambiguity that was not immediately apparent from the language employed by the suspect. See, e.g., State v. Kleypas, 272 Kan. 894, 924, 40 P.3d 139 (2001) (“ I think that might be all for you’ ” found ambiguous); State v. McCorkendale, 267 Kan. 263, 273, 979 P.2d 1239 (1999) (“ *[s]o that’s all I [got] to say’ ” found ambiguous); State v. Fritschen, 247 Kan. 592, 606-07, 802 P.2d 558 (1990) (“ I don’t want to talk about it any more, it hurts too much’ ” found not to rise to the level of ambiguity that would require officer inquiiy before continued questioning). Also, State v. Holmes, 278 Kan. 603, 619, 102 P.3d 406 (2004), found fatal equivocation in the statement, “ 1 think I’ll just quit talking, I don’t know.’ ” And, more directly applicable to this case, State v. Scott, 286 Kan. 54, 71, 183 P.3d 801 (2008), found that the suspect’s request to finish the interview the next morning was not an invocation of his rights because he indicated a willingness to talk with police later.
While those prior cases are difficult to synthesize, one potential common coloring fact is that the suspect continued to answer questions after the alleged rights invocation, as occurred here. The trial court in this case stated that it was partially influenced by Aguirre’s responses to the detectives’ post-invocation questions in which he said he was still willing to talk to them. But the United States Supreme Court has held “that, under the clear logical force of settled precedent, an accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.” Smith v. Illinois, 469 U.S. 91, 100, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). In other words, if the interrogators simply ignore tire suspect’s invocation of rights and continue to ask questions, the suspect’s compliance with the further questioning does not invalidate or render equivocal tire prior invocation of rights.
Accordingly, we need to assess what a reasonable law enforcement officer under the circumstances would have understood Aguirre’s statement to mean at the time it was made. To put the statement—“I’m going to take my rights”—into perspective for a rational interrogator, we should look at what that interrogator had advised the suspect about his rights. The record on appeal includes the form which the detectives used to advise Aguirre of his Miranda rights and to memorialize Aguirre’s written waiver of those rights. One of the detectives directed Aguirre to read his Miranda rights out loud from the form, which reading is transcribed in the appellate record as follows:
“MR. AGUIRRE: Advise [sic] of rights, your rights. Before we ask you any questions you must understand—you must understand your rights. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford to hire a lawyer one will be appointed to represent you free of charge before any questioning if you wish. If you decide to answer questions now without a lawyer present you will have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.”
That recitation tracked the language on the form, entitled “Advice of Rights” and subtitled “Your Rights.” Following the six statements of rights that Aguirre read aloud, the form contains a “Waiver of Rights” statement to be signed by the suspect. The first sentence of the waiver statement reads, with emphasis added: “I have read this statement of my rights and I understand what my rights are.” In other words, the form the detectives used to obtain Aguirre’s waiver of his Miranda rights directed him to refer to them as “my rights.”
Consequently, when Aguirre said that “[t]his is—I guess where I, I’m going to take my rights,” it would have been objectively unreasonable for the detectives not to understand that the “my rights” Aguirre invoked during questioning were the same as the “my rights” that Aguirre had waived in writing at the detectives’ specific request before questioning. Certainly, if a suspect’s waiver of “my rights” is sufficient to be a knowing and voluntary waiver of his or her Miranda rights, then the taking of “my rights” must be a sufficient invocation of those same rights. That correlation is particularly important because the waiver of rights form specifically informed Aguirre that even if he initially chose to answer questions without a lawyer present, he would retain “the right to stop answering at any time,” which is precisely what he attempted to do.
Moreover, the rights advisory did not inform Aguirre that he had to proffer, or even have, any particular reason for wanting to stop answering questions. So, tire fact that Aguirre said that he wanted to stop answering questions in order to take a child to his family, rather than saying that he wanted to stop answering questions to invoke his right to remain silent, does not alter the fact that he was invoking foe explicit, written right to “stop answering at any time.”
Likewise, foe Miranda rights advisory form did not say that a suspect could only stop answering questions if he or she intended to remain silent forever and never resume answering questions. In fact, the last sentence of the advisory belies foe notion that a temporary cessation of answering is not permissible. That advisory says that the suspect “also [has] foe right to stop answering at any time until you talk to a lawyer.” (Emphasis added.) That advisory suggests that the answering might resume after foe suspect talks to a lawyer. Accordingly, foe interrogators should not have been befuddled by Aguirre’s stated intention to help them out later because an intention to talk later would not preclude the right to stop answering now. '
Moreover, foe' district court’s finding of equivocation in Aguirre’s use of foe words, “I guess,” takes that language out of context. Aguirre first tried to stop foe questioning with the following statement: “I want to go and turn in David to his family and then I will be here as long as you want me to afterwards.” But foe detectives brushed aside that request, with one detective saying they could help Aguirre get David to his family, while the other detective continued to try to extract an inculpatory statement from Aguirre. Apparently realizing that he had to be more explicit with the detectives, Aguirre clarified what he wanted to do by saying: “This is—I guess where I, I’m going to take my rights and I want to turn in David to his family and Ill be back here. I mean, I would like to keep helping you guys I just want to—At most, the “I guess” could be read as an uncertainty about the manner by which he could invoke his rights, rather than any equivocation about whedier he really wanted to stop answering questions. In context, die statement was a second, consecutive request to leave the interrogation, utilizing the exact language employed by the detectives when they obtained the original waiver.
Further, Aguirre’s contemporaneous statements about coming back later to continue the questioning should have reinforced, rather than negated, the notion that his intent was to stop answering questions now. How could he come back later to help the detectives without first invoking his right to stop answering questions? Moreover, Smith instructs us that the one detective’s post-request statement—“Now I don’t think you’re going home”—cannot cast any retrospective doubt on the clarity of Aguirre’s actual request to take his rights. See 469 U.S. at 100.
In Anderson v. Terhune, 516 F.3d 781, 787 (9th Cir. 2008), the Ninth Circuit Court of Appeals held that the defendant’s declaration, “ 1 plead the Fifth,’ ” was facially unambiguous. Given the rights waiver form utilized here, the statement, “I’m going to take my rights,” is just as facially unambiguous. Adding the context in which the statement was'made, especially Aguirre’s-immediately preceding statement that he wanted to leave, makes it crystal clear that Aguirre was attempting to stop answering questions and leave the interrogation. This was not a case in which the interrogators had to guess at what the- suspect really wanted to do. Rather, it was a case where the interrogators simply refused to scrupulously honor the suspect’s right‘to cut-off questioning but instead coerced the suspect to continue the interrogation until they had the confession they sought. Although that tack was effective, it was anathema to the Miranda rights. Consequently, all of Aguirre’s statements in the first interview after he invoked his Miranda rights should have been suppressed. See United States v. Rambo, 365 F.3d 906, 911 (10th Cir. 2004)'(confession suppressed where police failed to cease questioning after suspect invoked rights).
Second Interview
The State argues that, even if Aguirre’s post-invocation statements in the first interview should have been suppressed, that error would be rendered harmless by Aguirre’s admissions during the second interview. In that subsequent interview, Aguirre said the deaths were accidental, but he described how he had disposed of the victims’ bodies and he admitted driving them from Chicago to Ogden.
The State acknowledges that constitutional violations during the first interview can taint the evidence obtained in a subsequent interview, citing to State v. Swanigan, 279, Kan. 18, 44, 106 P.3d 39 (2005). Swanigan involved the somewhat different issue of whether law enforcement’s coercion of an involuntary statement in the first interrogation tainted the voluntaiy statements obtained in a subsequent interrogation. Here, the question is whether the police could obtain a valid Miranda rights waiver at a subsequent interrogation after refusing to honor an invocation of those rights at the first interview. Under that circumstance, the police were constrained, if not prohibited, from reinitiating questioning.
In State v. Matson, 260 Kan. 366, 374, 921 P.2d 790 (1996), this court said that the validity of a Miranda waiver, after a suspect has previously invoked those rights, depends on whether “the accused (a) initiated further discussions with the police and (b) knowingly and intelligently waived the previously asserted right.” See also State v. Mattox, 280 Kan. 473, 481, 124 P.3d 6 (2005) (quoting same two-step analysis to determine whether accused waived previously asserted right). The State failed the Matson test by reini-tiating the second interrogation.
Consequently, the taint of the Miranda rights violation in the first interview was not sufficiently attenuated to validate the rights waiver for the second interview, and the statements obtained in the second interview should have been suppressed, as well. Accordingly, a harmless error analysis cannot take into consideration any of Aguirre’s statements after he invoked his Miranda rights during the first interview.
Harmless Error
Swanigan clarified that the harmless error rule applies to the erroneous admission of an involuntary confession. 279 Kan. at 45. That decision was based upon Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991), which held that error admitting a defendant’s statements that were taken in violation of Miranda was subject to harmless error review. Accordingly, we will proceed to determine whether the erroneous admission of Aguirre’s confessions requires reversal.
This court’s most recent iteration of the test for determining whether error violating a defendant’s constitutional rights is harmless requires that the State carry the burden of proving “beyond a reasonable doubt that the error complained of . . . 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 affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). In this case, the State is simply unable to clear that high bar.
Granted, without Aguirre’s statements, there was still circumstantial evidence presented that would point to a number of suspicious coincidences. For instance: Aguirre fathered Juan with Tanya, who became increasingly demanding about paternity ac-knowledgement and child support, setting a September 20 deadline; Aguirre was in Chicago on September 20, the day Juan and Tanya left the shelter; Aguirre had the use of a tan Jeep Cherokee, while the security guard saw the victims leave in a gray 4-door SUV; Juan and Tanya were buried outside Ogden, less than 2 miles from Aguirre’s residence at the time, in a grave that had been dug beforehand; 7 months before Tanya left the shelter, Aguirre sent her an email describing his thoughts about killing her; and before invoking his Miranda rights, Aguirre gave the detectives contradic-toiy information. We have repeatedly declared that the law clearly allows a conviction of even the gravest offense to be based on circumstantial evidence. See Ward, 292 Kan. at 581. In that vein, if the district court had suppressed the unconstitutionally obtained confessions and the jury had convicted Aguirre on what remained of the State’s case, this court veiy well may have found that the evidence was sufficient for a rational jury to find Aguirre guilty. But just because the State might show that a jury could have convicted Aguirre on the remaining evidence does not mean that it has proved harmlessness beyond a reasonable doubt, i.e., there is no reasonable possibility the error affected the verdict.
Pointedly, the State presented no nonconfession evidence—• physical or otherwise—that established that die victims had ever been in Aguirre’s Ogden apartment, much less tiiat he killed them. And on the flip side, the defendant’s admitting to being involved in die victims’ deaths and to burying diem in the predug graves was compelling evidence that carried at least a reasonable possibility of affecting the jury’s verdict.
In short, under the standard applicable here, the State has failed to cariy its burden to show that the erroneous admission of defendant’s unconstitutionally obtained confessions was harmless. We must reverse and remand for a new trial.
Given our holding on this issue, we need not analyze Aguirre’s claim that his confessions were involuntary or that the prosecutor committed error during closing argument.
Reversed and remanded for a new trial.
Michael J. Malone, Senior Judge, assigned.
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Leben, J.:
This appeal is brought by an employer and its insurance carrier from an order awarding permanent-total-disability compensation to its employee. An employee qualifies for that compensation when an on-the-job injury has left “the employee . . . completely and permanently incapable of engaging in any type of substantial and gainful employment.” K.S.A. 44-510c(a)(2).
The employer argues that in this case, its employee’s inability to find other work was largely due to his limited intellectual ability and, thus, the employer should not be responsible for his inability to find work. But K.S.A. 44-510c(a)(2) considers the ability of “the employee” who was injured to obtain gainful employment, not the ability of Stephen Hawking or even the ability of the theoretical average person. Substantial evidence supports the Workers Compensation Board’s conclusion that the employee in our case, Donald Wimp, was left incapable of engaging in gainful employment due to his on-the-job injuries, and we affirm the award of compensation to him.
Factual and Procedural Background
Wimp worked for 18 years doing manual labor for American Highway Technology, a company that manufactures concrete bridges and overpasses. Wimp’s job was to run wire through a machine that transformed it into smaller widths for use throughout American Highway Technology’s plant. In doing this work, Wimp used his hands to bend the wire, to guide it through the machine, to hook clamps onto it, and to counteract significant pressure exerted by the roll of wire as it was being fed into the machine.
After he experienced pain, numbness, and a tingling sensation in his hands, neck, and shoulder, Wimp had right and left carpal-tunnel-release surgeiy in 2008. After returning to work, he again experienced pain in his neck, back, and hands. In 2009, a doctor repeated the right carpal-tunnel-release surgery.
When he returned to work, he again had pain in his neck, shoulder, and hands. In November 2009, Wimp accepted a voluntary layoff (while work at the company was low), but he had further testing in early 2010 for the work-related injuries. A nerve-conduction test showed severe carpal-tunnel syndrome, and a doctor advised that further surgeiy wouldn’t help. Wimp didn’t return to work at the conclusion of the voluntary layoff period, and American Highway Technology let him go.
Wimp had a workers-compensation claim pending, and the parties presented extensive medical evidence in that proceeding. We will not go into great detail about that evidence because it’s not contested that Wimp suffered an injury to both of his arms. The administrative law judge appointed Dr. Peter Bieri, a fellow of the American Academy of Disability Evaluating Physicians, to independently determine Wimp’s disability for workers-compensation purposes. Under Kansas law, that determination is made under guidelines found in the American Medical Association’s AMA Guides to the Evaluation of Permanent Impairment (4th ed. 1995). See K.S.A. 2014 Supp. 44-508(u).
Using those guidelines, Dr. Bieri concluded that Wimp had a 20 percent impairment of his right arm based on “residuals of entrapment neuropathy at the level of the right wrist.” He concluded that Wimp had a 10 percent impairment of his left arm based on “residuals of entrapment neuropathy of the left wrist.”
The Workers Compensation Board adopted Dr. Bieri’s disability findings, and they are not in dispute in this appeal. What is in dispute is whether these injuries have left Wimp unable to find employment. The Workers Compensation Board found that Wimp was entitled to a presumption to that effect because he had an injury to both arms. K.S.A. 44-510c(a)(2) provides a rebuttable presumption that when an employee suffers a loss in both eyes, hands, arms, feet, or legs, the employee has been permanently and totally disabled. See Casco v. Armour Swift-Eckrich, 283 Kan. 508, Syl. ¶ 8, 154 P.3d 494 (2007). The employer may rebut the presumption by presenting evidence that the employee is able to engage in substantial and gainful employment. Hall v. Dillon Companies, Inc., 286 Kan. 777, Syl. ¶ 6, 189 P.3d 508 (2008).
The Board concluded that American Highway Technology had not rebutted the presumption; thus the Board awarded Wimp permanent-total-disability compensation. On appeal, American Highway Technology contends that it successfully rebutted the statutory presumption by showing that Wimp’s inability to find work was not just a result of his on-the-job injuries.
Standards of Review on Appeal
The Kansas Judicial Review Act governs our review of cases arising under the Workers Compensation Act. K.S.A. 2014 Supp. 44-556(a). The Kansas Judicial Review Act provides that an agency action (here, the Workers Compensation Board acts as an agency) may be set aside only for one of eight reasons set out in the statute. American Highway Technology argues two of them on appeal: that the agency misinterpreted the law, K.S.A. 2014 Supp. 77-621(c)(4), and that the agency’s factual findings were not supported by substantial evidence. K.S.A. 2014 Supp. 77-621(c)(7).
We determine legal issues independently, without any required deference to the Workers Compensation Board. Hall, 286 Kan. at 783; Ballard v. Dondlinger & Sons Constr. Co., 51 Kan. App. 2d 855, 858, 355 P.3d 707 (2015). Whether an employee is able to engage in substantial and gainful employment is a question of fact, and we review a challenge to the Board’s factual findings in light of the record as a whole to determine whether the findings are supported by substantial evidence. See K.S.A. 2014 Supp. 77-621(c) and (d); Moore v. Venture Corporation, 51 Kan. App. 2d 132, 137-38, 343 P.3d 114 (2015). Substantial evidence is evidence that a reasonable person might accept as sufficient to support a conclusion. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 263, 75 P.3d 226 (2003); Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d 239 (2009).
The Board, not our court, malees the factual findings, so we do not weigh conflicting evidence except to determine whether the evidence supporting the Board’s decision has been so undermined by cross-examination or other evidence that a reasonable person would not accept it as support of the Board’s factual findings. Moore, 51 Kan. App. 2d at 137-38; Messner v. Continental Plastic Containers, 48 Kan. App. 2d 731, 750-51, 298 P.3d 371, rev. denied 297 Kan. 1246 (2013); In re Protests of Oakhill Land Co., 46 Kan. App. 2d 1105, 1114, 269 P.3d 876 (2012); Herrera-Gallegos, 42 Kan. App. 2d at 363; Mendez v. Cargill Meat Solutions Corp., No. 110,052, 2014 WL 2871368, at *1 (Kan. App. 2014) (unpublished opinion).
We recognize that the Board’s specific finding in this case—that American Highway Technology did not rebut die presumption of total and permanent disability—is a negative finding. In court-tried cases, appellate courts do not reverse atrial judge’s negative finding unless the judge arbitrarily disregarded undisputed evidence or showed bias, passion, or prejudice. Under the amended Kansas Judicial Review Act, however, the negative-findings standard does not apply, and we instead look to tire whole record and determine whether substantial evidence supports the Board’s decision. See Olds-Carter v. Lakeshore Farms, Inc., 45 Kan. App. 2d 390, 395, 250 P.3d 825 (2011); Mendez, 2014 WL 2871368, at *2.
Analysis
This case mostly depends on a question of statutory interpretation, so we will start by looking at the applicable statute. The statute that applies is the one in place when the employee is injured. Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 588, 257 P.3d 255 (2011). Here, although Wimp sustained his injuries over a period of time, the parties agreed that his date of injury for the purposes of this case was May 6, 2008. Thus, unless otherwise indicated, we cite in this opinion to the statutes in place as of May 2008.
For our purposes, the key provision of the Kansas Workers Compensation Act is K.S.A. 44-510c(a)(2), which tells us when an employee has a permanent and total disability. The statute has four sentences: the first sentence provides the general rule; the other three sentences discuss how we apply the rule under certain situations:
“Permanent total disability exists when the employee, on account of the injury, has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment. Loss of both eyes, both hands, both arms, both feet, or both legs, or any combination thereof, in the absence of proof to the contraiy, shall constitute a permanent total disability. Substantially total paralysis, or incurable imbecility or insanity, resulting from injury independent of all other causes, shall constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts.” K.S.A. 44-510c(a)(2).
Before discussing American Highway Technology’s argument on appeal, let’s first look at each sentence of the statute and how they would seem to apply to Wimp’s case:
1. The first sentence provides the overall rule that an employee is permanently and totally disabled if a work-related injury has left him or her unable to gain employment. Our court has long inteipreted this to mean that an employee is permanently and totally disabled when the employee is “essentially and realistically unemployable.” Conrow v. Globe Engineering Co., 43 Kan. App. 2d 827, 829-31, 231 P.3d 1080 (2010); Poff v. IBP, Inc., 33 Kan. App. 2d 700, 705, 106 P.3d 1152 (2005); Wardlow v. ANR Freight Systems, 19 Kan. App. 2d 110, 113, 872 P.2d 299 (1993).
2. The second sentence provides a rebuttable presumption of permanent total disability when a worker suffers parallel injuries (such as both feet or both hands). It’s a presumption— the statute says that these parallel losses “shall constitute a permanent total disability”—but the presumption applies “in the absence of proof to the contrary,” which tells us that the presumption is rebuttable. See Hall, 286 Kan. 777, Syl. ¶ 6; Casco, 283 Kan. 508, Syl. ¶ 8.
3. The third sentence provides an irrebuttable presumption of permanent total disability if the worker suffers substantially total paralysis “or incurable imbecility or insanity” resulting solely from work-related injury. It’s another presumption, with the statute saying that these conditions, when solely caused by a work-related injury, “shall constitute a permanent total disability,” but this time it doesn’t allow for proof to the contrary, so this presumption can’t be rebutted.
4. The fourth sentence tells us how to determine whether there’s a permanent total disability if neither of the presump tions applies: “In all other cases permanent total disability shall be determined in accordance with the facts.”
To apply the statute to our case, let’s first consider whether either of the presumptions would apply. The rebuttable presumption of the second sentence does apply—Wimp had injuries to both arms. The irrebuttable presumption of the third sentence does not apply—Wimp doesn’t claim that he has suffered total paralysis or been rendered, in the statute’s terminology, an imbecile or insane by working for American Highway Technology. Based on this reading of the statute, the Workers Compensation Board applied the rebuttable presumption, found that American Highway Technology didn’t successfully rebut it, and awarded compensation based on a permanent total disability.
So what is American Highway Technology’s argument? It interprets the third sentence to mean that if any preexisting “mental condition,” such as a limited IQ or limited reading or writing abilities, contributes to a person’s inability to get substantial employment after the injury, the employee can’t be considered permanently and totally disabled. For Wimp, this would mean that because his limited IQ contributed to his inability to get a job, he can’t be considered permanently and totally disabled. In our view, that’s not a fair interpretation of K.S.A. 44-510c(a)(2).
First, as we’ve already explained, the third sentence is simply a presumption that applies when one of three things—substantially total paralysis, incurable imbecility, or insanity—is caused solely by the work-related injury. That’s not the case here.
Second, American Highway Technology’s argument rests on the assumption that Wimp’s “mental conditions” are some form of “incurable imbecility.” (They surely are neither paralysis nor insanity.) But that’s not the case, either.
The second, third, and fourth sentences of K.S.A. 44-510c(a)(2) first came into Kansas worlcers-compensation law in 1917. L. 1917, ch. 226, sec. 3. When this occurred, nearly a century ago, the words “imbecile” and “imbecility” had a specific meaning, and they did not refer to things like poor reading or writing abilities or a below-average IQ.
At that time, the term “imbecile” appeared in at least three sections of the Kansas statutes. If a person gave an affidavit to the local probate court that someone living in the county was “an imbecile” (or an “idiot,” “a lunatic,” or even “an habitual drunkard”), the court could appoint a guardian for that person if he or she wasn’t able to manage his or her own affairs. G.S. 1915, 6098. Also, Kansas statutes on marriage at that time prohibited marrying a woman under the age of 45 or a man of any age who was “epileptic, imbecile, feeble-minded, or afflicted with insanity.” G.S. 1915, 6155. Statutes like this were commonplace throughout the United States. See Spencer, Some Phases of Marriage Law and Legislation from a Sanitary and Eugenic Standpoint, 25 Yale L.J. 58, 70-72 (1915).
In addition to these uses of “imbecile” in the Kansas guardianship and matrimonial statutes, the term had a specific meaning in criminal law. What today we would commonly call an insanity defense was available in Kansas to one who “was insane, an idiot or imbecile, or of unsound mind, at the time of the commission of the offense.” If found not guilty on that basis, an “imbecile” would be committed to the “state asylum.” G.S. 1915, 10044.
In this regard, Kansas was more open to an insanity defense than many states. Courts around the countiy drew distinctions between “idiots,” “imbeciles,” and “morons,” with tire level of impairment increasing from morons to imbeciles to idiots. In most states, only idiots were exempt from criminal responsibility; imbeciles could be responsible depending upon their individual capacity; and morons were criminally responsible. See Usman, Capital Punishment, Cultural Competency, and Litigating Intellectual Disability, 42 U. Mem. L. Rev. 855, 863-64 (2012). Often these classifications were applied based on IQ testing, with a person whose IQ was from 50 to 69 labeled a moron, from 25 to 50 an imbecile, and below 25 an idiot. Tennesee Protection & Advocacy, Inc. v. Wells, 371 F.3d 342, 352-53 (6th Cir. 2004) (describing the use of these categories in the early part of the twentieth century); Smith v. United States, 270 F.2d 921, 922 n.1 (D.C. Cir. 1959) (noting psychiatry and psychology texts referencing tírese categories); Hunter, 17 Ill. Prac., Estate Planning & Admin. § 15:9 (4th ed. 2007) (continuing to use these IQ-based categories of moron, imbecile, and idiot).
Today, these terms are rightly considered pejorative, but more neutral terms that parallel these graded classifications have continued in place. See Faigman et al., 2 Modem Scientific Evidence: The Law and Science of Expert Testimony § 9:24 (2014-2015 ed.). Recognizing that IQ tests have variability, a more modem guide provided these somewhat overlapping standards for the evaluation of mental retardation: IQ 50 to 70, mild mental retardation; IQ 35 to 55, moderate retardation; IQ 20 to 40, severe mental retardation; and IQ below 20 or 25, profound mental retardation. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 42 (4th ed. 2000). More recently, the United States replaced references in federal statutes to mental retardation with references to intellectual disability, see Rosa’s Law, Pub. L. 111-256, 124 Stat. 2643 (2010), and Kansas made the same change in 2012. See K.S.A. 65-6234; L. 2012, ch. 91. The most recent edition of the Diagnostic and Statistical Manual of Mental Disorders now uses the “intellectual disability” terminology as well. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed. 2013). That edition also places greater emphasis on a person’s adaptive functioning (such as the ability to participate in social activities or to live independently) than on IQ scores. See Modem Scientific Evidence § 9:24.
The point for our purposes, though, is a simple one: the term “imbecility,” when placed in our workers-compensation statutes in 1917, had a defined meaning. And it did not come close to including someone like Donald Wimp, who has an IQ score of 86 and graduated from high school. An 86 IQ score places a person in the “low average” category. See Flanagan & Caltabiano, Test Scores: A Guide to Understanding and Using Test Results (available at http://goo.gl/FETzgS). The third sentence of K.S.A. 44-510c(a)(2) simply doesn’t apply to Wimp at all—-he is not substantially paralyzed, insane, or an imbecile.
American Highway Technology has cited one appellate case that does support its position, Nelson v. Capital City Moving & Storage, 32 Kan. App. 2d 566, 85 P.3d 728 (2004), rev. granted May 25, 2004, appeal dismissed by stipulation August 23,2004. In that case, a panel of our court held that if an employee’s inability to find work was due in part to tire employee’s limited intellectual ability, tire employee could not be considered totally and permanently disabled unless that limited intellectual ability (which our panel called a “mental condition”) was caused by work-related injuries. 32 Kan. App. 2d 566, Syl. ¶¶ 3-4. We do not find the Nelson decision persuasive here.
First, the decision lacks precedential value. When our Supreme Court grants review, the decision of our court, by rule, has “no force or effect.” Supreme Court Rule 8.03(j) (2014 Kan. Ct. R. Annot. 77). After the Supreme Court granted review in Nelson, the parties filed supplemental briefs, and two groups, the Kansas Trial Lawyers Association and the Kansas AFL-CIO (a labor organization), filed friend-of-the-court briefs arguing that our court’s statutory analysis was mistaken. After those briefs were filed, the parties dismissed the appeal, presumably having settled the case.
We recognize that a losing party cannot simply nullify an appellate court’s reasoned opinion by buying off the other side in settlement. See Singh v. Carnival Corp., 550 Fed. Appx. 683, 686-87 (11th Cir. 2013), cert. denied 134 S. Ct. 2729 (2014). Here, though, our Supreme Court granted review before the parties settled die case. Rule 8.03(j) then made our decision “of no force or effect,” and no further action by our court or the Kansas Supreme Court addressed the merits of the case.
Second, even if we look to the Nelson decision merely for its reasoning, we do not choose to follow it. As far as we can tell, no one presented the Nelson court with the legislative histoiy that showed the entry of the term “imbecility” into our workers-compensation statutes in 1917 or explained that the term had a specific and known meaning at that time. That history is quite important: When construing a statute, technical words or ones that have a “peculiar and appropriate meaning in law[] shall be construed according to their peculiar and appropriate meanings.” K.S.A. 77-201 Second; see Rose v. Via Christi Health System, Inc., 279 Kan. 523, 527, 113 P.3d 241 (2005). In addition, “[t]he words of a statute must be taken in the sense in which they were understood at the time the statute was enacted.” United Parcel Service, Inc. v. Armold, 218 Kan. 102, 107, 542 P.2d 694 (1975). Accordingly, we must give “imbecility” the meaning it had acquired in law at the time of enactment. And since Wimp would not fall into the category of “imbecile,” the third sentence of K.S.A. 44-510c(a)(2) has no application whatsoever in our case.
Given that understanding, the Board correctly applied the statute. Under the second sentence of K.S.A. 44-510c(a)(2), the Board applied a rebuttable presumption that Wimp was totally and permanently disabled because he was unable to gain employment. The Board then considered the evidence presented by both sides to determine whether American Highway Technology had effectively rebutted that presumption and concluded that it hadn’t.
American Highway Technology argues that the Board’s conclusion that it didn’t effectively rebut the presumption isn’t supported by substantial evidence. But its argument here is contingent upon its interpretation of K.S.A. 44-510c(a)(2): “If the appropriate interpretation of [the statute] is applied, as in Nelson, Wimp remains capable of engaging in substantial and gainful employment; therefore, the Board’s Order is not supported by substantial competent evidence and should be reversed.” (Emphasis added.) Of course, we have already rejected that legal argument. Accordingly, the Board properly considered and relied on testimony from vocational experts on the effects of Wimp’s injuries on his employability.
That evidence fully supports the Board’s ruling. The Board relied on the testimony of Karen Terrill, a vocational-rehabilitation consultant. She reviewed Wimp’s employment history, and she testified that she was familiar with the labor market in southeast Kansas, where Wimp lives. Based solely on the work restrictions provided by Dr. Bieri, the court-appointed expert, she concluded that Wimp was unable to perform 8 of the 12 work-related tasks he had done in past employment. She noted that he had always engaged in work that had a heavy or veiy heavy physical demand; that he had no knowledge of computers, could not type, and could not read a newspaper; and that his test scores showed limited ability (at a grade-school level) in reading and math and an extremely low score for “fluid reasoning,” the ability to solve problems using in ductive or deductive reasoning. Based on his abilities, his work history, and Dr. Bieri’s limitations on what he can do physically, she concluded that Wimp was no longer able to engage in substantial gainful employment.
To be sure, there was other evidence in the record that supported the employer. It hired Steve Benjamin, another vocational-rehabilitation consultant, who testified that Wimp was still employable. But Benjamin relied only on the work restrictions of Dr. Paul Stein, who examined Wimp at the employer’s request. The Board ultimately relied upon Dr. Bieri’s rating, not Dr. Stein’s. American Highway Technology has not shown any reason that tire Board could not properly rely upon the opinions and testimony of Terrill and Dr. Bieri. This is not a case in which their testimony was so undermined by cross-examination or other evidence that a reasonable person could not rely upon it in reaching a conclusion about the case. The Board’s conclusion that American Highway Technology failed to rebut the presumption that Wimp was permanently and totally disabled was supported by substantial evidence.
Conclusion
We close with a note about the current version of tire statute, K.S.A. 2014 Supp. 44-510c(a)(2). As amended in 2011, tire second, third, and fourth sentences we have discussed at length in this opinion were eliminated. See L. 2011, ch. 55, sec. 7. Thus, the pejorative term “imbecility” has been removed. After that change, the terms “imbecile” and “imbecility” no longer appear in the statutes of Kansas. We hope, therefore, that this will be the case of last impression on the subject. We have published this opinion, though, because the statute in place on the date of injury controls under the Kansas Workers Compensation Act, so other cases under the old statute may still be moving through the adjudicative process.
In summaiy, then, the Board correctly interpreted and applied K.S.A. 44-510c(a)(2), and substantial evidence supports its determination that Wimp was totally and permanently disabled. We therefore affirm its decision. | [
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Gardner, J.;
This case asks whether the district court erred in granting summary judgment to BNSF Railway Company (BNSF) based on the courts exclusion of various experts whom plaintiff Jay E. Smart anticipated would opine as to breach of duty and to causation in Smarts case brought under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 etseq. (2012). We find no abuse of discretion in the district court’s exclusion of Dr. Tyler Kress, the liability expert, so we find it unnecessary to address any error in the exclusion of the causation opinions of plaintiff’s treating physicians. Accordingly, we affirm.
Procedural background
Jay E. Smart worked for BNSF for nearly 20 years. In 2010, he filed this case under FELA alleging he suffered cumulative trauma injuries to his neck, back, hips, legs, and arms as a result of his job-related duties as a railroad electrician in the Topeka service and maintenance terminal in Topeka, Kansas. Those duties included repetitive climbing, lifting, carrying, engaging in repetitive motion using power tools, working in confined and awkward positions, and overuse. He further alleged he was required to work “without being afforded reasonably safe conditions,” which resulted in permanent injuries to his muscles, tendons, ligaments, discs, and soft tissues in his neck and arms.
BNSF moved for summaiy judgment in Januaiy 2014, arguing Smart could not prove the necessary elements of his FELA claim. The district court denied that motion but granted a separate motion for summaiy judgment based on the statute of limitations which excluded claims for Smart’s injuries to his back, hips, legs, and arms. Smart does not challenge that ruling on appeal.
Smarts FELA claim for his neck injuries remained at issue. During discovery, Smart informed BNSF of the experts he intended to call at trial and described their testimony. This included Dr. Tyler Kress, a liability expert experienced in ergonomics. Dr. Kress, Smart’s sole liability expert, planned to testify that BNSF had failed to provide a reasonably safe place to work and was negligent by failing to have adequate ergonomic tools and work practices to prevent injuries such as those Smart sustained. Smart also disclosed five treating physicians who planned to testify that Smarts work caused or contributed to his injuries.
After BNSF deposed Smart, Dr. Kress, and the treating physicians, BNSF moved to strike all of Dr. Kress’ testimony, as well as the causation opinions of Smart’s treating physicians. The district court held a hearing and granted both motions. The district court found Dr. Kress had no specific information regarding Smart’s case and his “testimony is so generic that it could apply to almost any worker, in any position, anywhere dealing with a railroad.” The district court excluded Dr. Kress’ testimony because it lacked sufficient factual foundation to show its reliability and thus would not be helpful to the juiy.
Thereafter, the parties agreed Smart could not make a prima facie case under FELA without competent expert testimony and without causation testimony. Smart then filed an interlocutory appeal, but we dismissed it as untimely. BNSF renewed its previous motion for summaiy judgment, and the district court granted it. Smart timely appeals, alleging error in the district court’s underlying decision to exclude his expert opinions on liability and causation.
Summary judgment standard
Review of a grant of summary judgment requires us to look to pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, to see if they 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. Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013). We first review the exclusion of Dr. Kress’ testimony. The parties do not dispute that Dr. Kress’ testimony, if admitted, would have created sufficient material disputes of fact to withstand BNSF’s motion for summary judgment on the issue of negligence. Nor do the parties dispute that without Dr. Kress’ testimony, Smart lacks sufficient evidence to create a material dispute of fact regarding BNSF’s breach of duty. Thus, the crucial question presented on appeal is whether the district court properly excluded Dr. Kress’ testimony.
FELA requirements
We initially address Smart’s argument that FELA is a broad remedial statute that must be construed liberally to effectuate its humanitarian purpose. Smart implies that granting summary judgment is rarely, if ever, appropriate in a FELA case.
Congress enacted FELA in 1908 to provide a comprehensive scheme for railroad workplace injuries, preempting state-law tort claims. Norfolk Southern R. Co. v. Sorrell, 549 U.S. 158, 165, 127 S. Ct. 799, 166 L. Ed. 2d 638 (2007). Under FELA:
“Every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injuiy while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from tire negligence of any of tire officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” 45 U.S.C. § 51 (2012).
We have recognized a lower standard of proof for causation in FELA actions. See Knowles v. Burlington Northern R.R. Co., 18 Kan. App. 2d 608, 613, 856 P.2d 1352, rev. denied 254 Kan. 1007 (1993); see also CSX Transp., Inc. v. McBride, 564 U.S. 685, 698-700, 131 S. Ct. 2630, 180 L. Ed. 2d 637 (2011) (rejecting traditional proximate cause standard in favor of more expansive causation standard; finding it sufficient that railroad’s negligence played “ ‘any part’ ” in producing the injury). “It is firmly established that questions of sufficiency of evidence for the jury in cases arising under FELA in state courts are determined by federal rules.” Norton v. Norfolk Southern Ry. Co., 350 S.C. 473, 567 S.E.2d 851 (2002). The relaxed causation standard has prompted one circuit to note that “numerous FELA actions have been submitted to a jury based upon . . . evidence scarcely more substantial than pigeon bone broth.” Harbin v. Burlington Northern R Co., 921 F.2d 129, 132 (7th Cir. 1990).
While it is true that under FELA the quantum of evidence sufficient to present a jury question of causation is less than it is in a common-law tort action, the “relaxed causation standard under FELA does not affect [plaintiffs] obligation to prove that [the employer] was in fact negligent.” Volner v. Union Pacific R. Co., 509 Fed. Appx. 706, 708 (10th Cir. 2013) (quoting Van Gorder v. Grand Trunk Western R.R., Inc., 509 F.3d 265, 269 [6th Cir. 2007]). We agree with the reasoning of those courts that have concluded that the relaxed causation standard under FELA and the standard for admission of expert testimony “are distinct issues” that “do not affect one another.” Claar v. Burlington Northern R. Co., 29 F.3d 499, 503 (9th Cir. 1994); see Bowers v. Norfolk Southern Corp., 537 F. Supp. 2d 1343, 1352 (M.D. Ga. 2007). In other words, “the fact that FELA employs a relaxed standard of causation ‘does [not] mean that in FELA cases courts must allow expert testimony that in other contexts would be inadmissible/” Bowers, 537 F. Supp. 2d at 1352. Rather, the admission of expert testimony is controlled— even in FELA cases—by the rules of evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Bowers, 537 F. Supp. 2d at 1352. Accordingly, the Tenth Circuit continues to apply the standard Daubert analysis to expert opinions offered in FELA claims. See, e.g, Summers v. Missouri Pacific R.R. System, 132 F.3d 599, 601-03 (10th Cir. 1997).
Employer liability under FELA is based on the employer’s neg ligence, not merely on the fact of the employees injuries. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S. Ct. 598, 91 L. Ed. 572 (1947). Accordingly, in order to recover under FELA, Smart had the burden to prove the traditional common-law negligence elements of duty, breach of a duty, foreseeability of injury, and causation with its attendant relaxed burden. See Williams v. National R.R. Passenger Corp., 161 F. 3d 1059, 1062 (7th Cir. 1998); Volner, 509 Fed. Appx. at 708; Wilson v. BNSF Railway. Co., No. 100,115, 2009 WL 2948656, at *5 (Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1105 (2010).
“ ‘[T]he [FELA] plaintiff must prove that the railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury. [Citations omitted.] The defendant’s duty is measured by what a reasonably prudent person should or could have reasonably anticipated as occurring under like circumstances. [Citation omitted.]’ Davis v. Burlington Northern, Inc., 541 F.2d 182, 185, cert. denied 429 U.S. 1002 (8th Cir. 1976).
“We point out that a railroad is not an insurer. ‘ “If [the railroad] has no reasonable ground to anticipate that a particular condition . . . would or might result in a mishap and injury, then [the railroad] is not required to do anything to correct [the] condition.” [Citation omitted.]’ CSX Transp., Inc. v. McBride, 564 U.S. 685, 131 S. Ct. 2630, 2643, 180 L. Ed. 2d 637 (2011).” Davila v. BNSF Railway. Co., No. 107,533, 2013 WL 1859208, at *3 (Kan. App.) (unpublished opinion), rev. denied 298 Kan. 1201.
Smart thus had the burden under FELA to show a genuine dispute of material fact that BNSF breached its legal duty to Smart and that Smart s injuries had been caused by his work.
Frye or Daubert test
Although Smart’s claim is pursuant to a federal statute, the state trial court must follow state procedure in determining the reliability of expert testimony. See Russell v. Illinois Central R.R. Co., No. W2013-02453-COA-R3-CV, 2015 WL 4039982, at *2-8 (Tenn. App. June 30, 2015), appeal denied November 25, 2015 (examining admissibility of expert FELA testimony under state rules of evidence); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.), cert. denied, 525 U.S. 1017 (1998); Abraham v. Union Pacific R. Co., 233 S.W.3d 13, 18 (Tex. App. 2007).
As a preliminary matter, we must determine which Kansas stat ute applied to the admission of Dr. Kress’ testimony. At the time the district court granted BNSF’s motion to strike the testimony of Smart’s experts, the Frye test was in effect. See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Thereafter, the Kansas Legislature amended K.S.A. 60-456 through K.S.A. 60-458, effectively abrogating Kansas courts’ long-held rebanee on the Frye test for scientific evidence, and adopting the test found in Daubert, 509 U.S. at 589-94. After that legislative change, the district court granted BNSF’s motion for summary judgment without specifically determining the admissibility of the experts’ proposed testimony under Daubert.
Both parties agree, however, this court should apply Daubert in determining the propriety of the district court’s exclusion of Smart’s experts. Neither party claims the district court applied the incorrect test by making its initial admissibility findings under Frye, and neither party alleges the ultimate result may have been different under either test.
Our general rule is that an appellate court “must apply the statutory law on evidence as it was at the time of the challenged evi-dentiary ruling.” Ohlmeier v. Jones, 51 Kan. App. 2d 1014, 1018, 360 P.3d 447 (2015) (reviewing admission at trial of expert testimony), petition for rev. filed November 16, 2015; State v. Scott, No. 110,312, 2015 WL 5613055, at *3 (Kan. App. 2015) (unpublished opinion) (reviewing admission at trial of certificate of forensic examination); see State v. Hart, 297 Kan. 494, 510, 301 P.3d 1279 (2013). But here, the district court’s ruling on the motion to strike was a pretrial ruling in the nature of a motion in limine, so that ruling was subject to change at any time before judgment was entered in the case. See State v. Breedlove, 295 Kan. 481, 494, 286 P.3d 1123 (2012) (“An order resulting from a motion in limine is a temporary protective order that is subject to change during the trial.”). That evidentiary ruling formed the basis for the summary judgment ruling which Smart appeals. Because Daubert was the correct test for admissibility of evidence at the time the district court granted BNSF’s summary judgment motion, we agree that its principles and not those of Frye control our analysis, despite the fact that Frye was in effect at the time tire district court initially excluded Smarts experts.
Our standard of review for exclusion of testimony
At the time the district court granted BNSF’s motion for summary judgment, the admission of expert witness testimony was controlled by K.S.A. 2015 Supp. 60-456(b), which provided:
“If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of tire case.”
We review de novo whether the district court actually performed its gatekeeper role in the first instance and whether it applied the proper standard in admitting expert testimony. See United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc) (applying Federal Rule of Evidence 702). Here, the district court performed its gatekeeper role by reading the briefs on the motion to strike, conducting a hearing, and ruling on the reliability of the challenged testimony. The parties do not allege the district court applied an improper standard in excluding expert testimony. Cf. Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1245 (10th Cir. 2000) (“We do not believe, however, the bare fact that the district court did not explicitly utilize the Daubert analysis in admitting [the] testimony renders the admission erroneous.”). Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), teaches that Daubert is not talismanic; it simply means that prior to admitting expert testimony, the court must insure tire testimony “‘is not only relevant, but reliable.’” Kumho Tire, 526 U.S. at 147. The court applied that standard here.
Where, as here, the district court performed its gatekeeper role and applied the proper legal standard, we review for abuse of discretion the district court’s decision to admit or exclude the testimony. See Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 70, 274 P.3d 609 (2012) (An appellate court reviews the admission or exclusion of opinion testimony under K.S.A. 60-456 for an abuse of discretion.). A judicial action constitutes an abuse of discretion if the action is arbitrary, fanciful, or unreasonable; is based on an error of law; or is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013).
Daubert’s requirements
To date, no Kansas appellate court has interpreted or applied K.S.A. 2015 Supp. 60-456, as revised. In the absence of controlling authority, we look to the substantively identical federal rule, Federal Rule of Evidence 702 (F.R.E. 702). See Fredricks v. Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976) (finding federal interpretations persuasive where state and federal rules are similar); State v. Johnson, 19 Kan. App. 2d 315, 318, 868 P.2d 555 (1994) (finding federal authority “uniquely persuasive” where Kansas’ statute is a “mirror image” of a federal rule).
Qualifications
Under our statute, as under F.R.E. 702, the court must decide first whether the expert is qualified “by knowledge, skill, experience, training or education” to render an opinion. K.S.A. 2015 Supp. 60-456(b). The parties in this case do not dispute Dr. Kress’ qualifications as an expert or challenge the district court’s finding that Dr. Kress was qualified as an expert in ergonomics under this rule.
Reliability, relevance, and helpfulness to thejwy
Second, the court “‘must satisfy itself that the proposed expert testimony is both rehable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony.’” Nacchio, 555 F.3d at 1241 (quoting United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 [10th Cir. 2006]). Helpfulness to the trier of fact is determined by evaluating whether the testimony is relevant and whether the “‘methodology properly can be applied to the facts in issue.’” Summers, 132 F.3d at 603. Specifically, the court must determine whether the testimony “is based on sufficient facts or data,” and is “the product of reliable principles and methods,” and whether “tire witness has reliably applied the principles and methods to the facts of the case.” K.S.A. 2015 Supp. 60-456(b). The district court essentially found Dr. Kress’ proposed testimony deficient in these respects.
The purpose of the reliability determination is not to decide whether tire experts conclusions are correct but whether the analysis used to reach them is reliable. Reliability of an experts testimony may be demonstrated in various ways. The law “grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire, 526 U. S. at 142. Our review of a district courts reliability determination begins with understanding whether an expert is basing his or her testimony on scientific theory or, rather, on experience.
Testimony based on scientific theory
Under Daubert, the court determines the reliability of proposed scientific testimony by looking to factors such as (1) whether the theory has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error associated with the theory; and (4) whether the theory has attained widespread or general acceptance. 509 U.S. at 592-94. But these four factors are not a “‘definitive checklist or test’” and a court’s gatekeeping inquiry into reliability must be “ ‘ “tied to the facts’” of a particular ‘case.’” Kumho Tire, 526 U.S. at 150.
Testimony based on 'personal knowledge or experience
In some cases, the relevant reliability concerns may focus upon personal knowledge or experience instead of the Daubert factors and scientific foundation. Kumho Tire, 526 U.S. at 150.
“On the other hand, an expert may be qualified to render opinions based on experience alone. Kumho Tire v. Carmichael, 526 U.S. 137 (1999). See Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235 (10th Cir. 2004). To the extent a witness is relying primarily on experience, he or she ‘must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.’ United States v. Frazier, 387 F.3d 1244, 1261 (11th Cir. 2004).” Seifert v. Unified Gov’t of Wyandotte County, No. 11-2327-JTM, 2016 WL 107932, at *1-2 (D. Kan. 2016).
Smart contends that Dr. Kress based his conclusions not on a particular' scientific theory but on his general experience and industry literature.
“Kuraho Tire expanded the Daubert inquiiy to cover expert testimony that is not purely scientific. The Court held that ‘the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.’ Id. at 142, 119 S. Ct. 1167. It nonetheless emphasized ‘the importance of Daubert’s gatekeeping requirement.’ 526 U.S. at 152, 119 S. Ct. 1167. ‘The objective of that requirement... is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’ Id. Affirming the district court’s refusal to allow an expert witness to testify, the Supreme Court ‘found no indication in the record that other experts in the industry use [the expert’s] two-factor test’ and noted that the parties did not ‘refer to any articles or papers that validate [the expert’s] approach.’ Id. at 157, 119 S. Ct. 1167. The Court reemphasized-an earlier holding that ‘nothing in either DaubeH or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.’ 526 U.S. at 157, 119 S. Ct. 1167 (citing General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed.2d 508 (1997)).” United States v. Medina-Copete, 757 F.3d 1092, 1101 (10th Cir. 2014) (finding the district court abused its discretion by admitting an expert witness to offer opinion testimony pursuant to F. R. E. 702 about tire connection between so-called “narco saint” iconography and drug trafficking).
F.R.E. 702/K.S.A. 2015 Supp. 60-456 analysis
The court must perform its gatekeeping role for all expert testimony, not just for scientific expert testimony. See United States v. Garza, 566 F.3d 1194, 1199 (10th Cir. 2009). And the court has broad discretion when deciding whether to admit or exclude expert testimony. Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1498 [10th Cir. 1996]) (quoting Orth v. Emerson Elep. Co., White-Rodgers Div., 980 F.2d 632, 637 [10th Cir. 1902]). “The proponent of expert testimony bears the burden of showing that the testimony is admissible.” Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013) (citing Nacchio, 555 F.3d at 1241). We note, however, that “rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory committees note to 2000 amendments. While Daubert requires the court to act as a gatekeeper for the admission of expert testimony, “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof’ remain “the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
“As part of the pretrial evaluation, the trial court . . . must determine whether the expert opinion is ‘based on facts that enable the expert to express a reasonably accurate conclusion as opposed to conjecture or speculation ....’” First Savings Bank, F.S.B. v. U.S. Bancorp, 117 F. Supp. 2d 1078, 1083 (D. Kan. 2000) (quoting Kieffer, 90 F.3d at 1499). We thus review the record to determine whether Dr. Kress explained how his experience, including the professional studies on which he relied, lead to his conclusions, why his experience provides a sufficient basis for his opinions, and how his experience is reliably applied to the facts. See Fed. R. Evid. 702 advisory committees note to 2000 amendments.
Dr. Kress’ testimony
Dr. Kress opined that Smarts work exposed him to ergonomic risk factors consistent with his neck injury; that BNSF failed to design Smart s job properly to minimize hazards associated with those injuries; that BNSF failed to implement an ergonomics program to help reduce cumulative trauma disorders (CTDs); and that BNSF failed to provide appropriate awareness training regarding the risks of developing CTDs.
Prior to his deposition, Dr. Kress supplied a letter and supplemental letter which provided his written report, his findings, his qualifications and experience, a list of material he relied upon, and a list of potentially relevant literature. During his deposition, Dr. Kress was asked whether he had ever observed an electrician performing work on a locomotive. He replied,
T’ve worked on numerous matters involving electricians. As far as physically being in person and observing them doing some work, I think I probably have. Most of the time I do inspections—or I’d say a lot of the times—they are not working, it’s not the nature of the inspection. But I think that over the years at some point I’m bound to have observed some of them doing their work.”
He was unable to provide a specific example of when he may have observed an electrician, but he believed it would have been within the last 20 to 25 years. Dr. Kress also testified he did not recall whether he had ever visited the Topeka shops, where Smart worked. He did not allege he had seen Smart perform any part of his work. Dr. Kress did not make any detailed on-site analysis of the facility in operation.
Nor did Dr. Kress demonstrate his understanding of the work tasks routinely performed by Smart. Dr. Kress admitted that he had not interviewed Smart but had reviewed his deposition. When asked about Smarts training and job duties, Dr. Kress admitted he did not know what training Smart received, did not know the dimensions of the locomotives Smart worked on, could not describe the task Smart most frequently performed, and did not know which tools Smart used most frequently.
Dr. Kress was also asked how BNSF could have redesigned the job tasks to provide Smart with a better ergonomic environment. Dr. Kress said,
“I haven’t specifically been asked to do the redesign of this work environment. That’s not part of my task in here is [sic] to specifically go in and do the redesign. I think I have given you á response with respect to what I believe the reasonable approach is to the development of cumulative trauma disorders and particularly of the neck and Mr. Smart, but I haven’t gone in to give specific recommendations on use this part or use the Prosecco machine to do this, etc.”
Dr. Kress was further asked if he knew a way to redesign the electrical work on locomotives so the workers were never in awkward postures. Dr. Kress testified,
“I’m not saying that it should be redesigned such that he’s never in awkward postures. But I do [sic] believe that? Yes, there are absolutely ways in which you can access and gain access to these areas such Aat tíre posture isn’t assumed and the risk factors aren’t assumed as much as he has to do regularly.”
Throughout his deposition, Dr. Kress never provided specific examples of what BNSF did wrong or could have done better in Smarts case, or in the case of any locomotive electrician. Instead, he admitted he was not “claiming that a reasonable or a better ergonomics program would have prevented [Smart’s] injuries.”
Dr. Kress alluded to industiy literature regarding appropriate engineering controls and BNSF’s failure to implement them, but Dr. Kress admitted he was not sure whether any of them were relevant to electricians who worked for a railroad. Dr. Kress neither identified any literature he reviewed specifically for this case nor showed how the over 20,000 pages of hterature referenced in his report related to this case. Some are facially irrelevant and seemingly outdated. See, e.g., “1948 AAR Report on Knee Cartilage Injuries.” Dr. Kress did not show what methodology he used to determine the liability of BNSF or how that methodology was consistent with those described by the authors and experts whose papers Dr. Kress referenced in his report. Nor did he cite any studies showing that the degree of posture, repetition, and force to which Smart was subjected at his workplace was ergonomically unsafe.
Dr. Kress did not purport to have conducted any study, in accordance with the literature he referenced, to determine the magnitude, duration, or frequency of the risk factors that allegedly contributed to Smarts CTD. But such literature demonstrates that causation of CTDs and the degree of various risks specific workstations might possess can be measured, tested, and analyzed. To achieve reliability, the analysis should include a method for measuring a workers exposure to the relevant risk factors such as force, posture, repetition, and vibration. The scientist should then compare the exposure to known human capabilities to arrive at a probability conclusion. See Bernard, Musculoskeletal Disorders and Workplace Factors: A Critical Review of Epidemiologic Evidence for Work-Related Musculoskeletal Disorders of the Neck, Upper Extremity, and Low Back (1997) (1997 NIOSH Study). Dr. Kress did no such thing.
After reviewing the depositions and hearing arguments on the motion, the district court granted BNSF’s motion to strike Dr. Kress’ expert opinions because “his testimony does not meet the standard for admissibility in Kansas, and will not be helpful to the jury.” In support of its decision, the district court found that “[Dr. Kress’] testimony is so generic that it could apply to almost any worker, in any position, anywhere dealing with a railroad.” In its letter decision dated May 7, 2014, the district court found that Dr. Kress did not claim to know “that negligence was involved, or even might have been involved, on behalf of the BNSF Railway, Mr. Smart, or on the part of anyone else.” The district court concluded: “The witnesses should be' allowed to testify with respect to what they know about. They cannot be allowed to testify about what they can only offer some speculation.” We agree that Dr. Kress’ opinions were conclusory and were not shown to be supported by scientific evidence or by his experience. Dr. Kress’ testimony, not linked to Smart’s particular workplace or the particular tools Smart used, was so general that it lacked reliability and helpfulness to the jury.
We understand that the F.R.E. 702 inquiry, and thus the K.S.A. 2015 Supp. 60-456 inquiry, is a flexible one. And we acknowledge that “the reliability criteria enunciated in Daubert are not to he applied woodenly in all circumstances.” Garza, 566 F.3d at 1199. But despite the flexibility granted to district courts, the text of our statute requires them to ensure that proffered expert testimony is based on sufficient facts or data and is the product of reliable principles and methods, and that the witness has reliably applied the principles and methods to the facts of the case. K.S.A. 2015 Supp. 60-456; see Medina-Copete, 757 F.3d at 1103 (so stating as to F.R.E. 702[b] and [c]). These criteria were not met here. An expert cannot substitute generic experience for relevant data. The record reflects a complete absence of data relative to the facts of this case supporting Dr. Kress’ testimony, and no showing that he applied to those facts a reliable principle and method to reach his conclusions.
Because nothing in the record provides the necessary connection between Dr. Kress’ experience and his conclusions, we conclude that Dr. Kress’ “opinion evidence [was] connected to existing data only by the ipse dixit of tire expert.” Kumho Tire, 526 U.S. at 157. Having independently reviewed Dr. Kress’ deposition and report as well as other matters of record, we find the district court did not abuse its discretion by granting BNSF’s motion to exclude his testimony.
Need for expert testimony
We briefly address whether Smart needed expert testimony to establish negligence in this case, as it is unclear whether Smart concedes this point.
“Whether expert testimony is necessary to prove negligence is dependent on whether, under the facts of a particular case, the trier of fact would be able to understand, absent expert testimony, the nature of the standard of care required of defendant and the alleged deviation from the standard. See Juhnke, 6 Kan. App. 2d at 748.” Gaumer v. Rossville Truck and Tractor Co., 41 Kan. App. 2d 405, 408, 202 P.3d 81 (2009), aff'd 292 Kan. 749, 257 P.3d 292 (2011) (finding the standard of care of the seller of a used hay baler is outside the ordinary experience and common knowledge of the jury and beyond the capability of a lay person to decide); see Williamson v. Amrani, 283 Kan. 227, 245, 152 P.3d 60 (2007).
Smarts theory of liability is that his workplace involved unreasonable exposures to ergonomic risk factors, resulting in various degenerative conditions in his neck. The conclusion of liability in this case is not one within the common knowledge of lay persons, who do not know whether Smart, while working as a railroad electrician in Topeka, was unreasonably exposed to risk factors known to the employer such as force, posture, repetition, and vibration. Nor would a jury know whether BNSF was or should have been aware of conditions creating a likelihood that Smart, in performing his job duties, would suffer CTD. Smarts case is similar in this respect to FELA cases which have found that expert testimony is necessary to establish that a railroad has breached its duty to provide its workers with a reasonably safe workplace by exposing them to ergonomic risk factors. See, e.g., Doty v. Illinois Cent. R. Co., 162 F.3d 460, 461-63 (7th Cir. 1998) (granting summary judgment where no expert testified to railroads liability in providing unsafe ergonomic conditions in the workplace); Stasior v. National Railroad Passenger Corp., 19 F. Supp. 2d 835, 853 (N.D. Ill. 1998) (granting summary judgment where proposed expert testimony regarding occupational risk factors and working conditions was not rehable). We find that without the testimony of Dr. Kress, Smart is unable to show BNSF breached a legal duty owed to him.
Conclusion
Smart cannot show the necessary element of liability of BNSF absent Dr. Kress’ testimony. Accordingly, we find it unnecessary to reach Smarts argument that the court erred in precluding his treating physicians from testifying as to causation. Even if we agreed with that assertion, Smarts failure to present some evidence rais ing a genuine issue of material fact as to the negligence of BNSF compels the grant of summaiy judgment to BNSF.
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Denied.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Peter Edward Goss, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 2006.
On May 7, 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 May 16, 2014. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on June 4, 2014, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 4.1 (2013 Kan. Ct. R. Annot. 617) (truthfulness in statements to others); and 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation).
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. J.M. retained the respondent to represent him in a personal injury case against tire United States government, under the federal tort claims act, for injuries suffered in a motor vehicle accident. On July 24, 2012, the respondent filed an action in tire United States District Court for the District of Kansas, case number 12-2469-JAR.
“9. Under 28 U.S.C. § 2678, die respondent’s attorney fee could not exceed 25%.
‘No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of... any setdement made pursuant to section 2677 of this tide,. . .
‘Any attorney who charges, demands, receives, or collects for services rendered in connection with such claim any amount in excess of that allowed under this section, if recovery be had, shall be fined not more than $2,000 or imprisoned not more than one year, or both.’
28 U.S.C. § 2678.
“10. The parties submitted to mediation. As a result of the mediation, the respondent and counsel for the United States agreed to settle the case for $416,050.15. Under 28 U.S.C. § 2677, on January 16, 2013, the parties executed a settlement agreement.
“11. The United States agreed to pay the setdement amount to settle and satisfy:
‘any and all claims, demands, rights, and causes of action of whatsoever land and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and tire consequences thereof, resulting, and to result, from the subject matter of this settlement
Further, the setdement agreement referenced 28 U.S.C. § 2678, tire restriction of attorney fees in federal tort claims litigation.
“12. On January 22, 2013, counsel for the United States filed a status report informing the court that the case had settled.
“13. On January 23,2013, the court filed an order administratively closing the case and directing the parties to file a stipulation of dismissal by March 25, 2013. Thereafter, on February 27, 2013, the parties filed a joint stipulation of dismissal witir prejudice.
“14. Sapp Brothers Voluntary Employees Beneficiary Association Trust Plan (hereinafter ‘Sapp Bros.’) held a Hen on tire settlement amount for the payment of medical expenses incurred by J.M. as a result of the accident.
“15. More than 2 months later, on March 28, 2013, the respondent left a voice mail message for counsel for Sapp Bros. In the message, the respondent stated:
‘. . . I’ve got a settlement offer that that has an expiration date on it and and umm my client is obviously not willing to accept anything prior to knowing what any hen amounts gonna be and I want to talk to you a little bit about that. . . .’
“16. On April 2, 2013, the respondent sent counsel for Sapp Bros, an electronic mail message. In the electronic mail message, the respondent stated:
‘The proposed settlement on this matter is for 416,050.15.1 propose splitting the money three ways. ½ to [J.M.], ½ to Sapp Brothers for reimbursement of their medical expenses paid and ½ to my firm for reimbursement of my out of pocket expenses and attorneys’ fees. As we discussed on the phone, I have approximately $30,000 in out of pocket expenses for litigating the case including expert fees. Typically, I get my expenses plus 40% of the total expenses [sic]. With this proposal, I am reducing my fee to 25%, which is more than fair in this scenario. I ask that Sapp brothers [sic] make this concession to get the case resolved. Please let me know as soon as possible. Thanks,’
“17. In addition, in an attempt to have the lien reduced, tire respondent spoke by telephone with Daiana Williams, case manager for the recovery department of The Phia Group. During his telephone conversation with Ms. Williams, the respondent stated that if the hen holder was unwilling to compromise he would settle the case and interplead the funds or continue with litigation and proceed to trial against die United States, bodi alternatives would require the United States to incur significant attorneys fees.
“18. Counsel for Sapp Bros, discovered that the case had already settled. On April 8, 2013, counsel for Sapp Bros, then contacted counsel for the United States and obtained a copy of the settlement agreement.
“19. On April 11, 2013, counsel for Sapp Bros, wrote to the respondent. The letter provided, in pertinent part, as follows:
‘Since our discussion, it has now come to my attention that, contrary to your representations, it appears that settlement was actually reached in January of 2013, a Settlement Agreement was entered into and executed by you on January 16, 2013, and the underlying lawsuit was already dismissed with prejudice on February 27, 2013. The public records reflecting this information are attached. If my understanding is incorrect in anyway [sic], please provide an explanation to me in writing.
‘Because it appears now that my client has not been negotiated with in good faith, the Plan is not willing to reduce its hen or right to full reim-bursemenUsubrogation. Accordingly, my client requires full reimbursement in the amount of $228,671.83.
We assume the settlement proceeds remain deposited in your law firm’s trust account and that no disbursements will be made from the Plan’s portion of tire settlement funds. Please notify me in writing immediately if the funds are being held elsewhere. We expect you to maintain the full amount of Sapp Bros.’ hen in your account, but you may release amounts beyond the hen portion. Kansas Rule of Professional Conduct 1.15.
‘Accordingly, please forward a check made payable to “Sapp Bros.” for the full reimbursement/subrogation amount to my address within seven (7) days of the date of this letter.
‘We further request that any other communications regarding this matter be provided in writing via letter to the undersigned.’
“20. On April 16, 2013, the respondent contacted counsel for Sapp Bros, and requested an itemization of the lien amount. As a result of the respondent’s request, Sapp Bros, reviewed the lien amount and discovered that it had received a refund on one of the claims, so the lien amount was reduced to $212,642.21.
“21. On April 24, 2013, the respondent forwarded Sapp Bros, a check in the amount of $212,642.21.
“Conclusions of Law
“22. Based upon the respondent’s admissions and stipulations in his answer and the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 4.1(a) and KRPC 8.4(c), as detailed below.
“KRPC 4.1
“23. KRPC 4.1(a) provides that ‘[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.’ The respondent violated KRPC 4.1(a) when he made false statements of material fact in the voice mail message, the electronic mail message, and during a telephone conversation. The respondent made false statements when he stated (1) the settlement offer had an expiration date on it, (2) J.M. was not willing to accept anything prior to knowing what the lien would be, (3) the settlement was a ‘proposed settlement,’ (4) he was reducing his attorney fees from 40% to 25%, (5) if Sapp Bros, was unwilling to reduce the lien he would settle the case and interplead the funds, and (6) if Sapp Bros, was unwilling to reduce the lien he would proceed to trial. Accordingly, the hearing panel concludes that the respondent violated KRPC 4.1(a) by making false statements in the voice mail message, in the electronic mail message, and during the telephone conversation with Ms. Williams.
KRPC 8.4(c)
“24. ‘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 false statements in the voice mail message, the electronic mail message, and during a telephone conversation. The respondent made false statements when he stated (1) the settlement offer had an expiration date on it, (2) J.M. was not willing to accept anything prior to knowing what tire hen would be, (3) the settlement was a ‘proposed settlement,’ (4) he was reducing his attorney fees from 40% to 25%, (5) if Sapp Bros, was unwilling to reduce the hen he would settle the case and interplead the funds, and (6) if Sapp Bros, was unwilling to reduce die lien he would proceed to trial. As such, die hearing panel concludes tiiat die respondent violated KRPC 8.4(c) when he made false statements in the voice mail message, in the electronic mail message, and during die telephone conversation widi Ms. Williams.
“American Bar Association Standards for Imposing Lawyer Sanctions
“25. 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.
“26. Duty Violated. The respondent violated his duty to the public and the legal profession to maintain his personal integrity.
“27. Mental State. The respondent knowingly violated his duties.
“28. Injury. As a result of die respondent's misconduct, the respondent may have caused injury to his client as the hen holder stopped negotiating after learning that tire respondent was not negotiating in good faith. Further, the respondent caused actual injury to the reputation of the legal procession by making false statements.
“Aggravating and Mitigating Factors '
“29. 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, tire hearing panel, in this case, found no aggravating factors present.
“30. 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:
“31. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined.
“32. Absence of a Dishonest or Selfish Motive. While the respondent engaged in dishonest conduct, the respondent’s motivation for tire misconduct does not appear to be based on dishonesty or selfishness. The respondent’s explanation for his misconduct at tire hearing was two-fold—the respondent testified that he may have been frustrated with tire hen holder or he may have been trying to help his client.
“33. 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 tire disciplinary process, the respondent admitted the facts drat gave rise to the violations, and the respondent admitted that his conduct violated KRPC 4.1(a) and KRPC 8.4(c).
34. 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 Kansas City, Missouri. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by Ae hearing panel.
“35. Remorse. At Ae hearing on Ais matter, the respondent expressed genuine remorse for having engaged in Ae misconduct.
“36. In adAtion to Ae above-cited factors, Ae hearing panel has Aoroughly examined and considered Ae following Standards:
‘5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and Aat adversely reflects on Ae lawyer’s fitness to practice law.
‘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, Ae public, or the legal system.’
“Recommendation
“37. In this case, the Asciplinary administrator recommended Aat Ae respondent be suspended for a period of 3 months and Ae respondent argued that the appropriate discipline is censure to be published in the Kansas Reports. Clearly, tire recommendations of boA parties are supported by the ABA Standards, listed above.
“38. The hearing panel has carefully considered Ae Ascipline to recommend in this case. The hearing panel is cognizant of Ae serious nature of Ae respondent’s misconduct—the respondent engaged in Ashonest conduct. Likewise, the hearing panel recognizes that the respondent’s misconduct appears to be out of character.
“39. The hearing panel had the opportunity to observe Ae respondent during his testimony. The respondent expressed genuine remorse for having engaged in tire misconduct. The respondent fully and freely acknowledged his wrongdoing. The hearing panel is convinced that the respondent understands and takes full responsibility for having engaged in the misconduct. Further, tire hearing panel is persuaded by Ae extensive mitigating factors and notes the absence of aggravating factors.
“40. The hearing panel concludes that it is unlikely that the respondent wiE repeat the misconduct. The hearing panel concludes, therefore, that censure is die appropriate discipline to recommend to die Court. The hearing panel has not, however, reached a unanimous decision as to Ae form of the censure. A majority of Ae hearing panel concludes Aat noAing can be gained by publishing the censure in the Kansas Reports and, Aerefore, recommends Aat Ae Court censure the respondent in an unpublished decision. AccorAngly, a majority of Ae hearing panel recommends that the Court censure Ae respondent in an unpublished decision.
“41. Costs are assessed against Ae respondent in an amount to be certified by the Office of Ae Disciplinary Administrator.
“CONCURRING AND DISSENTING OPINION
“43. I concur in tire findings of fact and the conclusions of law. I also concur that the appropriate discipline in this case is censure. However, I recommend that the censure be published in the Kansas Reports. It is important for tire public and bar to know of the respondent’s conduct and that consequences to tire respondent flowed from the misconduct. Issuing an unpublished decision would send a message to the public and to the bar that the respondent’s conduct was insignificant. Accordingly, I recommend that the Court censure the respondent and the censure be published in the Kansas Reports.”
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) (2013 Kan. Ct. R. Annot. 356). 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 report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2013 Kan. Ct. R. Annot. 375).
The evidence before the hearing panel establishes by clear and convincing evidence die charged misconduct violated KRPC 4.1 (2013 Kan. Ct. R. Annot. 617) (truthfulness in statements to others); and 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation), and it supports the panel's conclusions of law. We adopt the panel’s conclusions.
At tire hearing before this court, at which the respondent appeared, the office of tire Disciplinary Administrator recommended that the respondent be suspended for a period of 3 months. The respondent argued that published censure is the appropriate discipline. The hearing panel recommended that the respondent be censured in an unpublished decision; a minority of the panel recommended published censure.
This court is not bound by the recommendations of the Disciplinary Administrator or the hearing panel. In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756 (2014). The court bases each disciplinary sanction on the specific facts and circumstances of the violations and aggravating and mitigating circumstances presented in the case. 298 Kan. at 912. While we understand the basis of the hearing panel's recommendation of unpublished censure, we agree with the Disciplinary Administrator s recommendation and find that due to the serious nature of the dishonest conduct that the respondent stipulated to, suspension is appropriate in this case. However, we find a period of 1 month rather than the 3 months as suggested by the Disciplinary Administrator to be an adequate period of time in this case. A minority of the court would issue a published censure.
Conclusion and Discipline
It Is Therefore Ordered that Peter Edward Goss be suspended for 1 month 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) (2013 Kan. C. R. Annot. 300).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406).
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.
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Standridge, J.:
Following remand by our court, this workers compensation case is before us for the second time. Daniel Anthony Ballard appeals the order of the Workers Compensation Board (Board) awarding benefits after he suffered injuries while working for his former employer, Dondlinger & Sons Construction Company, Inc. (Dondlinger). Ballard contends the Board erred in (1) calculating his permanent total disability award pursuant to the methodology set forth in Payne v. Boeing Co., 39 Kan. App. 2d 353, 180 P.3d 590 (2008), and (2) determining that Dondlinger was entitled to a subrogation credit against future compensation payments equal to the amount Ballard received from a third-party settlement.
Facts
Ballard began woxldng for Dondlinger in 2003. In December 2007, Ballard injured his neck while working and later settled a disability claim with Dondlinger, which included a lump sum payment for a 25% permanent partial general disability. In October 2010, Ballard was injured in an automobile accident while working for Dondlinger. As a result, Ballard aggravated his preexisting cervical condition and also injured his lumbar spine and left elbow.
Ballard filed a workers compensation application following his 2010 injuiy. The administrative law judge (ALJ) found that Ballard sustained a permanent partial work disability of 87.5%, based on a 100% wage loss and a 75% task loss. The ALJ also found that Ballard had a preexisting functional impairment of 25%. The ALJ then calculated the amount of Dondlinger5s credit under K.S.A. 2010 Supp. 44-501(c) for Ballard’s preexisting impairment and the corresponding reduction in Ballard’s award. In doing so, the ALJ reduced Ballard’s work disability to 62.5% by subtracting die 25% preexisting impairment from Ballard’s 87.5% work disability. After factoring Ballard’s reduced work disability into the permanent partial disability computation, the ALJ found that Ballard was still entitled to a statutorily capped, maximum award of $100,000.
Dondlinger filed an application for review by the Board. The Board affirmed the ALJ’s findings in all respects. Dondlinger appealed to this court, arguing in relevant part that the Board erred in calculating the reduction in Ballard’s award under K.S.A. 2010 Supp. 44-501(c) for his preexisting functional impairment. Specifically, Dondlinger alleged that the four-step method approved by Payne to calculate the amount of Ballard’s benefit should have been used. In Ballard v. Dondlinger & Sons Constr. Co., Inc., No. 109, 905, 2014 WL 1887654 (Kan. App. 2014) (unpublished opinion), a panel of this court affirmed in part, reversed in part, and remanded the case to the Board. Relevant to the present appeal, the panel held that the Board erred in calculating Ballard’s compensation award but rejected Dondlinger’s argument that the methodology approved in Payne should be followed. Relying on the decision issued the same day in Ward v. Allen County Hospital, 50 Kan. App. 2d 280, 324 P.3d 1122 (2014), the panel concluded that K.S.A. 2010 Supp. 44-501(c) required the Board to reduce Ballard’s $100,000 statutorily capped award by his 25% preexisting functional impairment. Ballard, 2014 WL 1887654, at *4-8.
While the prior appeal was pending before this court, two relevant events occurred. First, Ballard filed an application for review and modification of his workers compensation award. Following a hearing, the ALJ found that Ballard was now permanently and totally disabled as a result of the 2010 automobile accident. Second, Dondlinger filed with the ALJ a motion for allocation of third-party recovery based on Ballard’s receipt of an insurance indemnity award from the other driver involved in the 2010 accident. The ALJ denied the request due to the pending appeal. Dondlinger requested review by the Board of each of these rulings.
The Board, by order and agreement of the parties, consolidated the issue presented for decision on remand from the Court of Appeals—how to calculate Dondlinger’s credit for Ballard’s 25% preexisting functional impairment—with Dondlinger’s request for review of the ALJ’s rulings related to whether Ballard was permanently and totally disabled and whether Dondlinger was entitled to a subrogation credit based on Ballard’s third-party recovery. First, the Board concluded that Ballard was permanently and totally disabled. Based on Ballard’s permanent and total disability, a majority of the Board then followed the four-step method approved by Payne to calculate the amount of Ballard’s award, which resulted in a total award of $68,457.45. The Board also found that Dondlinger was entitled to a subrogation credit in the amount of $29,240.02 against future medical and compensation benefits based on Ballard’s settlement with the other driver involved in the 2010 accident. Two Board members dissented from the majority’s calculation of Ballard’s award. Instead of using the Payne methodology, the dissent advocated for the calculation method used in Ward, which would result in a total award of $93,250.
Analysis
On appeal, Ballard raises two challenges to the Board’s order. First, Ballard contends the Board erred in calculating his permanent total disability award pursuant to the methodology set forth in Payne. Second, he argues the Board erred in determining that Dondlinger was entitled to a subrogation credit against future compensation payments equal to the amount of his third-party settlement.
The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs this court’s standard of review for cases under the Workers Compensation Act (Act), K.S.A. 44-501 et seq. See K.S.A. 2014 Supp. 44-556(a); K.S.A. 2014 Supp. 77-618(a). The standard of review varies depending upon the issue raised. See K.S.A. 2014 Supp. 77-621 (defining and limiting scope of review of administrative decisions under KJRA). Our review of Ballard’s arguments on appeal involves statutory interpretation of certain provisions of the Act. Previously, Kansas courts generally gave deference to an administrative agency’s interpretation of a statute that the agency administers, especially when the agency was one of special competence and experience. See, e.g., Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 629, 154 P.3d 1080 (2007). Now, however, the appellate courts no longer extend deference to an agency’s statutory interpretation. Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (doctrine of operative construction has “been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books”); In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1044, 271 P.3d 732 (2012) (noting that the doctrine of operative construction has lost favor). Accordingly, appellate courts have unlimited review of questions involving the interpretation or construction of a statute, owing “ ‘[n]o significant deference’ ” to an agency’s or a board’s interpretation or construction. Ft. Hays St. Univ. v. University Ch., Am. Assn of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 (2010). In workers compensation cases, the statutes in effect at the time of the claimant’s injury govern the rights and obligations of the parties. As a result, we will apply the statutes in place when Ballard sustained his 2010 aggravation injury. See Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 587-89, 257 P.3d 255 (2011).
1. Calculating Ballard’s permanent total disability award
Ballard argues the Board erred in calculating his permanent total disability award. Specifically, Ballard contends the Board’s use of the Payne methodology to calculate Dondlinger’s credit for his preexisting functional impairment is contrary to this court’s directions on remand and contrary to legislative intent because it results in an unjust award.
Under the Act, the amount of compensation an injured worker is entitled to receive depends upon the nature of his or her disability. Casco v. Armour Swift-Eckrich, 283 Kan. 508, 522, 154 P.3d 494 (2007). Claimants suffering from a permanent total disability are treated differently under the Act from those who have a permanent partial disability. Permanent partial disability awards are paid based upon the formula set forth in K.S.A. 44-510e(a), and such payments shall not exceed 415 weeks. McIntosh v. Sedgwick County, 282 Kan. 636, 646, 147 P.3d 869 (2006). Permanent partial disability benefits are capped at $100,000. K.S.A. 44-510f(a)(3). Permanent total disability awards are paid based upon the formula set forth in K.S.A. 44-510c(a)(l). Such payments continue for the duration of the disability, subject to review and modification. K.S.A. 44-510c(a)(l). Permanent total disability awards are capped at $125,000. K.S.A. 44-510f(a)(l).
When Ballard’s appeal was before this court the first time, it was a permanent partial disability case. Relying on Ward, the panel held that the Board misinterpreted K.S.A. 2010 Supp. 44-501(c), and, as a result, did not apply the correct standard to reduce Ballard’s award due to his preexisting functional impairment. See Ballard, 2014 WL 1887654, at *7-8. During the pendency of the appeal, however, the nature of Ballard’s injury changed to a permanent total disability effective October 2, 2012. As such, the Board concluded on remand that rather than calculating Ballard’s entire award pursuant to the methodology in Ward, his permanent total disability award should instead be calculated according to the methodology set forth in Bayne.
a. Payne and Ward
In order to properly evaluate the Board’s ruling, we must review the Payne and Ward decisions in some detail. In Payne, decided in 2008, this court affirmed the ALJ’s calculation of the claimant’s compensation award. 39 Kan. App. 2d at 356-60. The ALJ calculated the claimant’s compensation award by determining the amount of weeks it would have taken her to reach the statutoiy maximum award for a permanent total disability. Based on the statutoiy maximum of $125,000, it would have taken the claimant 299.76 weeks of payments at her average weekly rate of $417 before reaching the statutoiy maximum amount of $125,000. The claimant’s medical evidence showed she had suffered 35% impairment to her body as a whole because of a preexisting back condition and 10% increased impairment due to a later work-related aggravation.
The claimant’s employer did not dispute that she was permanently and totally disabled but argued that her award should be reduced under K.S.A. 44-501(c) because of her preexisting 35% impairment (415 weeks x 35% = 145.25 weeks). “Subtracting these 145.25 weeks from the 299.76 weeks of permanent total disability payments resulted in an award of 154.51 weeks, or $64,430.67, less amounts previously paid.” 39 Kan. App. 2d at 356. A majority of the Board affirmed the ALJ’s calculation. The Payne court affirmed the Board’s decision, concluding that the claimant was not entitled to the statutory maximum because her compensation award had to be reduced by her 35% preexisting functional impairment. 39 Kan. App. 2d at 357-58.
In Ward, decided in 2014, the claimant sought workers compensation benefits for a 2010 cervical spine injury she sustained while working at the hospital. The ALJ concluded that the claimant suffered a 75.75% permanent partial general disability and awarded the claimant permanent partial disability compensation for a 75.50% work disability up to the maximum compensation award of $100,000. On review, the Board reduced the award to reflect credit for the claimant’s 15% preexisting functional impairment due to a 2003 cervical spine injury. Rather than reducing the claimant’s award by 15%, a majority of the Board subtracted 15% from the claimant’s work disability percentage. As a result, the majority determined that the claimant was entitled to compensation for a 60.75% work disability, which still resulted in her receiving the maximum compensation award of $100,000. One Board member dissented from the majority’s calculation of the claimant’s award as contrary to the plain language of K.S.A. 44-501(c), which states that “[a]ny award of compensation shall be reduced by the amount of functional impairment determined to be preexisting.” The dissent noted that in cases, like Ward’s, where the work disability value exceeds the maximum compensation cap, the compensation award is not reduced, contrary to the legislative intent of K.S.A. 44-501(c). Thus, in order to comply with the statutory directive, the dissent argued that the Board should have reduced the claimant’s $100,000 award by the percentage of functional impairment (15%) to arrive at a reduced award of $85,000.
On appeal to this court, the Ward panel adopted the dissent’s method of calculation. Citing the express language of K.S.A. 44-501(c), the panel concluded that the statute required that “a compensation award must be calculated before any reduction is made.” 50 Kan. App. 2d at 290. Accordingly, the Ward panel held that the $100,000 award had to be reduced by 15% to reflect the claimant’s preexisting functional impairment. 50 Kan. App. 2d at 294. The Ward panel concluded its opinion by stating that this method of calculation “should be applied in situations only when a claimant’s work disability value exceeds the statutory maximum compensation cap and when claimant will reach or attain the statutory maximum compensation cap before the statutory maximum number of weeks have been exhausted.” 50 Kan. App. 2d at 294. Judge Leben concurred with the majority opinion, “express[ing] no opinion on how K.S.A. 44-501(c) should be applied in other circumstances, such as when the award would not otherwise exceed the statutory maximum.” 50 Kan. App. 2d at 294-95.
On the same day that Ward was decided, this court issued its opinion in two other permanent partial disability cases, Ballard’s previous appeal and Jamison v. Sears Holding Corp., No. 109,670, 2014 WL 1887645 (Kan. App. 2014) (unpublished opinion). Both cases expressly declined to follow the Payne methodology in calculating the claimants’ permanent partial disability awards and instead adopted the method set forth in Ward. See Ballard, 2014 WL 1887654, at *7-8; Jamison, 2014 WL 1887645, at *6-10.
b. The Board’s ruling on remand
Following remand in the present case, the Board majority applied this court’s directive with respect to Ballard’s permanent partial disability award from October 19, 2010 (the accident date), to October 2,2012 (effective date of modification award), finding that Ballard was entitled to a total award of $75,000 ($100,000 statutory maximum minus 25% preexisting functional impairment) payable at the rate of $545 per week. From October 2, 2012, forward, however, the Board majority held that Ballard’s permanent total disability award must be reduced by the credit for preexisting impairment methodology set forth in Payne, resulting in a total award of $68,457.45. The majority calculated Ballard’s permanent total disability award as follows:
“a. $125,000 (maximum for awards of permanent total disability) divided by the compensation rate of $545 equals 229.36 weeks.
“b. 25% of 415 weeks equals 103.75 weeks.
“c. 229.36 week minus 103.75 weeks equals 125.61 weeks.
“d. 125.61 weeks at $545 per week equals $68,457.45.”
In reaching this decision, the majority noted that if Ballard had remained permanently partially disabled—rather than becoming permanently totally disabled as of October 2,2012—his total award would be $75,000, an inequitable result that appeared contrary to the legislative intent that claimants with permanent total disabilities should receive more compensation than claimants with permanent partial disabilities. See K.S.A. 44-510f(a)(l) (maximum compensation benefits payable by employer for permanent total disability is $125,000); K.S.A. 44-510f(a)(3) (maximum compensation benefits payable by employer for permanent partial disability is $100,000). Nevertheless, the majority concluded that it was duty bound to follow Payne as binding precedent.
The dissenting Board members adopted the Ward method and calculated Ballard’s award by subtracting his 25% preexisting functional impairment from the $125,000 maximum award, which would equal $93,750. The dissent noted the inequity that would result in this case with the application of Payne, as an injured worker who is permanently and totally disabled would receive less compensation than if he was only permanently partially disabled. The dissent also provided an example showing how the Payne calculation method penalizes workers with higher wages and weekly benefit rates, pointing out that it reduced Ballard’s award by over 50%, but it would be reduced by much less if his weekly benefit rate was lowered from over $500 to $200. The dissent argued that, in either case, the Payne methodology is contrary to the intent of K.S.A. 2010 Supp. 44-501(c) because it does not actually reduce the award by the amount of the claimant’s preexisting functional impairment.
c. Application of Payne to permanent total disability awards
For its part, Dondlinger asserts that the Board properly adjusted its method for calculating Ballard’s permanent total disability award because permanent total disability claims should be treated differently from permanent partial disability claims, as evidenced by the fact that these claims are found in different statutory provisions and each type of award is subject to a different statutory cap. See K.S.A. 44-510c(a)(l) (compensation for permanent total disabilities); K.S.A. 44-5l0e(a) (compensation for permanent partial disabilities); K.S.A. 44-510f(a)(l) (capping permanent total dis ability awards at $125,000); K.S.A. 44-510f(a)(3) (capping permanent partial disability awards at $100,000).
Dondlinger is correct that permanent total disability and permanent partial disability claims are treated differently under the Act in some respects. Ward involved a permanent partial disability claim, and thus far, its holding has only been adopted in other permanent partial disability cases. See Ballard, 2014 WL 1887654, at *7; Jamison, 2014 WL 1887645, at ⅞9. But there appears to be no statutory justification for calculating an award involving preexisting functional impairment differently based on the type of claim involved. When a statute is plain and unambiguous,
“[o]ur Supreme Court, particularly in the area of workers compensation, has declared that ‘an appellate court must give effect only to express statutory language, rather than speculating what tire law should or should not be, and that we will not add something to a statute not readily found in it.’ ” Ward, 50 Kan. App. 2d at 289 (quoting Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 610, 214 P.3d 676 [2009]).
When a workers job duties aggravate or accelerate an existing condition or disease, the injured worker s compensation is statutorily limited to any increase in the amount of his or her functional impairment associated with the aggravation. K.S.A. 2010 Supp. 44-501(c) directs that “[a]ny award of compensation shall be reduced by the amount of functional impairment determined to be preexisting.” (Emphasis added.) Significantly, the Ward panel noted that “[although Payne involved a permanent total disability and the present appeal involves a permanent partial disability, the plain language of K.S.A. 44-501(c) does not distinguish between these two types of disabilities.” 50 Kan. App. 2d at 292. Moreover, the reasons given for not applying Payne in permanent partial disability cases are equally applicable to permanent total disability cases.
First, Payne was decided in 2008 and employed the doctrine of operative construction, which required the court to defer to the Board’s interpretation of the Act “if there [was] a rational basis for it.” 39 Kan. App. 2d 353, Syl. ¶ 1. Now, however, our appellate courts no longer extend deference to an agency’s statutory interpretation. See Douglas, 296 Kan. at 559 (“In dealing with a statute in a workers compensation appeal, no deference is due the inter pretation or construction given the statute by an ALJ or the Board.”)- Accordingly, cases relying on the doctrine of operative construction are no longer cited for issues involving statutory interpretation in administrative cases because appellate review is now unlimited. See Ft. Plays St. Univ., 290 Kan. at 457.
Second, the express language of K.S.A. 2010 Supp. 44-501(c) requires the award of compensation to be reduced by the percentage of the claimant’s preexisting functional impairment. In certain cases, the Payne methodology does not accomplish the legislative directive of reducing the award where it is capped at the statutory maximum. This could occur in either a permanent partial disability or a permanent total disability case.
Third, Payne’s formula for calculating credit can be inconsistent because the formula is “ ‘based upon a variety of factors, including the average weekly wage and percentage of work disability.’ ” Ward, 50 Kan. App. 2d at 292. For example, the Payne methodology may penalize injured workers who earn a higher rate of pay. As noted by the Board’s dissent, in some instances, a lower paid injured worker with a preexisting functional impairment would receive nearly all of the $125,000 maximum benefits, while a higher paid worker would receive significantly less.
Fourth and finally, application of the Payne methodology in this case leads to an inequitable result by awarding Ballard less for a permanent total disability tiran he would have received if he had continued to suffer only a permanent partial disability. Such a result is clearly contrary to legislative intent that a totally disabled worker should receive higher benefits dian those workers who are only partially disabled. See K.S.A. 44-510f(a)(l) and (a)(3).
In sum, the modification of Ballard’s injury to a permanent total disability does not change the manner in which the award should be calculated to reflect his preexisting functional impairment. Payne should no longer be used to determine credit for preexisting functional impairment when calculating permanent total disability awards. Therefore, under Ward’s methodology, both a permanent total disability and a permanent partial disability workers compensation award must be calculated before any reduction for preexisting functional impairment can be made. Because the Board used Payne to calculate Ballard’s permanent total disability award, we must reverse and remand with directions that the Board apply K.S.A. 2010 Supp. 44-501(c) to reduce Ballard’s $125,000 statutorily capped award by his 25% preexisting functional impairment, consistent with the calculation adopted in Ward.
2. Subrogation credit
Ballard argues the Board erred in determining that Dondlinger is entitled to a subrogation credit pursuant to K.S.A. 44-504(b) as a result of his third-party settlement recoveiy.
K.S.A. 44-504(a) provides that injured workers may receive workers compensation benefits from their employers without compromising their right to pursue independent legal actions against third parties potentially liable for the injuries. K.S.A. 44-504(b), however, grants employers subrogation rights for workers compensation benefits paid injured employees as against recoveries those employees might realize in third-party suits by permitting employers to intervene in these actions to protect their subrogation interests. K.S.A. 44-504(b) provides, in relevant part:
“In the event of recovery from such other person by the injured worker or the dependents or personal representatives of a deceased worker by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recoveiy and shall have a lien therefor against the entire amount of such recovery, excluding any recovery, or portion thereof, determined by a court to be loss of consortium or loss of services to a spouse. The employer shall receive notice of the action, have a right to intervene and may participate in the action. The district court shall determine the extent of participation of the intervenor, including the apportionment of costs and fees. Whenever any judgment in any such action, settlement or recovery otherwise is recovered by the injured worker or the worker’s dependents or personal representative prior to the completion of compensation or medical aid payments, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of the compensation or medical aid.”
Our Supreme Court has recognized that “[t]he intent of K.S.A. 44-504(b) is twofold: (1) to preserve injured workers claims against third-party tortfeasors and (2) to prevent double recoveries by in jured workers.” Wishon v. Cossman, 268 Kan. 99, 105, 991 P.2d 415 (1999). As such, the court went on to hold that “K.S.A. 44-504(b) grants employers subrogation liens on tort recoveries by injured workers only to the extent that a worker s recovery duplicates compensation and medical expenses paid by the employer under the Workers Compensation Act.” 268 Kan. at 105-06.
Consistent with his rights under K.S.A. 44-504(a), Ballard filed a claim against the other driver involved in the 2010 automobile accident which caused his injuries. The case was settled for $100,000, the policy limit of the insurance carrier, State Auto. At the time of the settlement, Dondlinger had paid compensation and medical expenses related to Ballard’s workers compensation claim totaling $55,848.81. Accordingly, State Auto issued two checks. The first check for $55,848.81 was made out to Ballard, Ballard’s attorney, and Dondlinger’s insurance carrier as a result of Dondl-inger’s subrogation hen. The second check for $44,151.19 was made out to Ballard and his attorney. It is undisputed that after deducting attorney fees and expenses, Ballard actually received $29,240.02.
Citing K.S.A. 44-504(b), the Board held that Dondlinger was entitled to a subrogation credit in the amount of $29,240.02 against any workers compensation benefits that accrued after Ballard’s tort recovery or would accrue in the future. In other words, the Board ruled that Dondlinger was not required to resume benefit payments until the credited amount was exhausted.
Ballard contends the Board erred in determining that Dondl-inger was entitled to a subrogation credit because there was no evidence presented indicating (1) a hen amount, (2) that Dondl-inger had asserted its entitlement to a lien, or (3) that Dondlinger had addressed Ballard’s loss of consortium or loss of services claims. As such, Ballard claims that Dondlinger has waived its right to any subrogation credit or potential Hen.
Ballard’s arguments misconstrue the clear distinction between subrogation hens and credits set forth in K.S.A. 44-504(b). The statutory language expressly gives an employer a subrogation interest in and ljen “against the entire amount of [the employee]’s recovery” from the third party, except for damages for loss of con sortium. See K.S.A. 44-504(b). The lien amount corresponds to “the extent of the compensation and medical aid provided by the employer” to the date of recovery. K.S.A. 44-504(b). It is undisputed that at the time of the settlement of Ballard’s third-party claim, Dondlinger had paid compensation and medical expenses in the amount of $55,848.81. Thus, Dondlinger has a lien in this amount against Ballard’s settlement recovery. And there is no statutory requirement that a lienholder file a notice of lien to be sub-rogated to recovery from a third party. Such subrogation and creation of a lien occurs automatically under K.S.A. 44-504(b). Smith v. Russell, 274 Kan. 1076, 1086, 58 P.3d 698 (2002). Additionally, Ballard’s loss of consortium or loss of services claims are without merit. K.S.A. 44-504(b) gives an employer a subrogation interest in and lien against the entire amount of an employee’s recoveiy from a third party except for damages for loss of consortium “to a spouse.” Loss of consortium or loss of service to a spouse must be “determined by a court.” K.S.A. 44-504(b). Here, there has been no such determination by a court. Nor is there any evidence in tire record to establish that Ballard was married at the time of the 2010 accident. Ballard suggests that his loss of consortium claim relates to his granddaughter who has cancer, but loss of consortium damage results from the deprivation of services, including care and companionship, suffered by the spouse of the physically injured parly. See K.S.A. 2014 Supp. 23-2605.
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Arnold-Burger, J.;
On October 10, 2003, Clint E. Woods, stood before a judge and stated, “I shot and killed [Davonta] Mitchell.” This court found that his guilty plea was freely and voluntarily entered and that he was represented by competent and effective counsel at the time of his plea. See State v. Woods, No. 93,417, 2006 WL 851245 (Kan. App.) (unpublished opinion), rev. denied 282 Kan. 796 (2006) (Woods I); Woods v. State, No. 105,948, 2012 WL 6734507 (Kan. App. 2012) (unpublished opinion), rev. denied 297 Kan. 1257 (2013) (Woods II). In this, his untimely and successive K.S.A. 60-1507 motion, he asks us to order the district court to conduct an evidentiary hearing to examine his claim of actual innocence. Because we find, consistent with long-standing Kansas Supreme Court, Tenth Circuit Court of Appeals, and United States Supreme Court precedent, that a conviction resulting from a valid plea of guilty is not subject to collateral attack on the ground the accused is factually innocent of the offense charged, we affirm the district courts summary denial of his second K.S.A. 60-1507 motion.
Factual and Procedural History
In September 2002, Davonta Mitchell and Antonio Allen were fatally shot at a Wichita park, and Kilmonte Loudermilk was wounded. Based on this incident, the State charged Woods with two counts of first-degree murder and a single count of aggravated battery. But before the scheduled jury trial, Woods agreed to plead guilty to a single count of second-degree murder.
At the plea hearing, he told the judge he wished to change his plea to guilty and that he and his attorneys had gone over his acknowledgment of rights. He confirmed that he understood all the rights he was waiving, including those to a jury trial and to call and confront witnesses. He also stated that he understood the charges, the possible sentences, and the States recommendation of 258 months’ imprisonment. Woods assured the district court that no one had coerced or threatened him into pleading guilty and that he had no questions. After all this, the district court judge asked Woods for a factual basis for his guilty plea, and Woods said, “I shot and killed [Davonta] Mitchell.” He confirmed the date and location of the crime, and tire district court accepted the plea and found him guilty
Woods moves to withdraw his plea.
Two months later and before sentencing, Woods moved pro se to withdraw his plea. In two separate motions, he claimed that his counsel intimidated him into pleading guilty and failed to advise him of the plea’s consequences. A new attorney, Michael Brown, was appointed to represent Woods. Brown filed a third amended motion to withdraw his plea, adding a claim of actual innocence.
At the motion hearing, Woods raised two significant allegations. First, he claimed that his attorney misrepresented the length of the sentence associated with his plea. He believed he would only get 60 months in prison and claimed that had he known that was not the case, he would not have entered a plea. Second, Woods claimed that on the day he entered his plea, a potential State witness named Kaylen Irby presented himself at Woods’ lawyers office and advised someone there that he (Irby) wanted to recant a prior statement because he had falsely implicated Woods in the shooting. Woods claims that had he known about Irby’s recantation, he would not have entered a plea.
Woods, and Woods’ two trial lawyers, Kurt Kerns and Steven Mank, testified at an evidentiary hearing. But the district court denied the motion, finding that Woods had competent counsel, was not misled, taken advantage of, or coerced, and freely and voluntarily entered his plea. The district court ultimately sentenced Woods to 258 months’ imprisonment. Woods appealed, and this court upheld the denial of his motion to withdraw his plea. Woods I, 2006 WL 851245, at *2. Specifically, the court found that Woods presented no evidence supporting the allegation that Irby tried to contact Woods’ attorney and change his story. 2006 WL 851245, at *2.
Woods files his first K.S.A. 60-1507 motion.
In 2007, after this court’s decision in Woods 1, Woods filed a K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel. Woods claimed that his trial attorneys failed to adequately investigate potential witnesses, specifically his girlfriend—Rawshan-da Solomon—and Irby, prior to trial. Again, he claimed without support that Irby approached Woods’ attorneys to recant his statement.
At an evidentiary hearing, Woods claimed that his attorneys led him to believe that the fact that Irby’s statement was damaging was the key reason he should plead guilty. He stated that had he known Irby had recanted his initial story, he would have never entered the plea.
After hearing all evidence, including the testimony of his attorneys, and reviewing the case file, the district court found that counsel was not ineffective. Instead, the district court determined that Irby’s changed statement “would not produce a great amount of evidence” and did not constitute an alibi, as he claimed it would in his motion. As such, the district court denied the motion.
Again, Woods appealed. In considering the case, this court first determined that because Woods failed to pursue his allegations about Solomon’s changing testimony at the evidentiary hearing or on appeal, he waived and abandoned that particular issue. Woods II, 2012 WL 6734507, at *5. Next, the court determined that Woods’ allegations concerning Irby were barred by the doctrine of res judicata. 2012 WL 6734507, at *6-7. But even had that issue not been barred, this court concluded that ‘Woods failed to overcome the strong presumption that his attorneys sufficiently investigated Irby’s proposed trial testimony.” 2012 WL 6734507, at *8. After a full hearing, “although Woods posited a different version of the events leading up to his plea, the district court found the testimony of [Woods’ attorneys] to be more credible and compelling.” 2012 WL 6734507, at *8. Accordingly, this court affirmed the district court’s decision denying Woods K.S.A. 60-1507 motion.
Woods files his second K.S.A. 60-1507 motion.
More recently, in May 2014, Woods filed a second K.S.A. 60-1507 motion. There, he again argued that his trial counsel failed to provide him adequate representation, claiming:
• Originally, Solomon told police that Woods spent the night of the crime at her home, but she later retracted that statement and implicated Woods in the shooting. Now, she admits that her new boyfriend pressured her into that retraction and that Woods indeed spent the night with her.
• Kerns painted Irby as the State’s most important witness, but both Kerns and Mank failed to tell Woods that Irby had not been endorsed and in fact had changed his original story. Irby attempted to meet with Kerns at his law office; instead, he spoke briefly to Mank, who never followed up with him.
• Mank misrepresented the length of the sentence associated with the plea.
• Brown failed to call Manuel Roach at the hearing on the motion to withdraw Woods’ plea even though Roach had sent Brown a letter admitting that he had lied to the police about Woods’ involvement in the shooting.
Woods submitted several other signed, written statements from supporting witnesses. Because he used a private investigator to collect these statements, Woods categorized the information as newly discovered evidence. Overall, Woods reasserted his trial counsels’ ineffectiveness, the ineffectiveness of Brown, and continued to assert his innocence. Notably, he did not argue that his first K.S.A. 60-1507 counsel was ineffective, even though virtually all of this information, including the claim regarding Brown’s ineffectiveness, was available at the time his first K.S.A. 60-1507 motion was filed. And to overcome the procedural hurdles associated with a second and untimely motion, he argued that manifest injustice—notably a colorable claim of actual innocence—required the district court to consider his arguments on their merits.
In its response, the State argued that the motion simply constituted Woods’ latest attempt to relitigate the issues surrounding the motion to withdraw his plea. The State reasoned that Woods relied on the same arguments as in previous proceedings, all of which had been resolved against him. The State also objected to categorizing any of the new factual allegations as newly discovered and contended that Woods failed to demonstrate either manifest injustice or exceptional circumstances to justify an untimely and successive claim.
The district court summarily denied the motion, adopting the State’s response as the order of the court. Specifically, the district court found “no showing of manifest injustice” and noted that “the claims are barred by res judicata as these matters have been addressed in large part in prior motions.” Woods timely appealed.
Analysis
Because the district court summarily denied Woods motion, our standard of review is unlimited.
When faced with a K.S.A. 60-1507 motion, the district court can either: (1) “‘determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily (2) determine from the same sources that a “ potentially substantial issue exists’ ” and hold a preliminary hearing; or (3) determine that a substantial issue exists and requires a full evidentiary hearing. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014). The standard of review depends on which option the district court employs. 300 Kan. at 881. When, as here, the district court summarily denies the motion, the appellate court exercises unlimited review and must determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. 300 Kan. at 881.
Woods argues that the district court erred when summarily dismissing his motion, as his allegations of actual innocence and attorney ineffectiveness justified, at the very least, an evidentiary hearing. The State counters that the instant claims are largely barred by res judicata. Additionally, the State contends that Woods failed to demonstrate either manifest injustice or exceptional circumstances to justify the filing of a late and successive claim.
We first examine general principles regarding KS.A. 60-1507 motions.
Several special rules control the substance, form, and procedure of a K.S.A. 60-1507 motion.
First, a defendant has 1 year from when his or her conviction becomes final to file a K.S.A. 60-1507 motion. K.S.A. 60-1507(f) (1). The district court may extend this time limit to prevent manifest injustice. K.S.A. 60-1507(f)(2). Manifest injustice must be determined from the totality of the circumstances. In determining whether manifest injustice exists, the court should consider this nonexhaustive list óf factors: (l) whether the movant provides persuasive reasons or circumstances that prevented him or her from fifing the 60-1507 motion within the time limitation; (2) whether the merits of the movant’s claims raise substantial issues of law or fact deserving the district courts consideration; and (3) whether the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence. See Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014).
Second, the district court is not required to entertain a second or successive motion from the same individual. K.S.A. 60-l507(c); State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013). In fact, a K.S.A. 60-1507 movant “is presumed to have listed all grounds for relief,” meaning that he or she must show circumstances justifying the failure to include a newly raised issue in a previous motion in order to avoid dismissal. 296 Kan. 898, Syl. ¶ 2; see Supreme Court Rule 183(d) (2015 Kan. Ct. R. Annot. 271).
Likewise, “[a] proceeding under K.S.A. 60-1507 ordinarily may not be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors must be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided exceptional circumstances excuse the failure to appeal.” Supreme Court Rule 183(c)(3) (2015 Kan. Ct. R. Annot. 272). “Exceptional circumstances” have been defined to include “ ‘ “ ‘unusual events or intervening changes in the law which prevent a movant from reasonably being able to raise all of the trial errors in the first post-conviction proceeding.””” State v. Mitchell, 297 Kan. 118, 123, 298 P.3d 349 (2013). Exceptional circumstances can include ineffective assistance of counsel. Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009).
There is no dispute that Woods’ current K.S.A. 60-1507 motion is both untimely and successive.
We would typically next consider the applicability of the exceptions to both of these procedural bars. But before we do, we must first examine three overarching issues that are ultimately determinative of this appeal: res judicata, waiver, and the impact of a guilty plea on a K.S.A. 60-1507 motion.
Several of Woods claims are barred by res judicata and waiver.
Essentially, the doctrine of res judicata prevents an individual from splitting a single issue into multiple lawsuits. See Shelton v. DeWitte, 271 Kan. 831, 836-37, 26 P.3d 650 (2001). In Kansas, this doctrine applies to a K.S.A. 60-1507 movant who attempts to raise issues “which have previously been resolved by a final appellate court order in his or her criminal proceeding.” Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 14, 136 P.3d 390 (2006). Moreover, when a criminal defendant files a direct appeal from his or her conviction and sentence, “the judgment of the reviewing court is res judicata as to all issues actually raised; those issues that could have been presented, but were not presented, are deemed waived.” 281 Kan. 1058, Syl. ¶ 12. In other words, and absent certain exceptions, a defendants failure to raise an issue on direct appeal “prevents the defendant from raising tire claim in a second appeal or in a collateral proceeding.” 281 Kan. 1058, Syl. ¶ 12.
A review of the complete record in this case, including the direct criminal appeal and the first K.S.A. 60-1507 proceeding, reveals that Woods is now attempting to relitigate two major issues: (1) his attorneys failure to fully investigate witnesses and their changing stories, and (2) his attorneys representation about the length of his sentence. Both the district court and this court already ruled on tírese issues, and although Woods attempts to paint his new arguments in a slightly different fight, the fact remains that they are unchanged from their original form. As such, our Kansas caselaw prevents him from raising them for what is essentially a third time.
Woods attempts to circumvent the application of this doctrine by arguing that his claim of actual innocence (which will be discussed below) trumps any res judicata concerns. In support of this position, he cites to a United States Supreme Court case concerning actual innocence claims raised during habeas corpus proceedings. See Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). But Schlup simply establishes the proper standard by which to measure claims of actual innocence, not the effect of such claims on res judicata. In fact, the Court only really discusses res judicata when outlining the federal standards for considering a second or subsequent habeas corpus petition. See 513 U.S. at 317-20. And while that section notes that the Court relies on the “equitable nature of habeas corpus to preclude application of strict rules of res judicata,” our Kansas caselaw clearly applies the doctrine to K.S.A. 60-1507 motions. Compare Schlup, 513 U.S. at 319, with Drach, 281 Kan. 1058, Syl. ¶ 14. For that reason, any allegations about failure to investigate witnesses or the recommended sentence length are barred by the doctrine res judicata.
Along a similar vein, this court determined in Woods II that Woods waived and abandoned the claim that his counsel was ineffective for failing to investigate the ever-changing story of his girlfriend Rawshanda Solomon. 2012 WL 6734507, at *5. Generally speaking, a defendant cannot revive an abandoned point in a subsequent proceeding. See Johnston v. State, No. 109,307, 2014 WL 642172, at *3 (Kan. App. 2014) (unpublished opinion) (reiterating that a motion to correct illegal sentence cannot be used to revive abandoned issues), rev. denied 301 Kan. 1046 (2015); State v. Warren, No. 94,505, 2007 WL 959614, at *5 (Kan. App.) (unpublished opinion) (holding that appellant cannot revive claim he abandoned before the district court), rev. denied 284 Kan. 951 (2007).
Therefore, Woods cannot pursue these issues for what amounts to a third time.
A valid guilty flea is not subject to collateral attack on the ground of actual innocence.
We are left with Woods’ claim of actual innocence. But what malees this case different from most K.S.A. 60-1507 cases is that we are faced with a guilty plea—and, more pressingly, one that has already withstood a challenge by way of a motion to withdraw a plea and a challenge under K.S.A. 60-1507 for ineffective assistance of counsel. Accordingly, we must accept as both a matter of fact and a matter of law that Woods’ plea was freely and voluntary entered upon the advice of competent and effective counsel. We have already so held after two full evidentiary hearings.
Furthermore, we cannot ignore the statutory and legal proposition that “[a] plea of guilty is admission of the truth of the charge and every material fact alleged therein.” K.S.A. 22-3209(1); Hughes v. State, 206 Kan. 515, 517, 479 P.2d 850 (1971) (“A voluntary plea of guilty is a confession of guilt of the crime and every fact alleged therein.”). By entering a plea of guilty, Woods was well aware of the facts of the case. In fact, he knew the extent of his involvement in the events of the evening better than anyone else. Based on the preliminary hearing, the pretrial motions filed with the court, and the documents exchanged by the parties, Woods knew that at least on the planned day of trial, October 13, 2003, that some witnesses were going to testify on his behalf and some were not. He freely and voluntarily chose not to take his chances with a trial. The fact that at some point on or after October 13, some—though not all—witnesses appear to have recanted previous incriminating statements or returned to original statements does not change the fact that Woods decided not to risk the consequences of facing a trial on two counts of first-degree murder and one count of aggravated battery.
Moreover, our caselaw in Kansas is clear and longstanding. Where judgment and sentence have been entered upon a plea of guilty, diere can be no review of the sufficiency of the evidence in a K.S.A. 60-1507 proceeding. Hughes, 206 Kan. at 517; see also Bousley v. United States, 523 U.S. 614, 621, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998) (holding that a voluntary and intelligent plea of guilty made by an accused person who has been advised by competent counsel may not be collaterally attacked); United States v. Broce, 488 U.S. 563, 569, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989) (same); Mabry v. Johnson, 467 U.S. 504, 508, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984) (same), overruled in part on other grounds by Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009); United States v. Grigsby, 633 Fed. Appx. 696, 697 (10th Cir.) (unpublished opinion) (noting that to the extent the defendant asserted evidence would prove he did not commit the charged crime, his knowing guilty plea foreclosed any collateral attack on the conviction), cert. denied 136 S. Ct. 2031 (2016); Crow v. United States, 397 F.2d 284, 285 (10th Cir. 1968) (holding that plea of guilty admits all facts well pleaded and sentence imposed and is not subject to collateral attack on ground that, as factual matter, accused was not guilty of the offense charged); Clark v. State, 92 Idaho 827, 833, 452 P.2d 54 (1969) (citing cases from numerous state and federal jurisdictions holding that conviction on a valid plea of guilty not subject to collateral attack on ground that as a factual matter the accused not guilty of offense charged).
Woods’ overarching claim on appeal is that his allegations in the current K.S.A. 60-1507, if true, establish his actual innocence. A claim of actual innocence, he argues, provides the gateway to overcome the procedural bars of timeliness and successiveness by establishing tire manifest injustice and exceptional circumstances required to pursue his claim and receive an evidentiary hearing. Clearly a colorable claim of innocence can be the basis to find manifest injustice. See Vontress, 299 Kan. at 616. That said, we do not need to reach Woods’ assertion that a colorable claim of innocence may also be tire basis for a finding of exceptional circumstances, because even if we did find that a colorable claim of innocence opens both gateways, it is still insufficient to override the longstanding rule that a freely and voluntarily entered guilty plea bars a collateral attack on the sufficiency of the evidence. Accordingly, we find that the district court did not err in summarily denying Woods’ untimely and successive K.S.A. 60-1507 motion.
Woods was not entitled to appointed counsel.
As a final note, Woods argues in his brief that the district court needed to appoint him counsel. However, the district court is only required to provide counsel when the motion raises the sort of a substantial question of law or fact that requires a preliminaiy hearing. See Supreme Court Rule 183(i) (2015 Kan. Ct. R. Annot. 271); Lujan v. State, 270 Kan. 163, 170-71, 14 P.3d 424 (2000) (holding that the district court may summarily dismiss the motion or “determine that a potentially substantial issue or issues of fact are raised in the motion .. . and hold a preliminary hearing after appointment of counsel”). Given that the motion, files, and records demonstrate that summary disposition was proper in this case, Woods was not entitled to appointment of counsel.
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Denied.
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The opinion of the court was delivered by
Nuss, C.J.:
This case arises from the City of Basehor s unilateral annexation of Cedar Lake Estates (Estates), a platted subdivision adjoining the City. Daniel L. Stueckemann and Cathy S. Stueclc-emann, as trustees of the Stueckemann Living Trust, and the Cedar Lake Association (collectively the Stueckemanns) sued the City to invalidate the annexation on numerous grounds. The district court and Court of Appeals rejected all of the Stueckemanns’ arguments and upheld the annexation.
On appeal to this court, the Stueckemanns confine their arguments to three distinct issues. Reordered and recast for clarity, the issues, and our accompanying holdings, are as follows:
1. Did the district court and Court of Appeals err by concluding the City’s plan adequately describes the land subject to the annexation? No.
2. Did the district court and Court of Appeals err by concluding the City’s service plan for police protection and for street and infrastructure maintenance is adequate? No.
3. Did tire district court and Court of Appeals err by concluding the City’s annexation is reasonable? No.
Accordingly, we affirm the lower courts.
Facts and Procedural History
The material facts are undisputed. In December 2008, the City—-through its City Council—adopted Resolution No. 2008-15 and Resolution No. 2008-16, which together initiated the unilateral annexation of the Estates. The Estates is a platted residential subdivision of approximately 115 acres that adjoins the City’s boundary and is accessible from the City’s streets.
The Estates have been served by the City’s wastewater treatment plant since 2004 when the Kansas Department of Health and Environment required the Estates to discontinue the use of a sewage lagoon. The landowners in the Estates then entered an agreement with the City for their use of the treatment plant in exchange for paying the City 125% of its ordinary sewage user rates.
The City published the annexation resolutions and a proper notice that it would hold a February 9,2009, public hearing regarding the proposed annexation as required by K.S.A. 2005 Supp. 12-520a. The published resolutions attached a sketch of the area subject to annexation (published sketch).
The City’s initial description of the land subject to annexation
As required by Kansas’ annexation statutes, the City directly notified numerous parties of its intended annexation. Specifically, the City mailed certain documents to all owners of record of the land subject to the annexation, including Daniel and Cathy Stuecke-mann. The documents included a notice of the February 9 public hearing, which was captioned “Annexation Proposal Cedar Lakes Subdivision,” and information about the City’s plan for the extension of municipal services to the land.
The documents also included three items more specifically identifying the land to be annexed: (1) copies of the City’s annexation resolutions containing a legal description; (2) an aerial photograph of the Estates with overlaid lot and boundary lines (GIS map); and (3) a sketch (mailed sketch). The mailed sketch correctly depicts the area subject to annexation. But the resolutions and the GIS map both contain errors in property identification.
Specifically, the legal description in die resolutions erroneously includes Parcel 15.02 for annexation—an unplatted 11.4 acre tract adjacent to the Estates. This error is not repeated in the GIS map or the mailed and published sketches.
While the GIS map correctly excludes Parcel 15.02 in identifying the property to be annexed, the map erroneously excludes Parcel 62. This 2.4 acre parcel near the Cedar Lake dam is an open area within the Estates. No structures maybe built there. The published sketch contains the same erroneous omission of Parcel 62. But the mailed sketch and the resolutions correctly include it.
The City’s plan for extending municipal services
Before the public meeting on February 9, the City provided residents with details regarding its plan for extending municipal services to the Estates. The two municipal services that the Stueclc-emanns primarily complain about on appeal are police protection and maintenance of streets and infrastructure.
The City notified residents that the Basehor Police Department would patrol tire Estates following the annexation. The City first detailed why it believed tire Estates’ pre-annexation law enforcement—provided by the Leavenworth County Sheriff—was inadequate. The City then explained its own law enforcement coverage, specifically detailing how the Estates would be patrolled by Base-hor police. And the City noted its officers already routinely drove through the Estates when patrolling other outlying subdivisions.
The City also provided residents with information regarding the cost of extending its police protection to the Estates. The City showed its entire annual budget for police protection—$741,101. This money comes from the City’s general fund, which is funded by taxes on property within the City. Based on this aggregate, the City calculated its annual cost for police protection as $123,520 per square mile. Because the Estates subdivision is 0.18 square miles, the City estimated the cost of extending its police protection there to be approximately $22,200 per year.
Similarly, the City’s plan for the extension of its municipal services also provides that , the City, instead of Leavenworth County, would be responsible for maintaining the Estates’ streets and infrastructure after annexation. In its plan, the City first described the county’s current road budget and general maintenance standards. It concluded that the county’s street maintenance is “inadequate,” based primarily on the county’s alleged lack of capacity for maintaining paved and curbed roads like those in the Estates. The City observed many residents of the Estates expressed displeasure at the county’s maintenance when it sealed a portion of the paved roads several years previously. Finally, the City also noted tire county system was not designed to maintain an enclosed storm drainage system like that found in the Estates.
The City then explained its current street maintenance and repair program, which would cover the Estates after annexation. Excluding a large one-time construction project, the City spent approximately $11,200 annually per mile of roadway. This represents a reduction from the county’s annual expenditure per mile of $12,600. Because the Estates has 1.5 miles of streets, the City calculated it would spend approximately $16,800 per year on the Estates’ streets. The City also detailed how its maintenance of streets and infrastructure is funded, explaining that property taxes collected from the Estates would help fund these new services. The City further noted it recently undertook a campaign of curb replacement, patching, milling, and overlaying, from which the Estates would benefit.
The City’s public hearing and adoption of the annexation ordinance
On February 9, the City held the public hearing on the proposed annexation. More than 50 people attended, including Daniel and Cathy Stueckemann and their attorney. The City’s administrator and engineer both made detailed presentations and answered questions about the intended annexation. The presentations included a PowerPoint slide show that comprehensively reiterated the City’s plans for the extension of municipal services, including police protection and maintenance of streets and infrastructure. The City also specifically addressed each of the 16 factors a city must consider under K.S.A. 2014 Supp. 12-520a(e) in determining the advisability of an annexation.
After the presentations and questions, the City Council received written testimony and heard oral testimony from numerous residents of the Estates. The majority of them opposed annexation. The City Council specifically heard testimony in opposition to the annexation from the Stueckemanns and their attorney. Additionally, Daniel and Cathy Stueckemann’s written comments informed the City Council: “Our goal is to prevent this annexation from going forward at all.” Their attorney notified the City Council of its discrepancies in the sketches, GIS map, and legal description of the Estates. At the conclusion of the testimony, and before the public hearing was adjourned, all present were informed that an annexation ordinance would be taken up at the February 17 regular meeting. The City’s mailed notice had informed its recipients that a decision on annexation would be made “at a regular city council meeting.”
The next day the City contacted its engineer to address the concerns raised by the Stueckemanns’ attorney about the identification discrepancies. After reviewing the sketches, GIS map, and resolutions’ legal description, the engineer confirmed the documents were inconsistent. Among other things, he confirmed that the legal description in the resolutions of annexation erroneously included the 11.4 acre Parcel 15.02 and the GIS map erroneously excluded the 2.4 acre Parcel 62. The engineer accordingly deleted Parcel 15.02 to correct the legal description of the Estates, which the City ultimately included in its final ordinance of annexation.
On February 17, the City Council met in a “work session” to discuss, among other matters, the proposed annexation. Immediately following the work session, the Council held its regular meeting, and all present were informed Parcel 15.02 should not be included in the annexation and the legal description for the land proposed to be annexed now reflected this change. The City Council again heard from Cathy Stueckemann and others in opposition. The City Council ultimately adopted Ordinance No. 548—con-taining tire correct legal description—to officially annex the Estates.
The Stueckemanns’ lawsuit challenging the annexation
After the City adopted Ordinance No. 548, the Stueckemanns sued the City in Leavenworth County District Court pursuant to K.S.A. 2014 Supp. 12-538, seeking to invalidate the annexation on multiple grounds. The Stueckemanns eventually moved for summary judgment, arguing they were entitled to judgment as a matter of law on tiie undisputed facts of the annexation. The City responded the Stueckemanns had failed to prove by a preponderance of the evidence that the district court should invalidate the annexation.
After oral argument, the district court rejected all of the Stueck-emanns’ contentions and upheld the City’s annexation without referencing the summary judgment standard. Relevant to this appeal, the court specifically rejected arguments that the annexation is invalid because of the erroneous descriptions of the land, inadequacies in the City’s service plan, or because the annexation is unreasonable. The Stueckemanns then appealed.
A panel of the Court of Appeals affirmed. Stueckemann v. City of Basehor, No. 105,457, 2012 WL 3966521 (Kan. App. 2012) (unpublished opinion). The panel held the City’s land descriptions and plan for the extension of municipal services both substantially comply with the statutory requirements. 2012 WL 3966521, at *6-9. It also rejected the Stueckemanns’ argument that K.S.A. 2011 Supp. 12-538 requires courts to review de novo the substantive merits of an annexation when reviewing it for reasonableness. Instead, the panel held this statute expressly permitting landowners to challenge the reasonableness of an annexation merely codifies preexisting caselaw which severely limits judicial review and is therefore quite deferential to the City. 2012 WL 3966521, at *10.
We granted the Stueckemanns’ petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
More facts will be added as necessary to the analysis.
Analysis
Issue 1: The district court and Court of Appeals did not err by concluding the City adequately described the land subject to annexation.
The Stueckemanns urge this court to invalidate the City’s annexation because of the inconsistencies and errors in the sketches, GIS map, and legal description in the resolution proposing annexation. They contend the lower courts erred by concluding the City’s description and depictions of the land substantially comply with the requirements of the annexation statutes. The City responds that none of the asserted errors or inconsistencies justify invalidating the annexation.
Standard of review
The provision under which the Stueckemanns challenge the City’s annexation is K.S.A. 2014 Supp. 12-538. Since this statute’s creation in 2005, it has provided in relevant part:
“Any owner of land annexed by a city under tire authority of K.S.A. 12-520(a)(l) through (6) . . . , within 30 days next following the publication of the ordinance annexing the land, may maintain an action in district court of the county in which the land is located challenging [1] the authority of the city to annex the land, [2] whether the annexation was reasonable, [3] whether the service plan was adequate and [4] tire regularity of the proceeding had in connection with tire annexation procedures.”
The Stueckemanns essentially base their first challenge—an inadequate description of the land to be annexed—on the statutory grounds of “regularity of the proceeding had in connection with the annexation procedures.” We review challenges to a city’s description of the land it intends to annex for substantial compliance with the relevant statutes. City of Lenexa v. City of Olathe, 233 Kan. 159, 163-64, 660 P.2d 1368 (1983) (citing Clarke v. City of Wichita, 218 Kan. 334, 348, 543 P.2d 973 [1975]).
Substantial compliance means “compliance in respect to the essential matters necessary to assure eveiy reasonable objective of the statute.” Sleeth v. Sedan City Hospital, 298 Kan. 853, 865, 317 P.3d 782 (2014); see also Sabatini v. Jayhawk Construction Co., 214 Kan. 408, Syl. ¶ 1, 520 P.2d 1230 (1974) (applied to annexation) . Whether the City substantially complied with the statute generally involves statutory interpretation, over which we exercise de novo review. Sleeth, 298 Kan. at 863 (considering substantial compliance); Dodge City Implement, Inc. v. Board of Barber County Commrs, 288 Kan. 619, 638, 205 P.3d 1265 (2009) (same).
Discussion
K.S.A. 2014 Supp. 12-520a and K.S.A. 12-520b set forth certain requirements with which a city must comply before completing a unilateral annexation. For identifying land a city proposes to annex, K.S.A. 2014 Supp. 12-520a establishes two requirements. Its subsection (a)(2) provides the resolution of annexation shall contain a description of the land to be annexed:
“(a) The governing body of any city desiring to annex land under the authority of K.S.A. 12-520, and amendments thereto, shall adopt a resolution stating that the city is considering the annexation of the land. The resolution shall:
(2) describe the boundaries of the land proposed to be annexed[.]” (Emphasis added.)
The second requirement—a sketch of the land to be annexed— is contained in subsection (c) of the statute which provides in relevant part:
“(c) A copy of the resolution providing for the public hearing shall be mailed by certified mail to each owner of land proposed to be annexed not more than 10 days following the date of the adoption of the resolution. The resolution shall be published in the official newspaper of the city not less tiran one week and not more than two weeks preceding the date fixed for the public hearing. A sketch clearly delineating the area in such detail as may be necessary to advise the reader of the particular land proposed to be annexed shall be published with the resolution. A copy of such sketch also shall be mailed to the owner of the property with the resolution.’’ (Emphasis added.)
As for a city’s plan to extend municipal services to the annexed property, K.S.A. 12-520b requires a report containing a sketch of the land:
“(a) The governing body of any city proposing to annex land under the provisions of K.S.A. 12-520, and amendments thereto, . . . shall, prior to the adoption of the [annexation] resolution provided for in K.S.A. 12-520a, and amendments thereto, prepare a report setting forth such plans. The report shall include:
(1) A sketch clearly delineating the land proposed to be annexed and the area of the city adjacent thereto to show the following information:
(A) The present and proposed boundaries of the city affected by such proposed annexation . . . .” (Emphasis added.)
The parties agree the fundamental purpose of these statutory provisions is to inform the affected stakeholders of the municipality’s decision about what land is subject to annexation. Consistent with the parties’ views, we have held that the purpose of other annexation provisions requiring a description of the land is “to inform die public of the city boundaries as a result of annexation.” City of Lenexa, 233 Kan. at 164. So to determine whether the City substantially complied with the relevant provisions, we must decide whether documents such as the two sketches, GIS map, and the resolutions’ legal description of the Estates were sufficient to inform the Stueckemanns of what land it proposed to annex. See Sabatini, 214 Kan. 408, Syl. ¶ 1.
To demonstrate the City’s failure to substantially comply with tire statutes, the Stueckemanns overall assert that “[n]o one can read [the annexation] plan and determine what [the City] was trying to annex.” Both lower courts rejected this argument, concluding the City substantially complied with the relevant statutes requiring identification. Stueckemann, 2012 WL 3966521, at *9.
We reach tire same conclusion. Because even with the initial identification errors and inconsistencies acknowledged by the City, the Stueckemanns seemed to be able to determine what area the City sought to annex as they actually notified tire City Council of the specific discrepancies at the February 9 public hearing. As explained in more detail below, it is clear that neither the initial legal description nor the depictions of the Estates obscured the City’s intent about the area subject to annexation.
The legal description in Resolutions 2008-15 and 2008-16
As required by K.S.A. 2005 Supp. 12-520a(a)(2), the City included with its annexation resolutions a legal description, i.e., a description of “the boundaries of the land proposed to be annexed.” All parties agree the description was accurate except for incorrectly including Parcel 15.02. The Stueckemanns contend this error precludes substantial compliance.
The Stueckemanns rely on Board of Riley County Comm'rs v. City of Junction City, 233 Kan. 947, 667 P.2d 868 (1983). There, Junction City adopted a resolution announcing its intention to annex Fort Riley. The resolution described the land as a single tract that included the entire fort, but it also inadvertently and erroneously included more than 1,000 acres of land owned by at least three other entities. Junction City then adopted an annexation ordinance with the same erroneous description. 233 Kan. at 948.
The district court invalidated the attempted annexation based in part on the over-inclusive legal description. On appeal, we affirmed, rejecting Junction City’s contention “that the error in the boundary description was trivial and that it should be treated as mere surplusage.” 233 Kan. at 952. The Stueckemanns ask us to deliver the same rejection here.
Our decision in Riley County is unpersuasive, however, for Parcel 15.02. Although Junction City’s description failed to substantially comply with the relevant statutes, the extent of its error is entirely disproportionate to the City’s inadvertent inclusion of Parcel 15.02 in the instant case. The description in Riley County wrongly suggested an additional area of more than 1,000 acres was subject to annexation. By contrast, the wrongly-included Parcel 15.02 is only 11.4 acres in addition to the Estates’ 115 acres.
Further, the City’s resolution error in Riley County was repeated in its ordinance—the document purporting to complete the annexation. But in the instant case, the City never purported to complete an annexation of Parcel 15.02; it only suggested the parcel was subject to annexation in its resolution of proposed annexation before the February 9 public hearing. After this hearing the City formally corrected the legal description. So the ordinance of actual annexation which passed on February 17, No. 548, includes an accurate description. Accordingly, Riley County presents a situation readily distinguishable from the City’s inadvertent inclusion of Parcel 15.02 in its resolutions.
Rather than draw guidance from Riley County, we look to City of Lenexa. There, we considered whether Olathe’s erroneous land description invalidated its attempted annexation. In a published ordinance, Olathe misidentified the land as located in Township 14 in Johnson County instead of its intended annexation of land in Township 13. Despite the error, Olathe argued it substantially complied with the statute requiring public notice about the land subject to annexation. We disagreed, noting the “mistake was no ordinary typographical error in spite of which the public could have ascertained the city’s true intent.” 233 Kan. at 165. We observed that, on the contraiy, “[t]he property in Township 14 was a piece of land which could have been annexed had the proper procedures been followed,” and therefore, “[t]he public had no way of knowing from reading the ordinance an error had been made.” 233 Kan. at 165. (Emphasis added.)
Although we concluded Olathe’s erroneous legal description invalidated the annexation in City of Lenexa, that decision’s rationale actually supports our conclusion of validation in the instant case. Here, the City’s mistaken inclusion of Parcel 15.02 essentially i'ep-resents an “ordinary typographical error” where “the public could have ascertained the city’s true intent.” 233 Kan. at 165. This conclusion is especially valid because the description purported to notify interested parties that the City intended to annex an area it could not have legally annexed. Because Parcel 15.02 is unplatted, it is not subject to unilateral annexation. K.S.A. 2014 Supp. 12-520(a)(1). So in contrast to City of Lenexa, the Stueckemanns could—and did—discover the City’s error and ascertain its true intent. Accordingly, we reject their argument that the over-inclusive legal description precluded substantial compliance with the statutes that require the City to describe the land subject to annexation.
We also reject the Stueckemanns’ ancillary contention that the City’s attempt to correct the mistaken legal description violates the public hearing provisions in K.S.A. 2014 Supp. 12-520a(a)(l) and (c). In addition to the specific purpose of notification, we have held the general “purpose of the annexation statutes is to protect the rights of the landowners against unilateral action by a city annexing their land.” Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, 884, 69 P.3d 601 (2003) (citing City of Lenexa, 233 Kan. at 164). And the statutes seek to accomplish this purpose by affording the landowner notice and tire opportunity to be heard, i.e., “to persuade the City that annexation would not be in the best interest of either party.” Clarke, 218 Kan. at 349-50.
Well before the February 9 public hearing, the City notified the Stueckemanns of its plan to annex their property. The formal notice they received is captioned “Annexation Proposal Cedar Lake Estates Subdivision” and states “[t]he annexation is being pursued under a plan approved by the city council to attach to the city those subdivisions on the perimeter of the city that are connected to the sanitary sewer system or are adjoining the city.” The notice’s enclosed resolution, 2008-16, states the City “is considering annexation of the Cedar Lake Estates Subdivision, which is a platted subdivision adjoining the city, generally located nordieast of 158th Street and Evans Road.”
The erroneous inclusion of Parcel 15.02 merely indicated additional land wholly unrelated to the Stueckemanns’ property was also subject to annexation. Inclusion of this parcel did not affect their opportunity or ability to oppose the annexation because the evidence reveals both the Stueckemanns and their counsel voiced their opposition at the February 9 public hearing. Moreover, Daniel and Cathy Stueckemann’s written comments that day made their position unequivocal: “Our goal is to prevent this annexation from going forward at all.” And in advising at the public hearing drat its decision would not be made then but at its next Council meeting on February 17, tire City acted consistent with its December notice sent to the Stueckemanns, i.e., the annexation decision would be made “at a regular city council meeting” after the February 9 public hearing. We conclude the City satisfied the relevant statutory purposes. See Crumbaker, 275 Kan. at 884; Clarke, 218 Kan. at 349-50.
Additionally, once the City corrected the legal description to exclude Parcel 15.02 after its February 9 public hearing, it informed those present at its regular council meeting on February 17 that this parcel was not subject to annexation and was no longer included in the legal description. It then permitted additional testimony from Cathy Stueckemann. The Stueckemanns apparently assert the City instead should have restarted the entire annexation process. But granting them a renewed opportunity to again voice their opposition after they were publicly informed of the correction of the legal description constitutes substantial compliance with the statutory purposes recognized in Crumbaker and Clarke, e.g., protecting the rights of landowners against unilateral annexation of their property by affording them notice and an opportunity to be heard in opposition.
The sketches and GIS map
As required by K.S.A. 2005 Supp. 12-520a(c), the City provided to the affected landowners sketches “delineating the area” it proposed to annex—-the published sketch and the mailed sketch. It also provided the mailed sketch to the Leavenworth Board of County Commissioners in support of its plan for extension of municipal services. The Stueckemanns contend that the City failed to substantially comply with these statutory requirements due to errors in the statutorily required published sketch as well as in the GIS map, which is not statutorily required. But it is undisputed that the mailed sketch—the sketch governed by several statutory provisions—is an accurate depiction and correctly notified the Stueckemanns of the area subject to annexation. So the City’s mailed sketch fully complies with these provisions.
We acknowledge the City sent the published sketch with its annexation resolutions and notice of the upcoming public meeting and it voluntarily sent the GIS map to all affected landowners to try to provide additional information about what land it sought to annex. We further acknowledge the published sketch and GIS map both incorrectly exclude Parcel 62. The Stueckemanns apparently contend the inconsistency between these documents on the one hand and the accurate mailed sketch on the other constitutes a failure to substantially comply with the relevant statutes. Both lower courts rejected this position, with the panel stating “ 'there’s no indication . . . the legislature intended that land of strict compliance.’ ” 2012 WL 3966521, at *7. We agree.
The nature of Parcel 62 makes its erroneous exclusion from the published sketch and GIS map, at best, of marginal relevance to the City’s overall depiction of the land. Parcel 62 is a sliver of land near the Cedar Lake dam that comprises only 2.4 acres of the 115 acres proposed for annexation. It is an open area in the dam’s spillway on which no structure can be built.
The exclusion of this sliver from two documents did not prevent the Stueckemanns from receiving notice of the City’s intentions about the land it proposed to annex. The formal notice’s caption made clear, as did the attached Resolution 2008-16, that the City was considering annexing the “Cedar Lake Estates subdivision.” Those intentions also were readily apparent from other notifications the Stueckemanns additionally received—the mailed sketch and the legal description—in both the resolution proposing annexation and the later ordinance. See City of Lenexa, 233 Kan. at 164-65 (suggesting a description of land with a typographical error that still permits the recipient to ascertain the city’s intent substantially complies with the relevant statutes). Ultimately, the Stueckemanns’ opposition throughout the whole process to tire entire annexation—including Parcel 62—demonstrates the City’s intentions were clearly and consistently communicated to them.
Accordingly, we affirm the lower courts’ conclusions that the City’s identification of the land subject to annexation substantially complies with the annexation statutes.
Issue 2: The district court and Court of Appeals did not err by concluding the City’s service plan for police protection and for street and infrastructure maintenance is adequate.
The Stueckemanns also urge us to invalidate the annexation because of the alleged inadequacy of the City’s plan for the extension of municipal services as required under K.S.A. 12-520b. They specifically attack the plan’s provision for police services and for street and infrastructure maintenance, asserting it contains insufficient detail about Leavenworth County’s current services and the City’s post-annexation plans for diem. So they contend the lower courts erred in concluding the City substantially complied with this stat ute. The City responds it substantially complied with the requirements and the plan is adequate.
Standard of review
As with tire Stueckemanns’ challenge to the identification of the land proposed to be annexed, their challenge to the City’s service plan is also per K.S.A. 2014 Supp. 12-538. For the first time in Kansas statutory law, since 2005 that statute has expressly permitted any landowner aggrieved by a city’s unilateral annexation to “maintain an action . . . challenging . . . whether the service plan was adequate.”
Both parties cite caselaw predating the statute and apparently agree our review of the adequacy of a service plan is unchanged by the 2005 law. We have traditionally reviewed service plans for substantial compliance with the relevant statutes and adopt the same approach here, which again involves statutory interpretation and implicates de novo review. See Sleeth, 298 Kan. at 863 (review for substantial compliance requires de novo review); Clarke, 218 Kan. at 347 (reviewing service plan for substantial compliance).
Discussion
K.S.A. 12-520b details the substantive requirements of a city’s service plan for land subject to its annexation. It provides in relevant part:
“(a) The governing body of any city proposing to annex land under the provisions of K.S.A. 12-520, and amendments thereto, . . . shall, prior to the adoption of the [annexation] resolution provided for in K.S.A. 12-520a, and amendments thereto, prepare a report setting forth such plans. The report shall include:
(1) A sketch clearly delineating the land proposed to be annexed and the area of the city adjacent thereto to show the following information:
(B) the present streets, water mains, sewers and other city utility lines, and the proposed extension thereof[.]
(2) A statement setting forth a plan of sufficient detail to provide a reasonable person with a full and complete understanding of the intentions of the city for extending to the area to be annexed each major municipal service provided to persons and property located within the city and the area proposed to be annexed at the time of annexation and the estimated cost of providing such services. The plan shall state the estimated cost impact of providing such services to the residents of the city and the residents of the area proposed to be annexed. The plan shall state the method by which the city plans to finance the extension of such services to such area. Such plan shall include a timetable of the plans for extending each major municipal service to tire area annexed. The plan shall state the means by which the services currently provided by a township or special district in the area to be annexed shall be maintained by tire city at a level which is equal to or better tiran the level of services provided prior to annexation.’ ” (Emphasis added.)
As mentioned, substantial compliance means “compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.” Sabatini, 214 Kan. 408, Syl. ¶ 1. We have held the purpose of the service plan provisions is “to inform the affected landowners of the municipality’s decision, what benefits they will receive^] and what cost they will incur.” Clarke v. City of Wichita, 218 Kan. 334, 349, 543 P.2d 973 (1975). The statutes require this notification so “the affected landowner may attempt to persuade tire City that annexation would not be in the best interest of either party.” 218 Kan. at 349-50; see also City of Leawood v. City of Overland Park, 245 Kan. 283, Syl. ¶ 2, 777 P.2d 830 (1989) (“The objectives of tire annexation statutes are to notify the public and protect the rights of landowners against a city’s unilateral action in annexing their land.”).
So to determine whether the City substantially complied with K.S.A. 12-520b, we must determine whether the plan for police services and street and infrastructure maintenance sufficiently notifies the public of the City’s intentions and includes sufficient information to permit a meaningful challenge to tire plan. See Clarke, 218 Kan. at 349.
In Clarke, we provided a detailed discussion about the degree of precision a service plan must contain. There, several landowners challenged two annexations, arguing the City of Wichita failed to substantially comply with the annexation statutes. 218 Kan. at 342. We rejected the landowners’ challenge. In addressing the statutory provisions requiring a service plan, we held “the city must first prepare and submit a bona fide plan covering each major govern mental and proprietary service to be furnished the territory to be annexed.” 218 Kan. at 346.
We continued, defining a “bona fide plan” as one ‘¡prepared and submitted by the city in accordance with the statute in good faith and with honest intentions on the part of the city to implement the plan as submitted.” 218 Kan. at 346. We held a bona fide plan constitutes substantial compliance with the statutes. 218 Kan. at 346-47. Despite our deferendal standard, we cautioned cities that “[i]f the plan submitted is a hoax, which is designed only to accomplish the annexation of territory,” the annexation would not substantially comply with the relevant statutes. 218 Kan. at 346.
Based on this standard established in Clarke, the Stueckemanns must prove that the City’s service plan was not submitted in a good faith effort to honestly extend and implement municipal services, i.e., it was a hoax. After considering the Stueckemanns’ arguments, both lower courts concluded the City’s service plan substantially complies with the relevant statutes. Stueckemann, 2012 WL 3966521, at *9. We reach tire same conclusion.
Police services
Overall, the City’s plan for the extension of police services substantially complies with K.S.A. 12-520b(a) because it demonstrates the City made a good faith effort to inform the affected landowners of the plans it intended to implement for police protection. And specifically, the plan addressed each of the four factors required by K.S.A. 12-520b(a)(2). As the Court of Appeals noted, the past service of the Estates by the City’s wastewater treatment system makes it less than likely the City’s service plan was “ ‘a hoax . . . designed only to accomplish the annexation of territory.’ ” 2012 WL 3966521, at *7 (quoting Clarke, 218 Kan. at 346.)
First, the City’s plan provides an estimate regarding the cost and cost impact of providing its police protection to the Estates. It calculated its entire police budget on a per-square-mile basis and then used that figure to determine an estimated cost for policing the area of the Estates: approximately $22,200 per year. As for estimated cost impact, the Court of Appeals concluded this increase in a total budget of $741,101 was considered by the City as a minimal additional expense. 2012 WL 3966521, at “8. The Stueckemanns criticize the City’s method of calculation because it purportedly fails to provide details about the actual cost to police the Estates. But K.S.A. 12-520b(a)(2) expressly requires only “estimated” costs, which the City has provided. So it has fully complied with this statutory requirement.
Second, the City’s plan states the means by which tire Estates received law enforcement services before the annexation, i.e., via the Leavenworth County Sheriff. The plan concludes the sheriff s service is inadequate based on coverage area and explains why the City-provided police services are an improvement over die current level. See K.S.A. 12-520b(a)(2). Specifically, the plan noted the sheriffs current coverage showed only one deputy patrolling 72 square miles plus another roving deputy. By contrast, the City’s proposal would include the Estates in an existing district of 2.5 square miles served by one police officer.
The Stueckemanns generally argue that the City’s conclusions are “self-serving and unsubstantiated.” Although the City does not provide significant detail to substantiate this portion of its plan, diere is no indication this portion is a “hoax” or submitted in bad faith. Rather, it is a bona fide plan intended to explain the City’s intentions regarding extension of its law enforcement services to the Estates. See Clarke, 218 Kan. at 346-47. So it constitutes substantial compliance with this statutory requirement.
Third, the plan fully complies with the statutory requirement that the City demonstrate how it will finance the extension of its police services. See K.S.A. 12-520b(a)(2). The City explained the extension will be paid from its general fund, which is funded by taxes on property within the City. As the Court of Appeals panel noted, this information additionally relates to the first factor: an estimate regarding the cost impact of providing police protection. 2012 WL 3966521, at *8. Finally, while the plan does not contain a specific timetable for the extension of services, it substantially complies with that particular requirement of 12-520b(a)(2) because police services will start immediately upon annexation.
The Stueckemanns also cite K.S.A. 2014 Supp. 12-520a(e) to argue plan inadequacy, pointing out the plan fails to include the information listed there. But as the Court of Appeals correctly noted, this statute merely contains a list of 16 items the City must consider “ ‘[a]s a guide in determining the advisability of such annexation.’ ” (Emphasis added.) 2012 WL 3966521, at *7. Unlike K.S.A. 12-520b(a)(2) and its list of four factors expressly required to be included in the plan, this statute imposes no requirement on the City’s plan.
In short, the City’s plan for the extension of police protection easily satisfies that general statutory requirement of supplying “sufficient detail to provide a reasonable person with a full and complete understanding of the intentions of the city.” (Emphasis added.) K.S.A. 12-520b(a)(2). Moreover, the City’s plan specifically, and substantially, addresses each of the four factors required by the statute. Accordingly, we affirm the lower courts’ conclusions that the City’s plan for die extension of police services constitutes substantial compliance with the statutes.
Street and infrastructure maintenance
The City’s plan for extending its maintenance of streets and infrastructure to the Estates also substantially complies with K.S.A. 12-520b(a). As explained below, the plan is bona fide and overall it supplies sufficient detail so a reasonable person would have a full and complete understanding of the City’s intentions for extending these services.
In accordance with the directives contained in subsection (a)(2) of the statute, the City’s plan first provides information about road maintenance. It includes detailed calculations regarding tire estimated cost and cost impact of providing street and infrastructure maintenance for the Estates: approximately $16,800 per year. Second, the plan also provides the City would finance the extension of these services through property taxes, including those levied on the Estates. This additionally relates to the first factor: an estimate regarding the cost impact of providing this maintenance. Third, it explains the street maintenance the City will provide is better than that currently supplied by Leavenworth County, particularly because of the county’s lesser capacity for maintaining paved and curbed roads like those in the Estates. It also notes the county system was not designed to maintain an enclosed storm drainage system, which is part of the Estates’ infrastructure.
Finally, as with extending its police services to the Estates, the City did not supply an explicit timetable for providing maintenance of streets and infrastructure. This omission is understandable because those services would commence immediately upon annexation, as evidenced by the inclusion of the Estates in the City’s ongoing street maintenance and repair program.
The Stueckemanns generally attack the City’s plan for the extension of street and infrastructure maintenance in the same manner they criticized the plan for police protection. They again allege it provides inadequate detail about the cost to maintain specific streets and the alleged insufficiency of the county’s maintenance. But as explained, K.S.A. 12-250b(a)(2) only requires the City to malee estimated costs, which the City has provided. Additionally, they again assert the City failed to comply with K.S.A. 2014 Supp. 12-520a(e). But as explained, that statute imposes no requirement on the City’s service plan. It serves only as a guide in determining tire advisability of annexation.
For these reasons, we affirm the lower courts’ conclusions that the City’s service plan for police protection and for maintenance of street and infrastructure substantially complies with the annexation statutes.
Issue 3: The district court and Court of Appeals did not err by concluding the City’s annexation is reasonable.
Finally, the Stueckemanns urge us to invalidate the City’s annexation because its plan is unreasonable and the lower courts erred by concluding otherwise. They further contend tire Court of Appeals erred by severely restricting the contours of “reasonableness.” The City essentially responds that its annexation plan was reasonable under any commonly-accepted definition of the term.
Standard of review
The reasonableness standard for challenges to annexations is contained in K.S.A. 2014 Supp. 12-538. Since this statute’s creation in 2005, it has provided:
“Any owner of land annexed by a city under the authority of K.S.A. 12-520(a)(l) through (6) . . . , within 30 days next following the publication of the ordinance annexing the land, may maintain an action in district court of the couniy in which the land is located challenging [1] die authority of die city to annex the land, [2] whether the annexation was reasonable, [3] whether the service plan was adequate and [4] die regularity of the proceeding had in connection with the annexation procedures. When determining the reasonableness of an annexation in the case of a city challenging the annexation, the court shall include in its considerations the effect the annexation has on the future growth of die city challenging die annexation.” (Emphasis added.)
Resolving the parties’ disagreement involves interpretation of this statute, over which we exercise de novo review. In re Estate of Strader, 301 Kan. 50, 55, 339 P.3d 769 (2014).
We will first determine what the legislature meant in the statute by “whether the annexation was reasonable.” And then, to the extent necessary, we will consider that definition as applied to the facts of this case.
Discussion
The Court of Appeals held the statutory references to “reasonable” merely codified Kansas’ caselaw addressing an annexation’s reasonableness. And as a result, the question of reasonableness remains limited to “whether the annexation violated constitutional protections or statutory authority.” Stueckemann, 2012 WL 3966521, at *5. So according to the panel, “[c]ourts do not pass on the wisdom, necessity, or advisability of legislative acts delegated to municipalities.” 2012 WL 3966521, at *5.
By contrast, the Stueckemanns argue the statute’s “reasonableness” provision creates an entirely new basis for challenging the City’s actions and a new standard for judicial review of them. They contend our review is now de novo. The City agrees with the Stueckemanns that K.S.A. 2014 Supp. 12-538’s “reasonableness” is more expansive than the panel’s definition based upon pre-2005 caselaw. But it denies our review is de novo.
To settle this controversy, a short review of relevant annexation history is in order. Before 1974, no statute specifically granted authority to challenge unilateral annexations on any particular grounds. Caselaw provided that the grounds for challenge—and the court’s accompanying standard of review—were quite limited, as the following brief progression demonstrates. See, e.g., State, ex rel., v. City of Topeka, 175 Kan. 488, 491, 264 P.2d 901 (1953) (“[T]he advisability of enlarging tire territorial limits of a city is a legislative function which cannot be delegated to the court [citation omitted]. The duty of the court is only to determine whether under the facts the city has statutory authority to enact the ordinance under attack.”); State, ex rel., v. City of Overland Park, 192 Kan. 654, 656, 391 P.2d 128 (1964) (“The wisdom, propriety, necessity or advisability of annexing territory to cities is not a matter for consideration by the courts. [Citations omitted.] The basic function and duty of tire courts is to determine whether a city has statutory authority and has acted thereunder in passing an annexation ordinance.”); State, ex rel., v. City of Coffeyville, 211 Kan. 746, 751, 508 P.2d 1007 (1973) (same).
Ultimately, in Sabatini v. Jayhawk Construction Co., 214 Kan. 408, 412-13, 520 P.2d 1230 (1974), the court rejected the argument that it could review the “reasonableness” of an annexation under the rationale of K.S.A. 12-712 (Corriclc), which expressly permitted a court to review the reasonableness of a city’s zoning decision. The Sabatini court restated that
“[i]t is not a proper judicial function for a court to inquire into the reasonableness, wisdom, necessity or advisability of annexing and platting land. In this area of legislative function the judicial duty of die courts is limited to die determination of whetiier die city was granted the necessary statutory authority to act and, if so, whether it acted witiiin that authority.” (Emphasis added.) 214 Kan. at 413.
In 1974, annexation legislation was passed that included a provision that later became K.S.A. 12-520(h). For the first time a statute delineated the grounds on which annexation could be challenged:
“Any owner of land annexed by a city under the authority of this section may witiiin thirty (30) days next following the publication of the ordinance annexing such land maintain an action in the district court of file county in which such land is located challenging the authority of die city to annex such lands and the regularity of the proceedings had in connection therewith.” (Emphasis added.) L. 1974, ch. 56, sec. 4.
In this court’s review of annexation challenges brought under K.S.A. 1974 Supp. 12-520, it continued to limit its examination consistent with caselaw predating the statute’s passage. As it stated in Clarke, 218 Kan. at 348-49:
“The rule to which this court adheres was stated in State, ex rel., v. City of Overland Park, 192 Kan. 654, 391 P.2d 128 [1964], where tire court held:
‘The wisdom, necessity or advisability of annexing territory to cities is not a matter for consideration by the courts. The basic function and duty of the courts is to determine whether a city has statutoiy authority and whether it has acted thereunder in passing an annexation ordinance.’ [Citation omitted.]
“In Sabatini v. Jayhawk Construction Co., [214 Kan. at 413] supra, the foregoing rule was paraphrased as:
“ ‘It is not a proper judicial function for a court to inquire into the reasonableness, wisdom, necessity or advisability of annexing and platting land.’ ”
See also City of Lenexa v. City of Olathe, 233 Kan. 159, 163, 660 P.2d 1368 (1983) (“In reviewing an annexation decision by a municipality the function of the court is to determine whether the municipality has statutory authority to act and has acted in accordance with that authority.”); Banzer v. City of Wichita, 237 Kan. 798, 800-01, 703 P.2d 812 (1985) (“Both parties agree that it is not a proper judicial function for a court to inquire into the reasonableness, wisdom, necessity or advisability of annexing and platting land . . . .”) (citing Sabatini, 214 Kan. at 413).
In limiting their review consistent with pre-1974 caselaw, some of those courts also specifically rejected arguments that the 1974 amendments to K.S.A. 12-520 now added reasonableness as a ground for challenging annexation and for the scope of judicial review. In Clarke, a landowner argued that the traditional caselaw test affirmed in Sabatini had changed with the 1974 amendments and the court should now review die reasonableness of an annexation. 218 Kan. at 342. In rejecting this argument, the court held:
“The 1974 legislative amendment allowing any owner of land annexed by the city to ‘challenge the authority of the city to annex such lands and the regularity of the proceedings had in connection therewith’ changes our prior law only to the extent that it is no longer necessary that an action protesting an annexation be brought in the name of the state.” 218 Kan. at 349.
See also City of Lenexa v. City of Olathe, 228 Kan. 773, 774-77, 620 P.2d 1153 (1980) (affirming Clarke’s holding that the 1974 legislative amendment allowing a landowner to challenge an annexation did not alter the scope of a court’s inquiry).
Given this background, we conclude the 1974 statute—K.S.A. 1974 Supp. 12-520—essentially codified tire existing caselaw for grounds to challenge annexation and for judicial review.
We continue our analysis by examining the 2005 statute, K.S.A. 2005 Supp. 12-538. With the adoption of 12-538, the legislature repealed that statute’s predecessor, K.S.A. 12-520(h). L. 2005, ch. 186, § 6. As noted, 12-538 added language to what had been contained in K.S.A. 12-520(h), including the provision of two more grounds for landowner challenge to annexation and for resultant judicial review. These were “whether the annexation was reasonable,” as well as “whether the service plan was adequate.” K.S.A. 2005 Supp. 12-538. Primarily relying upon Clarke, the Court of Appeals panel held that a review for “reasonableness” already existed in annexation caselaw. But it was strictly limited to, and should remain, a review only to determine whether a city either violated constitutional guarantees or exceeded statutory authority. As a result, the panel concluded the legislature’s 2005 addition of “reasonableness” as a factor in 12-538 merely codified that narrow corridor in Kansas caselaw. Stueckemann, 2012 WL 3966521, at *5.
We disagree with the panel for several reasons. First, we observe the application of this narrow definition of reasonableness actually predated Clarke and the 1974 amendments the Clarke court reviewed. For as the panel itself twice noted, the Clarke court stated in 1975:
“ ‘A careful study of our cases illustrates that the court does recognize the “reasonableness” of action taken by a city in connection with annexation as a viable issue, where the action taken by the city is found to violate constitutional guarantees. The same could be said if the action taken by the city in conriéction with annexation is found to exceed statutory authorization.’ ” (Emphasis added.) Stueckemann, 2012 WL 3966521, at “5, 10 (quoting 218 Kan. at 349).
In acknowledging the Clarke court’s and the panel’s equation of limited reasonableness with “exceeding statutory authorization,” we also observe the 1974 statute expressly allowed annexation challenges on the bases of “authority of the city to annex such lands” and “regularity of tire proceedings had in connection therewith.” In other words, those parts of the statute appear to have codified Clarkes view of prior caselaw narrowly defining “reasonableness” as a basis for an annexation challenge.
Once this narrow definition of the reasonableness standard is established in the equivalent language of the 1974 amendments, then tire 2005 statute’s express addition of “reasonableness” appears to be superfluous to the “authority” component of this standard. See Gannon v. State, 298 Kan. 1107, 1146, 319 P.3d 1196 (2014) (citing 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.’ ”]; Wright v. Noell, 16 Kan. 601, 606, 1876 WL 1081 [1876] [Accepting defendant’s argument would incorrectly make part of language “manifestly surplusage.”]).
In short, there apparently is little, if anything, for the 2005 statute to codify about this narrow concept of reasonableness because that codification already occurred in 1974. So adding “whether the annexation was reasonable” in 12-538 as a basis for annexation challenge and judicial review in 2005 must mean something else. See Frick v. City of Salina, 289 Kan. 1, 23, 208 P.3d 739 (2009) (courts presume the legislature acts with knowledge of existing statutory and caselaw when it enacts legislation).
Second, any doubt about whether this particular statutory addition is a substantive change—instead of merely codifying case-law—is further reduced by other parts of the 2005 statute. Specifically, it adds to the 1974 statutory provisions the following languagé:
“When, determining the reasonableness of an annexation in tire case of a city challenging the annexation, die court shall include in its considerations die effect die annexation has on the future growth of die city challenging die annexation.” (Emphasis added.) K.S.A. 2005 Supp. 12-538.
This specific clause seemingly does not relate to a city exceeding its statutory authority or to violating constitutional guarantees, as reasonableness was narrowly defined in Clarke and adopted by the panel. So this clause cannot be a codification, or even a clarification, of preexisting law. Rather, it would appear to be a substantive legislative addition to the 1974 law, i.e., an expansion of the traditional notion of annexation reasonableness. If it does not expand the concept of “reasonableness” under the statute, then the entire clause has no apparent purpose, which we presume was not the legislature’s intent. See Gannon, 298 Kan. at 1146. Even more persuasively, this clause’s mandate, i.e., the court “shall” consider, would tiren be worthless—hardly the legislature’s intent when creating an obligation. 298 Kan. at 1141 (“shall” typically is construed as mandatory and judicially enforceable).
Our rejection of the panel’s interpretation of 12-538 is reinforced by our general precedents distinguishing substantive legislative changes from mere codification of prior caselaw. We have held that the “legislature’s revision of existing law creates [a] presumption that [tire] legislature intended to change preamendment law.” Graham v. Herring, 297 Kan. 847, 860, 305 P.3d 585 (2013) (citing Brennan v. Kansas Insurance Guaranty Ass’n, 293 Kan. 446, 458, 264 P.3d 102 [2011]); Hauserman v. Clay County, 89 Kan. 555, 558, 132 P. 212 (1913).
This presumption of an attempt to change preamendment law becomes even stronger where the amendment contains a radical change to a statute’s phraseology. In that event, it is generally perceived as a legislative declaration that the original law did not embrace the amended provision. Brennan, 293 Kan. at 459 (presumption is strongest when legislature makes radical change to statute’s phraseology) (citing Estate of Soupene v. Lignitz, 265 Kan. 217, 222, 960 P.2d 205 [1998]). Here, K.S.A. 2014 Supp. 12-538 now expressly speaks when annexation statutes always had been silent on reasonableness as a basis for challenge and scope of judicial review. Additionally, as mentioned, it now mandates a specific factor to be considered by the reviewing court “[w]hen determining the reasonableness of an annexation” after a city challenge on this newly-announced basis. We conclude these departures from prior statutes are significant and reflect “a legislative declaration that the original law did not ‘ “embrace the amended provision.” ’ ” 293 Kan. at 459.
As we proceed on our path for a more precise standard of judicial review, we observe the City contends its decision to annex was an exercise of a quasi-judicial function, citing Reiter v. City of Beloit, 263 Kan. 74, 85, 947 P.2d 425 (1997). See also Heckert Construction Co. v. City of Fort Scott, 278 Kan. 223, 224, 91 P.3d 1234 (2004). The City summarily made this point simply to support its argument that the judicial scope of review was for a post-Clarke standard of reasonableness—expanded, but not de novo. But this point does raise some other relevant considerations, including whether our typical standard of review of quasi-judicial functions enters the calculus.
We begin this particular part of our analysis by determining whether the City’s annexation decision was a quasi-judicial determination. This court generally has held that a city’s actions are quasi-judicial if state or local iaw requires: (1) notice to the community before the action; (2) a public hearing pursuant to the notice; and (3) application of criteria established by law to the specific facts of the case. Heckert, 278 Kan. at 224. Currently, a unilateral annexation by a city under K.S.A. 2014 Supp. 12-520a requires: (1) notice to the community before the action (K.S.A. 2014 Supp. 12-520a[a][l]); (2) a public hearing pursuant to the notice (K.S.A. 2014 Supp. 12-520a[a][l], [b], [e]); and (3) application of 16 established criteria to the specific annexation for guidance in determining its advisability at the hearing (K.S.A. 2014 Supp. 12-520a[e]).
Accordingly, we conclude that under the three factors articulated in Reiter and Heckert, a decision to unilaterally annex land under K.S.A. 2014 Supp. 12-520 is quasi-judicial. See Brown v. U.S.D. No. 333, 261 Kan. 134, 149, 928 P.2d 57 (1996) (quasi-judicial applies “ ‘to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature’ ”) (quoting Black’s Law Dictionary 1245 [6th ed. 1990]); see also Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1131-32, 307 P.3d 1255 (2013) (city council acting in quasi-judicial role with statutoiy obligations regarding the investigation of facts and the evaluation of those facts).
With the City’s annexation decision established as a quasi-judicial function, we turn for further analytical guidance on our standards of judicial review by examining 143rd Street Investors v. Board of Johnson County Comm'rs, 292 Kan. 690, 259 P.3d 644 (2011). While admittedly a rezoning decision, it offers some parallels. There, the County offered two alternatives for judicial standards of review for the rezoning decision.
The County first cited K.S.A. 60-2101(d)—a general statute which provides that on appeal the courts may review final orders or judgments made by a political subdivision through, among other things, its exercise of quasi-judicial functions. The court tiren set out the limited standard for district courts and appellate courts reviewing such quasi-judicial functions:
“[The court] is limited to determining if the political subdivision’s decision fell within the scope of its authority; was supported by substantial competent evidence; or was fraudulent, arbitrary, or capricious.” 143rd Street Investors, 292 Kan. at 709 (citing, inter alia, Brown, 261 Kan. at 138.
Under these standards, “ ‘ “[a] district court may not, on appeal, substitute its judgment for that of an administrative tribunal.” Reiter, 263 Kan. at 86. And an appellate court reviewing a rezoning decision by the City is held to the same standards as the district court. 292 Kan. at 709. Accordingly, judicial review is deferential to tire city or administrative agency.
For the County’s alternative standard of judicial review in 143rd Street Investors, it suggested “one that is unique to zoning cases and examines the reasonableness and lawfulness of a zoning action.” 292 Kan. at 710. This standard was first stated in Golden v. City of Overland Park, 224 Kan. 591, 595-96, 584 P.2d 130 (1978), and was summarized and enumerated in Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980). See also Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, 944-45, 218 P.3d 400 (2009).
Like in annexation, reasonableness is a statutorily-recognized basis for challenging a zoning decision. But unlike in annexation, reasonableness has been a statutorily-recognized basis for challenging a zoning decision since 1921. See, e.g., K.S.A. 12-712 (Corriclc) (challenger “may have the reasonableness of any [zoning] ordinance or regulation determined by bringing an action, in tire district court”)- Since 1992, K.S.A. 12-760(a) has specifically provided that any person aggrieved by a zoning decision made by a city or county “may maintain an action in the district court of the county to determine the reasonableness of such final decision.” See Zimmerman, 289 Kan. at 944.
The 143rd Street Investors court observed that “[incorporation of the concept of reasonableness distinguishes the standard of review applied in rezoning decisions from the general standard stated in K.S.A.- 60-2101(d),” i.e., one limited to basically reviewing the exercise of judicial or quasi-judicial functions. 292 Kan. at 714. En route to this observation, the court noted that regardless of whether the zoning decision was classified as a legislative or quasi-judicial function, Kansas courts have used the “ ‘highly deferential language’ ” typically applied to judicial review of legislative action. 292 Kan. at 713 (quoting Zimmerman, 289 Kan. at 948).
The court in 143rd Street Investors also observed that “[t]he appropriateness of testing a decision for reasonableness is reinforced by Kansas statutes that incorporate reasonableness as the guiding factor in either a court’s review of a zoning decision or in the zoning body’s consideration of zoning issues. See, e.g., K.S.A. 12-760.” 292 Kan. at 714. Faced with tírese two competing standards of review—the limited grounds for reviewing quasi-judicial functions under K.S.A. 60-2101(d) and Brown or the “highly deferential” limited review for reasonableness under K.S.A. 12-760(a)—the court ultimately chose the latter, reviewing for reasonableness as articulated in Golden and Combined Investment 143rd Street Investors, 292 Kan. at 715.
Like the court in 143rd Street Investors, we are faced with the general judicial review statute, K.S.A. 60-2101(d), which is typically used for examining judicial and quasi-judicial functions of a political subdivision. Like that court, we are also faced with a statute that particularly establishes reasonableness as a basis for challenging specific decisions of a political subdivision'—-there, zoning, and here, annexation. Compare K.S.A. 12-760 (any person aggrieved by a zoning decision made by a city or county “may maintain an action in the district court of the county to determine the reasonableness of such final decision”), with K.S.A. 2014 Supp. 12-538 (landowner “may maintain an action in district court. . . challenging . . . whether the annexation was reasonable”).
Consistent with our analysis in 143rd Street Investors, we hold reasonableness under K.S.A. 2014 Supp. 12-538 is not only a correct basis for a landowner challenging, but also the resultant standard for a court reviewing, a city’s annexation decision. This conclusion is particularly valid when, as here, the Stueckemanns specifically brought their action in district court on the grounds of challenge articulated in K.S.A. 2014 Supp. 12-538, i.e., “whether the annexation was reasonable.” Moreover, that the annexation is “not reasonable” is one of the specific bases they have consistently asserted to the appellate courts. They do not challenge the annexation, for example, under Browns grounds that the decision was not within the City’s scope of authority or not supported by substantial competent evidence. 261 Kan. at 138.
In addition to the reasoning expressed in 143rd Street Investors, our conclusion is also supported by another rationale. K.S.A. 2014 Supp. 12-538 specifically establishes reasonableness as a basis for challenge and judicial review, while the grounds for judicial review of a quasi-judicial decision under K.S.A. 60-2101(d) and Brown are rules of general application. In other words, they apply to a myriad of decisions made by political or taxing subdivisions or their agencies. So our adoption of reasonableness as a basis for judicial review of a unilateral annexation decision is also consistent with our preference for specific rules over general ones. See Vontress v. State, 299 Kan. 607, 613, 325 P.3d 1114 (2014) (a specific statute controls over a general one when the relevant provisions overlap); see also State v. Williams, 299 Kan. 911, 930, 329 P.3d 400 (2014) (rule that general statute should yield to specific one is rule of interpretation used to determine which statute legislature intended to be applied in particular case).
In further determining the standards for a reviewing court to apply, we perceive a common thread running throughout challenges to decisions made by political subdivisions or administrative agencies—regardless of the grounds—is that the challenger has the burden to demonstrate die decision should be reversed or declared void. See Shawnee Mission Med. Center v. Kansas Dept. of Health & Environment, 235 Kan. 983, 988, 685 P.2d 880 (1984) (“burden of proof lies with party challenging” administrative agency’s action; now codified at K.S.A. 2014 Supp. 77-621[a][l]); Combined Investment Co., 227 Kan. at 28 (rule in zoning); see also Chandler v. City of Little Rock, 351 Ark. 172, 176, 89 S.W.3d 913 (2002) (burden of proof in an action to prevent annexation is placed on party opposing annexation). Another thread, albeit less common, is that the challenger must meet its burden by a preponderance of the evidence. Combined Investment Co., 227 Kan. at 28 (rule in zoning). Accordingly, we hold that for challenges to unilateral annexations, the challenging landowner has the burden of proving unreasonableness under K.S.A. 2014 Supp. 12-538 by a preponderance of the evidence.
Another common thread running throughout challenges to decisions made by political subdivisions or administrative agencies is that a reviewing court may not substitute its judgment for that of the decision-maker. See, e.g., Denning v. Johnson County Sheriffs Civil Service Bd., 299 Kan. 1070, 1076, 329 P.3d 440 (2014) (sheriff s civil service board); Reiter, 263 Kan. at 86 (an administrative tribunal); Combined Investment Co., 227 Kan. at 28 (board of county commissioners). Accordingly, we hold in annexation challenges, no reviewing court may substitute its judgment for that of the decision-maker.
With the standard for reviewing “whether the annexation was reasonable” now firmly established, we return to considering its application to the facts of the instant case. The panel applied tire narrow test for reasonableness articulated in Clarke. So after concluding no violations of constitutional guarantees were apparent and rejecting plaintiffs’ claims the annexation exceeded statutory authorization, it held the City’s action of annexation was reasonable. Stueckemann, 2012 WL 3966521, at *10. Accordingly, it did not review the proceedings under the more expansive concept of reasonableness we articulate today. The district court, however, did perform a more expansive inquiry.
Without referencing Clarke, the district court made a number of observations, findings, and conclusions that functionally broadened that 40-year-old opinion. The district court recognized its first order of business was to determine its standard of review. It acknowledged it was reviewing an annexation decision made by the duly elected representatives of a municipality representing the executive branch of government. It next acknowledged the judicial branch therefore should be deferential to annexation decisions of the City but should not simply rubber stamp them. Rather, “the legislature specifically said that I should determine whether [the decision] was reasonable. But that does not mean that I’m supposed to substitute my individual judgment as a member of the judicial branch as to the wisdom of this annexation.”
The district court explained that in its review of the annexation decision, its function
“is to determine whether tire party with die authority in annexation matters . . . in exercising dieir responsibilities did so in accordance with the law witirin their authority and did so in a reasonable manner. If I were to disagree about whether I tiiink it’s a wise decision for Cedar Lake Estates to become a part of the City of Basehor, that’s not the right standard. It’s not for me to decide. It’s to decide whedier the executive authority of the municipality made its decision in a reasonable manner and can support that decision.” (Emphasis added.)
In its review for reasonableness, the district court began by characterizing the general nature of the Stueckemanns’ argument as “whether a city can secure additional tax revenues through property taxes by annexation without providing anything of value to the residents.” The panel agreed with this characterization, stating the Stueckemanns primarily contended the annexation was unreasonable because they “ ‘gained nothing but a whopping tax bill.’ ” Stueckemann, 2012 WL 3966521, at *10. The Stueckemanns have never objected at any stage of their litigation to this portrayal of the general nature of their argument for “unreasonableness.”
In considering this “no value thus unreasonable” argument, the district court asked “whether a reasonable person would consider that the services being provided give [residents] value for their additional tax dollar.” The court ultimately rejected this argument, concluding “to say that no value is being provided is not reasonable in my judgment.” In the court’s analysis, it then evaluated four different City services provided to the Estates and calculated the monetary value of each. Those services are the extension of: (1) police protection; (2) street and infrastructure maintenance; and (3) trash service. They also include die continuation of existing access by the Estates to the City’s wastewater treatment plant.
For police protection, die district court agreed that the City’s calculations based upon cost per square mile would provide this service for approximately $22,200 per year. The court also performed its own calculations based upon percentage allocation of mill levy to police service and concluded the service would be provided for approximately $23,700 per year.
It additionally performed other calculations using a third method—based upon population served in the City and in the Estates. Acknowledging the Estates represented an approximate 9% population increase in the City, it calculated a 9% increase of the police department budget of $741,000 would produce $66,699 per year for police protection in the Estates. The court concluded that any one of these three approaches “would indicate that value is being returned in a significant degree.” .
For streets and infrastructure maintenance, the court calculated that spreading the City’s general streets budget (less the cost of a designated project) of $492,523 over the City’s 44 miles of maintained roads created a figure of $11,193 spent per mile. Similar to the City’s calculations, it determined that multiplying the street mileage in the Estates of 1.5 miles by that figure per mile produced $16,790 of annual value for street maintenance in the Estates. The court held this number “suggests that there is a significant return to the residents that can be expected from street maintenance.”
For trash service, the court recognized the record evidence showing the City trash services cost less than the Estates’ private services. Specifically, it noted that using the City services saves approximately $8.65 per month for each property in the Estates, which results in a total annual savings of $11,002. The court concluded “that is a substantial savings.”
Finally, for wastewater treatment, the district court acknowledged the City has allowed the Estates to receive service from the municipal treatment plant. The court noted the landowners after annexation would continue to benefit from the City’s plant. But instead of continuing to pay a surcharge, i.e., 125% of the City’s ordinary sewage rates, after annexation the landowners in the Estates would pay the City’s ordinary rates. The court observed this change produced real economic benefit, stating “as a part of now becoming a part of the city, the average bill will decrease $8.91 per month.” The annualized savings for all the Estates residents was calculated as $11,333. The court held “[v]alue is being provided in connection with wastewater treatment as part of becoming a part of the city.”
The district court further determined that according to the record, to extend—and to continue—these 4 primary municipal services would cost the Estates owners approximately $108,000 in additional property taxes each year. It compared these additional taxes to its valuation of the services provided by the City for the Estates residents: (1) $22,200 to $66,000 for police protection; (2) $16,790 for street maintenance; (3) $11,002 for trash service; and (4) $11,333 for wastewater treatment. It concluded this range of additional services provided total financial benefits to the Estates of between $38,990 and $83,489 per year.
After utilizing its aggregate approach, the court rejected Stueck-emanns’ “no value thus unreasonable” argument, ultimately concluding the City “acted with reasonableness.” We agree.
The Stueckemanns hint at a requirement that any value—whose existence they continue to deny—must be equal to, or greater than, the new cost imposed for the same, or greater, level of service provided by annexation. So if not at least equal, the plan is unreasonable. In addressing this intimation, we first look at the plain language of the statute. See Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014) (best and only safe rule for ascertaining intention of the makers of written law is abide by language they have used). We observe K.S.A. 2014 Supp. 12-538 does not expressly establish that an annexation suit can challenge “equivalence” but simply that it can challenge whether the annexation is “reasonable,” which denotes a lower standard. Compare Black’s Law Dictionary 658 (10th ed. 2014) (defining equivalent as “[e]qual in value, force, amount, effect, or significance”), with Black’s Law Dictionary 1456 (10th ed. 2014) (defining reasonable as “[f]air, proper, or moderate under the circumstances).
And on the particular issue of whether the value of benefits extended to the area of annexation must be greater than or equal to the new taxes imposed, we draw further guidance from the Mississippi Supreme Court. Like Kansas, Mississippi is one of the few states where the judiciary is charged by statute with reviewing whether a city’s proposed annexation is unreasonable. See Miss. Code Ann. § 21-1-33 (2007). As the court stated in Texas Gas Transmission Corp. v. City of Greenville, 242 So. 2d 686, 690 (Miss. 1970):
“The argument that appellant will not receive benefits commensurate to its increased tax burden is not well taken. We pointed out in Kennedy v. City of Kosciusko, 203 Miss. 4, 33 So. 2d 285 (1948), on this exact issue, that:
‘Even so it (taxation) would in any event have to be so disproportionate to the compensating benefits as to become unreasonable. (203 Miss. at 9, 33 So. 2d 286)/ ” (Emphasis added.)
See also In re Enlarging, Extending and Defining, 109 So. 3d 529, 560 (Miss. 2013) (“ ‘The mere fact that residents and landowners will have to start paying city property taxes is not sufficient to show unreasonableness.’ ”).
We adopt the same reasoning here. The Stueckemanns’ intimation that an annexation is unreasonable if the value of new municipal services is not at least equal to the amount of new taxes imposed is without merit.
Before concluding, we note the district court also found other value is bestowed upon the Estates, i. e., its proximity to a city whose benefits the landowners utilize, including use of the City streets to access the Estates. The court specifically stated, “They’re apart of being a resident of the city and are one of the amenities or services that are provided of being a resident to the city and so to spread them over the [Estates], I think, is an appropriate measure.” The court continued:
“If certain members of the residents of Cedar Lake Estates as they've indicated and some of the comments made at the public hearing, the written comments, didn’t use these services, it doesn’t mean that they’re not there and affect the quality of life and affect tire property values that are associated with living in the area. And those things also provide value and for that value it is not unreasonable to expect parties to pay for them.”
The Stueckemanns argue this determination is unsupportable. They cite City of Topeka v. Board of Shawnee County Comm'rs, 252 Kan. 432, 447, 845 P.2d 663 (1993). But that case is readily distinguishable. It involved a county’s denial of a city’s petition to annex land adjacent to it. Accordingly, it involved a completely different statute: K.S.A. 12-521(c). Unlike the unilateral annexation statutes at issue in the instant case, that statute requires a board of county commissioners to determine whether the proposed annexation would cause “manifest injury” to the property owners in the area. 252 Kan. at 447. In City of Topeka, the district court affirmed the Board’s denial, holding that “substantial evidence supported the Board’s conclusion that property owners would suffer manifest injury if the annexation were approved.” And this court affirmed the district court, holding it correctly determined that substantial evidence supported tire Board’s findings. 252 Kan. at 447.
Instead of relying on our caselaw addressing manifest injury under K.S.A. 12-521, we again draw guidance from the Mississippi Supreme Court and its review of a state statute with parallels to K.S.A. 2014 Supp. 12-538. In evaluating annexation reasonableness, Mississippi courts examine “whether property owners and other inhabitants of the proposed annexation area have in the past, and for the foreseeable future unless annexed, will enjoy the economic and social benefits of proximity to the municipality without paying their fair share of the taxes.” In re Enlarging, Extending and Defining, 109 So. 3d at 540; see also Extension Boundaries of Tupelo v. Tupelo, 94 So. 3d 256, 267 (Miss. 2012); In re Enlargement of Mun. Bound. of Clinton, 955 So. 2d 307, 312 (Miss. 2007). Cf. Big Sioux Tp. v. Streeter, 272 N.W.2d 924, 926 (S.D. 1978) (“A natural and reasonable annexation may result from the following justifications: ... an outflow of benefits including services and facilities to tire outlying territoiy without a corresponding inflow of monetary contribution for such benefits resulting in an uncompensated burden to the municipal corporation . . . .”). (Emphasis added.)
The district court’s consideration of intrinsic benefits that the Estates’ residents enjoy because of their proximity to the City is consistent with these courts’ consideration of the economic and social benefits residents derive by living near a municipality. In Clinton, the court concluded this factor supported finding die annexation was reasonable because residents of the proposed annexation area benefitted from the city’s recreational facilities, medical services, libraries, educational opportunities, and community centers. 955 So. 2d at 327-28. As the district court found, the same is true in the instant case. Although it is difficult to quantify the economic value of these benefits, the district court did not err in considering them in its reasonableness calculus. Residents of the Estates have benefitted—and will continue to benefit—from their property adjoining the City. Those benefits additionally support the reasonableness of the annexation.
We have reviewed the record, examined the City’s annexation decision for reasonableness under the standard we have articulated today, and come to the same conclusion as the district court. The annexation decision was reasonable.
The judgment of the Court of Appeals affirming the district court’s refusal to invalidate the annexation is affirmed. The judgment of the district court is affirmed.
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Hill, J.:
Jason Kelsey argues that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution mandates that people in the State’s custody that are similarly situated must be similarly treated unless there are good reasons to treat them differently. Kelsey, sentenced under Jessica’s Law, is serving two concurrent mandatory life sentences for two counts of aggravated indecent liberties with a child under the age of 14, both off-grid sex crimes. He now contends that the law which permits postconviction DNA testing, K.S.A. 21-2512, violates the Equal Protection Clause because it permits testing for those serving sentences for rape or aggravated criminal sodomy, also off-grid sex crimes, but not to offenders convicted of his crimes. He asks us to reverse the district court’s summary dismissal of his motion asking for DNA testing.
Because the law mandates identical sentences for someone who is 18 or older and convicted of aggravated indecent liberties with a child under the age of 14 with those offenders sentenced for rape or aggravated criminal sodomy, we hold that K.S.A. 21-2512 does violate the Equal Protection Clause. The two classes of offenders are similarly situated, and there is no rational basis for treating them differently. We reverse the district court’s summary dismissal of Kelsey’s motion and remand to the district court to make findings on whether the three threshold requirements of K.S.A 21-2512(a) are met here, requiring DNA testing.
Kelsey filed guilty.
Kelsey pled guilty to two counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). The court sen tenced him under Jessica’s Law, K.S.A. 21~4643(a)(l)(C), to concurrent mandatory hard 25 life sentences with no possibility of parole for 25 years and also ordered lifetime postrelease supervision. He is now serving his sentences.
Kelsey moved for postconviction DNA testing under K.S.A. 21-2512. The court summarily denied his motion for a lack of standing. Simply put, since Kelsey stood convicted of neither murder nor rape, in the court’s view, he was not entitled to testing.
Kelsey appeals this ruling by challenging the constitutionality of Kansas’ postconviction DNA testing scheme. Specifically, he argues K.S.A. 21-2512 violates the Fourteenth Amendment’s Equal Protection Clause because the statute treats similarly situated offenders differently without any justification for such treatment.
We note that Kelsey did not raise his constitutional argument in his pro se motion in the district court, but it appears for the first time here in his brief to this court. Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before this court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). However, we address it now under an exception set forth in State v. Anderson, 294 Kan. 450, 464-65, 276 P.3d 200 (2012)—specifically, Kelsey’s newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case. See State v. Denney, 278 Kan. 643, 651, 101 P.3d 1257 (2004). In Denney, the court addressed the constitutionality of K.S.A. 21-2512 for the first time on appeal. We follow the Supreme Court’s lead in Denney.
Our standard of review and guiding principles.
Appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute’s validity. And we must interpret a statute in a way that malees it constitutional if there is any reasonable construction that would maintain the legislature’s apparent intent. State v. Seward, 296 Kan. 979, 981, 297 P.3d 272 (2013).
The Fourteenth Amendment to the United States Constitution provides “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause of the Fourteenth Amendment “requires that states treat similarly situated individuals similarly.” State v. Cheeks, 298 Kan. 1, Syl. ¶ 3, 310 P.3d 346 (2013). Kansas courts evaluate equal protection challenges using a three-step process:
“First, the court considers whether the legislation creates a classification resulting in different treatment of similarly situated individuals. Second, if the statute does treat ‘arguably indistinguishable’ individuals differently, then tire court examines the nature of the classification or right at issue to determine the appropriate level of scrutiny. Finally, the court applies the proper level of scrutiny to the statute.” (Emphasis added.) Cheeks, 298 Kan. 1, Syl. ¶ 2.
The level of such scrutiny is based on the rights involved. There are three levels—strict scrutiny, intermediate scrutiny, and the differential scrutiny of the rational basis test. State v. Salas, 289 Kan. 245, Syl. ¶ 3, 210 P.3d 635 (2009). The Supreme Court has previously determined that because K.S.A. 21-2512 does not burden a fundamental right or involve a suspect class, it would analyze the equal protection question using a rational basis test. Cheeks, 298 Kan. at 8; Denney, 278 Kan. at 654. We will as well.
Kelsey, as the party challenging the law’s constitutionality, has the burden to prove he is similarly situated to other members of a class receiving different treatment, and in conducting our review, we are limited by the distinctions Kelsey argues. See Salas, 289 Kan. at 249. The Salas court held that “the parameters of a court’s consideration of whether individuals are similarly situated [are] set by the distinctions argued by the complaining party.”
The statute in question is limited.
By its own terms, K.S.A. 21-2512 permits only offenders convicted of premeditated first-degree murder or rape to receive post-conviction DNA testing of biological materials. The statute permits DNA testing if three conditions are met:
“(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto, or for rape as defined by K.S.A. 21-3502, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deox-yribonucleic acid testing) of any biological material drat:
(1) Is related to the investigation or prosecution that resulted in conviction;
(2) is in the actual or constructive possession of the state; and
(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.” K.S.A. 21-2512.
We do not know if the three conditions Usted above are satisfied because the court summarily dismissed the motion. If Kelsey prevails on this equal protection attack on the statute and we extend the statute to those convicted of his crime and serving a similar sentence to his, he will be entitled to a remand of the issue to the district court for a hearing to determine whether he can establish these three statutory conditions.
Historically, our Kansas Supreme Court has on three occasions examined this statute when it was dealing with equal protection questions—Denney, 278 Kan. 643; Salas, 289 Kan. 245; and Cheeks, 298 Kan. 1. Collectively, the opinions give us clear guidance on how to proceed in this case. In looking for similarities, the court, at first, examined the elements of the crimes charged but has since moved on to an examination of the terms of the different offenders’ sentences. Reading these opinions makes it clear that the sentences being served by tire offenders are now determinative of our inquiry.
First, in Denney, the Supreme Court held that K.S.A. 21-2512 violated the Equal Protection Clause for offenders convicted of aggravated criminal sodomy involving penetration of another female bodily orifice by the male sex organ. 278 Kan. at 649-61. The court entertained the question for the first time on appeal as it was not raised in Denney’s pro se motion to the district court.
The Denney court focused on the similarity of the elements between the crimes of rape and aggravated criminal sodomy under the facts of that case and found no rational basis for differing treatment existed. The court concluded that Denney committed his crime by penetrating his victims’ anuses with his male sex organ, a crime the court found to be arguably indistinguishable from an offender convicted of rape by penetrating a female sex organ with his male sex organ. 278 Kan. at 653-54. Going further, the court rejected arguments that a rational basis for differing treatment could be based on the cost of testing or the differential of the severity levels of rape and criminal sodomy. 278 Kan. at 651-56.
To remedy the constitutional violation, the court declined to strike down K.S.A. 21-2512. Instead, it extended the statute to include postconviction DNA testing for offenders in a similar situation as Denney s. Denney, 278 Kan. at 660. Obviously, the similarity of the criminal acts and elements of the crimes were uppermost in the court’s analysis in Denney,
Next, in Salas our Supreme Court again focused on the elements of two crimes—premeditated first-degree murder and intentional second-degree murder. Limiting itself to considering only the offenders that Salas claimed to be similarly situated, die court held that K.S.A. 21-2512 providing postconviction DNA testing if an offender is convicted of first-degree premeditated murder does not violate equal protection by not extending the same right to offenders convicted of intentional second-degree murder. 289 Kan. at 249-51. The court concluded that offenders who commit first-degree murder with premeditation are not similarly situated to those' offenders convicted of intentional second-degree murder. The difference is the premeditation element, which the court considered to be a rational basis for differing treatment. 289 Kan. at 250-51.
Finally, in Cheeks the court addressed the equal protection challenge left unanswered in Salas—a challenge not based on the elements of the crimes of second-degree murder and first-degree premeditated murder, but based on the punishment imposed for both crimes. Because Cheeks framed his “similarly situated” analysis on the punishment imposed for die crime—not the elements of die crime or the conduct tiiat violates those elements—Salas did not control the court’s decision in Cheeks. 298 Kan. at 6.
Instead, the court held tiiat because Cheeks received the maximum indeterminate sentence of 15 years to life for second-degree murder, he was similarly situated to offenders convicted of first-degree premeditated murder who received a life sentence. Those offenders were also parole eligible after 15 years, but they could petition for postconviction DNA testing under K.S.A. 21-2512. Cheeks, 298 Kan. at 7. The court, citing Denney, concluded no rational basis existed for the differing treatment of similarly situated offenders under K.S.A. 21-2512. The court once again found the statute was unconstitutional and expanded the statute to in- elude those offenders convicted of second-degree murder and receiving the presentencing guidelines maximum penalty of 15-years-to-life imprisonment. Cheeks, 298 Kan. at 8-13.
How Kelsey frames his argument is important to our inquiry.
Kelsey asks us to expand K.S.A. 21-2512 to those offenders convicted under K.S.A. 21-3504(a)(3)(A). He cites Cheeks for support. He contends the similarly situated class is defined by the sentence received:
“[Kelsey’s] conviction for aggravated indecent liberties . . . places him in a strikingly similar position for length of sentence comparison, relative to those individuals convicted of rape and aggravated criminal sodomy, just as Mr. Cheeks’ sentence for second degree murder placed him in a similar position relative to those serving sentences for first degree murder.”
In setting these narrow limits, Kelsey is arguing that offenders who receive a mandatory hard 25 life sentence under K.S.A. 21-4643 for committing aggravated indecent liberties with a child under the age of 14 in violation of K.S.A. 21-3504(a)(3)(A) are similarly situated to individuals sentenced for rape under K.S.A. 21-3502 and aggravated criminal sodomy under K.S.A. 21-3506. Thus, because Kelsey is framing the relevant distinction for our “similarly situated” analysis on the sentence the district court imposed, not the elements of the crimes or the conduct violating those elements, Cheeks controls our decision in this case. See 298 Kan. at 6-7.
In opposition, the State declines to apply an equal protection analysis under Cheeks. The State simply suggests this court find the dissenting opinions in Cheeks more persuasive than the majority opinion. However, as the State also acknowledged in malting this suggestion, this court is duty bound to follow Kansas Supreme Court precedent, unless there is some indication the court is departing from its previous position. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). We have found no indication of an intention to depart.
Accordingly, we must decide whether Kelsey has met the threshold requirement by proving he is similarly situated to a group cov ered under the statute. See Cheeks, 298 Kan. 1, Syl. ¶ 2. We hold he has done so.
A review of the sentencing statutes is helpful.
A person 18 or older convicted of aggravated indecent liberties with a child under the age of 14 in violation of K.S.A. 21-3504(a)(3)(A) is guilty of an off-grid person felony requiring a mandatory life sentence with no possibility of parole for 25 years. K.S.A. 21-4643(a)(l)(C). Rape and aggravated criminal sodomy are similarly off-grid person felonies when the victim is under the age of 14 and the offender is 18 years of age or older. K.S.A. 21-3502(c); K.S.A. 21-3506(c). Therefore, an offender 18 years of age or older convicted under K.S.A. 21-3502(a)(2) or K.S.A. 21-3506(a)(l) or (a)(2) also receives a mandatory life sentence with no possibility of parole for 25 years. K.S.A. 21-4643(a)(l)(B), (D).
The length of sentences imposed for a conviction under the remaining categories of rape and aggravated criminal sodomy vaiy with the criminal history of the offender. A person convicted of rape under K.S.A. 21-3502(a)(l) or (a)(2) is guilty of a severity level 1 person felony, except, as provided above, under subsection (a)(2) when the offender is 18 years of age or older, whereas rape as described under K.S.A. 21-3502(a)(3) or (a)(4) is a severity level 2 person felony. K.S.A. 21-3502(c). And, except as provided above, all other convictions for aggravated criminal sodomy are severity level 1 person felonies. K.S.A. 21-3506(c). Therefore, a severity level 1 rape/aggravated criminal sodomy conviction and a severity level 2 rape conviction has a presumptive sentencing range from 117 months and 155 months respectively for criminal history category I at the low end of the sentencing grid, to 467 months and 620 months respectively for criminal history category A at the high end. See K.S.A. 21-4704(a).
Given these vast sentencing ranges that are dependent upon an offender s criminal history, it could be argued that a person sentenced under K.S.A. 21-3504(a)(3)(A) is not similarly situated to certain individuals requesting postconviction DNA testing after being sentenced for rape or aggravated criminal sodomy at the high end of the sentencing grid—467 or 620 months. On the other hand, K.S.A. 21-2512 does permit postconviction DNA testing for offenders receiving considerably less than the sentence for an off-grid person felony under K.S.A. 21-3504(a)(3)(A).
More importantly, when a district court imposes the mandatory off-grid sentence for a Jessica’s Law conviction of aggravated indecent liberties in violation of K.S.A. 21-3504(a)(3)(A), the offender who is 18 years of age or older receives the identical sentence as if convicted of rape under K.S.A. 21-3502(a)(2) or aggravated criminal sodomy under K.S.A. 21-3506(a)(l) or (a)(2).
Staying within the limits set by Kelsey s argument, we hold that the narrow class of offenders sentenced under Jessica’s Law for aggravated indecent liberties with a child under the age of 14 are similarly situated to offenders sentenced for rape or aggravated criminal sodomy and serving hard 25 life sentences. Kelsey has met the threshold requirement.
Moving to the remaining steps of our analysis, since there is no indication our Supreme Court is departing from Cheeks, we remain constrained by the court’s conclusion regarding the rational basis analysis and the remedy for an equal protection violation. See Cheeks, 298 Kan. at 8-13.
We employ the rational basis test because that is what the Supreme Court used in both Denney, 278 Kan. at 651-52, and Cheeks, 298 Kan. at 8. Therefore, Kelsey must meet his burden by negating “every conceivable [reasonable] basis which might support” ’ the differing treatment.” Cheeks, 298 Kan. at 8. Indeed, the Cheeks court clarified that in considering the possible rational bases offered, the means and the classification of the statute in question must meet a legitimate legislative goal:
“We do not focus on the legislature’s actual rationale for the classification. Rather, we consider whether the legislature could have had a legitimate reason for drawing the challenged classification. [Citation omitted.] To pass the rational basis test, tire statute must foster legitimate goals and the means chosen to achieve the state’s goals must ‘bear a rational relationship to those goals.’ [Citation omitted.] In other words, the proffered rational basis must be more than simply a legitimate legislative goal, the “ “ “classification [must] bear [ ] some reasonable relationship to a valid legislative objective.” ” ” (Emphasis added.) [Citations omitted.] Put another way, the proffered rational basis must both explain the distinction drawn by the statute between two classes of individuals and be a legitimate legislative objective.” 298 Kan. at 8.
Kelsey simply cites Cheeks, where the court considered and rejected both the cost of the testing and the severity levels of the crimes as reasons to justify excluding second-degree murder. 298 Kan. at 8-9.
We assume that the cost of die DNA testing here would be the same as in Cheeks, where the court rejected the cost of testing as a legitimate rationale for differing treatment. We do so as well. See 298 Kan. at 9; Denney, 278 Kan. at 654. We focus then on severity levels.
In the earliest case dealing with this issue—Denney—our Supreme Court in searching for a rational basis sua sponte looked at severity levels of the crimes and suggested, “the legislature may have intended to allow postconviction DNA testing based on the severity of the crime.” 278 Kan. at 654. In examining the differences between a severity level 2 felony for aggravated criminal sodomy and a severity level 1 felony for rape by force or fear, the court acknowledged, “differences in severity level could be a rational basis for distinguishing between when [postconviction] DNA testing is allowed and when not.” Denney, 278 Kan. at 655.
However, citing K.S.A. 21-4707(a), which provides that “[c]rimes listed within each [severity] level are considered to be relatively equal in severity,” the court rejected the rational basis of crime severity level given that, in some instances, aggravated criminal sodomy had the same severity level as rape. Denney, 278 Kan. at 655-56.
Then, more recently, in Cheeks, our Supreme Court rejected the State’s suggestion that the severity of the crime was a rational basis to exclude second-degree murder from K.S.A. 21-2512 for the same reason used in Denney. Citing K.S.A. 2012 Supp. 21-6807(a), the court pointed out that even though first-degree murder was classified as an off-grid felony when the legislature enacted K.S.A. 21-2512, the legislature included rape as a crime eligible for postconviction DNA testing and that both rape and second-degree murder, both being level 1 or 2 person felonies, were “ ‘relatively equal in severity.’ ” Cheeks, 298 Kan. at 10. Ih other words, similar does not mean identical when focusing on severity levels of crimes when making this type of analysis.
We are constrained to follow the ruling in Cheeks. As the Supreme Court did in Cheeks, we find no legitimate legislative goal that is met by this distinction in severity levels of the crimes for the purpose of an equal protection analysis. Given Kansas’ obvious commitment to exoneration of the innocent through DNA—both sampling and later testing—and following our Supreme Court’s lead in extending K.S.A. 21-2512 rather than nullifying the statute in such instances as here, we likewise extend K.S.A. 21-2512 to include testing for those in the same situation as Kelsey. See Cheeks, 298 Kan. at 12; Denney, 278 Kan. at 660.
In so holding, we clarify that, like Cheeks, we are not adding a new crime to the statute’s coverage but are expanding the statute to cover a much narrower class of offenders, i.e., offenders convicted of aggravated indecent liberties with a child under the age of 14 and sentenced under Jessica’s Law to the mandatory hard 25 life sentence. Since the district court summarily rejected Kelsey’s motion based on the face of the statute and made no findings regarding the three statutory requirements of K.S.A. 21-2512(a), Kelsey is only entitled to a remand to the district court for a hearing to determine whether he can establish those three statutory requirements. See Cheeks, 298 Kan. at 4.
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Powell, J.:
Kansas Star Casino, L.L.C. (Kansas Star) appeals from the ruling by the Kansas Court of Tax Appeals (COTA) that the appraised value of its property, a 195.5 acre tract of land located in the northeast comer of Sumner County and used for casino operations, was $80,510,000 for the tax year 2012. In reaching its conclusion, COTA determined that the value for Kansas Stars land was $16,931,250. This amount was based on the actual price Kansas Stars parent company paid for the land. On appeal, Kansas Star argues that COTA erroneously inflated the value of its land and that the land should have been valued based on sales of agricultural property in the surrounding area. The County cross-appeals, arguing COTA erred in declining to include various additional costs as part of its valuation. After a careful review of the record, we agree with COTA’s ruling in all respects and therefore affirm.
Factual and Procedural Background
A. An Ovei~view of the Kansas Expanded Lottery Act and the Single Management Contract
The Kansas Legislature enacted the Kansas Expanded Lottery Act (KELA), K.S.A. 74-8733 et seq., in 2007. KELA divided the state into four gaming zones: northeast, south central, southwest, and southeast, each of which would be allowed to have only a single gaming facility management contract. K.S.A. 2014 Supp. 74-8734(a), (d). Sedgwick County and Sumner County comprise the south central gaming zone. K.S.A. 2014 Supp. 74-8702(f).
KELA established a process under which the State owns the casino’s gaming operations but hires a gaming facility manager via a management contract to construct and own the casino improvements and infrastructure as well as to manage the gaming operations. Specifically, KELA provides that the management contract shall “allow the lottery gaming facility manager to manage the lot-teiy gaming facility in a manner consistent with this act and applicable law, but shall place full, complete and ultimate ownership and operational control of the gaming operation of the lottery gaming facility with the Kansas lottery” K.S.A. 2014 Supp. 74-8734(h)(17). Further, “[a] lottery gaming facility manager, on behalf of the state, shall purchase or lease for the Kansas lottery all lottery facility games. All lottery facility games shall be subject to the ultimate control of the Kansas lottery in accordance with this act.” K.S.A. 2014 Supp. 74-8734(n)(2). KELA also created a Lottery Gaming Facility Review Board (Review Board) that was charged with evaluating lottery gaming facility management contracts. K.S.A. 2014 Supp. 74-8735(a), (h).
Potential gaming facility managers’ casino proposals had minimum infrastructure requirements, including a $225 million minimum investment amount for the south central gaming zone. K.S.A. 2014 Supp. 74-8734(g)(2). Management contracts were to be for an initial maximum term of 15 years, and the winner of the management contract in the south central gaming zone was required to pay a privilege fee of $25 million in order to be selected as the lottery gaming facility manager for that zone. K.S.A. 2014 Supp. 74-8734(h)(l), (6). KELA mandated that the approved management contract contain provisions for payment of 22% of gaming revenues to the State, 2% to the problem gambling and addictions grant fund, 2% to the county in which the casino was located, and 1% to the other county in the zone. K.S.A. 74-8734(h)(12), (13), (16). KELA also specified that the “management contract shall not constitute property, nor shall it be subject to attachment, garnishment or execution, nor shall it be alienable or transferable, except upon approval of the executive director, nor shall it be subject to being encumbered or hypothecated.” K.S.A. 2014 Supp. 74-8734(m).
Under KELA, once a management contract is approved by the Review Board, the contract has to be submitted to the Kansas Racing and Gaming Commission (KRGC) for a background check and final approval. K.S.A. 2014 Supp. 74-8736(e). Facility managers and their employees must also be licensed and certified. K.S.A. 2014 Supp. 74-8751.
B. Selection of the South Central Zone Gaming Facility Manager
The selection of the south central zone gaming facility manager was a lengthy process that encompassed three rounds of proposals. Potential gaming facility manager proposals included a proposed site for the casino. However, none of tire proposed casino sites were purchased by the prospective applicants prior to the award of the management contract. Instead, various entities entered into option agreements to purchase the tracts at prices substantially above market value if, and only if, the site were part of the proposal selected for the management contract. All the proposed casino sites presented throughout the bidding process were agricultural-use properties. The entities that submitted proposals to the Kansas Lottery also applied for zoning at the proposed sites, and such zoning was granted to the proposed tracts.
The first round of bids occurred in 2008. The approved proposal’s site for the casino was located on the combined Wyant and Brewer tracts in Sumner County. However, the first approved proposal was withdrawn due to the economic downturn during the 2008 recession.
Beginning in 2009, Scott Cooper, who served as an analyst for the Review Board, assisted in evaluating proposals during the second round of bidding. In die second round, die Kansas Lottery approved the bid of a gaming facility manager group with a prospective location immediately south of the Wyant and Brewer tracts—the Gerlach tract located in Sumner County. However, due to infighting witiiin the management group, no management contract was awarded.
In 2010, Peninsula Gaming (Kansas Star’s parent company) hired Cooper to develop and expand its gaming operations in the United States. Cooper helped Peninsula assemble a proposal for the third round of bidding. Peninsula submitted its bid alongside two other prospective gaming facility managers.
For its bid, Peninsula chose to acquire purchase options for two abutting tracts: die Wyant tract (selected for die management contract in round one) and the Gerlach tract (selected for the management contract in round two). The owners of the Gerlach tract initially entered into a purchase option agreement witii Paul Treadwell and Mark Linder just after the legislature passed KELA, wherein they agreed to sell the tract for $25,000 per acre, or approximately $3,631,250. Treadwell and Linder assigned the option to Foxwoods Development Company, L.L.C. (Foxwoods) in 2007. Foxwoods sold the Gerlach tract option to Peninsula on July 15, 2010, for $5,300,000. Six days later, on July 16, 2010, Peninsula and Double Down Development entered into an option agreement with the owners of the Wyant tract for a purchase price of $8,000,000.
Peninsula Gaming was awarded the management contract on October 19, 2010. It exercised its option for the Wyant tract on March 2, 2011, and its option for the Gerlach tract the next day. The Wyant and Gerlach tracts together comprise the Subject Property.
C. Land value appraisal and appeal
Kansas Star, a wholly-owned subsidiary of Peninsula and the gaming facility manager for the south central zone, was transferred ownership of the Subject Property and began operating the Kansas Star Casino there beginning December 26, 2011; as of January 1, 2012, the Subject Property consisted of an operating temporary casino and a partially constructed permanent casino. The Kansas Star Casino is situated on the southern Gerlach tract, while the northern Wyant tract is undeveloped aside from ingress and egress roads.
The County appraised the Subject Property at $91,000,000. Kansas Star appealed this appraisal to COTA. Following Kansas Stars appeal, the County hired Richard Jortberg as its litigation appraiser, who valued the Subject Property at $95,800,000. Kansas Star hired its own appraiser, Laird Goldsborough, who valued the Subject Property at $64,300,000. In deciding the appeal, COTA partially relied on Jortberg’s appraisal and appraised the Subject Property at $80,510,000, including $16,931,250 in land value. Kansas Star now appeals COTA’s land valuation of $16,931,250. The County cross-appeals, arguing COTA erred in declining to include various additional costs as part of its valuation of the Subject Property.
Did COTA Overvalue the Subject Property?
Kansas Star argues COTA improperly valued the Subject Property because the land would never be worth $86,605 per acre without KELA and the management contract. Kansas Star essentially asserts that it paid an inflated price for the Subject Property due to die unique circumstances of the management contract and that without the management contract the Subject Property’s value would be substantially less. Thus, according to Kansas Star, the value attributable to the management contract should be subtracted from the property value of the Subject Property for the purposes of ad valorem taxation.
This court reviews a decision from COTA in the manner prescribed by the Kansas Judicial Review Act, K.S.A. 77-601 et seq. This court may grant relief pursuant to K.S.A. 2014 Supp. 77-621, the pertinent portions of which provide:
“(c) The court shall grant relief only if it determines any one or more of the following:
(4) the agency has erroneously interpreted or applied the law;
(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by tire court under this act; or
(8) the agency action is otherwise unreasonable, arbitraiy or capricious.”
In reviewing the evidence in light of the record as a whole, this court does not reweigh the evidence or engage in de novo review. The term “in light of the record as a whole” is statutorily defined to include the evidence both supporting and detracting from an agency’s finding. K.S.A. 2014 Supp. 77-621(d). Thus, this court must determine whether the evidence supporting the agency’s factual findings is substantial when considered in fight of all the evidence. Sierra Club v. Moser, 298 Kan. 22, 62-63, 310 P.3d 360 (2013).
On appeal, “[t]he burden of proving the invalidity of agency action is on the party asserting invalidity.” K.S.A. 2014 Supp. 77-621(a)(1); see Milano’s Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013). Finally, when reviewing agency action pursuant to K.S.A. 2014 Supp. 77-621(c), this court takes into account the rule of harmless error. K.S.A. 2014 Supp. 77-621(e); Sierra Club, 298 Kan. at 47.
Kansas Star and the County agree that the cost approach was the appropriate method for valuing the Subject Property. The central tenet of the cost approach is the principle of substitution: an informed buyer will pay no more for a property than the cost to acquire a similar site and construct improvements of like desirability and utility. The Appraisal of Real Estate, Appraisal Institute, 379-80 (13th ed. 2008). An appraiser estimates market value under the cost approach by (1) estimating the value of the land, (2) estimating the replacement cost of the improvements, (3) subtracting depreciation as necessary, and (4) adding the land and improvement values together. See City of Wichita v. Eisenring, 269 Kan. 767, 774, 7 P.3d 1248 (2000). With respect to COTA’s cost approach analysis, Kansas Star challenges only the land value component of the analysis.
A. COTA Correctly Determined the Highest and Best Use of the Subject Property
Under Kansas law, real property is appraised at its fair market value. K.S.A. 79-501. For the purposes of ad valorem taxation, the fair market value of a property is based on the property’s “highest and best use.” See In re Equalization Appeal of Johnson County Appraiser, 47 Kan. App. 2d 1074, 1091-92, 283 R3d 823 (2012). The highest-and-best-use analysis is performed assuming the Subject Property is vacant. See In re Tax Appeal of Yellow Freight System, Inc., 36 Kan. App. 2d 210, 218, 137 P.3d 1051, rev. denied 282 Kan. 790 (2006). Four criteria are used to evaluate a property’s highest and best use: (1) physical possibility; (2) legal permissibility; (3) financial feasibility; and (4) maximum productivity. Yellow Freight System, Inc., 36 Kan. App. 2d at 217. As the parties do not dispute that operating a casino on the Subject Property is physically possible, financially feasible, and maximally productive, the critical issue is whether it would have been legally permissible to operate a casino on the Subject Property assuming the property were vacant.
Kansas Star claims we must remove the value of the management contract from the land value and that such value must be determined as though the land were vacant and available only for purposes for other than a casino. We disagree. We assume operating a casino on the Subject Property would be legal if the land were vacant because on January 1,2012 (the valuation date), Kansas Star held the management contract for the south central gaming zone, meaning under KELA it was the only entity legally capable of operating a casino on that date. As COTA accurately explained in its order, “[i]n a highest and best use analysis, all actual market facts must stay the same, only the property at issue is assumed to be vacant.” If all actual market value is presumed to be the same, then it must also be assumed no other entity is permitted to build another casino in the south central gaming zone. If this were not so, the market value of the surrounding agricultural land would fluctuate as other potential gaming facility managers enter into option contracts with the landowners in preparation for bidding for the management contract. Therefore, we agree with COTAs determination that the highest and best use of the Subject Property was operation as a casino because operating a casino was legally permissible for Kansas Star in addition to the other highest-and-best-use requirements.
With the highest and best use of the Subject Property established as a casino, COTA ultimately determined that the land value of the Subject Property was $16,931,250. Given the lack of comparable property due to the unique situation created by KELA and the one-and-only management contract, COTA determined the actual sales price for the Subject Property was substantial evidence and the best evidence of its fair market value. It arrived at the land value total by adding the $8,000,000 purchase price of the Wyant tract, the $5,300,000 price paid to Foxwoods to acquire its option on the Gerlach tract, and the $3,631,250 paid to the Gerlachs to acquire their property. The sum of these figures represents the price Kansas Star paid for the Subject Property in order to obtain a fee simple interest in the Subject Property and build and operate a casino on it. COTAs decision complies with Kansas law.
B. Kansas Stars Various Arguments Do Not Defeat COTAs Original Determination
Kansas Star seeks to upend this relatively straight-forward analysis through various arguments. Specifically, Kansas Star asserts (1) COTA erred in failing to exclude value attributable to the management contract from the real property value of the Subject Property, (2) COTA improperly included the $5.3 million paid to Foxwoods to acquire the option to purchase the Gerlach tract, (3) COTA ignored that Kansas Star purchased the Subject Property under undue compulsion, and (4) COTA erroneously determined that the Subject Property had no excess land. We will discuss each argument in turn.
1. COTA did not err in failing to exclude value attributable to the management contract from the real property value of the Subject Property
Kansas Star explains that the $16,931,250 it paid for the Subject Property was not only for the land itself, but also for intangible interests apart from the land. According to Kansas Star, because the impact of the management contract on the sales price was not accounted for, COTAs land value does not comply with the Uniform Standards of Professional Appraisal Practice and is thus in violation of Kansas law. See K.S.A. 2014 Supp. 79-503a(k) (“The appraisal process utilized in tire valuation of all real and tangible personal property for ad valorem tax purposes shall conform to generally accepted appraisal procedures.”); K.S.A. 79-504; K.S.A. 2014 Supp. 79-505.
Essentially, Kansas Star asks us to classify the management contract as an intangible circumstance that artificially inflated the value of the Subject Property that Kansas Star willingly purchased. Kansas Star asserts that the management contract did not raise the literal value of the land because it did not alter the land outside of the framework established by KELA. For support Kansas Star cites State ex rel. Stephan v. Martin, 227 Kan. 456, 466, 608 P.2d 880 (1980), where our Supreme Court explained that “property tax is based on the value of the property itself, not on the income or economic condition of the property’s owner.”
Kansas Star’s reliance on Martin is unpersuasive (and perhaps detrimental) because the management contract is not an “economic condition” that renders its alteration of the Subject Property’s value irrelevant for the purposes of ad valorem taxation. In Martin, the Kansas Supreme Court struck down K.S.A. 1979 Supp. 79-342, a law that granted “a partial exemption from taxation to certain items of farm machinery and equipment, according preferential tax treatment to some owners.” 227 Kan. at 468. In doing so, our Supreme Court explained that “ ‘the severe economic crisis’ confronting individual farmers and ranchers [that prompted K.S.A. 1979 Supp. 79-342] confuses economic conditions affecting property owners with economic factors affecting the value of property,” and as such K.S.A. 1979 Supp. 79-342 was unconstitutional under art. 11, § 1 of the Kansas Constitution. 227 Kan. at 466, 468.
In other words, Martin stands for the proposition that economic conditions, such as unforeseen or heavy expenses affecting a property owner, do not cause such owner’s ad valorem taxation to change because such circumstances do not affect the value of the owner’s real property. Conversely, an economic factor that actually changes the value of an owner’s real property properly alters the owner’s ad valorem taxation rate. Thus, Kansas Star’s rebanee on Martin is misplaced because the management contract creates precisely the hypothetical situation that would necessitate a change in an owner’s ad valorem tax rate under Martin: a literal change in the value of the Subject Property.
The change in the Subject Property’s value due to the management contract is evident because Kansas Star willingly and in the competitive free market paid $16,931,250, which is far more than market value of the surrounding tracts that were not eligible for casino development. The added value of the Subject Property, while undoubtedly caused by KELA and the management contract, does not represent value that is separate from the Subject Property’s property value and exempt from ad valorem taxation.
2. COTA did not err in including the $5.3 million option acquisition payment on the Gerlach tract as part of the value of the Subject Property
Next, Kansas Star contends that the $5.3 million paid to Fox-woods to acquire the Gerlach tract purchase option should not have been included in COTA’s valuation of the Subject Property. Specifically, Kansas Star argues that the $5.3 million should have been excluded from the Subject Property’s value because (1) the entire portion of the $5.3 million had not been paid to Foxwoods by the date of valuation and (2) purchasing Foxwoods option also served to remove Foxwoods as a potential gaming facility manager competitor, meaning the $5.3 million was consideration for more than just the value of the Gerlach tract option.
The County answers this argument by correctly pointing out that Kansas law requires the fee simple interest in a property be valued for the purposes of ad valorem taxation. In re Equalization Appeal of Prieb Properties, 47 Kan. App. 2d 122, 132, 275 P.3d 56 (2012). A fee simple interest is ‘“[a]bsolute ownership unencumbered by any other interest or estate, subject only to the limitations imposed by the governmental powers of taxation, eminent domain, police power, and escheat.’ [Citation omitted.]” 47 Kan. App. 2d at 130.
Thus, COTA properly recognized that in order for Kansas Star to acquire the requisite fee simple interest in the Gerlach tract, it had to pay $3,631,250 to purchase the tract itself and $5.3 million to acquire the option held by Foxwoods. Without buying the option, there would have been an encumbrance on the Gerlach tract, and Kansas Star would not have possessed a fee simple interest.
Kansas Star’s arguments do not alter this conclusion. Although Kansas Star’s obligation to pay Foxwoods $5.3 million had not fully matured at the time of the land valuation, this does not change the fact that Kansas Star and Foxwoods determined in an open and competitive market that Foxwood’s property interest in the Ger-lach tract was worth $5.3 million. As previously discussed, in this situation the price paid for the Subject Land was a proper proxy for determining the value of the land for ad valorem taxation.
Additionally, we are unpersuaded by Kansas Star’s argument that the entire $5.3 million paid for the Gerlach option should not have been included in COTAs valuation of the Subject Property because the transaction simultaneously removed Foxwoods as a competitor as Kansas Star has not met its burden of proof. It is possible that Kansas Star paid an inflated price for Foxwoods option in order to rule out Foxwoods as a potential facility gaming manager, meaning the consideration paid for the option itself and the actual value of the Gerlach tract was lower than COTAs appraisal. However, as COTA accurately noted, “[njothing in the option assignment documentation suggests the $5,300,000 was consideration for non-competition and nothing in the documentation prevented [] Foxwoods from presenting an alternative proposal to tire State of Kansas at some other site.” COTA also correctly explained that Kansas Star did not present documentation or evidence establishing what portion of the $5.3 million was attributable to noncompetition. It is Kansas Stars burden to prove COTA erred, and it has not done so with the evidence it provided. See K.S.A. 2014 Supp. 77-621(a)(l); Milano’s Inc., 296 Kan. at 500.
■3. COTA did not err in determining Kansas Star did not purchase the Subject Property under undue compulsion
Kansas Star next argues that COTA erred in determining that no undue compulsion existed in the acquisition of the Subject Property. Elaborating, Kansas Star explains that once it had been awarded the managexhent contract it had two choices: (1) sacrifice a lucrative management contract or (2) buy die Subject Property at an excessively high price. Kansas Star proceeds to analogize its purchase of the Subject Property to a distressed sale involving a seller in financial difficulty. Kansas Star cites no legal authority to support this argument.
In Kansas, “‘[fjair market value’ means the amount of money that a well-informéd' buyer is justified in paying and a well-informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion.” (Emphasis added.) Sunflower Racing, Inc. v. Board of Wyandotte County Comm’rs, 256 Kan. 426, 444, 885 P.2d 1233 (1994); see K.S.A. 2014 Supp. 79-503a. Kansas has not statutorily defined “compulsion,” so we instead rely on the terms plain meaning. See Moser v. Kansas Dept. of Revenue, 289 Kan. 513, 516, 213 P.3d 1061 (2009).
COTA defined “compulsion” as follows:
“Black’s Law Dictionary 305 (8th ed. 2004) defines ‘compulsion’ as ‘[t]he act of compelling; the state of being compelled,’ ‘[a]n uncontrollable inclination to do something’ or ‘[o]bjective necessity; duress.’ Black’s Law Dictionary 300 (8th ed. 2004) defines ‘compel’ as ‘[t]o cause or bring about by force, threats, or overwhelming pressure.’ Black’s Law Dictionary 542 (8th ed. 2004) defines ‘duress’ broadly as ‘a threat of harm made to compel a person to do something against his or her will or judgment.’ ”
Kansas Stars argument entirely ignores that it entered into the options for the Subject Property voluntarily in an open and competitive market. There is no evidence in the record indicating Kansas Star was forced to pay a certain price for the Wyant and Gerlach tracts, nor is there any indication Kansas Star was somehow forced to exercise its options for the Wyant and Gerlach tracts after being awarded the management contract. We agree with COTA that Kansas Star was not acting under undue compulsion when it purchased the Subject Property.
4. COTA did not err when it determined the Subject Property contained no excess land
COTA determined the portion of the Subject Property that was formerly the Wyant tract was not excess land because (1) the tract contained ingress and egress roads that connected the Subject Property to U.S. Highway 81 and Kansas Highway 53, (2) the evidence suggested the Wyant tract was necessaiy for drainage, (3) the Wyant tract was capable of development of casino-related amenities, and (4) Kansas Star paid $8 million for the Wyant tract, leading to the inference that the land was required for casino development.
Kansas Star takes issue with COTAs determination because the Wyant tract is not being used for casino development and, if Kansas Star desired, could be sold. Kansas Star minimizes the presence of the Wyant tract’s ingress and egress roads by pointing out that the Gerlach tract has highway access to Highway 81 and the Kansas Turnpike. Further, the Wyant tracts drainage capabilities, according to Kansas Star, are irrelevant because there is little evidence in the record establishing whether the Wyant tract was necessary for the Gerlach tracts drainage. Finally, Kansas Star points out that 195 acres, the total area of the Subject Property, is not necessary for operation of a casino. Aside from citing a secondary source, Kansas Star again provides no legal support for its argument.
The County responds by citing the testimony of Kansas Stars expert, Goldsborough, who testified that the roads on the Wyant tract were used for ingress and egress, meaning there was evidence in the record that the Wyant tract was not excess land. It also cites evidence in the record that the Wyant tract is required for drainage. A reasonable person could agree that the Wyant tract serves the Gerlach tract in both capacities, meaning COTA possessed sufficient evidence for its determination. See In re Protests of Oakhill Land Co., 46 Kan. App. 2d 1105, 1114, 269 P.3d 876 (2012).
Even if COTA erred in valuing the Wyant and Gerlach tracts together, this error would be harmless because the Wyant tract would have been valued at $8 million regardless of whether it was assessed simultaneously with the Gerlach tract. As previously discussed, the unique situation presented by KELA and the management contract meant that prices of surrounding land parcels were not an appropriate measure of land value; rather, the actual price paid for the Wyant tract was the proper measure of land value in this situation. As the Wyant tract would have been properly valued at $8 million regardless of whether it was assessed together or separately from the Gerlach tract, we need not provide a remedy for the harmless error. See Sierra Club, 298 Kan. at 47.
Did COTA Err in Relying on Jortburg’s Appraisal?
Kansas Star next asks this court to reverse COTA on the grounds that COTA erroneously relied on Jortburgs appraisal of the Subject Property. According to Kansas Star, COTA acted in error because Jortburgs land appraisal was unsupported by the record and did not conform to the Uniform Standards of Professional Appraisal Practice (2012-2013 ed.) (USPAP), meaning it should have been wholly disregarded. Specifically, Kansas Star asserts that Jortburgs appraiser violated USPAP Standards Rules 1-1,1-4, and 2-1.
USPAP Standards Rule 1-1 requires appraisers to “employ those recognized methods and techniques that are necessary to produce a credible appraisal;. . . not commit a substantial error of omission or commission; . . . and not render appraisal services in a careless or negligent manner . . . that, although individually might not significantly affect the results of an appraisal, in the aggregate affects the credibility of those results.” Standards Rule 1-4 requires appraisers to “collect, verify, and analyze all information necessary for credible assignment results.” Finally, Standards Rule 2-1 requires that appraisers report their findings and assumptions clearly and accurately in a manner not misleading.
Because the USPAP Standards are embodied in the statutory scheme of valuation through K.S.A. 2014 Supp. 79-505 and K.S.A. 79-506, an erroneous determination that an appraisal adhered to USPAP would be considered an error of law. See In re Protests of City of Hutchinson/Dillon Stores for Taxes Paid in 2001 and 2002, 42 Kan. App. 2d 881, 891-92, 221 P.3d 598 (2009).
In Board of Saline County Comrnrs v. Jensen, 32 Kan. App. 2d 730, 736, 88 P.3d 242, rev. denied 278 Kan. 843 (2004), this court held that the Board of Tax Appeals (renamed COTA at the time of this appeal) may not rely on an approach to value that is expressly prohibited by USPAP. However, USPAP violations that are not “materially detrimental” to an appraisers overall opinion of value are not fatal to a county’s case. See In re Equalization Proceeding of Amoco Production Co., 33 Kan. App. 2d 329, 337, 102 P.3d 1176 (2004), rev. denied 279 Kan. 1006 (2005); In re Equalization Appeal of Prieb Properties, L.L.C., No. 2004-3806-EQ, 2007 WL 5005139, at *5 (Kan. Bd. Tax. App. 2007).
Jortburgs alleged errors fall into two groups: (1) those COTA relied upon in valuing the Subject Property and (2) those COTA expressly rejected or ignored.
First, Kansas Star argues that Jortburgs appraisal did not comply with USPAP Standards 1-1 and 1-4 because his cost analysis failed to exclude land value that was actually attributable to the management contract. COTA specifically cited Jortburgs appraisal in determining the Subject Property was worth $16,931,259. However, as explained, COTA properly valued the Subject Property without reducing its value due to tire management contract. Thus, Jort-burgs conclusion—-that the $16,931,259 Kansas Star paid for the Subject Property was for the land only and was not consideration for the management contract—was not a violation of USPAP because his conclusion was adequately explained and correct.
Second, Kansas Star complains of various errors in Jortburg’s appraisal that were either expressly rejected or ignored by COTA. Kansas Star maintains that although these errors did not affect CO-TAs ultimate decision, they are errors nonetheless because they are contrary to USPAP, drerefore invalidating Jortburgs entire appraisal report and necessitating a remand.
COTA is not required to wholly reject an appraisal that contains non-USPAP compliant errors that are not materially detrimental. See In re Amoco, 33 Kan. App. 2d at 337. Rather, such errors in an appraisal go to the weight of the evidence, not the evidences admissibility. In re Prieb Properties, 2007 WL 5005139, at *5. As COTA relied on portions of Jortburgs appraisal that were accurate and USPAP compliant to reach a well-reasoned and correct conclusion, we find Jortburgs appraisal was not materially flawed.
Even assuming Jortburgs appraisal was otherwise non-USPAP compliant in the manner claimed by Kansas Star, such deficiencies could not have harmed Kansas Star because COTA rejected or ignored those portions of Jortburgs appraisal. For instance, Kansas Star claims that Jortburg’s appraisal erroneously included $9 million in off-site utilities, yet this conclusion was rejected by COTA and the $9 million was not included in COTA’s ultimate valuation. Therefore, even if Jortburg’s appraisal contained errors sufficient to invalidate it, we need not order a remand because COTA’s error was harmless. See Sierra Club, 298 Kan. at 47.
Did COTA Undervalue the Subject Property?
In its cross-appeal, the County argues COTA undervalued the Subject Property. The County asserts that COTA erred by (1) finding that the marquee sign was personal property that could not be included in its valuation, (2) failing to treat costs associated with the rental of KRGC trailers as soft or indirect costs in determining the replacement cost of the improvements, (3) failing to treat the additional $1.6 million in organizational costs as soft costs in determining the replacement cost of the improvements, and (4) failing to treat the additional $3.1 million in financing costs as soft costs in determining the replacement cost of the improvements. We will assess each argument in order.
A. COTA correctly concluded Kansas Stars marquee sign was ;personal property
The County contends COTA erred in determining the marquee sign was not real property subject to ad valorem taxation. For support, tire County principally points to Jortburgs testimony that the marquee sign was attached firmly to the ground, would cause damage if removed, would be expensive to replace, adds value to the operation of the casino, and was integral to die casino facilities. It also relies on testimony from Cooper and Goldsborough that the sign would direct traffic to the facility, would require significant effort and funds to replace if removed, and was so big it could be seen from great distance. . .
Kansas Star counters with two arguments: first, it asserts that the Property Valuation Division (PVD) of the Kansas Department of Revenue, which promulgates rules and regulations binding on county appraisers pursuant to K.S.A. 79-1456, has stated that the following categories are personal property: “Sign-Business (attached to building),” “Sign, (free standing),” and “Sign-Advertising (billboard).” It also claims that PVD has never categorized any form of commercial signage as real property. Accordingly, based on the PVD s classification of commercial signs, Kansas Star argues COTA properly determined that its marquee sign was personal property.
Second, Kansas Star makes the better argument that the County did not meet its burden of proof with respect to the classification of the marquee sign. We agree. The County bears the burden of proving the appropriate classification of the marquee sign as either personal or real property. See In re Camp Timberlake, LLC, No. 111,273, 2015 WL 249846, at *6-7 (Kan. App. 2015) (unpublished opinion). While the guidelines cited by Kansas Star above stress that the determination of whether property is real or personal must be made on a case-by-case basis, the guidelines also state that an appraiser must be faced with a “unique situation or properly” to deviate from the guide and use the three-pronged fixture test. That test under Kansas law for determining whether an asset is real or personal property was explained in In re Equalization Appeals of Total Petroleum, Inc., 28 Kan. App. 2d 295, 299-300, 16 P.3d 981 (2000): “[T]he test for determining whether personal property becomes a fixture is: ‘(1) annexation to the realty; (2) adaptation to the use of that part of the realty with which it is attached; and (3) the intention of the party malting the annexation/ [Citations omitted.]” After examining the record, we must agree with COTA that the County failed to provide sufficient evidence to carry its burden of proof on this point. Unlike in Total Petroleum, which contained numerous and detailed facts describing the construction of the fixtures at issue, here the County points only to testimony that is largely conclusory in nature. Therefore, we will not disturb COTAs finding that the marquee sign was personal property.
B. COTA correctly concluded the rental of trailers for the KRGC was not a soft cost
Second, the County argues that the $20,000 cost associated with trailer rentals for the KRGC is a soft cost because Kansas Star, pursuant to the management contract, was required to accommodate KRGC employees during the construction process. In the context of real estate appraisal, “soft costs” or indirect costs are “[e]xpen-ditures or allowances for items other than labor and materials that are necessary for construction but are not typically part of the construction contract.” The Appraisal of Real Estate, Appraisal Institute, 386 (13th ed. 2008).
Kansas Star responds that although it was obligated to accommodate KRGC employees through trailer rentals during the construction process, these employees were not necessaiy for the construction of the casino. For support, Kansas Star cites Coopers testimony that the KRGC employees were not involved in any way with the construction. Although the KRGC employees’ presence was necessary for licensing and approval of vendors, this requirement related to the management contract, not the construction of the casino itself. As such, COTA was correct in determining that the $20,000 for the trailer rentals was not a soft cost subject to ad valorem taxation.
C. COTA correctly concluded the $1.6 million in organizational, administrative, and legal costs was not a soft cost
Third, the County argues COTA erred in concluding that $1.6 million cost in organizational, administrative, and legal expenses was not included as soft costs for the Subject Property. For support, the County cites Jortburg’s testimony that this cost “reflect[ed] the cost to the owner/developer to manage the development process” and “if those organizational fees weren’t spent. . . you really wouldn’t have completed a project.”
Cooper, however, testified that the $1.6 million was for business start-up and preopening expenses, such as “regulatory fees, pre-opening payroll, preopening marketing, preopening training and the uniforms that our employees would wear once we opened up.” He also testified that none of these expenses were construction-related. Based on Cooper’s testimony, we agree with COTA that the $1.6 million was not a soft cost.
D. COTA correctly concluded that the financing costs were not soft costs
Fourth, the County argues COTA erred when it concluded that financing costs totaling $3,186,685 were not soft costs. As previously explained, soft costs may include interim financing costs. But here, in determining the financing costs were not soft costs, COTA explained:
“The County’s evidence, however, for calculating the costs was flawed. The calculation did not address interest accruing only from the date of a draw and improperly assumed a twelve month financing cycle. The County presented no evidence to support the assumption that a developer, or an owner in this market, would borrow funds to construct the casino. There is no other evidence to support an appropriate amount of interim financing costs. In light of the flaws, we find the County did not present sufficient evidence to support the inclusion of this additional soft cost.”
The County explains that COTA lacked substantial evidence for its finding because Jortberg’s calculations included $3,186,685 for financial costs. However, this argument confuses the County’s burden of proof. COTA excluded the financing costs from the soft costs precisely because it lacked substantial evidence to malee that finding. Specifically, the accuracy of Jortburgs projected financing costs was called into question because Jortburg based his calculations on 12 months of financing charges as opposed to the actual 9-month production cycle. This means his projected financing costs may have been artificially inflated, resulting in COTAs determination that the County failed to accurately calculate the financing costs. Due to these circumstances, the County’s argument that COTA lacked substantial evidence to exclude the financing costs as a soft cost is without merit.
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Granted.
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The opinion of the court was delivered by
Nuss, C.J.:
Matthew Wilson pled no contest to one count of first-degree premeditated murder, two counts of attempted first-degree premeditated murder, and two counts of aggravated battery in connection with a Manhattan shooting. The judge ordered Wilson to serve a hard 25 life sentence for the murder and an additional 310 months for the remaining crimes to run consecutive to his life sentence. He also imposed a period of lifetime parole.
Wilson contends the judge abused his discretion in ordering his sentences to run consecutively instead of concurrently. Because there was no abuse of discretion, we affirm.
Facts
Dustin Ferguson and Joel Solano lived in an apartment directly across the hall from Wilson. Sometime around 2 a.m. on April 7, 2013, Ferguson returned to the apartment with Michael Lowery, Alexya Mailea, and Christine Kim after a night out in Aggieville. Around 4 a.m., Ferguson and his three guests opened the door to leave. They were met in the hallway by Wilson who immediately started shooting at them with a handgun.
Ferguson, Mailea, and Kim were struck by bullets, and Ferguson pulled Mailea and Lowery back into the apartment while Kim fled down a flight of stairs. Wilson followed Kim and told her he was not going to kill her and that he was only “there for the guys.” Wilson then returned to the apartment, shot his way through the locked front door, and entered.
In the meantime, Lowery had run into Solano’s bedroom where Solano had been sleeping with his fianceé and young daughter. Solano was awakened by the gunshots and retrieved his own handgun. Solano then shot Lowery when he came into the bedroom, mistaking him for an intruder.
Ferguson escaped by jumping out of his bedroom window. He directed Mailea to follow him, but she was still in Ferguson’s room when Wilson returned. As with Kim, Wilson assured Mailea that he was not going to kill her and that he was only “there for the boys.” He also told her he was “doing what he was doing” because Ferguson and Solano had too many loud parties in their apartment and that “people deserved to get a good night’s sleep.” Wilson then went to Solano’s bedroom to look for the others.
Wilson failed to enter Solano’s bedroom because the door was blocked by Loweiy’s prone body. He ordered Solano to open the door and threatened to shoot his way into the room if Solano did not comply. Solano had heard Wilson tell Mailea he was “there for die boys,” so he remained quiet, hoping Wilson would think no one was diere. Wilson eventually gave up and left the apartment. Police took him into custody outside the building a few minutes later.
Lowery died as a result of his gunshot wounds, while Ferguson, Mailea, and Kim were all hospitalized with serious injuries. Wilson pled no contest to one count of first-degree premeditated murder for Lowery’s death, two counts of attempted first-degree premeditated murder regarding Ferguson and Solano, and two counts of aggravated battery on Mailea and Kim.
The district judge denied Wilson’s request to order his sentences to run concurrently instead of consecutively. Instead, he ordered Wilson to serve life in prison with parole eligibility after 25 years for the murder of Lowery and an additional 310 months to run consecutively to the hard 25 life sentence for his remaining convictions.
Our jurisdiction is under K.S.A. 2014. Supp. 22-3601(b)(3), (4) (life sentence imposed for off-grid crime).
Analysis
Issue: The district judge did not abuse his discretion in ordering Wilson to serve consecutive sentences.
Standard of review
A sentencing judge has discretion to impose concurrent or consecutive sentences in multiple conviction cases under K.S.A. 2014 Supp. 21-6819(b) (absent certain circumstances, the sentencing judge shall “have discretion to impose concurrent or consecutive sentences in multiple conviction cases”). That statute does not set out a list of specific factors the sentencing judge must consider in exercising his or her discretion. Rather, it provides that the judge “may consider the need to impose an overall sentence that is proportionate to the harm and culpability” associated with the crimes. K.S.A. 2014 Supp. 2143819(b).
This court’s abuse of discretion standard is well-established:
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010).” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Here, Wilson does not allege any errors of fact or law but argues the judge arbitrarily ordered that he serve consecutive sentences. The State responds the decision was not arbitrary, i.e., that, based on the facts of this case, a reasonable person could conclude that consecutive sentences were appropriate.
Discussion
Wilson’s counsel filed a memorandum before sentencing. In support of his request that the judge exercise his discretion to impose concurrent instead of consecutive sentences, the memorandum expressed Wilson’s remorse. It also stated he had acknowledged that the crimes were extensive in scope, substantial in violence, and unjustified. More specifically, counsel emphasized Wilson’s physically and emotionally abusive childhood; his alcohol dependence and related medical problems; and his mental health issues, including depression, anxiety, social isolation, insomnia, and intermittent suicidal ideation. Counsel’s memorandum also noted Wilson’s work history in both the United States Air Force and private sector; his insignificant criminal history—one misdemeanor DUI; and the fact that he was intoxicated when he committed the crimes.
At the sentencing hearing, Wilson accepted responsibility for the crimes and apologized to the victims and their families. He struggled to provide an explanation for his actions, indicating that he just snapped: “I don’t know why it happened. I don’t even remember doing it.... All I know is something happened, and something in me must have finally broke.”
The district judge agreed that Wilson’s life had been difficult. But he nevertheless concluded that Wilson’s misfortunes could not overcome the degree of harm he caused. In ordering Wilson’s sentences to run consecutively, the judge noted the impact on the victims and tíieir families, stating there were many who had been victimized and hurt by Wilson’s crimes. He further found that long-term incarceration would protect society and deter Wilson and others from committing similar crimes in the future.
Given how Wilson has framed his issue on appeal, for this court to conclude the judge abused his discretion by arbitrarily ordering Wilson’s sentences to run consecutively instead of concurrently, we would have to conclude that no reasonable person would have taken the judge’s view. See Ward, 292 Kan. at 550. But given the facts of this case, we cannot reach that conclusion.
Wilson initiated an unprovoked attack on his neighbors, allegedly because he had had enough of loud party noise they sometimes made at night. He shot Ferguson, Mailea, and Kim, attempted to shoot Solano and Lowery, and informed Mailea and Kim that his intent was to ldll “the guys.” The judge weighed the severity of Wilson’s crimes against his remorse and personal history and determined that ordering his sentences to run consecutively would be proportionate to the harm and culpability associated with the crimes. See K.S.A. 2014 Supp. 21-6819(b). Accordingly, we hold the judge did not abuse his discretion in ordering Wilson’s sentences to run consecutively.
Wilson also argues that, while the judge imposed a period of lifetime parole at the sentencing hearing, the journal entry incorrectly provides for lifetime postrelease supervision. The State not only concedes this issue, but it also has filed an amended journal entry reflecting the order of lifetime parole. So this issue is moot.
Judgment of the district court is affirmed. | [
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Malone, C.J.:
Eric Waggoner appeals his sentence following his convictions of possession of methamphetamine and marijuana. Waggoner argues that, in light of our Supreme Court’s decision in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (modified by Supreme Court order September 19,2014), the district court erred in classifying his prior Kansas juvenile adjudication of attempted aggravated battery as a person felony for criminal history purposes. In Murdock, our Supreme Court held that when calculating a defendant’s criminal histoiy that includes out-of-state convictions committed prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., the out-of-state convictions must be classified as nonperson offenses. 299 Kan. 312, Syl. ¶5.
Waggoner argues that the holding in Murdock applies to in-state pre-KSGA convictions as well. We disagree with Waggoner; the holding in Murdock is limited to the classification of out-of-state pre-KSGA convictions for criminal history purposes and does not apply to in-state convictions. Thus, the district court did not err in classifying Waggoner s prior Kansas juvenile adjudication of attempted aggravated battery as a person felony for criminal history purposes.
The facts are straightforward. On October 17, 2013, Waggoner pled no contest to one count of possession of methamphetamine and one count of possession of marijuana. At the sentencing hearing, the district court found that Waggoner s criminal history score was “B”—based in part on an April 6, 1993, juvenile adjudication in Ford County, Kansas, of attempted aggravated battery. Wag-goner did not contest his criminal history score at sentencing. The district court sentenced Waggoner to a controlling term of 34 months’ imprisonment with 12 months’ postrelease supervision. Waggoner timely appealed the district court’s judgment.
On appeal, Waggoner contends that the district court erred in calculating his criminal history score because that calculation included the erroneous classification of his April 1993 juvenile adjudication of attempted aggravated battery as a person felony. Some background information is necessary to understand Wag-goner’s argument. Kansas did not begin categorizing crimes as person or nonperson offenses until 1993 when the KSGA was adopted. See L. 1992, ch. 239, sec. 1 (KSGA effective July 1, 1993); Mur-dock, 299 Kan. at 315. Generally, person crimes are weighted more heavily than nonperson crimes for criminal history purposes. 299 Kan. at 314. In Murdock, our Supreme Court held that all out-of-state pre-KSGA crimes must be classified as nonperson felonies for criminal history purposes. 299 Kan. 312, Syl. ¶ 5.
Waggoner now argues that the holding in Murdock applies to in-state pre-KSGA convictions as well. Thus, because Waggoner’s juvenile adjudication in Ford County, Kansas, of attempted aggravated battery occurred on April 6,1993—prior to the effective date of the KSGA and before Kansas began classifying offenses as either person or nonperson—Waggoner argues that the district court erred in classifying the offense as a person felony for criminal history purposes.
In response, the State first argues that in light of the Kansas Supreme Court’s order modifying its original opinion in Mur-dock—an order issued after Waggoner filed his initial appellate brief—Murdock does not apply to in-state pre-KSGA convictions. The State also points out that Kansas courts have long classified in-state pre-KSGA crimes as either person or nonperson for criminal history purposes according to the comparable crime’s post-KSGA classification. The State argues that the legislative intent behind the KSGA requires this court to follow precedent and reject Waggoner’s argument.
The parties agree that whether a prior conviction or adjudication is properly classified as a person or nonperson offense involves the interpretation of the KSGA. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Mur-dock, 299 Kan. at 314.
Waggoner candidly concedes that he did not object to his criminal history score in the district court. But as Waggoner notes, by challenging the accuracy of his criminal histoiy score, he alleges an illegal sentence, and this court may consider his argument for the first time on appeal. See State v. Kelly, 298 Kan. 965, 975-76, 318 P.3d 987 (2014) (stating that a court “unquestionably” may entertain an illegal sentence allegation for the first time on appeal); State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) (stating that where a criminal history score is incorrect, the resulting sentence is an illegal sentence). The State does not dispute that Waggoner may raise this issue for the first time on appeal.
We will begin our analysis by attempting to summarize our Supreme Court’s decision in Murdock. Murdock pled guilty to two counts of aggravated robbery and one count of robbery committed in 2008. His criminal history included convictions of robbeiy in Illinois in 1984 and 1990 and a robbeiy conviction in Kansas in 1996. The district court classified all three prior convictions as person offenses, which placed Murdock into criminal history category A, and sentenced him to a controlling term of 233 months’ imprisonment. This court affirmed the district court in State v. Murdoch, No. 104,533, 2011 WL 4031550, at *3 (Kan. App. 2011) (unpublished opinion), rev'd 299 Kan. 312, 323 P.3d 846 (2014).
The Kansas Supreme Court granted a petition for review. Before the Supreme Court, Murdock argued that the district'court should have classified the Illinois crimes as nonperson offenses because (1) K.S.A. 21-4710(d)(8) required such a classification and (2) “the legislature intended to designate pre-[KSGA] convictions as nonperson offenses.” 299 Kan. at 314. Our Supreme Court began its analysis by addressing K.S.A. 21-4711(e), recodified as K.S.A. 2014 Supp. 21-6811(e), which governs the classification of out-of-state convictions for criminal history purposes. 299 Kan. at 314. That statute provides in pertinent part:
“Out-of-state convictions and juvenile adjudications will be used in classifying the offender’s criminal history. An out-of-state crime will be classified as either felony or misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.” K.S.A. 21-4711(e).
Murdock did not dispute that his out-of-state robbeiy convictions were comparable to the Kansas crime of robbery. The issue was which version of the Kansas robbeiy statute should be used to classify the Illinois convictions as person or nonperson. The Kansas robbery statute in effect when Murdock committed tire Illinois crimes defined robbery as a “class C felony,” with no person or nonperson designation. 299 Kan. at 315. However, the Kansas robbery statute in effect when Murdock committed his 2008 Kansas crimes defined robbeiy as a person felony. 299 Kan. at 315.
Murdock argued that the comparable robbeiy statute was the statute in effect at the time he committed the Illinois crimes. He asserted that using that statute would result in a classification of the crimes as nonperson pursuant to K.S.A. 21-4710(d)(8), recod- ified as K.S.A. 2014 Supp. 21-6810(d)(6), which states that unless otherwise provided by law, unclassified felonies and misdemeanors are scored as nonperson crimes for criminal history calculation. Murdock also noted the Kansas Supreme Court’s holding in State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010), that “the comparable Kansas offenses must be determined as of the date the defendant committed the out-of-state crimes.” Murdock, 299 Kan. at 315.
We will briefly turn to our Supreme Court’s decision in Williams. In that case, Williams pled guilty to two counts of identity theft committed in 2005 and 2006, and her criminal history included five state of Washington convictions of identity theft committed in
2001 and 2002. At the time the Washington crimes were committed, Kansas classified identity theft as a person offense, but by the time Williams committed and was sentenced for her Kansas crimes, Kansas had reclassified identity theft as a nonperson offense.
The issue in Williams was whether the district court should classify the Washington crimes for criminal history purposes as of the date Williams committed the Washington crimes, the date she committed the Kansas crimes, or the date of her Kansas sentencing. The Williams court reasoned that “using the date of commission of tire prior out-of-state crime to calculate the criminal history would be consistent with our fundamental rule of sentencing for a current in-state crime: sentencing in accordance with the penalty provisions in effect at the time the crime was committed.” 291 Kan. at 560. Because Kansas classified the crime of identity theft as a person offense at the time the Washington crimes were committed, the court concluded the Washington crimes should be classified as person offenses for criminal history purposes. 291 Kan. at 562.
The Murdock court noted that the Court of Appeals has followed Williams when the prior out-of-state offense was committed after the KSGA was adopted in 1993, citing State v. McKinney, No. 102,906, 2010 WL 5185779, at *1 (Kan. App. 2010) (unpublished opinion). 299 Kan. at 316. McKinney was a case exactly like Williams. The defendant pled no contest in 2009 to attempted failure to register as a sex offender, and his criminal history included a 2002 Oklahoma conviction for failing to register as a sex offender. In 2002, failure to register as a sex offender was classified in Kansas as a nonperson felony, but by 2009, Kansas had reclassified the offense as a person felony. Following Williams, the McKinney court held that the comparable Kansas offense must be determined as of the date the defendant committed the out-of-state crime; thus, the prior Oklahoma conviction should be classified as a nonperson felony. 2010 WL 5185779, at *1.
However, the Supreme Court in Murdock discerned that the Court of Appeals has adopted a “different rule” when the prior out-of-state crimes were committed before the adoption of the KSGA. 299 Kan. at 316. The Court of Appeals panel in Murdock had stated that “ ‘Kansas courts have routinely classified pre-1993 offenses as either person or nonperson for criminal histoiy purposes by comparing the offenses to current guideline offenses.’ ” (Emphasis added.) 299 Kan. at 316. The Supreme Court ultimately determined that this “different rule” used by the Court of Appeals for pre-1993 offenses is contraiy to the holding in Williams. Murdock, 299 Kan. at 317-18.
As stated above, Murdock argued that because the comparable pre-KSGA Kansas statute did not classify robbery as person or nonperson, his Illinois convictions should be scored as nonperson offenses pursuant to K.S.A. 21-4710(d)(8), which requires nonperson classification for “unclassified felonies and misdemeanors.” 299 Kan. at 318. But our Supreme Court deemed Murdock’s argument misplaced, stating that K.S.A. 21-4710(d)(8) was likely adopted to address the scoring of a very limited number of current criminal statutes that do not categorize the crimes as person or nonperson offenses. 299 Kan. at 318. The court determined it was unlikely the legislature intended that K.S.A. 21-4710(d)(8) governed all pre-1993 convictions. 299 Kan. at 319. •
The Murdock court then noted “there is no statutory mechanism either through K.S.A. 21-4710(d)(8) or another KSGA provision allowing us to draw a distinction between- the current guidelines sentencing statutes and the pre-1993 criminal statutes.” Despite its characterization of Murdock’s reliance on K.S.A. 21-4710(d)(8) as misplaced, the court held that “Murdock’s two prior out-of-state convictions must be scored.as nonperson offenses under K.S.A. 21- 4710(d)(8) following our controlling Williams precedent.” The court further expressly “overrule[d] all Court of Appeals decisions applying the rule recited by the Court of Appeals panel in this case.” 299 Kan. at 319.
After the Supreme Court issued its opinion in Murdock, the State filed a motion for modification asking, among other tilings, that the court limit its holding to the classification of out-of-state pre-KSGA crimes for criminal histoiy purposes. The court granted argument on the motion and on September 19, 2014, ordered its opinion modified, altering the sentence “We recognize this rule results in the classification of all pre-1993 crimes as nonperson felonies—an outcome the State characterizes as unreasonable” to state “We recognize this rule results in the classification of all out-of-state pre-1993 crimes as nonperson felonies—an outcome the State characterizes as unreasonable.” (Emphasis added.) The rest of the opinion remained unchanged.
As the State argues, our Supreme Court’s modification of Mur-dock signals that the court’s holding is limited to the classification of out-of-state pre-KSGA offenses for criminal history purposes. The only modification the Supreme Court made was to add the words “out-of-state” to the sentence in which it explicitly recognized that Murdock would result in the classification of pre-KSGA crimes as nonperson felonies. This language in the body of the opinion is now consistent with the syllabus which states:
“When calculating a defendant’s criminal history that includes out-of-state convictions committed prior to enactment of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., the out-of-state convictions must be classified as nonperson felonies. Prior caselaw contrary to this holding is overruled. 299 Kan. 312, Syl. ¶ 5.
Also supporting the conclusion that the holding in Murdock is limited to out-of-state pre-KSGA convictions is the fact that Mur-dock’s analysis began by addressing K.S.A. 21-4711(e), which “governs the classification of out-of-state crimes/convictions.” 299 Kan. at 314. By its plain language, K.S.A. 21-4711(e) does not apply to in-state offenses or convictions. Because the statute upon which the Murdock court based its analysis does not apply to in-state convictions, neither should the Murdock holding. See State v. Dickey, 50 Kan. App. 2d 468, 480, 329 P.3d 1230 (2014) (describing die holding and analysis in Murdock as “firmly tethered” to the text of K.S.A. 21-471 l[e] and thus limited to out-of-state convictions), rev. granted 300 Kan. 1105 (2014).
As the State further argues, Williams—the other driving force behind Murdock—is significantly distinguishable from Waggoner’s case. Like Murdock, Williams addressed a district court’s determination of whether prior out-of-state convictions—Washington convictions of identity theft—were person or nonperson offenses for criminal history purposes. Williams also involved the peculiar fact that at the time tire Washington crimes were committed, Kansas classified identity theft as a person offense, but by the time Williams committed and was sentenced for her Kansas crimes, Kansas had reclassified identity theft as a nonperson offense.
Williams did not involve a situation where the court was trying to classify a Kansas pre-KSGA offense as person or nonperson for criminal history purposes; the prior crimes in question were all committed post-1993. The State adopts the argument set forth by the dissent in Murdock that the application of Williams’ holding should be narrowed “to the facts of that scenario, i.e., when there is a change in the person/nonperson offense designation of a prior conviction—not to all pre-1993 offenses for which the designation of person/nonperson crimes was neither envisioned nor determined.” 299 Kan. at 322 (Rosen, J., dissenting).
The State also argues that Kansas courts have long classified instate pre-KSGA crimes as either person or nonperson for criminal history purposes according to the comparable crime’s post-KSGA classification. The State argues that the legislative intent behind the KSGA requires this court to follow precedent and reject Wag-goner’s argument. But the State ignores the last paragraph of the Murdock opinion in which the court expressly “overrule[d] all Court of Appeals decisions applying the rule recited by the Court of Appeals panel in this case.” (Emphasis added.) 299 Kan. at 319. It is not clear exactly what our Supreme Court in Murdock meant by “the rule” or by its sweeping statement overruling all Court of Appeals decisions applying the rule.
Unfortunately, review of this court’s decision in Murdock does not clarify our Supreme Court’s statement. This court’s opinion in Murdock was brief; it succinctly rejected Murdock’s arguments and followed State v. Boster, No. 101,009, 2009 WL 3738490, at “4 (Kan. App. 2009) (unpublished opinion), and State v. Henderson, No. 100,371, 2009 WL 2948657, at *2-3 (Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1099 (2010). See Murdock, 2011 WL 4031550, at *2-3. Boster and Henderson had previously rejected Murdock’s proposed interpretation of K.S.A. 21-4710(d)(8), reasoning that it would contravene the purposes of the KSGA and this court’s traditional analysis and resolution of the issue. See Murdock, 2011 WL 4031550, at *2-3.
The Court of Appeals panel in Murdock did not expressly state a “rule” that controlled the outcome, but as our Supreme Court later noted, this court did recognize that “Kansas courts have routinely classified pre-1993 offenses as either person or nonperson for criminal history purposes by comparing die offenses to current guidelines offenses.” 2011 WL 4031550, at *2. This statement appears to be the closest thing to a “rule” in this court’s Murdock opinion, especially in light of this court’s adoption of the rationale in Henderson and Boster, which this court summarized by stating that “[b]oth cases determined that pre-1993 offenses should be classified as person or nonperson crimes by considering comparable Kansas offenses.” 2011 WL 4031550, at *2.
The problem with the Supreme Court’s statement in Murdock overruling all decisions applying “the rule” recited by the Court of Appeals panel in that case is that the rule itself makes no distinction between in-state and out-of-state pre-KSGA offenses. Prior to Murdock, the distinction was not considered important. Application of “the rule” did not turn on the location of the prior offense. The question becomes whether Murdock expressly overruled all decisions applying the rule to classify pre-KSGA convictions for criminal history purposes, including in-state pre-KSGA convictions, or whether Murdock only overruled decisions applying the rule to classify out-of-state pre-KSGA convictions.
Prior to Murdock, this court had issued several decisions determining the person/nonperson classification of out-of-state pre- KSGA offenses for criminal history purposes by comparing the offenses to current guidelines offenses. See State v. Mitchell, No. 104,833, 2012 WL 1649831, at *7 (Kan. App. 2012) (unpublished opinion) (affirming designation as person felony of 1990 Colorado arson conviction), overruled by Murdock, 299 Kan. 312; State v. Speake, No. 105,641, 2012 WL 1649878, at *3 (Kan. App. 2012) (unpublished opinion) (affirming designation as person felony of 1992 California conviction of infliction of corporal punishment on a spouse or cohabitant), overruled by Murdock, 299 Kan. 312; State v. Sigley, No. 105,687, 2012 WL 924813, at *1-2 (Kan. App. 2012) (unpublished opinion) (affirming designation as person offense of 1985 Ohio aggravated burglary), overruled by Murdock, 299 Kan. 312. Clearly, this court’s decisions in Mitchell, Speake, and Sigley are now overruled by Murdock.
However, prior to Murdock, this court had issued other decisions determining the person/nonperson classification of in-state pre-KSGA offenses for criminal history purposes by comparing the offenses to current guidelines offenses. See, e.g., Boster, 2009 WL 3738490, at *5 (listing prior Kansas convictions and affirming person designation after comparison to current guidelines offenses). Other prior Court of Appeals decisions addressing this issue do not explicitly identify the prior offenses as in-state or out-of-state. See State v. Smith, 49 Kan. App. 2d 19, 20-22, 303 P.3d 716 (2013) (affirming designation as person offenses of “pre-Guidelines convictions for aggravated burglary and robbery”), rev. granted 300 Kan. 1107 (2014); State v. Mims, No. 103, 044, 2011 WL 4563068, at *6 (Kan. App. 2011) (unpublished opinion) (affirming designation as person felonies of 1970’s convictions of attempted aggravated battery, aggravated battery, and attempted aggravated robbery), rev. denied 294 Kan. 946 (2012); Henderson, 2009 WL 2948657, at *2-3 (affirming designation as a person felony of “a juvenile adjudication in 1975 for aggravated indecent solicitation”). It is unclear whether the Supreme Court’s decision in Murdock overrules Boster, Smith, Mims, and Henderson.
Murdock itself involved only out-of-state pre-KSGA offenses. As previously indicated, the court’s syllabus states that “[wjhen calculating a defendant’s criminal history that includes out-of-state convictions committed prior to enactment of the [KSGA], the out-of-state convictions must be classified as nonperson felonies. Prior caselaw contrary to this holding is overruled.” (Emphasis added.) 299 Kan. 312, Syl. ¶ 5. Because Murdock’s holding applied only to out-of-state pre-KSGA offenses and the decision overruled prior caselaw contrary to this holding, it would appear that prior Court of Appeals’ decisions involving in-state pre-KSGA offenses have not been overruled.
This brings us back to Waggoner’s principal claim on appeal that the district court erred in classifying his April 1993 juvenile adjudication of attempted aggravated battery committed in Ford County, Kansas, as a person felony for criminal history purposes. Waggoner argues that because his juvenile adjudication occurred prior to the effective date of the KSGA and before Kansas began classifying offenses as either person or nonperson, the district court should have classified the offense as nonperson.
As noted in Murdock, the classification of out-of-state convictions and juvenile adjudications for criminal history purposes is governed by K.S.A. 21-4711(e). However, there is no specific provision in the KSGA that expressly governs the classification of instate convictions and juvenile adjudications for criminal history purposes. Thus, we must look to the overall design and purposes of the KSGA and construe the act according to its spirit and reason. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). While criminal statutes are generally strictly construed against the State, this principle is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate the legislative design and the true intent of the law. State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014).
The sentencing guidelines are based on two controlling factors: crime severity and criminal history of the defendant. See K.S.A. 2014 Supp. 21-6804(c). In scoring criminal history, a distinction is made between person crimes and nonperson crimes. See K.S.A. 2014 Supp. 21-6809; Murdock, 299 Kan. at 314. Under the sentencing guidelines, designation of a crime as person or nonperson depends upon the nature of the offense. Crimes which inflict, or could inflict, physical or emotional harm to another generally are designated as person crimes. Crimes which inflict, or could inflict, damage to property generally are designated as nonperson crimes. See State v. Fifer, 20 Kan. App. 2d 12, 15, 881 P.2d 589, rev. denied 256 Kan. 996 (1994); Kansas Sentencing Guidelines, Desk Reference Manual, p. 37 (2014). Generally, person crimes are weighted more heavily than nonperson crimes for criminal history purposes. See Murdock, 299 Kan. at 314.
Our Supreme Court has noted the following principles and legislative purposes of the KSGA: reserving prison space for violent offenders; basing the severity of the sanctions on the harm inflicted; uniformity in sanctions; clear, understandable penalties; reservation of incarceration for “serious violent offenders who present a threat to public safety”; rehabilitation of those incarcerated and making rehabilitative programs available in local communities as well as in prison; allowing policymakers to allocate resources; reducing prison overcrowding; protecting public safety; and standardizing sentences so that similarly situated offenders are treated the same. State v. Favela, 259 Kan. 215, 233-34, 911 P.2d 792 (1996).
Waggoner s argument that his prior juvenile adjudication of attempted aggravated battery should be scored as a nonperson felony for criminal histoiy purposes runs counter to the overall design and legislative purposes of the KSGA. Waggoner does not dispute that the offense of attempted aggravated battery inflicts, or could inflict, physical or emotional harm to another person. He also does not dispute that the offense has been classified as a person felony since the KSGA was enacted in 1993.
Kansas did not begin categorizing crimes as person or nonperson offenses until 1993 when the KSGA was adopted. See L. 1992, ch. 239, sec. 1 (KSGA effective July 1, 1993); Murdock, 299 Kan. at 315. When the KSGA initially went into effect, all prior convictions were pre-KSGA convictions. Obviously, the legislature never intended all Kansas pre-KSGA convictions and juvenile adjudications to be scored as nonperson offenses for criminal history purposes. As the dissenting opinion in Murdock stated:
“The majority’s holding [if applied to in-state convictions] would mean that almost no crime committed before 1993, no matter how violent or serious, could be specified as a person felony in scoring the criminal history for a crime committed post-1993. This simply is an intolerable result and completely compromises a sentencing structure that has as its primary goal protecting society from its most violent criminals." 299 Kan. at 322 (Rosen, J., dissenting).
In this particular case, we are attempting to classify a prior Kansas juvenile adjudication of attempted aggravated battery as a person or nonperson offense for criminal history purposes. In attempting to classify a Kansas pre-KSGA crime as person or nonperson, a court does not refer to comparable offenses as is the case in classifying out-of-state crimes; rather, a court looks to the crime itself as defined by the statute that was violated. Prior to the enactment of the KSGA, aggravated battery was defined as “the unlawful touching or application of force to the person of another with intent to injure that person or another . . . .” See K.S.A. 21-3414 (Ensley 1988). Attempted aggravated battery, prior to the enactment of the KSGA, was classified in Kansas as a class D felony. See K.S.A. 21-3414 and 21-3301(c)(3) (Ensley 1988).
For obvious reasons, attempted aggravated battery was not classified as either a person or a nonperson crime prior to the enactment of the KSGA-—the need for such a classification did not exist. But in designating a crime as person or nonperson for criminal history purposes, courts should focus on the nature of the offense as set forth in the statutory elements of the crime rather than on the prior classification of the crime. Attempted aggravated battery is, and always has been, a crime which inflicts, or could inflict, physical or emotional harm to another person.
A Kansas pre-KSGA juvenile adjudication of attempted aggravated battery need not be scored as a nonperson felony for criminal history purposes pursuant to K.S.A. 21-4710(d)(8) simply because the offense was classified as a Class D felony prior to the enactment of the sentencing guidelines. The Murdock court made it clear that K.S.A. 21-4710(d)(8), which addresses unclassified felonies and misdemeanors, was never intended to govern all pre-1993 convictions. 299 Kan. at 319. Attempted aggravated battery has never been an unclassified felony either before or after the enactment of the KSGA.
From our vantage point on the Court of Appeals, it appears that Kansas trial judges have always scored Kansas pre-KSGA convictions as person or nonperson for criminal history purposes based on the nature of the offense as set forth in the statutory elements of the crime—and for good reason—it makes no sense to determine criminal history in any other way. When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012). The courts must construe statutes to avoid unreasonable or absurd results and presume the legislature does not intend to enact meaningless legislation. State v. Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014).
Williams teaches that courts should use the date of commission of the prior crime to calculate the defendant’s criminal history and to determine the person/nonperson classification of the prior offense. 291 Kan. at 560. Although we do not know the exact date that Waggoner committed his attempted aggravated batteiy, we know that he was adjudicated for the offense on April 6, 1993. At that time, aggravated batteiy in Kansas was a crime which would inflict, or could inflict, physical or emotional harm to another person. See K.S.A. 21-3414 (Ensley 1988). An attempt to commit a crime is treated as a person or nonperson crime in accordance with the designation assigned to the underlying crime. See K.S.A. 2014 Supp 21-6811(g); Fifer, 20 Kan. App. 2d at 16. Therefore, Wag-goner’s pre-KSGA juvenile adjudication in Ford County, Kansas, of attempted aggravated battery should be scored as a person felony for criminal histoiy purposes. This result is consistent with the overall design and legislative purposes of the KSGA and is not contrary to the language of any specific statute or Kansas Supreme Court precedent.
Finally, Waggoner argues that the district court violated his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution as recognized in Apprendi v. Flew Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by sentencing him based in part on his criminal history without first requiring the State to allege the criminal history in a charging document and prove it beyond a reasonable doubt to a jury. As Waggoner concedes, our Supreme Court already has decided tins issue contrary to his position. See State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). There is no indication that our Supreme Court is departing from its position in Ivory.
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Green, J.:
Deshawn Jackson appeals foe trial courts denial of his postsentencing motion to withdraw plea. On appeal, Jackson argues that there are two reasons foe trial court erred when it denied his motion. First, Jackson argues that he has established that his attorney, Aaron Gipson, coerced him into accepting the plea agreement by telling him that if he rejected foe plea agreement he would receive the maximum possible sentence. Second, Jackson argues that Gipson provided ineffective assistance of counsel due to a conflict of interest that adversely affected his representation. Although Jacksons argument regarding coercion fails, Jackson successfully shows that Gipson had a conflict of interest that adversely affected his representation. Thus, the trial court erred when it denied Jacksons motion to withdraw plea. Consequently, we reverse Jackson s conviction and remand to foe trial court with directions to grant his motion to withdraw plea.
Jackson was convicted of aggravated battery in Seward County case number 10CR545. Jacksons codefendant in this case was Francisco Beltran. Although it is unclear exactly with what foe State charged Beltran, the Seward County case number associated with Beltran’s case is 10CR546. Attorney Aaron Gipson represented Beltran in 10CR546. Ultimately, both Jackson and Beltran received probation for their convictions in 10CR545 and 10CR546 respectively.
On November 26, 2011, while Jackson was on probation for 10CR545, Jackson and his girlfriend, Alexandra Duran, got into an argument at their home. During the first part of the argument, Jackson grabbed Duran by the neck and told her that he would hurt her if she did not give him gas money. Later, Jackson told Duran to lie on her stomach with her hands behind her back on foe bed. As Duran lay on the bed, Jackson bound Durans hands together with shoelaces and placed tape over her mouth. Then, Jackson forced Duran into a bathtub filled with running water. Jackson attempted to force Durans head under the water several times before the tape fell off and she was able to get one of her bound hands loose.
After Duran got free, Jackson took Duran to his sisters house. Jackson’s sister, Lani Jackson, and Lanis boyfriend were inside the house. Duran, who still had a shoelace bound around one of her wrists, saw both Lani and Lani’s boyfriend as Jackson forced her into the house. Lani and her boyfriend were sitting together on a bed when Duran overheard Jackson tell Lani that he was tired of Duran and that he was going to take her out and kill her. Although Duran later testified at the preliminary hearing that she did not know the identity of Lani’s boyfriend, Jackson’s presentence investigation report identified the man sitting on the bed with Lani as Francisco Beltran.
Eventually, Jackson, Duran, and Lani went to a gas station. Jackson told Duran to go into the gas station and buy some juice. Once Duran went inside the gas station, she called the police.
The police arrested Jackson and brought Duran to the police station for an interview. During the interview, the investigating police officer observed that Duran had red welts and slightly broken skin around both of her wrists. The investigating police officer also observed that the bottom of Duran’s shirt was wet.
On November 30, 2011, in Seward County case number 11CR411, the State charged Jackson with the following: one count of attempted first-degree murder, a severity level 1 person felony, in violation of K.S.A. 2011 Supp. 21-5402(a)(l); one count of aggravated kidnapping, a severity level 1 person felony, in violation of K.S.A. 2011 Supp. 21-5408(b); one count of aggravated robbery, a severity level 3 person felony, in violation of K.S.A. 2011 Supp. 21-5420(b); and one count of aggravated batteiy, a severity level 7 person felony, in violation of K.S.A. 2011 Supp. 21-5413(b)(l)(B). Furthermore, because of the 11CR411 charges, the State moved to revoke Jackson’s probation in 10CR545.
On December 1, 2011, the trial court appointed Gipson to represent Jackson in 11CR411. Gipson was also appointed to represent Jackson on his probation revocation in 10CR545. Beltran, Gipsons former client in 10CR546, had been subpoenaed as a States witness against Jackson in 11CR411.
Furthermore, Gipson was also reappointed to represent Bel-tran. It seems that the State had moved to revoke Beltrans probation in 10CR546. It is unclear from the record why the State moved to revoke Beltran’s probation. It is also unclear from the record the exact date Gipson was reappointed to represent Beltran on the probation revocation in 10CR546. At Jacksons motion to withdraw plea hearing, however, Gipson testified that Beltran’s probation was revoked on January 20, 2012. Thus, for a time, Gipson was concurrently representing both Jackson and Beltran.
On December 28, 2011, the trial court held a preliminary hearing in 11CR411. Beltran did not testify at the preliminary hearing. Then, on March 5, 2012, Jackson entered into a plea agreement with the State.
Under the plea agreement, the State amended the charges against Jackson. The State amended the one count of first-degree attempted murder to one count of second-degree attempted murder, a severity level 4 person felony, in violation of K.S.A. 2011 Supp. 21-5403 and K.S.A. 2011 Supp. 21-5301. Furthermore, the State dismissed the remaining charges against Jackson. The State also agreed to recommend drat the trial court impose the standard sentence for the attempted second-degree murder count so long as Jackson stipulated his sentence in 11CR411 would be consecutive to his underlying sentence in 10CR545; it seems Jackson’s probation in 10CR545 had been revoked.
In accordance with this agreement, Jackson pled no contest to one count of attempted second-degree murder. During the plea colloquy, Jackson stated that no one had threatened him into accepting the plea agreement. Additionally, Jackson stated that he was satisfied with Gipson’s representation. The trial court ultimately accepted Jackson’s no contest plea. In 11CR411, the trial court sentenced Jackson to 71 months’ imprisonment followed by 24 months’ postrelease supervision. The trial court ordered that Jackson’s sentence in 11CR411 run consecutive to Jackson’s sentence in 10CR545. The journal entry of judgment in 11CR411 indicates that Jackson’s sentence in 10CR545 was 16 months’ imprisonment.
In March 2013, Jackson moved to withdraw his no contest plea in 11CR411. In his pro se motion, Jackson alleged that Gipson threatened him into accepting the plea agreement, telling him that he would receive the maximum sentence if he went to trial. Jackson also alleged that Gipsons dual representation of both him and Bel-tran was a conflict of interest that resulted in ineffective assistance of counsel.
The trial court appointed counsel to represent Jackson on his motion to withdraw plea. A hearing on this motion was held in April 2014. The only evidence presented at this hearing was the testimony of Jackson and Gipson. Jackson testified that Gipson had threatened him into accepting the plea by telling him that he would receive the maximum sentence for all of his charges if he went to trial. Moreover, Jackson testified that he believed that Gipsons dual representation of him and Beltran was a conflict of interest that limited Gipson’s representation. Jackson further testified that Gipson hid the fact that he had a conflict of interest. Jackson asserted that Gipson never told him that he was also representing Beltran, and he only learned that Gipson was representing Beltran following his conviction.
Gipson testified that he never threatened Jackson. Gipson testified that he simply told Jackson that the prosecutor had told him he would be pursuing the maximum sentence for each charge against Jackson if Jackson did not accept the plea. Gipson also testified that he told Jackson that he was also representing Beltran. Gipson testified that Jackson told him that he was “okay” with this because Beltran “wasn’t really a witness to anything.” Furthermore, without prompting, Gipson brought up the fact that he never obtained a signed written waiver from Jackson. At the hearing, Jackson’s attorney asked Gipson the following, “And the issue that we have in this case is that at no point was it waived that there was a conflict between the representation of those number of people; is that right?” Gipson responded, “No, that’s not right. It wasn’t written. I never had him sign it. But in speaking to him, he waived it, not on the record, but with me, yes.”
The trial court denied Jacksons motion to withdraw plea. Regarding Jacksons allegation that Gipson had threatened him to accept the plea, the trial court found that Gipson’s testimony was more credible. Regarding Jackson’s allegation that Gipson had a conflict of interest resulting in ineffective assistance of counsel, the trial judge stated that Gipsons concurrent representation of Jackson and Beltran was troubling. Nevertheless, the trial judge found that even though there was a conflict and Gipson should have obtained Jacksons waiver of the conflict in writing, he believed that Gipson told Jackson that he was also representing Beltran. Thus, the trial court found that Jackson had not established manifest injustice to withdraw his plea because Jackson was aware of the conflict and had received the benefit of his plea bargain.
Did the Trial Court Err When It Denied Jacksons Motion to Withdraw PleaP
On appeal; Jackson asserts that the trial court erred when it denied his motion to withdraw plea for two reasons. First, Jackson argues that he was coerced into accepting the plea agreement because Gipson told him he would receive the maximum possible prison sentence if he rejected the plea agreement. Second, Jackson argues that Gipson provided ineffective assistance of counsel because he had a conflict of interest which adversely affected his representation. As discussed below, Jackson fails to establish that Gipson coerced him into accepting the plea agreement. Nevertheless, Jackson successfully establishes that he had a conflict of interest with Gipson and that this conflict of interest adversely affected Gipson’s representation. Thus, the trial court erred when it denied Jacksons motion to withdraw plea. As a result, this court reverses Jacksons conviction and remands the case to the trial court with directions to grant Jackson’s motion to withdraw plea.
Standard of Review
K.S.A. 2014 Supp. 22-3210(d)(2) states: “To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” Manifest injustice exists if something is “obviously unfair or shocking to the conscience.” State v. Barahona, 35 Kan. App. 2d 605, 608-09, 132 P. 3d 959 (2006). In determining whether the defendant has established manifest injustice, this court should consider the following factors: “(1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made.” State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011).
An appellate court reviews a trial court s denial of a postsentenc-ing motion to withdraw plea for an abuse of discretion. Bricker, 292 Kan. at 244. An abuse of discretion occurs when a judicial action
“(1) ⅛ arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Macias-Medina, 293 Kan. 833, 836, 268 P.3d 1201 (quoting State v. Ward, 292 Kan. 541. Syl. ¶ 3, 256 P.3d 801 [2011]).
In reviewing the trial court s denial of a motion to withdraw plea, this court will defer to the trial courts factual findings so long as tiróse findings are supported by substantial competent evidence. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). Moreover, the defendant has the burden of proving that the trial court abused its discretion. Bricker, 292 Kan. at 244.
Coercion Argument
Jackson argues that Gipson coerced him into accepting the plea agreement by telling him that he would receive the maximum prison sentence for each count the State had charged him with in 11CR411 if he did not accept the plea agreement. Thus, Jackson contends that this court must let him withdraw his plea.
Nevertheless, Gipsons testimony contradicts Jacksons argument. At Jacksons motion hearing, Gipson testified that he never coerced Jackson into accepting the plea agreement. Instead, Gip-son testified that he let Jackson know that the prosecutor had told him that he would be asking for the maximum sentence upon Jackson’s conviction if Jackson rejected the plea agreement and went to trial. In denying Jackson’s motion to withdraw plea, the trial judge found that Gipson had not threatened or coerced Jackson into accepting the pleas by telling him he would receive the maximum sentence. The trial court further found that Gipson was simply letting Jackson know what the prosecutor had told him. Thus, the trial court made a determination that Gipson’s testimony was more credible than Jacksons testimony.
As previously stated, this court does not “reweigh evidence or assess witness credibility,” giving deference to the trial courts factual findings so long as those findings are supported by substantial competent evidence. Anderson, 291 Kan. at 855. Here, Gipsons testimony supported the trial court’s finding. Given that the trial court made a credibility determination which was supported by substantial competent evidence, this court must defer to the trial courts finding on this issue. Consequently, Jackson’s argument that the trial court erred in denying his motion to withdraw plea because he was coerced into accepting the plea fails.
Conflict of Interest Argument
The Sixth Amendment to the United States Constitution guarantees foe right to effective assistance of counsel. “This right, made applicable to foe states through foe Fourteenth Amendment to the United States Constitution, requires more than foe presence of an attorney; it guarantees foe right to effective assistance from foe attorney.” State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012) (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]). In accordance with this right, " ‘counsel owes foe client a duty of loyalty, a duty to avoid conflicts of interest.’ ” Galaviz, 296 Kan. at 174 (quoting Strickland, 466 U.S. at 688).
In Mickens v. Taylor, 535 U.S. 162, 168-69, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 (2002), the United States Supreme Court held that when an attorney actively represents conflicting interests and there is no objection to such representation, a defendant alleging ineffective assistance of counsel based on this conflict must prove that the conflict actually adversely affected his or her attorneys representation. See also Galaviz, 296 Kan. at 183-84. Thus, when a defendant alleges that an attorneys multiple representations created a conflict of interest resulting in ineffective assistance of counsel and there was no objection, that defendant must prove: (1) he or she had an actual conflict of interest with counsel, and (2) this conflict of interest adversely affected the adequacy of his or her attorneys representation. If a defendant can prove that a conflict affected the adequacy of his or her attorney’s representation, then the defendant “‘need not demonstrate prejudice in the traditional sense, which requires the defendant to prove that counsel’s deficient performance affected the outcome of the trial, due to the difficulty of establishing such a claim in cases based on conflicting loyalties.’” State v. Stovall, 298 Kan. 362, 375, 312 P.3d 1271 (2013) (quoting Boldridge v. State, 289 Kan. 618, 622-23, 215 P.3d 585 [2009]).
On appeal, Jackson argues that his right to an effective, conflict-free, attorney was violated. Jackson contends that Gipson’s representation of him and Beltran constituted a conflict of interest. Moreover, Jackson contends that this conflict adversely affected Gipson’s representation of him in three ways: (1) the conflict resulted in Gipson threatening him that he would receive the maximum sentence if he did not accept the plea agreement; (2) the conflict resulted in Gipson violating the Kansas Rules of Professional Conduct (KRPC); and (3) the conflict impacted Gipson’s mindset while negotiating the plea and explaining the plea, resulting in Gipson encouraging him to take the plea deal to avoid any further conflict.
Did a Conflict of Interest Exist?
“[Attorneys owe ethical obligations to both former and current clients and an obligation to avoid representing clients where there is a conflict of interest with either former or current clients.” Galaviz, 296 Kan. at 178-79. In Kansas, the KRPC governs whether a concurrent conflict of interest exists. Under KRPC 1.7 (2014 Kan. Ct. R. Annot. 531) (conflict of interest), a concurrent conflict of interest exists when
“(1) the representation of one client will be directly adverse to another client; or (2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”
Here, Gipson had represented Beltran in 10CR546, a case in which Beltran and Jackson were codefendants. Thus, when Gipson was appointed to represent Jackson on his charges in 11CR411, he had an ongoing obligation to Beltran as a former client. Beltran, however, was a States witness against Jackson in 11CR411. Therefore, Jackson and Beltran had conflicting interests.
Furthermore, at some point during Gipsons representation of Jackson in 11CR411, the State moved to revoke Beltrans probation in 10CR546. Gipson was reappointed to represent Beltran on the probation revocation in 10CR546. This means that during Gip-son’s representation of Jackson in 11CR411, Gipson was additionally representing Beltran on his probation revocation in 10CR546. Thus, for a time, Gipson had concurrent clients with conflicting interests.
The facts of this case are very similar to the facts of State v. Jenkins, 257 Kan. 1074, 1080, 898 P.2d 1121 (1995) (overruled on other grounds by Galaviz, 296 Kan. 168, Syl. ¶ 7). In Jenkins, Jenkins’ attorney had previously represented the State’s key witness in Jenkins’ case on multiple occasions. Moreover, during Jenkins’ case, the attorney was reappointed to represent the State’s key witness on an unrelated charge. Given those circumstances, the Jenkins court held that there was clearly a conflict of interest because the attorney had to attack the credibility of die State’s key witness, who was her client in another case, to advocate for Jenkins. 257 Kan. at 1080.
As in Jenkins, a conflict of interest clearly exists in this case. Gip-son had a duty to advocate zealously for Jackson in 11CR411. Nevertheless, Gipson also had a duty to protect the interests of Beltran, who was the State’s witness against Jackson and who was facing the possibility of probation revocation.
The dissent states that Beltran was not a key witness as to any of the alleged crimes committed in this case, asserting that the comparison of the facts of Jackson’s case to Jenkins is misplaced. For example, the dissent says that “[t]he record is devoid of any factual suggestion or circumstance that would indicate Beltran had any material information about the crime-he was not a witness to any material element of the crime.” The record does not support the dissent’s assertion. Moreover, the trial court never made such a finding when it denied Jackson’s motion to withdraw.
The dissent seems to ignore die fact that Jackson was charged not only with attempted first-degree murder but also with aggravated kidnapping, aggravated robbery, and aggravated battery. The reasoning of the dissent can be reconstructed into the following syllogism:
Major premise: Only witnesses who are present when a crime is committed will have material information about the crime.
Minor premise: Beltran was not present when the initial crimes occurred.
Conclusion: Therefore, Beltran will not have any material information about these crimes.
This is a logical non sequitur to conclude from the major premise that because Beltran was not present when the alleged crimes occurred that he would have no material information about any of these crimes. As the dissent points out, Beltran was at Lani’s house when Jackson allegedly forced Duran, the alleged victim, who still had a shoelace bound around one wrist and visible red welts around the other wrist, into the house. While inside Lani’s house, Duran allegedly heard Jackson tell Lani that he was tired of Duran and that he was going to taire her out and kill her. Because Beltran and Lani were sitting next to each other on the bed when Duran overheard Jackson make this statement to Lani, it is very likely that Beltran would have overheard this same statement. Moreover, it is very likely that Beltran would have seen Duran with one wrist bound with a shoelace and with visible red welts around her other wrist. Thus, the State would have certainly wanted to call Beltran as a corroborating witness for some of the charges filed against Jackson.
On the face of it, the fact that Beltran was not present when Jackson allegedly tried to kill Duran does not mean that Beltran would be incapable of having any material information about one or more of tírese crimes. Thus, the dissent’s reasoning is flawed.
If Jackson had gone to trial, the State would have called Beltran as a corroborating witness. Consequently, as in Jenkins, a conflict of interest clearly existed because Gipson was not only representing Jackson in 11CR411 but was also representing Beltran on his probation revocation in 10CR546, a case in which Jackson and Beltran were codefendants. As a result, Jackson has established an actual conflict of interest existed with Gipson s representation of him in 11CR411.
Did Jackson Waive the Conjiict of Interest P
In denying Jacksons motion, the trial judge stated that he believed Gipson when Gipson testified that he told Jackson that he was also representing Beltran. Although the trial judge did not specifically find that Jackson had orally waived his right to a conflict-free attorney, as Gipson had testified, it seems that the trial judge made a credibility determination that Gipson was telling the truth about the discussion in which he alleges that Jackson waived his right to a conflict-free attorney. Regardless of the trial court s findings, the record does not support that Jackson made an adequate waiver of his right to conflict-free counsel.
In Boldridge v. State, 289 Kan. at 626, our Supreme Court noted that under the KRPC the right to conflict-free counsel may be waived only if each affected client gives informed consent which is confirmed in writing. See KRPC 1.7(b)(4) (2014 Kan. Ct. R. Annot. 531). Although the Boldridge court recognized that there are some instances where statements made on the record can be substituted for informed consent in writing, the Boldridge court emphasized that “an oral statement by a defendant accepting counsels appointment, without more, does not satisfy the waiver requirements.” 289 Kan. at 626. Moreover, in State v. Bowen, 27 Kan. App. 2d 122, 129, 999 P.2d 286 (2000), this court held that to waive the right to conflict-free counsel, a defendants “waiver must be knowing, voluntary, and done with an awareness of relevant circumstances and likely consequences.”
In this case, there was no waiver of the right to conflict-free counsel in writing. Instead, the only evidence supporting that Jackson waived the conflict was Gipson s testimony at the motion hearing that Jackson orally waived the conflict. According to Gipson, that oral waiver occurred after he and Jackson-discussed the fact that he had also been appointed to represent Beltran.
Given those facts, Jackson could not have waived his right to conflict-free counsel. First, Jackson could not have waived his right to conflict-free counsel because he never made an informed waiver in writing. It is uncontested that if Jackson waived his right to a conflict-free attorney, he did so orally. This alleged waiver is also problematic because at the motion to withdraw plea hearing, without prompting, Gibson acknowledged he never obtained a signed written waiver of the conflict from Jackson. This indicates Gibson knew he was supposed to obtain a written waiver, not an oral waiver, but failed to do so. Our Supreme Court has held that an oral statement by a defendant, without further support, cannot constitute a valid waiver of that defendant’s right to a conflict-free attorney; therefore, Jackson did not waive his right to a conflict-free attorney. See Boldridge 289 Kan. at 626.
Second, Jackson could not have waived his right to a conflict-free attorney because Gipsons testimony clearly shows that Jack-sons waiver was not made knowingly or made with an awareness of the relevant circumstances or likely consequences. Again, Gip-son never testified that he and Jackson discussed the potential problems which could arise from him concurrently representing Beltran. Gipson never testified that he explained to Jackson that he had an ethical duty to both Beltran and Jackson. For example, the record lacked any discussion between Gipson and Jackson on whether he could continue to represent Jackson if Jackson refused to accept a plea deal with the State. Moreover, the record contains no discussion between Gipson and Jackson on whether this conflict would diminish Gipson’s usefulness to Jackson. In other words, would Gipson’s representation of Jackson be as effective as it might have been if the conflict did not exist?
Gipson simply testified that Jackson orally waived his right to a conflict-free attorney after he told Jackson that he was also representing Beltran.
Because Jackson’s waiver was not made knowingly or made with an awareness of the relevant circumstances or likely consequences, Jackson did not waive his right to a conflict-free attorney. At the very least, Gipsons testimony provided too little information for the trial court to have found or for this court to find that Jackson made a knowing waiver of his light to conflict-free counsel.
Third, nothing in the record on appeal indicates that Gipson ever attempted to obtain a waiver of conflict from Beltran. Under KRPC 1.7(b)(4), the right to conflict-free counsel may be waived only if each affected client gives informed consent which is confirmed in writing. Although the KRPC does not provide substantive or procedural law in criminal proceedings (see State v. Stovall, 298 Kan. 362, 372, 312 P.3d 1271 [2013]), it seems unworkable for this court to find that Jackson made a valid waiver of the conflict given that there is no evidence that Gipson ever even discussed that a conflict of interest existed with Beltran.
Nevertheless, the dissent argues that because the trial court made a credibility determination that it believed Gipson, Jackson should not be allowed to withdraw his plea because he knew about the conflict all along yet voluntarily entered a favorable plea. The dissent seems to forget that even if Jackson knew about the conflict all along, this does not mean that Jackson made a valid waiver of the conflict. In Jacksons case, at best, there was an oral waiver to the conflict without any discussion of the relevant circumstances or likely consequences of the waiver. As previously detailed, such an oral waiver is invalid both under Boldridge and Boioen. Thus, even if Jackson was aware that Gipson was representing Beltran in another case, Jackson did not make a valid waiver of the conflict of interest.
Did the Conflict of Interest Adversely Affect the Adequacy of Gip-sons RepresentationP
In his brief, Jackson argues that the conflict of interest adversely affected the adequacy of Gipsons representation in three ways. First, Jackson argues that the conflict resulted in Gipson threatening him by telling him that he would receive the maximum sentence if he did not accept the plea agreement. Second, Jackson argues that the conflict resulted in Gipson violating the KRPC. Third, Jackson argues that the conflict impacted Gipsons mindset while negotiating the plea and explaining the plea to him.
First, in making the argument that the conflict resulted in Gip-son threatening him to take the plea agreement, Jackson essentially repeats his argument that Gipson coerced him into accepting the plea agreement. In essence, Jackson argues that the conflict of representing both him and Beltran resulted in Gipson threatening him into accepting the plea agreement or else he would receive the maximum possible prison sentence. As previously discussed, however, the trial court determined that Gipson’s testimony was more credible than Jackson’s testimony regarding the alleged threat. Because the trial court made a credibility determination and Gipson’s testimony supports this determination, this court must defer to the trial court’s finding that Jackson was not coerced into accepting the plea agreement by the threat of i'eceiving the maximum possible punishment if he went to trial. Thus, Jacksons argument that the conflict resulted in Gipson threatening him into accepting the plea agreement fails.
Second, Jacksons argument that the conflict resulted in Gip-son violating the KRPC fails because Jackson never explained how the conflict of interest resulted in Gipson’s failure to follow KRPC procedures. In making this argument, Jackson details how Gipson violated KRPC 1.7. Then, Jackson states: “Gipson’s failure to follow the procedure for a client waiver of a conflict indicates that the conflict substantially affected his performance.” Jackson begs the question with this assertion; however, he never explains how Gipson’s conflicting ethical duties between him and Beltran substantially affected Gipson’s performance. Instead, Jackson asks this court to assume that it was the conflict that resulted in Gipson’s failure to comply with the KRPC. Nevertheless, without more, there is not enough evidence to support this conclusion. Therefore, Jackson’s second argument why the conflict adversely affected Gipson’s representation fails.
Unlike his first two arguments, Jackson’s third argument has merit. In his third argument, Jackson contends that the conflict adversely affected Gipsons mindset while negotiating the plea and explaining the plea to him. Jackson argues that Gipson had to encourage him to accept the plea deal or else Gipson would “be placed in a position of a continued conflict of interest with [him] and [with Beltran].”
Jacksons argument points out an unavoidable truth. If Jackson did not accept the plea deal, the conflict between Gipson, Jackson, and Beltran would become readily apparent when Beltran testified at trial. Once Gipson had reached the trial phase of Jacksons case, tire court and Gipson’s clients would have learned of his failure to follow proper procedure regarding conflicts of interests under the KRPC. Moreover, the trial court would have been put on notice that this conflict would have diminished Gipsons effectiveness to Jackson, Beltran, or both.
Furthermore, it is very likely that Gipson would have been forced to withdraw as counsel for both Jackson and Beltran. How could Gipson continue to zealously advocate for Jackson if he had to cross-examine Beltran? How could Gipson ethically undermine Beltrans testimony and attack Beltran’s credibility at Jackson’s trial when Beltran was facing probation revocation? What if Gipson learned information from Beltran that would help him remain on probation but hurt Jackson at trial? What if Gipson learned information from Jackson that would help him win at trial but hurt Bel-tran’s chances of remaining on probation? Those questions are indicative of the obstacles Gipson would encounter in trying to serve two masters. Thus, Jackson’s interests and Beltran’s interests were too adverse for one attorney to represent both.
“[D]efense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem.” Holloway v. Arkansas, 435 U.S. 475, 485-86, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). Moreover, when an “‘attorney [is] representing two defendants in a criminal matter[,] [the attorney] is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.’” Holloway, 435 U.S. at 485 (quoting State v. Davis, 110 Ariz. 29, 31, 514 P.2d 1025 [1973]). When the trial courtis notified of a potential conflict of interest faced by a criminal defense attorney, the court is required to make an appropriate in-depth inquiry into the conflict. If an appropriate inquiry is made, the trial court’s decision to deny a motion to withdraw is reviewed under the abuse of discretion standard. See State v. Stovall, 298 Kan. at 370.
Here, the record lacks any evidence that Gipson ever told the trial court about his conflict of interest before Jackson entered his plea in this case. If Gipson had made the trial court awai'e of the conflict of interest, the trial court would have inquired about this conflict. Following this inquiry, Jackson would have either made an informed waiver of this conflict or, more likely, asked Gipson to withdraw as counsel. Because Gipson kept the conflict hidden from the trial court, he prevented the trial court from inquiring into the conflict of interest before accepting Jackson’s plea.
The dissent, however, ignores Gipson’s failure to inform the trial court of the conflict of interest. Surely defense attorneys should not be in a stronger position because they willfully fail to advise the trial court of a conflict of interest, thus precluding the court from making an appropriate in-depth inquiry into the conflict of interest, than they would be in if they had advised the court of the conflict of interest so that the court could make an in-depth inquiiy into the conflict of interest. If so, defense attorneys could simply neglect to advise the court of a conflict of interest, thereby preventing the court from ever making an appropriate in-depth inquiry into the conflict of interest, as was done in this case.
To avoid drawing attention to this obvious conflict of interest, Gipson had an incentive to make sure Jackson pleaded guilty in this case. Indeed, Beltran was scheduled to testify against Jackson if this case went to trial. Moreover, if the State called Beltran as a witness, Gipson would have been required to impeach Beltran’s credibility, possibly using Beltran’s former criminal record. This would have created a situation of “divided loyalties” in Gipson’s representation of Jackson and Beltran. Thus, Gipson’s continued representation of both Jackson and Beltran clearly depended on Jackson accepting a plea deal with the State.
As stated earlier, a defendant has the right to conflict-free assistance of counsel. Galaviz, 296 Kan. at 176. When a conflict of interest adversely affects an attorney’s representation of á defendant, that defendant is entitled to postconviction relief. Galaviz, 296 Kan. at 183-84. Here, die conflict of interest adversely affected Gipson’s representation of Jackson because Gipson’s representation of Jackson hinged on him serving two masters whose interests were clearly adverse to each other.
It is the function of defense attorneys to make the adversarial testing process work in their cases. The “‘benchmark for judging any claim of ineffectiveness [as to counsel’s performance] must be whether counsels conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citations omitted.]”’ Boldridge, 289 Kan. at 633 (quoting Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 [2007]). A part of the adversarial process is having a conflict-free attorney.
In Jackson’s case, the adversarial testing process broke down. The State had listed Beltran as a witness in Jackson’s upcoming trial. Thus, if there was the slightest possibility that the State would have called Beltran as a witness at Jackson’s trial, Gipson’s conflict of interest would have adversely hampered him, if not totally prevented him, from representing Jackson at the trial stage. Although the trial court denied Jacksons motion to withdraw plea, the trial court stated that Gipson’s representation of both Beltran and Jackson was troubling. Indeed, because of the conflict of interest, Gipson rendered himself unable to make the adversarial testing process work in Jackson’s case.
In Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398 (2012), the United States Supreme Court held that the Sixth Amendment right to counsel extends to the plea-bargain process. Moreover, the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284 (2010), made clear that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.”
Surely, if defendants receive and accept a so called good plea deal without ever making an informed waiver of the conflict of interest, this cannot trump their constitutional right to have a conflict-free attorney during their plea negotiations. Jackson was entitled to a conflict-free attorney to negotiate a plea deal with the State. Here, Gipson failed to provide Jackson with conflict-free representation during the plea negotiations with the State. Moreover, the record shows that neither Jackson nor Beltran made an informed waiver of Gipson’s conflict of interest.
In summary, Gipson represented Jackson when the conflict of interest arose and, after that, Gipson negotiated a plea agreement that encompassed the very offense giving rise to the conflict of interest. Because the effect of Gipson’s actual conflict of interest extended to the guilty-plea proceeding, it adversely affected the adequacy of his representation of Jackson during the plea negotiations with the State. As a result, we hold that Gipsons representation adversely affected Jacksons interests. Accordingly, we reverse Jackson’s conviction and remand to the trial court with directions to grant Jacksons motion to withdraw plea. | [
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The opinion of the court was delivered by
Per Curiam:
The heart of the dispute in this appeal, which arises in the context of a partition action, raises a question of tire correct interpretation of a journal entry of judgment in a prior divorce proceeding. More specifically, the parties disagree about the effect of language in the journal entry granting the wife a percentage of the husbands remainder interest in an inheritance, which consisted mostly of land and mineral interests. The district court determined the decree granted the wife a money judgment. On appeal from that decision, the Court of Appeals reviewed the judgment de novo and held the divorce decree granted the wife an interest in property. Einsel v. Einsel, No. 109,367, 2014 WL 1795993, at *2 (Kan. App. 2014) (unpublished opinion).
On petition for review the husband argues tire Court of Appeals erred in applying a de novo standard of review and in interpreting the divorce decree as granting the wife an interest in real property. We disagree with his arguments, and, as we explain below, we affirm the Court of Appeals’ ruling, although we issue slightly different remand instructions.
Factual and Procedural History
A. Preliminary partition proceeding
In January 2010, Carol Einsel filed a petition for partition in Comanche County District Court against her ex-husband, Rodney Einsel. Although Carol initially named several other members of the Einsel family as defendants, these parties were peripheral (and some were dismissed). Due to the shared surnames, we will refer to the parties by their first names in order to avoid confusion. All parties agree the dispute is really only between Carol and Rodney, and we will limit our recitation of the facts accordingly.
The ownership interests at stake in this case involved the Einsel family ranch — specifically, interests in 12 tracts of land in Comanche County (the surface rights), a total of 14 oil and gas wells in Comanche and Kiowa Counties (the mineral interests), and 3 tracts of land with mineral interests in Kiowa County. Carol alleged she had an ownership interest in certain surface and mineral interests that had previously been enjoyed only by Rodney and his family. Her petition did not differentiate between the surface rights and mineral interests and instead asserted these rights were all owned in the following percentages: each of Rodneys two sisters, an undivided one-third; Rodney, an undivided 60% of one-third; and Carol, an undivided 40% of one-third. She requested an order specifying the parties’ interests and directing partition pursuant to K.S.A. 60-1003; she later moved for payment of oil and gas proceeds from the 14 wells and the mineral interests in Kiowa County.
In his answer, Rodney explained that Carols claim derived from a 1994 journal entry of divorce (the “divorce decree”) in their earlier divorce proceedings, which had been filed and heard in Ellis County District Court. The judge presiding over the divorce had awarded Carol 40% of Rodney’s remainder interest in the inheritance he received during the marriage. Rodney disputed whether he actually received any interest in his inheritance during his marriage to Carol; regardless, he also argued that the divorce decree did not award Carol an interest in real property. According to Rodney, partition was inappropriate because Carol’s interest was limited to the value of Rodney’s remainder interest on the date of the divorce decree. In response to Carol’s motion for payment of oil and gas proceeds, Rodney explained he and his sisters actually owned a one-sixth interest in the Einsel real estate and mineral interests, not a one-third interest as Carol claimed.
The partition court denied as premature Carol’s motion for payment of oil and gas proceeds, and it then scheduled a hearing and ordered briefing between the parties regarding Carol’s ownership rights, if any, in the Einsel ranch and associated mineral interests. Essentially, the parties’ disagreement at this point hinged on the nature of Carol’s award in the divorce proceedings. Accordingly, we turn to the documents the parties submitted to the partition court regarding the divorce decree.
B. Documents submitted to the partition court in advance of the hearing
According to exhibits submitted by the parties, Carol and Rodney were married in May 1966. Rodneys father, Victor Einsel, died testate in April 1992; his will was admitted to probate in June 1992.
Carol and Rodney experienced marital difficulties, and in December 1992 (approximately 8 months after Victors death), Carol petitioned for separate maintenance.
Victor Einsel’s estate
In January 1993, the probate court entered a journal entry of final settlement on Victors estate (the “probate order”). This probate order is relevant to the instant case because it defined what Victor owned at the time of his death and informed what Rodney could receive from Victor in inheritance. The probate order recounted that at the time of his death Victor owned an undivided one-half interest in the Einsel ranch in Comanche County (the surface rights) and also owned fractional interests in 14 oil and gas wells in Comanche and Kiowa Counties (the mineral interests). Victor also possessed a one-sixth or one-half interest in certain severed mineral interests in Comanche and Kiowa counties (the severed mineral interests). Victor held other property as a joint tenant in common with his wife, Anna Lou Einsel, and the probate court ruled that Victor s interest in this other property terminated upon his death, and full ownership devolved to Anna Lou as the surviving joint tenant.
The divorce proceedings
In June 1993, Rodney answered Carols petition for separate maintenance and counterclaimed for divorce in Ellis County District Court. In a hearing before the divorce court, Carol explained she was unemployed and had been unable to find work, was previously hospitalized due to emotional turmoil and had significant medical bills, had no means of support since Rodney stopped depositing money in their joint account, did not have reliable transportation, and was in need of funds.
In an October 1993 hearing, the divorce court asked the parties if there would be substantial arguments about the value of any assets. Carol responded that there was only one such issue — “[t]he value of remainder interests in [Victor’s] estate, a sizable amount of land in die estate.” Rodney agreed there was an immediate issue as to ‘what the nature of his interest in that land is, if any.”
Prior to its final ruling, the divorce court received a valuation of Rodneys interest. According to the valuations, the Einsel ranch was valued at $892,680, and the royalty interests in Comanche and Kiowa Counties were worth $73,224, for a grand total of $965,904. Rodney owned a one-third remainder interest in one-half of this property (i.e., the half owned by Victor at the time of his death), valued at $160,984. Using actuarial tables, Rodneys net remainder interest value as of January 1994 was $68,802.95.
The divorce court made its ruling in the divorce case in January 1994. The transcript of the final hearing shows the divorce court realized “there just isn’t a lot of cash to go around” between Rodney and Carol. It recognized Carol was in “necessitate circumstances” and would likely remain that way despite her best efforts. Considering numerous factors, including employability and earning capacity, the divorce court awarded Carol $400 per month in alimony for 6 years.
The divorce court then turned to the “last remaining major issue,” Rodneys “remainder interest in the property in [Comanche] County and the royalty interest in [Comanche] County and Kiowa County.” It noted the parties had stipulated that the, present value of the property was $68,802.95. The divorce court; acknowledged Rodneys argument that because he only received an interest in the property upon Victor’s death, right around when he and Carol separated, Carol should receive none of it; it also noted Carol’s position that she should receive all of it.
Ultimately, the divorce court concluded:
“[T]he fair thing to do here — even considering that this was obtained as a result of inheritance, rather than the ‘efforts of the parties’ is to allow [Carol] to have the following: I am going to give her forty percent of this remainder interest on the condition that [Rodney] has not paid her $22,500.00 within six months of today’s date. That shall bear no interest. As I calculate it, 40% based upon this appraisal is $27,000.00 some dollars[‘] worth, therefore, [Rodney] can — if he feels that it is worth what the appraisal has listed it at — essentially can buy it back for less than the appraisal.”
The divorce court issued a corresponding journal entry of divorce, in which it awarded Carol, inter alia:
“[F]orty percent (40%) of the remainder interest of the inheritance received by [Rodney] during the marriage, on the condition that [Rodney] may opt to pay [Carol] the sum of $22,500.00 within six (6) months of the date of hearing, in which case [Rodney] shall receive all of the remainder interest.”
Rodney appealed, and in 1995 the Court of Appeals affirmed the divorce court’s award to Carol — though it remanded for further findings of fact as to Rodneys income. In re Marriage of Einsel, No. 71,367, unpublished opinion filed May 12, 1995.
Anna Lou EinseVs estate
The parties also submitted documents to the partition court showing that Rodneys mother, Anna Lou, died in October 2008, many years after the conclusion of the divorce proceedings. Her will was admitted to probate; her estate included her own undivided half interest in the Einsel ranch real estate, her undivided half interest in producing mineral rights in Comanche County, and her undivided whole interest in other tracts of land which she acquired as the surviving joint tenant to the land she and Victor owned.
C. Arguments before the partition court
Before the partition court, tire parties primarily argued about the nature of Carol’s award — was it an interest in a money judgment, as Rodney urged, or was it an interest in real property, as argued by Carol.
In Rodney’s view, the divorce decree did not grant (or was incapable of granting) Carol an interest in Victor’s estate at all — but, even assuming it did, her claim was limited to 40% of the value of Rodney’s remainder interest. Rodney reasoned that if the divorce court intended to give Carol 40% outright it would not have set the buyback value of the property at issue at $22,500.
For her part, Carol argued the divorce decree gave her an interest in the Einsel ranch itself — an interest in real property. She, like Rodney, focused on the $22,500 buyback provision — but, in her view, this valuation did not indicate her award was a money judgment but instead merely allowed Rodney to choose how to allocate his risk. Namely, he could pay the $22,500 lump sum and reclaim his whole interest in real property but risk predeceasing his mother and never experiencing the benefit of his remainder interest (i.e., his interest would never become possessory). Or, he could not pay the lump sum and risk the property being worth more than $22,500 when Carol decided to foreclose on the interest.
Carol explained that now she had decided to foreclose on the interest: Anna Lou had passed away and Rodneys remainder interest had become a possessory interest — an interest in fee simple — and was subject to partition. She requested partition of the Einsel ranch as follows: Carol, 6.66%; Rodney, 10%; each of Rodneys two sisters, 16.66%; and Anna Lous estate/trust, 50%. Carol acknowledged some of the severed mineral interests identified as part of Victor s estate had expired or were sold during Anna Lous life tenancy; but, she noted, Victors will required Anna Lou to use proceeds from such sales to invest and reinvest in real and personal property to be distributed to the remaindermen. Accordingly, she requested partition of the 14 wells as follows: Carol, 13.33%; Rodney, 20%; and each of Rodneys two sisters, 33.33%.
D. Partition court’s decision
After receiving the parties’ submitted documents and briefs, the partition court held a hearing in November 2012 expressly to resolve the issue of the proper interpretation of the Ellis County District Courts 1994 divorce decree. The partition court first agreed with Carol that the divorce decree clearly meant to: award her some interest in Rodney’s share of Victor’s estate.
Looking at the submitted documents, the partition court paid particular attention to the valuations of Rodney’s remainder interest that were provided to the divorce court. The partition court explained that $68,802.95 present interest value as of January 1994 established the value of Rodney’s reminder interest that he received during the marriage — and the divorce decree gave Carol “40 percent of this figure,” which would be $27,521.18. The partition court thus concluded that the divorce decree gave Carol an interest in a money judgment in the amount of $27,521.18.
In the partition court’s view, the buyback provision supported this interpretation: the buyback provision gave Rodney “an opportunity to purchase the full remainder interest back at a discount rate of $22,500, or just write out a $5,000 [approximate] discount if he did so within six months.” Basically, the partition court explained, the divorce court was attempting to persuade Rodney to “pay a discounted lump sum to [Carol] so she would have a substantial sum of money to assist her with her immediate financial needs.”
Accordingly, the partition court found that Carols interest in Rodneys inheritance was $27,521.18; it granted her a judgment in this amount. It then declared Rodney owned 16.66% of the family ranch, each of his two sisters also owned 16.66%, and Anna Lou’s estate/trust owned 50%. As for the mineral rights, Rodney owned 33.33% and each of his two sisters owned 33.33%.
At this point in the proceedings Carol pointed out that if the divorce decree was interpreted as providing her only a money judgment, the divorce court had not made any provision for interest as would have been required under Kansas law. The partition court reviewed tire divorce decree and ruled Carol would not be awarded any interest stemming from Rodneys failure to pay her $22,500 within 6 months of the divorce court’s order.
E. Court of Appeals decision
Carol appealed to the Court of Appeals and argued the partition court erred in interpreting the nature of her award under the divorce decree. She reasoned the transcript of the divorce court’s ruling clearly evidenced its intent to give her an interest in real property, even if this intent was not clear from the divorce decree alone.
In response, Rodney agreed the divorce decree, considered on its own, was insufficient to convey an interest in real property regarding the Einsel ranch. However, in his view, the divorce decree allowed Carol to receive $22,500 if Rodney paid within 6 months, and, if not, 40% of $68,802.95 (the present value of Rodney’s remainder interest) — which, according to Rodney,- bore the “hallmarks of.a secured transaction.” Rodney contended the terms and structure of the award supported the partition court’s inter pretation of the divorce decree, but, in any event, the balance of equities also supported the partition courts decision. The partition court knew the whole history of Victor’s estate and Carol and Rodneys divorce. It also knew that a decision to partition the Einsel ranch would affect Rodneys family, and it was within the courts equitable powers to determine Carol had no fee simple interest in the property. Rodney also urged the Court of Appeals to consider the equitable mortgage doctrine and view Carols award as a lien against Rodney’s property subject to discharge once Rodney paid her what he owed.
Although tire Court of Appeals did not specifically address Rodneys equitable mortgage argument, which he based on Fuqua v. Hanson, 222 Kan. 653, 567 P.2d 862 (1977), or his brief contention that Carols award was a secured transaction, it implicitly rejected these theories by ruling that the divorce decree awarded Carol an interest in real property, not an interest in a money judgment. Einsel, 2014 WL 1795993, at *1-2. The panel ruled the divorce court “intended to award Carol an interest in real property, conditioned on Rodneys failure to pay her a lump sum of cash within 6 months of the order.” Einsel, 2014 WL 1795993, at *2. In so doing, the Court of Appeals disagreed with both parties’ positions that the court needed to look beyond the journal entry of divorce — the written journal entry was the controlling document and there was “no indication . . . that [the judge in the divorce proceeding] intended the award to be a monetary judgment.” Einsel, 2014 WL 1795993, at *2.
Under the Court of Appeals’ interpretation, the journal entry of divorce gave Rodney “two alternatives from which to choose”: either he could pay a lump sum of $22,500 right away and then wait for Anna Lou to die before he could enjoy the benefit of that payment; or he could choose not to pay the lump sum and risk Carol’s 40% share being worth more than $22,500 when his remainder interest became possessory upon Anna Lou’s death. Einsel, 2014 WL 1795993, at *2. The Court of Appeals acknowledged it was clear the divorce court’s order “was designed to benefit Carol no matter which option Rodney chose” — if Rodney paid $22,500 immediately or within 6 months, then Carol’s immediate need for money would be satisfied; and if Rodney did not pay the $22,500 Carol would presumably have a larger benefit in the future, satisfying the equities of the situation involving the parties’ different earning capacities. Einsel, 2014 WL 1795993, at *2. Since Rodney elected not to pay, the condition in the award was met and Carol was left with 40% of his remainder interest in real property — not a money judgment. 2014 WL 1795993, at *2. Accordingly, the Court of Appeals “[Reversed and remanded with directions to grant Carol’s request for partition as set forth in her petition.” 2014 WL 1795993, at *3.
We granted Rodney’s petition for review of the Court of Appeals’ decision and have jurisdiction pursuant to K.S.A. 60-2101(b) (“The supreme court shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court or court of appeals in order to assure that any such act, order or judgment is just, legal and free of abuse.”).
Analysis
Rodney’s petition for review raised five issues, which we have condensed into three: (1) What is the proper standard of review? (2) What did the divorce court award to Carol? and (3) What are the proper instructions on remand?
Before we resolve the parties’ arguments, a brief overview of partition in Kansas helps place the parties’ arguments in perspective. “Partition” refers to dividing up an estate or interest in real property into separate, distinct portions so that owners may own their pieces separately. See generally K.S.A. 60-1003. Parceling out an estate in this way may be desirable for any number of reasons— perhaps the owners wish to terminate their relationship or avoid the discord that so often comes with shared possession.
Once an owner/petitioner requests partition and the remaining owners/defendants answer, the district court shall make an order “specifying the interest of the respective parties and directing partition.” K.S.A. 60-1003(c)(1). An order “directing partition” does not automatically carve up an estate: instead, it merely marks the start of the actual partition process. See K.S.A. 60-1003(c)(1).
After directing partition the district court shall appoint three commissioners; it is these commissioners, not the court, who par titions the property among the parties according to their respective interests. K.S.A. 60-1003(c)(2) (also setting forth procedures if partition is impracticable or manifestly injurious). Once the commissioners prepare their report for the court, any party may file exceptions. K.S.A. 60-1003(c)(3). After a hearing, the judge may approve, disapprove, or modify the commissioners’ report as justice and equity might require. K.S.A. 60-1003(c)(3).
The district courts powers in partition proceedings are broad— once it obtains jurisdiction over the parties and the subject matter in the case, a district court has “full power to malee any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests, or may refuse partition if die same would result in extraordinary hardship or oppression.” K.S.A. 60-1003(d); see Peterson v. Peterson, 173 Kan. 636, 641, 251 P.2d 221 (1952) (asserting that a district court acting pursuant to this statute “has plenary power to determine the right, title and interest of the parties to the action”). Although a district court acting pursuant to its partition powers may not create new ownership interests, it may determine whether a particular party actually has an ownership interest. See Jones v. Anderson, 171 Kan. 430, 435, 233 P.2d 483 (1951) (“A partition action is particularly designed and suited to settle any and all rights of cotenants in and to the property involved. The district court in such a proceeding has full and complete power to adjudicate every legal and equitable right of the parties to the litigation.”).
A district court possesses wide discretion in partition proceedings because such proceedings require use of the court’s equitable powers, meaning its powers to malee a fair and just division of property based on the circumstances of a particular case. See Home-Stake Production Co. v. Tri-State Pipe Co., 197 Kan. 163, 167, 169-70, 415 R2d 377 (1966); Peterson, 173 Kan. at 641 (noting that district courts involved in partition proceedings have “the same powers as were exercised by chancery courts under equity practice”); see also Johnson v. Burns, 160 Kan. 104, 111, 159 R2d 812 (1945) (“Ordinarily where there is as wide a discretion reposed in a trial court as is reposed in it in partition actions we are reluctant to interpose our judgment for that of the trial court.”).
With this brief overview, we turn to the issues at hand.
I. Did the Court of Appeals err in reviewing the PARTITION COURT’S DECISION DE NOVO INSTEAD OF REVIEWING FOR ARUSE OF DISCRETION?
Rodney first argues a partition court wields plenaiy power and, as a result, tire Court of Appeals should have applied an abuse of discretion standard of review rather than unlimited or de novo review. Carol, in her brief to the Court of Appeals, had advocated for de novo review.
Despite our repeated references to a district courts broad powers in partition proceedings, our caselaw does not suggest, as Rodney would have us conclude, that a district court’s plenary powers are absolute and entirely beyond appellate review. See Peterson, 173 Kan. at 641 (concluding, despite the district court’s plenary partition powers, that the district court had made a reversible error of law); see also Johnson, 160 Kan. at 111 (explaining the court is “ordinarily” reluctant to supplant the partition court’s judgment because it possesses a wide “discretion”). Instead, an appellate court reviews a district court’s exercise of powers in a partition proceeding under an abuse of discretion standard of review. See Miller v. Miller, 222 Kan. 317, 320, 564 P.2d 524 (1977), abrogated in part on other grounds by Walnut Valley State Bank v. Stovall, 223 Kan. 459, 574 P.2d 1382 (1978); Sheets v. Simms, 36 Kan. App. 2d 361, 362, 364, 138 P.3d 1249 (2006) (reviewing a partition decision for abuse of discretion).
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
The issue upon which this case turns is whether the journal entry of judgment in the Einsels’ divorce proceeding granted Carol a money judgment rather than an ownership interest in property. The interpretation of a journal entry, like the interpretation of all written instruments, presents a question of law over which an appellate court exercises de novo, or unlimited, review. See Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, 719, 840 P.2d 1107 (1992) (construing a journal entry). Abuse of discretion review necessarily “ ‘includes review to determine that the discretion was not guided by erroneous legal conclusions,’ ” in cases where the question is whether the district court abused its discretion by malting an error of law. Likewise, “‘[ljittle turns. . . on whether we label [appellate] review of this particular question abuse of discretion or de novo.’” State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 135 L. Ed. 2d 392 [1996]).
This is precisely the situation here: The district courts interpretation of the Einsels’ divorce decree is a legal conclusion subject to de novo review by an appellate court. If the district court relied on an erroneous interpretation of that written instrument it would constitute an abuse of its discretion. Thus, the Court of Appeals applied the correct, de novo standard of review to the district court’s legal conclusion. While the better practice might have been for the Court of Appeals to have started by recognizing the overarching abuse of discretion standard of review in partition proceedings, here there was no practical difference in jumping to de novo review of the partition court’s interpretation of the journal entry of divorce. Any mistake of law on this point would qualify as an abuse of discretion. See White, 279 Kan. at 332; Einsel, 2014 WL 1795993, at *2.
Rodneys contention that Carol’s claim was adjudicated on the facts and that the partition court fashioned an equitable ruling after considering these facts thus somewhat misses the point: such conclusions would ordinarily be left in place out of deference to a partition court’s wide discretion, see Johnson, 160 Kan. at 111. But in Carol’s case these conclusions were in large part based on the partition court’s interpretation of a journal entry of divorce — a legal question, see White, 279 Kan. at 332.
Accordingly, we hold the Court of Appeals applied the correct standard of review when reviewing the partition court’s order.
II. Did the Court of Appeals err in identifying the NATURE OF CAROL ElNSEL’S INTEREST AS ONE IN REAL PROPERTY, AS OPPOSED TO A MONEY JUDGMENT?
We now arrive at the heart of the case: what, exactly, did the divorce decree give to Carol? Rodney argues it was a monetary judgment, and he gives a plethora of reasons why the balance of equities supported the partition courts decision, including: (1) the divorce case was filed only 6 months after Victor Einsel died; (2) Rodney did not receive the land interest from Victors estate until after the divorce was filed; (3) Carol did not contribute money or labor to the land at issue and had no family ties to the property; (4) Rodneys property interest was subject to his mother’s fife estate; (5) neither Carol nor Rodney had any significant assets as of the divorce; (6) Carol had immediate financial needs after the divorce; (7) Rodney did not have the ability to exercise the buyback provision in the journal entry of divorce and pay $22,500 to Carol within 6 months; (8) Rodneys mother was able to pay that $22,500 to Carol; and (9) Rodneys sisters’ undivided interests in the family ranch could be lost in partition. Under Rodney’s interpretation, the whole point of the divorce award was to provide for Carol’s immediate needs, not to provide Carol with either a short-term lump payment or a long-term investment benefit.
Rodney further asserts that the unacknowledged “elephant in the room” is that Rodney’s mother, Anna Lou, was supposed to be the one to pay Carol’s $22,500 cash award — she had the resources, while Rodney did not, and the divorce court assumed that by collateralizing payment of the cash award with an interest in the Einsel family ranch, Anna Lou would pay out of fear that otherwise her family’s future interests would be lost. Rodney argues this unacknowledged strategy is disturbing and, on its own, justifies an equitable intervention.
Rodney also renews his argument that the divorce court did not award Carol a fixed share of the land but rather employed a conditional transfer of a property interest to collateralize payment of a cash award — in other words, the divorce court set up Carol’s award as a secured transaction.
As we mentioned above, the interpretation of a written instrument is a matter of law over which we exercise de novo review. Steele, 251 Kan. at 719; Godfrey v. Chandley, 248 Kan. 975, 977, 811 P.2d 1248 (1991) (permitting an appellate court to construe an instrument and determine its legal effect). The primary rule in interpreting written instruments is to ascertain the intent of the parties, and thus, in interpreting an order the primary rule is to ascertain the intent of the court. See, e.g., Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, 921, 46 P.3d 1120 (2002). “As a general rule, if the language of a written instrument is clear and can be carried out as written,” the intent of the maker is made clear and “there is no room for rules of construction.” See Godfrey, 248 Kan. at 977.
If the maker’s intent is not clear, meaning we apply the rules of construction , we have explained:
“ ‘In placing a construction on a written instrument, reasonable rather than unreasonable interpretations are favored by the law. Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided. The meaning of a contract should always be ascertained by a consideration of all pertinent provisions and never be determined by critical analysis of a single or isolated provision.’” Arnold v. S.J.L. of Kansas Corp., 249 Kan. 746, 749, 822 P.2d 64 (1991) (quoting Garvey Center, Inc. v. Food Specialties, Inc., 214 Kan. 224, Syl. ¶ 3, 519 P.2d 646 [1974]).
Here, the Court of Appeals deemed the plain meaning of the divorce decree’s language sufficient to discern the divorce courts intent. Einsel, 2014 WL 1795993, at *2; see Godfrey, 248 Kan. at 977. We agree.
The award to Carol in the divorce decree consists of three clauses:
Clause 1: “forty percent (40%) of the remainder interest of the inheritance received by [Rodney] during the marriage,”
Clause 2: “on the condition that [Rodney] may opt to pay [Carol] the sum of $22,500.00 within six (6) months of the date of hearing,”
Clause 3: “in which case [Rodney] shall receive all of the remainder interest.”
Significantly, the wording of the divorce decree’s first clause does not award Carol 40% of the value of Rodney’s remainder interest but rather 40% of Rodney’s remainder interest itself: “forty percent (40%) of the remainder interest of the inheritance received by [Rodney] during the marriage.” See Godfrey, 248 Kan. at 977-78 (endorsing a four-corners approach to interpretation of a written instrument). Rodneys interest, inherited from Victor, was a remainder interest in real property — both the partition court and the Court of Appeals acknowledge this, and Rodney does not seriously contest it at this point.
In addition, all three clauses in the divorce decree, read together, clearly show the divorce court meant to give Carol an interest in real property. See Arnold, 249 Kan. at 749 (considering all pertinent provisions of a written instrument). Reading the first clause to provide Carol with only a money judgment is inconsistent with the remaining language and produces an unreasonable result. See McHenry v. Smith, 154 Kan. 528, 530-31, 119 P.2d 493 (1941) (“[Construction should be given to a judgment as will give force and effect to eveiy word of it, if possible, and make it as a whole consistent, effective and reasonable.”). Namely, if Rodney exercised his rights under the second clauses buyback provision, he would then, under the third clause, “receive all of the remainder interest” — but if Rodney was to “receive” anything at all after giving Carol $22,500, he would be receiving Carols remainder interest in real property. To see the award as giving Carol a money judgment would be unreasonable — there would be nothing for Rodney to “receive” after paying Carol the $22,500.
Even if we were to look beyond the journal entiy of divorce, the parties’ statements before the divorce court and the divorce court s statements during the final hearing support our interpretation. In the October 1993 hearing, for example, Carol stated there was only one big issue — “[t]he value of remainder interests in [Victors] estate, a sizable amount of land in the estate.” (Emphases added.) Rodney agreed there was an issue about “what the nature of his interest in that land” would be. (Emphasis added.) The divorce court, for its part, described Rodneys “remainder interest in the property . . . and the royalty interest” as the last major issue in the divorce; the divorce court also rejected Rodneys argument he had no present interest in the Einsel ranch or the 14 wells because it “understood] exactly what a remainder interest is.” (Emphasis added.)
We are not persuaded to the contrary by the partition courts justification for finding a money judgment. The partition court did not discuss the plain language of the divorce decree but instead focused on the fact that the divorce court had been presented with evidence about the value of Rodneys interest. But tire divorce decree itself did not mention this present value of Rodney’s interest or what 40% of this value would be, and so the partition court’s interpretation that Carol was awarded 40% of the value of Rodney’s remainder interest seems tenuous. Additionally, we note the divorce decree proposed no timeline for Rodney to pay this supposed monetary judgment of 40% of the value of Rodney’s remainder interest once 6 months had elapsed, did not provide for any interest on tire sum, and did not even state when this supposed money judgment would be due. And, of course, if the divorce court meant to provide Carol with money, it could simply have ordered Rodney to pay Carol $22,500 or some other sum immediately or within a set time frame.
We are also unmoved by the equitable factors urged by Rodney. As we stated in our introduction to partition proceedings, the partition court’s powers are not entirely unbounded. Equity comes into play when determining whether and to what extent partition is possible or just, but a district court cannot, in the name of equity, disregard legal ownership under an instrument of law like a journal entiy of divorce. See, e.g., K.S.A. 60-1003; Miller, 222 Kan. at 320 (“The trial courts necessarily exercise wide judicial discretion in partition actions, but that discretion is exercisable primarily in the area of making a fair and just division between the parties.”).
Accordingly, we agree with the Court of Appeals’ decision reversing the partition court’s order. The divorce decree gave Carol an interest in real property, with the stipulation that Rodney could buy this interest back within 6 months for $22,500. He failed to do so, meaning Carol’s interest in real property stands.
By virtue of reaching this conclusion, we need not spend much ink rejecting Rodney’s hasty reference that the divorce decree set up Carol’s award as a secured transaction. He has pointed to no evidence supporting this theory, and there is no indication either the divorce court or the partition court viewed the divorce decree in this light. We also reject his theory that the divorce decree set up a hen or a mortgage in line with the equitable mortgage doctrine: the divorce decree made no mention of such conveyances and, as we have already explained, the divorce decree did not set forth a judgment amount or make any provision for interest. In short, we affirm our holding that the divorce decree gave Carol an interest in real property.
III. Should the Court of Appeals’ remand instructions STAND?
Rodney raises two concerns with tire Court of Appeals’ remand instructions: First, they would impermissibly curtail the partition process; and second, the remand instructions force the district court to give Carol a higher percent interest in the Einsel estate than the divorce court initially awarded.
An appellate court’s decision, including remand instructions, forms a part of its mandate to the lower court, which “shall be controlling in the conduct of any further proceedings necessary in the district court.” K.S.A. 60-2106(c). Subject to some limited exceptions, a district court must carry the mandate into execution and “ ‘cannot vary it, or examine it for any other purpose than execution; nor give any other or future relief; nor review it upon any matter decided on appeal, for error apparent; not intermeddle with it, further than to settle so much as has been remanded.’” State v. Collier, 263 Kan. 629, 636, 952 P.2d 1326 (1998) (quoting Sibbald v. United States, 37 U.S. [12 Pet.] 488, 492, 9 L. Ed. 1167 [1838]); see also Huffman v. Saul Holdings Ltd. Partnership, 262 F.3d 1128, 1133 (10th Cir. 2001) (recognizing certain well-established exceptions to the mandate rule, permitting the district court to depart from tire mandate rule if blatant error would result in serious injustice).
Thus, what exactly the Court of Appeals ordered in its remand instructions can become an important issue of dispute between tire parties. Whether a district court complied with a Court of Appeals mandate, and the proper interpretation of a mandate, are questions of law over which we exercise de novo review. State v. Guder, 293 Kan. 763, 765, 267 P.3d 751 (2012); see United States v. Shipp, 644 F.3d 1126, 1128 (10th Cir. 2011); see also Collier, 263 Kan. at 636 (explaining the mandate rule is really a subspecies of the law of the case doctrine).
Here, the Court of Appeals reversed and remanded the partition courts decision “with directions to grant Carols request for partition as set forth in her petition.” Einsel, 2014 WL 1795993, at *3. Rodney fears that upon receiving the Court of Appeals’ instructions the district court would immediately issue a final order of partition, thus denying him an opportunity to show how partition would result in hardship. These fears are misplaced. As set forth in our partition statutes, an order directing partition marks the beginning of partition proceedings — following the Court of Appeals’ instructions, the district court would direct partition, appoint commissioners, hear objections to the commissioners’ report, and direct further proceedings if need be. See K.S.A. 60-1003(c)-(d). The parties would still be able to influence the partition court and resolve any grievances, and the partition court would still be able to exercise its considerable powers as a court of equity. We simply do not see a reasonable risk that the district court would misunderstand tire Court of Appeals’ instructions and jump straight to a final order of partition. To the extent ambiguity might have existed, we clarify that the district court should follow statutory partition procedures on remand.
We are sensitive, however, to Rodney’s second point, which is that the Court of Appeals’ remand instructions might prompt the district court to make an error regarding Carol’s ownership rights. Even though the Court of Appeals correctly determined the nature of Carol’s interest as one in real property, the extent of that interest is a separate matter.
We recall the divorce decree gave Carol “forty percent (40%) of the remainder interest of the inheritance received by [Rodney] during die marriage.” It seems to us that Carol has claimed different percentages in the Einsel estate at different times during the proceedings.
For example, Carol’s petition stated that Rodney owned 60% of one-third of the total surface rights and mineral interests and that she owned 40% of one-third. Thus, Carol’s petition for partition appeared to seek 40% of a one-third interest in all of the surface rights associated with the Einsel ranch, even though the divorce decree entitled her to only 40% of a one-third interest in Rodney’s remainder interest at the time of his father’s death, which was the remainder interest he inherited during his marriage to Carol. Yet at other times, such as in her brief to the district court, she claimed 40% of a one-third interest in half of the total surface rights. We see similar issues with her requests for her share in the mineral interests and severed mineral interests.
We think there is some question as to whether Carol’s petition for partition requested 40% of what Rodney inherited during the marriage as a result of his father’s death or instead requested 40% of Rodney’s current surface rights, mineral interests, and severed mineral interests now that his mother has also passed. There is thus a real risk that the Court of Appeals’ instructions to grant Carol’s “request for partition as set forth in her petition” would result in the district court ascribing to Carol a higher percentage of ownership in the whole than she is entitled to. 2014 WL 1795993, at *3.
Accordingly, although we approve the Court of Appeals’ conclusion regarding the nature of Carol’s award—an interest in real property—we leave it to the district court to consider, in the first instance, whether Carol’s petition for partition accurately describes the extent of Rodney’s property received through inheritance and, correspondingly, her ownership in that property. See K.S.A. 60-1003(c) (stating the partition court s first duty is to specify the interest of the parties and direct partition).
The judgment of the Court of Appeals reversing the district court is affirmed. The judgment of the district court is reversed and remanded with instructions.
Stegall, J., not participating.
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The opinion of the court was delivered by
Nuss, C.J.;
Mark Salary appeals his convictions of first-degree premeditated murder and arson arising out of the shooting of his uncle and the accompanying house fire. Salary alleges the district court erred in denying his requests to instruct' the jury on self-defense and on murder s lesser included offense of voluntary manslaughter based on a theory of imperfect self-defense. He also claims the court erred in admitting into evidence his recorded confession and in imposing a hard 50 life sentence. As a result, he claims his convictions should be reversed and his case remanded to the district court.
We hold any error related to the jury instructions ,and his recorded confession was harmless. We therefore affirm his convictions. But Salary’s hard 50 sentence must be vacated and remanded for resentencing per Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and this court’s later decision in State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014).
Facts and Procedural History
Mark Salary admittedly shot and killed his uncle Valray “Joe” Estell in Estell’s living room in Kansas City, Kansas. Salary had lived with his uncle for about 2 years. And for about 2 weeks before the shooting, Salary’s friend Rosalind Haskins had also been staying there.
Haskins testified that Salary was cleaning a handgun in his bedroom before they went to bed the night before the shooting. According to Haskins, this was tire only time she had ever seen Salary with a gun. The next morning while they were sitting in the bedroom, she noticed the gun was in his pocket. Salary told her that she would need to leave the house when he told her to do so. Soon after, Haskins dressed and went outside to wait for her boss to take her to work.
Haskins further testified that before she went outside, Salary and Estell got into a disagreement because Salary had refused to talk to his grandmother on the telephone that morning. She noticed Salary had gone into the living room to discuss the call with his uncle. About 15 minutes after Haskins went outside, she came back in the house to call her boss. Salary and Estell were still discussing the phone call, with Estell sitting in a recliner in the living room and Salary standing in front of him. Salary’s handgun was then in his left hand, hanging at his side.
Haskins testified Salary asked her why she was still there so she went back outside. About 5 minutes later, she heard five gunshots “one right after the other” coming from the house. She ran to the neighbor’s house across the street and asked him to check on Es-tell.
When the neighbor knocked on Estell’s door, Salary opened it a crack and told him everything was fine and to go back home. A few minutes after the neighbor returned home, he observed smoke coming out of both ends of Estell’s house. After he called 911, he and Haskins saw Salary walking down the street away from Estell’s house.
Fire Department Captain Larry Grissom testified he was the first firefighter to enter the house, which was filled with smoke from an active fire. Grissom found Estell with his upper torso and his face down on the living room couch and his knees and feet on the floor. Grissom testified that Estefl’s back and legs were badly burnt.
According to Grissom, he and another firefighter carried Estell onto the lawn where they began CPR. Estell was not breathing and had no pulse. But he did have several gunshot wounds.
The autopsy pathologist testified he found a total of 10 gunshot wounds and removed 7 bullets from Estell’s body. But he could not determine the order of tire shots. According to the pathologist, the bullets traveled in various directions, indicating Estell was mov ing around during the shooting. Most of the shots came from Es-telfs left side or from behind him.
Police officers found Salary’s Star 9mm semiautomatic pistol on tire kitchen counter with one round in its chamber and five rounds in its magazine. They also found 11 Winchester-brand 9mm shell casings in various places around the living room and kitchen and outside the house. Salary’s pistol was capable of holding 17 rounds.
Police additionally found a box of ammunition containing 16 9mm rounds near Salary’s bed, plus 1 expended bullet which had traveled through Estell’s living room couch and lodged in tire wall behind it. While the police also found one Winchester-brand .45 caliber shell casing on a kitchen windowsill, no guns were found in the house other than Salary’s Star 9mm semiautomatic pistol.
The day after the shooting, Salary turned himself in to law enforcement. He was Mirandized and questioned by Detectives Steve Owens and Bryan Block at the Kansas City, Kansas, Police Department. After this “pre-interview” in which Salary admitted to shooting Estell, he agreed to make a recorded statement. He was again Mirandized and again admitted to shooting Estell. Owens later testified about the pre-interview, and the recorded statement was played to the jury.
Salary pled self-defense to the charge of first-degree premeditated murder and testified on his own behalf. In describing Estell, Salary testified his uncle was addicted to crack-cocaine, was aggressive when he was smoking it, and was even more aggressive, angry, and agitated when he was not. Salary also said that Estell kept several guns in the house and owned a bulletproof vest.
Salary’s version of the salient events varied somewhat from the version presented by the State. He testified he and Estell had argued about money the night before the shooting. According to Salary, Estell was upset with him because Salary wanted to use their last $20 to buy food while Estell wanted to use it to buy crack.
The next morning, Estell was “really upset” because Salary would not speak to Salary’s grandmother on the phone. Salary testified that as a result, Estell told him he needed to leave the house right away. Salary did not want to leave, though, because it was raining, and he was afraid Estell either would throw out on the curb everything Salary owned—guitars, amplifiers, computers, and Playstations—or else sell these possessions to buy crack. Salary testified Estell specifically told him, “Either you’re gonna walk out or you’re gonna get carried out, but one way or another, your ass is leaving right now, today.”
Salary testified he was not angry with Estell that morning but that he “knew something was gonna happen.” According to Salary, “I thought we was gonna fight, fist fight.” He also testified that when he had left his bedroom he noticed “what looked like to be a gun under his [Estell’s] shirt when I came out and he was sitting in his chair. He had a cover over his lap and he had his hands under his lap and I could see something black and silver hanging out of his pocket.” He' clarified on cross-examination that the black and silver object was hanging out of the right-hand chest pocket on Estell’s coveralls.
When Salary’s lawyer asked him if he had fired his own gun, Salary answered:
“Yes, I did. When he started to come at me, he started to come at me putting his hands out of his pocket and I thought he was about to pull a gun right then. So I pulled it [Salary’s gun] and I fired. And he kept coming at me and I’m thinking he got the bulletproof vest on. It’s not hurting him none. So I kept on firing not knowing that it was getting through.”
Salary testified that he had five armor piercing rounds in his pistol, “And I figured they’ll go through the vest.” He also testified he believed Estell was wearing the vest under Estell’s coveralls. When asked by his counsel if he had intended to kill Estell before he thought he saw Estell pulling a gun, Salary answered “no.” The police did not find a bulletproof vest—or evidence of the existence of one—in the house or on Estell.
As for the fire, Salary testified that it started when Estell fell over a propane heater in the living room during the shooting. Salary said he could have stomped out the accidental fire, but instead he decided to spread it with a butane torch because he knew his uncle wanted to be cremated and thought the fire would “purify [Estell’s] soul.” But during the pretrial investigation, Salary told the detectives he had started the fire after pouring kerosene over Estell’s body. And fire investigators concluded the fire had been intentionally set, which confirmed Salary’s pretrial statement.
A jury convicted Salary of one count of first-degree premeditated murder and one count of arson. This court has jurisdiction over his direct appeal under K.S.A. 2014 Supp. 22-3601(b)(3), (4) (life imprisonment, off-grid crime).
Other facts will be added as necessary to the analysis.
Analysis
Issue 1: The district court did not err in denying Salary’s request for a jury instruction on self-defense.
Salary asked the district court to instruct the jury on self-defense, but the court denied his request. Salary now claims the denial was reversible error. The State responds there was no error but, if any, it was harmless.
Standard of review
This court uses a stair-step process for analyzing jury instruction issues on appeal. As we recently clarified in State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012):
“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, the court should use an unlimited review to determine whether die 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, tiiat would have supported the instruction; and (4) finally, if tire district court erred, the appellate court must determine whether die 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).”
Because the State correctly concedes Salary preserved the self-defense instruction issue for appellate review, the first step of the Plummer analysis is satisfied. So we may proceed to the merits for this instruction.
Discussion
We begin by acknowledging a self-defense juiy instruction can be legally appropriate for a charge of first-degree murder. See, e.g., State v. Jackson, 262 Kan. 119, 122-23, 936 P.2d 761 (1997). With the second step of the Plummer analysis satisfied, we now turn to whether there is factual support for the instruction. For this standard of our review, we have repeatedly held that
“ ‘[a] defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in tire light most favorable to tire defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant’s theory.’ ” State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008).
We have further held that “[a]s with any issue, the evidence of the defendant’s theory of defense certainly can be supported only by his or her own testimony.” 287 Kan. at 334. But the defendant’s testimony alone is not necessarily dispositive of the issue. 287 Kan. at 336.
Simply put, even when viewed in the light most favorable to the defendant, there still must be sufficient evidence for a rational factfinder to find in accordance with the proffered theory of defense. See State v. Roeder, 300 Kan. 901, 919-26, 336 P.3d 831 (2014) (considering evidence outside defendant’s testimony to determine no entitlement to instruction on defense-of-others theory of defense); Anderson, 287 Kan. at 334 (considering evidence outside defendant’s testimony to determine no entitlement to instruction on compulsion theory of defense).
With tírese factual standards established, we turn to the required legal elements—for which there must be sufficient factual support—to establish the right to use deadly force in self-defense. These elements are set out in K.S.A. 21-3211:
“(a) A person is justified in the use of force against another when and to the extent it appeai-s to such person and such person reasonably believes that such force is necessaiy to defend such person . . . against such other’s imminent use of unlawful force.
“(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person
These subsections establish a two-part test, the first of which is subjective. It requires a showing that the defendant sincerely and honestly believed the use of deadly force in defense of self was necessary. The second part is objective. It requires a showing that a reasonable person in the defendant’s circumstances would have perceived the use of deadly force in defense of self was necessary. See State v. Friday, 297 Kan. 1023, 1037, 306 P.3d 265 (2013).
In denying Salary’s request for a self-defense instruction, the district court primarily found the objective requirement of the test was not met. It reasoned:
“All of the evidence, all of the objective evidence, all of the factual evidence would support that this was an intentional killing by the defendant of the victim, that the victim was not armed, that the defendant did not believe the victim was going to cause him any harm, and that the . . . defendant was not acting in self-defense. He was the aggressor and it was an intentional ltilling. . . . [A]ny reasonable person looking at the totality of tírese circumstances could not conclude that the defendant is entitled to a self-defense instruction.”
Salary concedes there “certainly was evidence to support the district court’s version of the events.” But he argues that by considering the evidence under the “totality of the circumstances,” the district court made an improper credibility determination and failed to consider the evidence in the light most favorable to him. More specifically, Salary contends the district court improperly relied on some of this court’s precedent suggesting the objective requirement of the self-defense test is to be evaluated under the totality of the circumstances. See State v. Gonzales, 282 Kan. 73, 145 P.3d 18 (2006).
The State responds that the objective requirement of the test cannot be satisfied by relying on Salaiy’s own uncorroborated assertions. Alternatively, it contends Salary is not entitled to a self-defense instruction because the facts demonstrate he was the initial aggressor as identified in K.S.A. 21-3214, and he cannot meet that statute’s exceptions.
We address the State’s latter argument first because we conclude it is dispositive. K.S.A. 21-3214(3) provides that an aggressor, i.e., one who initially provokes the use of force against himself or herself, may claim self-defense under K.S.A. 21-3211 only in limited circumstances. See Jackson, 262 Kan. at 123. That statute states in relevant part:
“The justification described in section[] 21-3211... is not available to a person who:
“(3) [Ijnitially provokes the use of force against himself or another, unless:
(a) He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every i-easonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but tire assailant continues or resumes the use of force.” (Emphasis added.) K.S.A. 21-3214.
So before we apply the two-part test outlined in the self-defense statute, K.S.A. 21-3211, and discussed in Friday, 297 Kan. at 1037, we first consider if the facts show Salary was eligible to receive such an instruction under K.S.A. 21-3214.
In this analysis, we are required to examine the evidence in the light most favorable to Salary. See Anderson, 287 Kan. at 334. Accordingly, we start by observing it is uncontroverted that Salary and Estell had a disagreement in the living room about Salary’s refusal to speak with his grandmother on the telephone.
Haskins testified without contradiction that Salary went into the living room to discuss the call with Estell before she went outside and that they were still discussing it when she came back in to check on her ride. She further testified without contradiction that Salary’s gun was no longer in his pocket but in his left hand hanging at his side while he stood directly in front of the seated Estell.
Salary confirmed that Estell was upset with him because he refused to talk to his grandmother. And while he further testified he was not mad at Estell, he nevertheless “knew something was gonna happen.” According to Salary, when he entered the living room that morning he noticed Estell had “what looked like to be a gun” in his coveralls pocket, and he thought Estell was wearing a bulletproof vest. He did not expressly testify that he—or anyone else— actually saw Estell with a handgun. But Salary admitted that he brought his loaded 9mm handgun from his bedroom and kept the gun with him throughout this discussion.
More importantly, Salary testified Estell specifically told him he had to leave Estell’s house that day—either voluntarily or otherwise—when he said, “Either you’re gonna walk out or you’re gonna get carried out, but one way or another, your ass is leaving right now, today.”
According to one part of Salary’s testimony, he chose not to “walk out.” He simply refused to obey Estell’s order to leave, when leaving would have ended any confrontation—actual, potential, or imagined. He instead chose to stay in Estell’s living room with a handgun at his side to stop the remaining alternative from happening, i.e., to “get carried out” by a man he believed to be armed and protected by a bulletproof vest. Moreover, Salary admitted on cross-examination that he never gave Estell a chance to pull a gun because Salary pulled first and shot him.
Under these uncontroverted facts, Salary’s choice easily could be characterized as a provocation of any later show of force allegedly displayed by Estell—coming at Salary while pulling his hands out of his pockets or from underneath a lap cover. This particular choice necessarily eliminates the factual basis for a self-defense instruction. See State v. Cook, 286 Kan. 1098, 1105-06, 191 P.3d 294 (2008) (no entitlement to self-defense instruction where defendant refused to leave the victim’s residence upon demand; defendant was allegedly the aggressor; victim was in a position to lawfully defend his own dwelling under K.S.A. 21-3212; one could find that defendant provoked such show of force as victim may have displayed; and defendant made no attempt to escape or to withdraw from contact with the victim under K.S.A. 21-3214[3]); cf. Jackson, 262 Kan. at 123 (no entitlement to self-defense instruction where defendant refused order to leave nightclub and shot three people who attempted to enforce the order; although there was evidence one victim had a gun, there was no testimony he fired the gun; and defendant was initial aggressor who made no effort to withdraw, escape, or avoid the killings under K.S.A. 21-3214[3]).
Any possible doubt about the lack of a factual basis for Salary’s self-defense instruction is erased by yet another part of his uncon-troverted testimony. According to Salary, after receiving Estell’s ultimatum either to walk out or get carried out, he initially chose to leave the house. He actually left Estell in the living room, returned to his bedroom, and began packing his bags. But after overhearing Estell’s phone conversation with Salary’s mother, Salary changed his mind and returned to the living room:
“So when he [Estell] told me that all my stuff going out on the curb, I initially went in my room and started to—to repack my stuff. But then when my mama called—well, he called my mama and told her that all my stuff was going out on the curb and I’m getting out right there, I went back into the room to discuss my stuff.”
According to Salary’s own testimony, he returned to the living room with his loaded 9mm semiautomatic handgun to face a man he believed was packing a handgun, wearing a bulletproof vest, and who had just told Salary if he did not voluntarily leave the house that day, he would “get carried out,” i.e., be killed.
Under these uncontroverted facts—leaving a confrontation with an individual and then returning with a loaded firearm and shooting that same person—Kansas caselaw declares the defendant typically is ineligible for a self-defense instruction. We find guidance in State v. Harmon, 254 Kan. 87, 91, 865 P.2d 1011 (1993). There, we stated that after defendant left his first confrontation with his brother and came back with a revolver:
“[T]he defendant. . . was the aggressor. He went looking for his brother with a loaded gun for the express purpose of shooting his brother ‘if [he] had to.’ Even with the defendant’s testimony that his brother threatened him verbally, was hostile and still angry, and lunged at the defendant with his hands in the air, the defendant, as tire aggressor, was not entitled to use deadly force in self-defense unless he had exhausted every other reasonable means to escape the danger he perceived. State v. Rutter, 252 Kan. 739, 747, 850 P.2d 899 (1993).” 254 Kan. at 91.
See also State v. Meyers, 245 Kan. 471, 477, 781 P.2d 700 (1989) (exception under K.S.A. 21-3214[3] not available when after first confrontation, defendant left, retrieved a rifle, and returned to shoot the victim, i.e., “defendant could have avoided fatal confrontation” by staying away); cf. State v. McCullough, 293 Kan. 970, 976, 270 P.3d 1142 (2012) (defendant’s request for self-defense instruction correctly denied when defendant left scene of fistfight to retrieve knife and returned to fatally stab victim).
Under these authorities and after reviewing the evidence in the light most favorable to Salary, we conclude he was not entitled to an instruction on self-defense as set forth in K.S.A. 21-3211. The district court did not err in denying Salary’s request to give it.
Issue 2: Any district court error in denying Salaiy’s request for a voluntary manslaughter instruction based on a theory of impeifect self-defense was harmless.
Salary argues the district court committed reversible error when it refused to give his requested juiy instruction for voluntary manslaughter based on a theory of imperfect self-defense. The State responds there was no error but, if any, it was harmless.
Standard of review
As previously noted, our standard of review is the stair-step analysis set forth in Plummer, 295 Kan. 156, Syl. ¶ 1. Because the State correctly concedes Salary preserved the voluntary manslaughter instruction issue for appellate review, the first step of the Plummer analysis is satisfied. We therefore may proceed to the merits.
Discussion
We begin by acknowledging voluntary manslaughter is a lesser included offense of premeditated first-degree murder per K.S.A. 21-3107(2)(a). So Salary’s request for an instruction on voluntary manslaughter based on a theory of imperfect self-defense was legally appropriate. See State v. Qualls, 297 Kan. 61, 69, 298 P.3d 311 (2013). This particular type of voluntary manslaughter is an “intentional killing of a human being committed . . . upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211 . . . and amendments thereto.” K.S.A. 21-3403(b); see Cook, 286 Kan. at 1107. So the second step of the Plummer analysis—legal appropriateness—is satisfied.
The parties offer a variety of competing reasons why the requested instruction was or was not factually appropriate and whether any actual error was reversible. As this court did in Cook, we will bypass the third step of the Plummer analysis and move straight to the harmlessness inquiiy. See 286 Kan. at 1107. In other words, we will assume—without deciding—that when the evidence is viewed in the light most favorable to Salary, it was sufficient for a rational factfinder to find for him on his theory of imperfect self-defense. See Anderson, 287 Kan. at 334. Accordingly, we assume it was error not to give the instruction.
Our standard for determining harmlessness of the error depends upon whether the error is constitutional or unconstitutional. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied _ U.S. _, 132 S. Ct. 1594 (2012). The State argues that the district court’s failure to instruct on voluntary manslaughter does not implicate a constitutional right but a statutory one. In support, the State points out it is only a statute, K.S.A. 22-3414(3), that requires a district court to instruct on a lesser included offense when the evidence would reasonably justify a conviction of the lesser included offense.
Accordingly, the State contends that Ward’s nonconstitutional harmless error test applies: the “court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial.” 292 Kan. at 565. More specifically, the State argues there was no reasonable probability the error affected the verdict because of the overwhelming evidence supporting Salary’s first-degree premeditated murder conviction.
We agree the nonconstitutional harmlessness test applies and now proceed to apply it to our facts. See Roeder, 300 Kan. at 937 (indicating failure to instruct on lesser included offense did not rise to the level of constitutional error).
In Qualls, we determined that die level of evidence would not permit passing either the constitutional or nonconstitutional harmless error tests for failure to instruct. We stated: “This result [reversal] is driven by the evidence of premeditation, which was sufficient to support the jury’s verdict of first-degree premeditated murder but was not so ‘abundant’ as to convince us that the requested voluntary manslaughter shoidd have been rejected.” (Emphasis added.) 297 Kan. at 72.
Similar to the situation in Qualls, Salary defended on the basis he shot Estell because he believed Estell was about to pull a gun on him. So the voluntary manslaughter instruction based on im perfect self-defense clearly comported with his theory. But unlike the situation in Qualls, there is exceptionally strong evidence of premeditation, which Salary does not challenge on appeal. And the strength of this particular evidence leads us to conclude that, even if there was sufficient evidence to require an instruction on voluntary manslaughter based on imperfect self-defense, there was no reasonable probability that the failure to so instruct affected the ultimate verdict for premeditated first-degree murder. Ward, 292 Kan. at 565. ¡ '
This court recently reiterated several points about the use of circumstantial evidence to determine premeditation in State v. Kettler, 299 Kan. 448, 466-67, 325 P.3d 1075 (2014):
“Pi'emeditation means to have thought the matter over beforehand and does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation. State v. Qualls, 297 Kan. 61, Syl. ¶ 2, 298 P.3d 311 (2013); State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004); see PIK Crim. 3d 56.04(b). Further, it is not necessary that there be direct evidence of either intent or premeditation. Instead, premeditation, deliberation, and intent may be inferred from the established circumstances of a case, provided the inferences are reasonable. State v. Scaife, 286 Kan. 614, 617, 186 P.3d 755 (2008). In other words, ‘[i]ntent... may be shown by circumstantial evidence, and a person is presumed to intend all the natural consequences of his acts. [Citation omitted.]’ State v. Childers, 222 Kan. 32, 37, 563 P.2d 999 (1977).”
The Kettler court also confirmed a list of factors to consider when determining premeditation from circumstantial evidence:
“In considering circumstantial evidence, Kansas caselaw identifies factors to consider in determining whether the evidence gives rise to an inference of premeditation that include: ‘(1) die nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during tire occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. [Citation omitted.]’ Scaife, 286 Kan. at 617-18; see State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013). But the analysis of what inferences can be reasonably drawn is not driven by the number of factors present in a particular case because in some cases one factor alone may be compelling evidence of premeditation. See State v. Cook, 286 Kan. 1098, 1102, 191 P.3d 294 (2008); State v. Morton, 277 Kan. 575, 582-83, 86 P.3d 535 (2004) (evidence to support second and third factors sufficient in finding premeditation). Use of a deadly weapon by itself, however, is insufficient to establish premeditation. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011).” 299 Kan. at 467.
Here, several of die factors for inferring premeditation are clearly applicable. Regarding the first factor, i.e., the nature of the weapon used, Salary used a 9mm semiautomatic handgun loaded with five armor piercing bullets—among other rounds—to put multiple bullet holes in Estell.
As for the third factor—Salary’s conduct before and after the killing—Haskins’ and Salary’s testimony established that Salary cleaned and loaded his handgun in his bedroom the night before he used it to shoot Estell. Haskins further testified that although she had been living in the house with Salary for 2 weeks, this was the first time she had ever seen him with a gun. The next morning Haskins saw the gun in his pocket in the bedroom.
Salary then told Haskins before he went into the living room to see Estell that she needed to leave the house when he told her to do so. When she returned to the house to call her boss, he essentially again told her—this time from the living room in Estell’s presence—she needed to leave. He asked her why she was still there, so she left again. The shooting occurred 5 minutes later.
Additionally, that morning Salary carried his handgun from his bedroom to the living room and, apparently after taking it from his pocket, held it by his side during the conversation with Estell. Salary also testified he thought the five armor piercing bullets he had loaded in his pistol would penetrate the bulletproof vest that he believed Estell was wearing. So he kept on shooting his pistol: “I’m thinking he got the bulletproof vest on. It’s not hurting him none. So I kept on firing not knowing that it was getting through.” Estell was found with 10 bullet holes in his body, with most of the shots coming from his left side or from behind him—not from facing Salary.
Salary admittedly did testify at one point that he chose to leave the living room face-off with his uncle, returned to his bedroom, and began to pack. Arguably this conduct dilutes the strong evidence of premeditation demonstrated by his actions to that point, e.g., cleaning and then loading his pistol with some armor piercing ammunition the night before.
But Salary’s related testimony provides additional circumstantial evidence of premeditation. For after overhearing Estell on the tel ephone, he apparently retrieved his loaded handgun and soon returned to the living room to confront his uncle—who he believed to be carrying a handgun and wearing a bulletproof vest. His voluntary return—seemingly, without any provocation whatsoever— culminated in the fatal shots. See 299 Kan. at 467 (lack of provocation another factor in inferring premeditation). So there is not only strong evidence of premeditation but, in turn, there is also scant evidence of Salary’s alleged honest belief that he needed to employ deadly force under these circumstances. See Cook, 286 Kan. at 1107.
Accordingly, we hold this strong evidence of premeditation'—• coupled with scant evidence of Salary’s honest belief that his deadly force was justified under these circumstances—rendered harmless the error we assume the district court may have committed in failing to instruct on voluntary manslaughter. Simply put, there was no reasonable probability that the presumed error affected the outcome of the trial. Ward, 292 Kan. at 565.
Issue 3: The district court erred in admitting Salary’s recorded confession when Salary unambiguously invoked his right to have counsel present during custodial interrogation; but this error was harmless.
Salary objected to the admission into trial evidence of his recorded confession, arguing the interview should have stopped because he told law enforcement he wanted a lawyer. The district court permitted the State to elicit testimony from Detective Owens about the interrogation and to play the recorded confession for the jury. Salary claims the confession’s admission was reversible error.
The State responds there was no error but, if any, it was harmless.
Standard of revieio
An appellate court reviews the district court’s decision to admit a defendant’s confession into evidence using a bifurcated standard. State v. Tahah, 293 Kan. 267, 280, 262 P.3d 1045 (2011). ‘Without reweighing the evidence, the district court’s findings are reviewed to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion regarding the suppression of evidence is then reviewed using a de novo standard.” State v. Bridges, 297 Kan. 989, 1001-02, 306 P.3d 244 (2013). When the facts material to a trial court’s decision on a motion to admit or suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court exercises unlimited review. 297 Kan. at 1002.
Here, the material facts are not in dispute, so we exercise de novo review.
Discussion
After Detective Owens gave Salary Miranda warnings, Salary said that he understood them and signed a waiver of his rights. Salary answered questions for about an hour during what law enforcement characterized as a pre-interview.
At the end of the pre-interview, Salary agreed to give a formal recorded statement. Detective Owens gave Miranda warnings a second time, during which Salaiy said that he wanted a lawyer. At the hearing on the State’s motion to admit Salary’s statement, Owens described Salary’s request in the following exchange with the prosecutor:
"Q: [W]liile you were questioning him, at any point in time, did tire defendant ask that tire—that he have a lawyer present during the interrogation?
“A: He never asked that he wanted a lawyer right now. During the second— during tire videotaped statement, I went over the advice of rights again. During going over tire advice of rights, he—when I asked him about having an attorney present, he said, well, I—something to the fact, I—I do want a laioyer. And I said, but you’re willing to speak to me noto without a lawyer present, correct? He said, yes. And he was inferring that he wanted a lawyer later, but not right now.
“Q: Okay. So if and when charges got filed, he wanted to let you know he definitely wanted a lawyer then?
“A: Yes.
“Q: But you asked him specifically did he want a lawyer before he talked to you and his answer was no?
“A: Correct.” (Emphasis added.)
Salary acknowledges that whether the district court erred in admitting his recorded statement at trial turns on whether his com ments, “I do want a lawyer,” was an unequivocal invocation of his right to have the assistance of counsel during the interrogation. While Salary argues his request was clear, the State contends the statement was ambiguous because of the circumstances of the interrogation. In short, the State argues Salary had waived his right to have counsel present during the pre-interview, confessed during the pre-interview, and agreed to make a recorded statement before he said he wanted a lawyer.
It is well settled that the Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to remain silent and the right to have an attorney present during custodial interrogation. State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003) (citing Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]). We have held that if the accused has unambiguously invoked the right to counsel, questioning must cease immediately and may be resumed only after a lawyer has been made available or the accused reinitiates the conversation with the interrogator. Walker, 276 Kan. at 946. But if the accused’s request is ambiguous, the interrogator may ask clarifying questions. 276 Kan. at 945.
We have held the right to counsel may be invoked at any time. Walker, 276 Kan. at 944. And if the accused successfully invokes the right to counsel, all statements made after the invocation of the right must be suppressed. See 276 Kan. at 940. To successfully invoke the right, the accused must, at a minimum, make “ ‘some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.’ ” 276 Kan. at 944 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 115 L. Ed. 2d 158 [1991]). There are two aspects to this rule:
“First, the suspect ‘must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.’ [Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2357, 129 L. Ed. 2d 362 (1994)]. Second, the request must be for assistance with the custodial interrogation, not for subsequent healings or proceedings. McNeil, 501 U.S. at 178.” Walker, 276 Kan. at 945.
The court applies an objective standard under the first part of tire rule to determine if the accused’s statements “ ‘ “can reason ably be construed to be an expression of a desire for the assistance of an attorney.” ’ Davis, 512 U.S. at 459 (quoting McNeil, 501 U.S. at 178).” Walker, 276 Kan. at 945. “If the desire for counsel is presented ‘sufficiently clearly that a reasonable police officer in the circumstances would understand die statement to be a request for an attorney/ no ambiguity or equivocation exists, and all questions must cease. Davis, 512 U.S. at 459.” Walker, 276 Kan. at 945.
In considering whether the second part of the rule has been satisfied, the court may look at “[t]he timing as well as die content and context of a reference to counsel [to] help determine whedier there has been an unambiguous assertion of the right to have the assistance of an attorney in dealing with a custodial interrogation by law enforcement officers.” State v. Appleby, 289 Kan. 1017, 1051, 221 P.3d 525 (2009).
Salary’s statement, “I do want a lawyer,” is an unambiguous statement that “ ‘ “can reasonably be construed to be an expression of a desire for the assistance of an attorney.” ’ ” See 276 Kan. at 945; contra Davis, 512 U.S. at 462 (defendant’s remark, “ ‘Maybe I should talk to a lawyer,’ ” not a clear invocation of right to counsel). So the rule’s first requirement has been met.
In turning to the rule’s second requirement, we initially observe the-context in which this comment was made appears to support Salaiy’s argument that he was asking to have a lawyer present during the interrogation, not a subsequent proceeding.
In admitting Salary’s recorded confession, the district court considered the circumstances in which Salary requested a lawyer. It held that his request “merely indicates to this court, based on the evidence, that he couldn’t afford his own attorney, but he could probably get one later after charges were filed against him. He did consent to continued speaking with the detective.” But other than Salary’s consent to continue the interview after he said he wanted a lawyer, the district court did not explicitiy state what evidence it relied on to determine that Salary was not invoking his right to counsel regarding the current interrogation.
In reviewing this ruling, we consider that in determining whether an invocation of a defendant’s right to counsel was clear and unambiguous, a court may consider only statements made by the defendant before the alleged invocation. Smith v. Illinois, 469 U.S. 91, 100, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984) (“[A]n accused’s post-request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.”); see also State v. Cline, 295 Kan. 104, 114, 283 P.3d 194 (2012) (citing Smith and applying the same rule to the right to silence).
In Cline, officers interrogating the defendant asked about several conflicting stories he had told them about a shooting. When officers asked Cline why he had given them so many different accounts of die events, he went into a rant and concluded by saying he was “ 'through talking.’ ” 295 Kan. at 112. Following this statement, officers immediately asked him about another version of the story, and Cline answered, without indicating he no longer wished to talk to the officers.
Before trial, the district court ruled that Cline’s statement was admissible in its entirety because the things he had said after invoking his right to silence only reiterated and clarified what he had said before that point in the interrogation. On appeal, we held that the district court “erred by jumping ahead to consider Cline’s statements after he stated he was dirough talking” in determining whether he had invoked his right to remain silent. Cline, 295 Kan. at 114. In the instant case, the district court made a similar error by admitting into evidence the portions of Salary’s statement made after he invoked his right to have counsel present during the interrogation—a ruling based on Salary’s resumed speaking to detectives after invoicing his right to counsel.
But, even when we consider only the circumstances preceding Salary’s request, we cannot agree that the context in which he asked for a lawyer established he wanted a lawyer to represent him only in subsequent court proceedings. We find persuasive Detective Owens’ testimony that Salary interrupted him and said, “I do want a lawyer,”—immediately following Owens’ warning from the “advice of rights” that Salary had a right to the assistance of counsel during questioning. We interpret the timing of Salary’s request as an unambiguous invocation of his right to have counsel present at that time. And aside, perhaps, from the detective’s providing Salary Miranda warnings before tire pre-interview, the record does not indicate any discussion whatsoever about the appointment of counsel for subsequent court proceedings.
We therefore conclude Salary made an unambiguous request to be assisted by counsel during the interrogation. This request means questioning should have stopped as soon as he invoked that right. Accordingly, we hold the district court erred in admitting Salary’s recorded confession.
The State argues this error was harmless. Because the error implicates Salary’s rights under the Fifth Amendment to the United States Constitution, it is constitutional error. So to conclude it was harmless this 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 the verdict. State v. Ward, 292 Kan. 541, Syl. ¶ 6. As the party benefitting from die error, the State bears the burden of proving the error was harmless. 292 Kan. at 560-61.
In support of harmlessness, the State points out Salary asked for a lawyer only after he had already given his unrecorded confession during the pre-interview. And Detective Owens testified at trial that the information Salary gave detectives during his recorded statement was the same as the information he gave them during the pre-interview.
Salary’s recorded statement is not in the record on appeal. But Detective Owens’ sworn testimony is. And it is sufficient for us to conclude the State has shown beyond a reasonable doubt that there is no reasonable possibility that admitting Salary’s recorded statement could have had an impact on the jury’s verdict. See Ward, 292 Kan. at 565; see also Cline, 295 Kan. at 114-15 (harmless constitutional error to admit statements made after invocation of right to silence when subsequent statements merely reiterated Cline’s earlier stoiy).
Accordingly, we hold the district court’s error in admitting tire recorded confession was harmless.
Issue 4: Salary's hard 50 sentence is unconstitutional under the United States Supreme Court's decision in Alleyne v. United States.
Salary challenges the constitutionality of the Kansas sentencing scheme used to impose upon him a hard 50 sentence, i.e., a life sentence which requires him to serve 50 years in prison before he is eligible for parole. He claims it denied him the right to have a jury decide beyond a reasonable doubt all of the' facts that may increase the penalty for first-degree murder. After tire briefs were filed in this case, the United States Supreme Court held that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury” and proven “beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314 (2013).
We applied Alleyne to Kansas’ hard 50 sentencing scheme in State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014). There, we held the procedure for imposing a hard 50 sentence set forth in K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution. Specifically, it permits the district court to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, instead of requiring a jury to find the existence of one or more of die aggravating factors beyond a reasonable doubt. 299 Kan. at 124.
The district court imposed a hard 50 sentence after finding Salary committed the murder in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4636(f). It found that this aggravating factor outweighed tire mitigating factors presented by Salary at sentencing. Salary challenges the sufficiency of the evidence supporting this aggravator, in addition to challenging the constitutionality of the hard 50 sentencing scheme.
Because the constitutional issue has been resolved in Salary’s favor, we must vacate his sentence and remand the case for re-sentencing. See Soto, 299 Kan. at 124.
We need not consider Salary’s argument that the evidence was insufficient for the district court to conclude he committed the murder in an especially heinous, atrocious, or cruel manner. This issue is moot because we have vacated Salary’s sentence on Alleyne grounds. See State v. Roeder, 300 Kan. 901, 942, 336 P.3d 831 (2014); State v. Coones, 301 Kan. 64, 85-86, 339 P.3d 375 (2014).
Salaiy’s convictions are affirmed. His hard 50 sentence is vacated, and the case is remanded to the district court for resent-encing.
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Hill, J.:
This is an appeal of a district court order declaring that an administrator of an intestate estate lacked standing to appeal a magistrate’s ruling that the Estate of Blanche A. Area was legally liable for a note. For reasons set out below, we reverse and remand.
A lady moves from her home to assisted living.
Blanche A. Area lived in Horton and had seven children. Five of her seven adult children agreed to lend her money to build a home in Horton. On June 27, 1995, Blanche signed a promissory note in favor of her five children promising to repay their loan. The note was secured by a mortgage, which was executed and recorded on the same day. At its creation, the note was in the amount of $53,750 with a 10 percent annual interest rate. The note was due in full on July 1, 2005. Blanche never made a payment on this note.
More than 5 years after the note was due, Blanche moved into an assisted living facility in November 2010. At that time, the five children took control of their mother s home; they each contributed to an account, which provided for maintenance, taxes, and insurance on the mortgaged property. On June 28, 2011, Blanche signed a quitclaim deed where she and her son, Jack Area, were named as joint tenants with the right of survivorship. Blanche, a widow, died intestate on July 4, 2011.
Her estate was opened by the State.
The Kansas Department of Health and Environment’s Division of Health Care Finance filed a petition to open Blanche’s estate. The Department nominated David P. Mikesic to act as the administrator. The court opened the estate and appointed Mikesic as the administrator.
Because Blanche received medical assistance from the Kansas Medicaid program for various medical expenses incurred before and when she was in assisted living, the Kansas Estate Recovery Contractor, acting on behalf of the Kansas Department of Health and Environment’s Division of Health Care Finance, filed a petition for the allowance and classification of its demand to recoup the medical assistance. The State’s claim against the estate, made under K.S.A. 39-709, was in the amount of $32,814.46 for her medical assistance. The court allowed the demand and classified it as a first-class claim.
Jack Area, one of Blanche’s children, also sought the allowance and classification of a demand from the court. He claimed he was one of the holders of the promissory note and the amount owed on the note with accrued interest by that time was $105,943. The administrator opposed the allowance of this claim, contending that recovery under the note and mortgage was barred by the statute of limitations. According to the administrator, the debt was unenforceable against the estate.
The parties asked the court for permission to sell tire real estate and personal property at a private sale. The district court authorized the sale of both. The real estate sold for $110,000, and the five children purchased the personal properly for $2,250.
The five children then petitioned the court to use the proceeds from the sale to satisfy the unpaid note. They claimed they were holders of a valid note, which was secured by a mortgage on the real estate, and they had possessed the real estate since November 2010 “to protect their security.” In other words, they claimed to be mortgagees in possession. The magistrate granted their petition to pay the sale proceeds to the five children. The administrator appealed this order to the district judge.
In due course, the district judge held that under principles of equity and public policy the note was valid and the loan was to be repaid to the five children. The administrator asked the judge to reconsider. In its decision on tire petition to reconsider, the district court dismissed tire administrator s appeal for lack of standing and affirmed its prior ruling.
In this appeal, the administrator of the estate contends that the district court erred when it ruled that he had no standing to appeal the ruling of the magistrate. Also, the administrator argues that the district court disregarded the plain language of the note and mortgage and ignored the applicable statute of limitations when it affirmed the magistrate’s ruling. Finally, the administrator argues the district court also erred by trying to create a public policy exception to die statute of limitations.
The administrator of the estate had standing to appeal the magistrate’s ruling.
When the administrator appealed the magistrate’s order to pay the five children from tire funds obtained through the sale of the real estate, the district court affirmed the magistrate’s decision:
“It seems to this Court under the unique facts of this case the public policy for families helping an elderly parent to live in a dignified decent manner for as long as possible should win over the policy for the State to recover tax dollars.
“It seems to the Court the equity under these unique facts lends itself to the position of the children and allowing them to recoup their amount under the note.”
When the administrator asked the district court to reconsider, the district court, for the first time, addressed the administrator s standing. The district court held:
“This Court continues to believe the administrator has exceeded his duties and functions under Kansas law.
“The Court believes the administrator lacks standing to appeal [the magistrate’s] orders.”
Since standing is a major component of subject matter jurisdiction, we will address this issue first.
It is clear that when the administrator brought the appeal to the district judge he was acting within his statutory and court-appointed authority as a fiduciary. The law imposes great responsibilities on an administrator. K.S.A. 59-1401 lists them:
“Possession of property by executor or administrator; marshaling assets; duties prior to final distribution. The executor or administrator shall: (a) Have a right to the possession of all the property of a resident decedent, except the homestead and allowances to the surviving spouse and minor children; (b) marshal all tangible personal property owned by a resident decedent located in the state of Kansas and all intangible personal property owned by a resident decedent wherever located, either directly or by ancillary administration; (c) take possession, within six months from the date of appointment, of all tangible personal property located in this state and all intangible property wherever located, to be held, administered and finally distributed as provided by law, but nothing herein shall require an executor or administrator of a resident decedent to take possession of intangible personal property being administered in another jurisdiction, if the court in which such administration is pending refuses to authorize delivery of possession; (d) pay the taxes and collect the rents and earnings on the property until the estate is settled or until delivered by order of the court to the heirs, devisees and legatees; and (e) keep in tenantable repair the buildings and fixtures under the executor’s or administrator’s control and may protect them by insurance. The executor or administrator, alone or with the heirs or devisees, may maintain an action for the possession of the real estate or to quiet title to it.”
Going further, we note K.S.A. 60-1002(b) provides: “When a hen on property has ceased to exist, or when an action to enforce a lien is barred by a statute of limitation or otherwise, the owner of the property may maintain an action to quiet title.” In Great Plains Trust Co. v. Wallin, No. 99,483, 2008 WL 5135043, at *5 (Kan. App. 2008) (unpublished opinion), rev. denied 289 Kan. 1278 (2009), this court noted: “ ‘An executor or administrator stands in the shoes of the decedent in respect to mortgages given by the decedent, whether in fraud of creditors or otherwise.’ In re Kastner Estate, 113 Kan. 106, 107, 212 P.687 (1923).”
Here, the magistrate found tire appointment of an administrator for Blanche’s estate was necessary and that Mikesic was a suitable and proper person to be appointed as administrator, and then the magistrate granted Letters of Administration to him. Mikesic submitted his oath of administrator on September 19, 2011. Neither the appointment nor tire suitability of Mikesic had been questioned by anyone with an interest in the estate.
When Jack Area filed his petition on the note and mortgage following the correct probate procedures, the administrator filed his written defenses to the demand. The administrator had permission from the probate court to act in his capacity to defend claims against Blanche’s estate. This is how demands are contested in probate cases.
Clearly, as the landowner, Blanche Area would have had standing to challenge the enforceability of a note and mortgage in order to quiet title. As a fiduciaiy of the estate, the administrator stands in the shoes of the decedent and has the duty to assert the same challenge. Here, the administrator had standing to pursue the claim that the statute of limitations was applicable and the note and mortgage were unenforceable.
Without any explanation or elaboration, the district judge simply ruled the administrator had exceeded his authority. We do not see how that occurred. Obviously the sale proceeds of the real estate were the bulk of this estate, but the administrator was simply defending the estate against a claim for those funds.
In re Estate of Hessenflow, 21 Kan. App. 2d 761, 909 P.2d 662 (1995), rev. denied 259 Kan. 928 (2006), is instructive. When writing about the fiduciary responsibilities of an executor of a will, a position that is not appreciably different than an administrator of an intestate estate, the Hessenflow court stated:
“The position of executor is a trust; it is fiduciary in character, and its holder is a trustee for all persons interested in the estate. As the fiduciary of all interested parties, an executor has a duty to see that their rights are correctly adjudicated. An executor is also, in a sense, the representative of the deceased, and it is part of his or her duty to see that any will is properly executed.” 21 Kan. App. 2d 761, Syl. ¶ 6.
In our view, Mikesic, as the administrator, is in a similar office. He is a trustee and has a fiduciary responsibility to the entire estate and the rights of all interested parties. In fact, if he had tried to waive the statute of limitations defense in some way, he would have been in violation of his fiduciary duty to the estate.
The district court erred by finding the administrator lacked standing to challenge the claim. The administrator properly asserted the statute of limitations as a defense against the enforceability of the note and mortgage lien.
Was this note enforceable?
The administrator argues the district court erred when it affirmed the magistrate’s decision to enforce the note and mortgage against the estate. He contends the district court disregarded the plain language of the note and mortgage, failed to apply the governing statute of limitations, and impermissibly applied principles of equity and public policy.
On the other hand, the five children argue the statute of limitations is inapplicable under the principles of equity and public policy. They argue they did not have to foreclose on their mother’s mortgage in order to recover the debt. Indeed, in their view, as a matter of public policy, they should not be forced to take action against their mother. The five children also claim the statute of limitations does not apply because “the law generally favors the proposition that one should pay his debts.” They further contend they were mortgagees in possession prior to the administrator’s actions and the statute of limitations did not affect the validity of the debt.
We examine the statute of limitations first.
Obviously, the application of the statute of limitations is a matter of statutory interpretation. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). The most fundamental rule of statutoiy construction is that the intent of the legislature governs if that intent can be ascertained. Nationwide Mutual Ins. Co. v. Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014). An appellate court must first attempt to ascertain legislative intent through the statutoiy language enacted, giving common words their ordinary meanings. Cady, 298 Kan. at 738.
The applicable limitation statute, K.S.A. 60-511(1), provides: “The following actions shall be brought within five (5) years: (1) An action upon any agreement, contract or promise in writing.” The note here was an agreement, a contract, or a promise in writing as contemplated by the statute and, therefore, the 5-year period set forth in the statute of limitations was applicable. We see no exemption for family contracts in the statute.
This promissory note was secured by a mortgage; both documents were executed and recorded in Jackson County on June 27, 1995. According to die contract: “This note together widi accrued interest thereon shall be due and payable in full on July 1, 2005, or in the event of my death prior to said time shall be payable on the sale proceeds of the real estate, upon which the loan was made.” The five children have signed a letter agreeing that Blanche never made a payment on the mortgage.
From the plain language of die note, the entire loan with interest was due on July 1, 2005. No payments were ever made. As of July 1, 2010, some action on the loan—such as any payments or foreclosure—needed to occur in order to avoid the effect of the 5-year statute of limitations. The five children did not take any action until November 2010. The only actions the five children took were paying the taxes, insurance, maintenance, and marketing the property for sale after their mother was hospitalized. The district judge clearly ignored the language of the note.
The five children argue tiiey became mortgagees in possession in order to protect tiieir interests. The five children did not “possess” the property until November 2010—after the 5-year limitation on the enforcement of the note had expired. The five children could not be mortgagees in possession because the note and the mortgage were no longer valid after July 1, 2010.
The expression “mortgagee-in-possession” has been adopted by the courts and law writers as a convenient phrase to describe the condition of a mortgagee who is in possession of mortgaged premises under such circumstances as to make tire satisfaction of the mortgagee’s hen a prerequisite to the mortgagee being dispossessed of the property. Mid Kansas Fed’l Savings & Loan Ass’n v. Zimmer, 12 Kan. App. 2d 735, 739-40, 735 P.2d 1352 (1988). In other words, if you want possession of the real estate, you must first satisfy the mortgagee’s Hen.
Kansas is a “lien theory” jurisdiction. See Hoelting Enterprises v. Trailridge Investors, L.P., 17 Kan. App. 2d 777, 782-83, 844 P.2d 745, rev. denied 252 Kan. 1092 (1993). In a hen theoiy jurisdiction, the five children cannot simply claim to possess the real estate in order to protect their interests in the note and mortgage—they must take some legal action to protect their lien. See 17 Kan. App. 2d 777, Syl. ¶¶ 1, 3-5. Under Kansas law, a mortgage is not a conveyance of an interest in land. The mortgagee acquires no estate whatever in the property, either before or after any contract condition is broken, but acquires only a lien securing the indebtedness described in the instrument. 17 Kan. App. 2d at 783. The five children here had taken no legal action to enforce their hen until they filed their claim in their mother’s estate. Because the statute of hmitations had expired, the note and mortgage were unenforceable. See K.S.A. 60-511(1); cf. Hoelting, 17 Kan. App. 2d 777, Syl. ¶¶ 3-5. Said plainly, if there is no enforceable mortgage hen, these five children cannot be mortgagees in possession.
The district court asserts public policy without showing authority for the assertion.
While the district court said its ruling was based on principles of equity and public pohcy, it failed to provide any support that it had the authority to make this ruling. In its memorandum decision, the district court cited Griffith v. Robertson, 73 Kan. 666, 671, 85 P. 748 (1906), stating that “the [Griffith] Court noted a ‘wise and beneficent public policy, designed to protect and preserve the re lations which belong to home and the family fireside ....’” We point out that in Griffith the court allowed a claim in an intestate estate by a daughter for her nursing and care for her mother for several years, including the mother s last sickness, under an express contract that payment for such services would be provided for in her mother’s will. The “wise and beneficent policy” referred to by the Griffith court pertains to the presumption that the performance of such nursing services are solely from considerations of filial affection and duty. See 73 Kan. at 671. We fail to see how this presumption affects a note and mortgage signed by a mother to her five children.
The district court did not believe the five children should have to sue their mother to foreclose a mortgage and held the note was still valid and should be repaid. The district court held: “It seems to this Court under the unique facts of this case the public policy for families helping an elderly parent to live in a dignified decent manner for as long as possible should win over the policy for the State to recover tax dollars.” The district judge pointed to no unique facts and to no written public policy. Usually such expressions come from statutes or from Supreme Court opinions. In effect, the district judge ignored the law and replaced it with a view that the five children ought to be repaid. But more accurately, the court’s ruling was that five of the seven children should be paid with 10 percent interest.
We see no authority for the district court to rule that as a matter of public policy different rules apply to note and mortgage agreements involving familial relationships.
“Under the Kansas Constitution, the primary lawmaking body is tire legislature. Courts must respect legislative expressions when determining or forming public policy. Given the right to form public policy by the legislature, courts are faced with three different situations: (1) The legislature has clearly declared the public policy of tlie state; (2) the legislature, though not direcdy declaring public policy, has enacted statutory provisions from which public policy may reasonably be implied; or (3) the legislature has not made a clear statement of public policy or such a policy cannot be reasonably implied.” Woodruff v. City of Ottawa, 263 Kan. 557, Syl. ¶ 4, 951 P.2d 953 (1997).
Obviously, in drafting K.S.A. 60-511(1), the legislature did not declare special rules for familial contracts based on a matter of public policy, and it could have easily done so. Instead, the legislature enacted the following language: “An action upon any agreement, contract or promise in writing.” (Emphasis added.) K.S.A. 60-511(1). The use of the word “any” prevents the district court from ruling as a matter of public policy because, clearly, matters of public policy may not reasonably be implied.
The district court also erred by ruling that as a matter of public policy family contracts should be favored over payments to the State. The State’s Medicaid claim was classified as a first-class demand. K.S.A. 59-1301 provides:
“If the applicable assets of an estate are insufficient to pay in full all demands allowed against it, payment shall be made in the following classified order:
“First class, the expenses of an appropriate funeral in such amount as was reasonably necessary . . . and . . . any claim for medical assistance paid under subsection (e) of K.S.A. 39-709 and amendments thereto. . . .
“Third class, judgments rendered against decedent in the decedent’s lifetime, all judgments or hens upon the property of the decedent shall be paid in the order of their priority.”
K.S.A. 39-709(e) and the amendments thereto address the “[requirements for medical assistance for which federal moneys or state moneys or both are extended.” Because the legislature granted the State priority in recouping its claims, the district court cannot claim a contrary public policy that the State should be paid after indebtedness involving children and their parents.
The five children argue that matters involving the statute of limitations are equitable in nature. In order to support their argument, the five children quote single sentences from cases where the term “equity” is used. However, they fail to expand on their arguments and take the quotations out of context.
For example, the five children first quote the court in Erskine v. Dykes, 158 Kan. 788, 794, 150 P.2d 322 (1944): “[S]uits to quiet title had their origin in equity jurisprudence.”
The actual quotation is as follows:
“It may be observed that suits to quiet title had their origin in equity jurisprudence. In many jurisdictions, as in Kansas, provisions were made for statutory actions to quiet title. Whether such statutory actions entirely supplanted and displaced suits in equity need not be discussed, but that in such statutory actions in this state equitable principles have been applied is beyond question.” 158 Kan. at 794.
In Erskine, our Supreme Court also noted:
“Although the general rule is that a judgment in a foreclosure action is conclusive on all persons properly made parties to the action and that those who are not parties are not concluded [citation omitted,] yet there can be no doubt of the power of the legislature to provide statutes of limitations in which, under varying states of fact, actions for recovery of possession must be brought. [Citations omitted.] While such statutes are entitled to a liberal interpretation in order that their purposes may be served, where by their terms they designate particular subjects or classes of persons, ordinarily application will be restricted to such subjects or classes of persons unless there is a clear manifestation of a contrary intent. [Citation omitted.]” 158 Kan. at 793.
Simply put, Erskine is unpersuasive support because in Erskine the appellee was never served and was never a party to the foreclosure action. Our Supreme Court did not allow the statute of limitations to run against persons named as a party in a suit but who were never served with a summons to offer a defense. 158 Kan. at 794. These facts are obviously distinguishable from this case, where the five children never took any action to enforce this note until they filed a demand in their mother s intestate estate.
The district court also erred by applying principles of equity in this case. Generally, equitable remedies are not available if there is an adequate remedy at law. See Mid-America Pipeline Co. v. Wietharn, 246 Kan. 238, 242, 787 P.2d 716 (1990). This rule has become established in the jurisprudence of this state. In Rex v. Warner, 183 Kan. 763, 769, 332 P.2d 572 (1958), our Supreme Court said:
“No doctrine of equity jurisprudence is better settled than the rule that in tire absence of dre existence of a statute of limitations, the time in which a party will be barred from relief in a court of equity must necessarily depend to a certain extent upon the facts of each case as they may arise; but, when the statute has fixed the period of limitations under which dre claim, if interposed in a court of law, would be barred, courts of equity by analogy follow tíre limitations provided by law. [Citations omitted.]”
It is a long-standing principle that equity will not Me when a legal remedy exists. See Howe Machine Co. v. Miner, 28 Kan. *441, *445 (1882). Here, the statute of limitations was applicable and provided a legal remedy for the five children to take action on the note within the statutory period of 5 years. The five children failed to do so, and the district court could not disregard the statute of limitations based on unidentified equitable consideration.
The district court erred in affirming the magistrate’s decision that the five children were entitled to payment. The district court further erred by finding the administrator lacked standing to challenge the enforceability of die note and mortgage. The statute of limitations was applicable to the note and mortgage, the note and mortgage were unenforceable, and the five children were not mortgagees in possession.
Reversed and remanded to the probate division of the district court with directions to deny the five children’s claim on the note and mortgage. | [
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Powell, J.:
Christina Fuller appeals the district court’s order granting her former husband, Brian Fuller, a long-distance parenting time cost adjustment at a child support modification hearing she requested. Christina asserts two errors on appeal. First, she argues her procedural due process rights were violated because Brian had not given notice he was seeking a long-distance parenting time cost adjustment. Second, Christina argues the district court abused its discretion when it granted Brian tire adjustment. We agree with Christina that her due process rights to adequate notice were violated when Brian failed to give any notice in advance of his intention to seek a long-distance parenting time cost adjustment and, therefore, vacate the district court’s adjustment order and remand for further proceedings.
Factual and Procedural History
Christina and Brian Fuller contentiously divorced in 2008. Christina was granted sole legal custody of the parties’ five minor children, but Brian was granted supervised parenting time. Because the parties were having a difficult time reaching any agreement concerning their children, the case was assigned to case management. The case manager was tasked with making recommendations on parenting time schedules and supervision, among other things.
After the divorce, Christina relocated herself and the children to an undisclosed location in Missouri. Christina has refused to disclose the exact address to the case manager or the court because of her fears surrounding Brian’s alleged verbal abuse and potential for physical violence. This move was permitted by the court; however, the divorce decree required Christina to keep Brian advised at all times of where the children lived. She has failed to do this.
Christina’s move required her and Brian to travel to a supervised parenting time site in Leavenworth, Kansas, so Brian could exercise his parenting time. Relations between the Leavenworth facility and Christina became severely strained, however, because the facility’s staff had serious concerns that Christina was negatively influencing the children regarding their relationship with Brian. Due to this dysfunction, the case manager changed the location of the supervised parenting time in June 2009 to a facility in Lawrence, Kansas. From December 2008 to September 2009, Brian exercised his parenting time approximately every other weekend.
From a thorough review of the record, it appears that in September 2009 the case manager suspended the visits in Lawrence because “the children had gotten to a point where they would not even get out of the car for the visits.” The facility’s staff in Lawrence also expressed concerns to the case manager about “the extent to which tire visits between [Brian] and the children were impeded because of a lack of cooperation from both the older children and their home.” Unfortunately, the case manager’s recommendation regarding parenting time is not included in the record on appeal and does not appear to have been entered with the court, contrary to the district court’s original order appointing the case manager.
On June 14, 2011, once Brian’s spousal maintenance obligations to Christina ended, the court trustee filed a motion to modify child support on Christina’s behalf. That same day, signed domestic relations affidavits (DRAs) from both Christina and Brian were filed as well. No proposed child support worksheet was filed contemporaneously with the motion. There was nothing contained in Brian’s DRA to indicate that a long-distance parenting time cost adjustment was being requested.
A hearing on Christinas motion to modify child support was held on July 27, 2011, before a magistrate judge. Christina did not appear personally but was represented by the court trustee. Brian was present with his counsel. At the beginning of the hearing, the court trustee advised tire court that he had spoken with Brian’s counsel just prior to the hearing and that the parties were in agreement with all of the figures on the worksheet except that Brian was requesting a parenting time cost adjustment. Brians counsel then orally requested the adjustment and presented to the court a proposed child support worksheet reflecting a long-distance parenting time cost adjustment of $324 per month. In support of this figure, counsel proffered the miles between Brian’s home in McPherson, Kansas, and the visitation facility in Lawrence, totaling 158 miles, and the Internal Revenue Service’s then-current mileage reimbursement rate of 51 cents per mile, to arrive at the $324 adjustment for Brian’s bimonthly trips to Lawrence to exercise his court-ordered parenting time.
Through the proffer, however, Brian’s counsel notified the court that he had only successfully exercised his parenting time once in the past calendar year; moreover, he did not indicate that the visitation had apparently been suspended by the case manager, although the case manager’s recommendation had not become the order of the court. While the magistrate judge was conflicted in awarding tire adjustment for parenting time that was not regularly occurring, based upon the proffer he found that Brian was not voluntarily failing to exercise his parenting time. Instead, it was Christina’s bad acts—namely her interference with the parenting time, negative influence on the children, and refusal to follow the court order for Brian’s parenting time—that prevented Brian from regularly exercising parenting time. The court made it clear to Brian that if he was not exercising his parenting time voluntarily then he was not entitled to the adjustment. The court set Brian’s monthly child support obligation at $1,974, which included the long-distance parenting time cost adjustment. Christina appealed this modification to the district court.
For reasons unknown to us, the appeal languished in the district court for some 4 years without resolution until April 27, 2015. Before the district court, Christina argued she was denied procedural due process by not having advance notice that Brian would be asking for a long-distance parenting time cost adjustment at the hearing and that the magistrate court abused its discretion when giving Brian such an adjustment.
Specifically concerning Christina’s due process claims, the district court stated that the modification of child support was invoked by Christina when the court trustee filed a motion to modify support per her request. Moreover, the court observed that since Christina was the one who had created an issue of travel expenses by moving to Missouri, it should not have been unanticipated or surprising to her that they might have been raised at a hearing dealing with potential modification of child support. The court held that by not personally appearing at the hearing she in effect waived her right to be heard on a normal and expectable consideration in setting child support. The district court rejected Christinas due process claim and affirmed the magistrates order granting Brian tire long-distance parenting time adjustment.
Curiously, as a result of Brian becoming unemployed and prior to tíre district court considering Christinas appeal of the magistrates order, Brian filed a separate motion to modify child support on April 14, 2015. Surprisingly, the proposed child support worksheet attached to his motion did not include a long-distance parenting time cost adjustment, but it did reduce Brian’s child support obligation roughly in half. The district court approved this modification on the same day it affirmed the magistrate’s order. Brian’s separate child support modification request is not before us on appeal.
Christina timely appeals the district court’s order granting Brian a long-distance parenting time cost adjustment to his child support obligation.
Were Christina’s Procedural Due Process Rights Violated at the Child Support Modification Hearing?
Christina first argues her due process rights were violated because she did not receive advance notice that Brian would be seeking a long-distance parenting time cost adjustment. The question of what process is due in a given case is a question of law, meaning our scope of review is unlimited. Murphy v. Nelson, 260 Kan. 589, Syl. ¶ 2, 921 P.2d 1225 (1996).
The Fourteenth Amendment to the United States Constitution provides that no State “shall deprive any person of life, liberty, or property, without due process of law.” “A due process violation can he established only if the claimant is able to establish that he or she was denied a specific procedural protection to which he or she is entitled.” State v. Wilkinson, 269 Kan. 603, 609, 9 P.3d 1 (2000). “Due process requires that notice must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” In re L.S., 14 Kan. App. 2d 261, 263, 788 P.2d 875 (1990) (quoting Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865, [1950]). This includes giving the parly “a reasonable time to prepare a defense to the litigation.” In re H.C., 23 Kan. App. 2d 955, 961, 939 P.2d 937 (1997).
In recognition of tírese principles, our Supreme Court has stated that “[generally a proper motion, notice to the adverse party and an opportunity to be heard are prerequisites to a modification of a child support order.” Brady v. Brady, 225 Kan. 485, 489, 592 P.2d 865 (1979); see also Strecker v. Wilkinson, 220 Kan. 292, 296, 552 P.2d 979 (1976) (“Due process requires reasonable notice even in the absence of an express statutory provision requiring such notice.”). Therefore, it would appear to be easy to conclude that the district court violated Christinas due process rights to adequate notice by granting Brians child support modification without first requiring Brian to file a motion requesting a long-distance parenting time cost adjustment along with his DRA and his proposed child support worksheet. See Supreme Court Rule 139 (2011 Kan. Ct. R. Annot. 228).
Complicating this analysis, as the district court noted, was the fact that the issue of modifying child support was already before the court on Christina’s motion to modify. The district court held that this fact, plus Christinas act of moving to another state, already apprised her that the issue of long-distance parenting time costs could be an issue at any child support modification hearing, meaning she had adequate notice. We disagree.
First, as we have already stated, our Supreme Court has held that any effort at modifying child support requires the fifing of a motion, notice to the other party, and an opportunity to be heard. Second, rules promulgated by our Supreme Court also require that a party opposing a motion to modify provide some sort of notice of a dispute. Under the current version of Supreme Court Rule 139(f) (2015 Kan. Ct. R. Annot. 238), a person challenging a motion to modify a support order is explicitly required to file and serve a DRA and proposed child support worksheet prior to the hearing on the motion to modify. The version of the rule in effect in 2011— the hearing before the magistrate was held on July 27, 2011—is not quite as explicit but strikes us as sufficiently clear. It states in relevant part:
“(e) Any party challenging a support order of the court or facts contained in the Domestic Relations Affidavit shall file a similar affidavit at the time of filing the party’s response, answer, or motion for modification.
“(f) A party filing a motion to modify an existing order of support shall serve a copy of the Domestic Relations Affidavit along with the motion on the adverse party. Any person challenging a motion to modify an existing support order or the facts contained in the movant’s affidavit shall file and serve a similar affidavit prior to the hearing on the motion to modify.
“(g) Where child support is required, a Child Support Worksheet shall accompany the Domestic Relations Affidavit.” (Emphasis added.) Supreme Court Rule 139(e)-(g) (2011 Kan. Ct. R. Annot. 229).
It is clear to us that the Supreme Court requires advance notice of any party’s desire to modify child support, and it also requires a party opposing a modification of child support to apprise the proponent in advance of any area of possible disagreement, whether it be a dispute concerning any fact contained in the proponent’s DRA or any dispute with regard to the calculation of child support which would be revealed in the opposing party’s child support worksheet. See In re Marriage of Jones, 45 Kan. App. 2d 854, 856-57, 268 P.3d 494 (2010) (rules of construction for Supreme Court rules).
While a good argument could be made that Brian’s request for a long-distance parenting time cost adjustment constituted his own separate request for modification requiring the fifing of a separate motion, we need not answer that question because even a party opposing a motion to modify must file a DRA and a child support worksheet in advance. In the present case, Brian’s DRA was filed on the same day as the court trustee filed the motion on Christina’s behalf, but no child support worksheet was ever filed and served by Brian—a worksheet which presumably would have shown an adjustment for long-distance parenting time costs. In fact, no advance notice of any kind was provided by Brian of his intent to seek a child support adjustment as we regard Brian’s counsel orally informing the court trustee just before the hearing as not being advance notice. If Brian had done so, Christina and the court trustee would have been on notice of Brian’s request, and Christina could have had the opportunity to be personally present at the hearing and rebut the proffer of evidence presented by Brian’s counsel. To us, this is the essence of adequate notice required by the Due Process Clause of the Fourteenth Amendment.
Accordingly, we hold that the portion of the district court s child support order granting Brians long-distance parenting time cost adjustment is void due to the fact that Christina did not receive adequate notice of Brian s request in violation of her due process rights. The district courts order is vacated, and the matter is remanded for a de novo hearing before the district court concerning Brians request for a long-distance parenting time cost adjustment. We need not consider Christina s complaints as to tire merits of the district court s ruling as they are now moot.
Vacated and remanded. | [
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Denied.
Unpublished | [
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The opinion of the court was delivered by
Rosen, J.:
The State charged Daniel P. Parker with felonymur-der and criminal discharge of a firearm at an occupied building. Parker’s case proceeded to trial where the jury, in addition to receiving instructions on the charged crimes, received instructions on second-degree unintentional murder and involuntary manslaughter as lesser included offenses of felony murder. The jury ultimately found Parker guilty of felony murder and criminal discharge of a firearm.
Now on appeal, Parker argues that the prosecutor committed reversible misconduct during closing arguments when he told the jurors that they were to consider Parker’s guilt for the lesser included crimes only if they first found him not guilty of felony murder. Based oh our prior decisions, we conclude that this statement was erroneous because it suggested to the jurors that they had to reach a unanimous decision (i.e., finding Parker not guilty of felony murder) before they could even consider Parker’s guilt for the lesser included crimes. But, due to the prosecutor also reciting the correct legal standard during closing arguments and the overwhelming evidence establishing Parker’s guilt for felony murder, we conclude that the prosecutor’s erroneous statement does not constitute reversible misconduct. Accordingly, we affirm Parker’s convictions and sentence.
Facts
Shortly after midnight on January 1, 2012, Parker had a verbal confrontation at a Manhattan bar with members of the Assassin Street Rydaz Motorcycle Club (MC). After the altercation, Parker left the bar with his wife and drove to their apartment in Junction City. Parker eventually left the apartment and drove to the MC’s clubhouse in Manhattan where the MC was having a party. While sitting in his car, Parker fired between 20 and 27 rounds at the clubhouse with his AR-15 rifle. One of the rounds struck and killed Frederick Beverly, who was standing outside the clubhouse at the time of the shooting. Forensic evidence indicated that the bullet that struck Beverly may have ricocheted off an object before striking Beverly in the forehead.
Ultimately, the State charged Parker with one count of felony murder (based on the underlying felony of criminal discharge of a firearm at an occupied building) and one count of criminal discharge of a firearm at an occupied building.
In an interview prior to trial, Parker admitted to shooting at the clubhouse but denied that he intended to shoot anyone. At trial, Parker testified that he drove to the clubhouse and fired his rifle “in the direction near that building” but maintained that he was not “aiming” his gun when he fired it.
The district court, in addition to instructing on the charged crimes, instructed the jury on second-degree unintentional murder and involuntaiy manslaughter as lesser included offenses of felony murder. Consistent with PIK Crim. 4th 68.080 (lesser included offenses), the district court instructed the jury that it could find Parker “guilty of murder in the first degree, murder in the second degree, involuntary manslaughter, or not guilty” and that “[wjhen there is a reasonable doubt about which of two or more offenses Defendant is guilty, he may be convicted of tire lesser offense only.” Additionally, the district court instructed the jury at the beginning of the elements instruction on second-degree unintentional murder that “[i]f you do not agree that tire Defendant is guilty of murder in the first degree, you should then consider the lesser included offense of murder in the second degree.” PIK Crim. 4th 54.140 (murder in the second degree). Similarly, as a preface to the elements instruction on involuntary manslaughter, the district court instructed the jury that “[i]f you do not agree that the defendant is guilty of second-degree murder, you should then consider the charge of involuntary manslaughter.” Finally, the district court instructed the jurors that their “verdicts in this case must be unanimous.” See PIK Crim. 4th 68.010.
During closing arguments, the prosecutor commented on how the jury was to consider Parker’s guilt in relation to the lesser included offenses:
“One of the things that you heard is that you have [been] given lesser [includ-eds] in this case. The defendant is charged by the State with First-Degree Murder. A lesser included of that is second-degree murder, and a lesser included of second-degree murder is involuntary. It is very important though that you follow the instructions on how you are supposed to look at these. A lot of people think that a lesser included—that you just go back in die jury room and decide which one of tírese three crimes he’s guilty of. Well die truth—the fact of the matter is that the State would submit that he is guilty of all of these crimes because they are lesser included. So if he is guilty of the first-degree murder, he’s—because it’s included also that he is guilty of involuntary and also guilty of second-degree. But here’s the instruction that you need to make sure that you follow. Judge Stutzman has given you this instruction and it says, if you do not agree that the Defendant is guilty of murder in the first degree, then you should consider the lesser included offense of second-degree murder, and then of involuntary manslaughter. The point being that you only look at second degree and you only look at involuntary manslaughter if you have found the defendant not guilty of first-degree murder. So you start with first-degree murder and if he’s guilty of first-degree murder then stop. You don’t have to—you should not look at the lessers. Because if you find him guilty of first-degree murder, he’s going to be guilty of the lessers. So you look at the first-degree murder, by die instruction of the Judge, and only if you do not agree that he is guilty of first-degree murder that you go on to the lessers.” (Emphasis added.)
During defense counsel’s closing argument, he argued that the jury should return a “just” verdict which, in counsel’s opinion, would be finding Parker guilty of second-degree unintentional murder. Defense counsel stated:
“You can hold [Parker] accountable by your verdict. And you can show him that we listened to your case young man, and we thought about it, and we listened to everything, and we kept kicking around that word just, justice, and we thought about it some more. We tried to hammer out what was a just verdict. There’s a count that exactly fits, even the language. Unintentionally. This clearly was. But recklessly. God was it. Under circumstances that show extreme indifference to the value of human life. Indeed. That is exactly this crime. Returning a verdict of murder in the second degree I submit to you is fair to everybody. It’s a conviction for murder. The definition fits this. It shows Daniel Parker that again we heard you and in recognition of all that we heard, all of it, in consideration of everything, we find you guilty of murder in the second degree.”
During the State’s rebuttal argument, the prosecutor addressed defense counsel’s just-verdict argument:
“Your verdict has to be based on the law plus credible facts. You don’t—it’s not a smorgasbord where you just simply pick die one that is easy and fair to everybody. You pick the one that die law and the evidence direct you to. And yes, I would say that he is guilty of second-degree murder, he is also guilty of involuntary. Those all fit because they are lesser included. It’s like, as an illustration, a lasagna has pasta and cheese in it and it is like saying if you eat lasagna that you are going to eat cheese and pasta. And if he is guilty of the first-degree murder, he is guilty of everything under it. So it doesn’t help you to say find him guilty of second-degree murder because that’s ignoring the law. You know you have to recall that the Judge says that you only get to second degree murder, you only look at the lesser if you find him not guilty of murder in the first degree.” (Emphasis added.)
The jury ultimately found Parker guilty of felony murder and criminal discharge of a firearm at an occupied building. The district court sentenced Parker to a hard 20 life sentence for tire felony-murder conviction and a concurrent 59-month prison sentence for the criminal discharge of a firearm conviction. Parker filed a timely notice of appeal.
Prosecutorial Misconduct
Parker argues that when the prosecutor told the juiy during closing argument that it was to consider the lesser included offenses only after finding him “not guilty of first-degree murder,” the prosecutor misstated the law—thus, committing misconduct—by conveying to the jury that it must unanimously acquit him of felony murder before considering his guilt for any lesser included offenses.
Standard of Review
Appellate review of a prosecutorial misconduct claim based on improper comments requires a two-step analysis. First, an appellate court decides whether the comments at issue were outside tire wide latitude a prosecutor is allowed when discussing evidence. If so, there was misconduct. Second, if misconduct is found, an appellate court determines whether the- improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013).
A. Were the Statements Improper?
Prosecutors enjoy wide latitude in crafting closing arguments. State v. Scott, 271 Kan. 103, 114, 21 P.3d 516 (2001). “A misstatement of the law during a prosecutor’s closing argument can deny a defendant a fair trial when “ "the facts are such that the jury could have been confused or misled by the statement.’ ” State v. Wil liams, 299 Kan. 509, 544, 324 P.3d 1078 (2014) (quoting State v. Phillips, 295 Kan. 929, Syl. ¶ 5, 287 P.3d 245 (2012).”
With regard to lesser included offenses, K.S.A. 2013 Supp. 22-3414(3) states: “In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime . . . the judge shall instruct the jury as to the crime charged and any such lesser included crime.” K.S.A. 2013 Supp. 21-5108(b) states: “When there is a reasonable doubt as to which of two or more degrees of a crime the defendant is guilty, the defendant shall be convicted of the lowest degree only.”
In State v. Trujillo, 225 Kan. 320, 324, 590 P.2d 1027 (1979), the defendant complained that tire district court, though instructing the jury on several lesser offenses of the charged offense, erred by not sequencing them in descending order of severity or providing guidance to the juiy on “which lesser offense was the more serious.” The Trujillo court stated that in the interests of promoting an orderly method of considering the possible verdicts, “a trial court should instruct on lesser included offenses in the order of severity beginning with the offense with the most severe penalty.” 225 Kan. at 324.
The pattern instructions reflect Trujillo’s command. In addition to organizing lesser included offenses by descending severity level, the pattern instructions recommend placing a transitional statement at the beginning of the elements instruction for each lesser offense. For example, when the facts warrant giving an instruction on second-degree murder as a lesser included offense of first-degree murder, the pattern instructions recommend placing the following statement at the beginning of the elements instruction on second-degree murder: “If you do not agree that the defendant is guilty of murder in the first degree, you should then consider the lesser included offense of murder in the second degree.” PIK Crim. 4th 54.140. Consistent with the pattern instructions, the district court placed this language at the beginning of the elements instruction for second-degree murder. Similarly, the district court prefaced the elements instruction for involuntary manslaughter by instructing the jury that if it did “not agree that the defendant is guilty of second-degree murder, you should then consider tire charge of involuntary manslaughter.”
In State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982), the defendant claimed that the instructional language “if you cannot agree that the defendant is guilty” coerced the jury into returning a verdict of guilty on the more severe charge. The court rejected this argument, stating:
“Tlie words ‘if you cannot agree’ when used to preface an instruction on a lesser charge are not coercive and do not require the members of a jury to unanimously find the accused innocent of the greater charge before proceeding to consider a lesser charge. The words ‘if you cannot agree’ presuppose less than a unanimous decision and no inference arises that an acquittal of the greater charge is required before considering the lesser.” 231 Kan. at 661.
See also State v. Roberson, 272 Kan. 1143, 1153-55, 38 P.3d 715, cert. denied 537 U.S. 829 (2002), overruled on other grounds State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006) (relying on Korbel to reject challenge to “if you do not agree” language prefacing lesser offense element instructions; language did not require jury to reach unanimous decision acquitting defendant of greater charge before considering lesser charges).
Notably, in State v. Carter, 284 Kan. 312, 331-32, 160 P.3d 457 (2007), this court, relying on Roberson, Korbel, and other cases, found that instructions directing jurors to move on to consideration of lesser included offenses only if they “do not agree” or if they “do not find defendant guilty” were not coercive and correctly stated the law.
Based on Korbel and the statutoiy mandate requiring that a defendant be convicted of a lesser crime “[wjhen there is a reasonable doubt as to which of two or more degrees of a crime the defendant is guilty,” see K.S.A. 2013 Supp. 21-5108(b), this court in State v. Hurt, 278 Kan. 676, 682, 101 P.3d 1249 (2004), held that a prosecutor would be misstating the law if he or she argued to jurors that all 12 of them had to agree that there was reasonable doubt concerning the crime charged before they could even consider the defendant’s guilt for a lesser included offense. See also State v. Jones, 298 Kan. 324, 339, 311 P.3d 1125 (2013) (prosecutor misstated tire law when she told jurors: “ ‘[Bjefore you get all the way to this lesser excuse land of homicide, voluntary manslaughter,... you have to all agree that there’s no premeditation’ statement conveyed to “jurors that each had to reject premeditation before a lesser included offense could be considered”).
The above statutes and caselaw show that it is improper to instruct or tell a jury that it must unanimously acquit the defendant of tire charged offense before it can consider lesser included offenses. But, as this court’s decision in Carter shows, directing jurors to move on to consideration of lesser included offenses only if they do not agree or if they do not find the defendant guilty of the charged offense is not coercive and correctly states the law. See Carter, 284 Kan. 312, Syl. ¶ 14. The reason for this, as explained in Korbel, is because the phrases do not require the jurors to unanimously acquit the defendant of the greater charge before considering a lesser charge. Korbel, 231 Kan. at 661.
Based on the above analysis, the prosecutor’s comments directing the jurors to consider Parker’s guilt for the lesser included offenses only if they first found him not guilty of felony murder were incorrect statements of the law because a guilty or not guilty verdict requires unanimous agreement amongst the jurors. See K.S.A. 22-3421; State v. Cheek, 262 Kan. 91, 108, 936 P.2d 749 (1997) (“The authority for [instructing jurors that their agreement upon a verdict must be unanimous] is based on the fundamental right of any accused to a trial by jury, § § 5 and 10 of the Kansas Constitution Bill of Rights, and K.S.A. 22-3403, together with our statute requiring a unanimous verdict under K.S.A. 22-3421.”). Such a statement is distinguishable from telling a jury to move on to consideration of lesser included offenses only if they do not agree or if they do not find the defendant guilty of the charged offense because these statements presuppose a less than unanimous conclusion amongst the jurors. Accordingly, the prosecutor’s statements were outside the wide latitude given to prosecutors in crafting closing arguments and, thus, constitute misconduct.
B. Did the Prosecutor Commit Reversible Misconduct?
Because we have concluded that the prosecutor’s statements were erroneous, we now determine whether the comments con stitute reversible misconduct. This involves a three-factor inquiiy: (1) whether the misconduct was gross and flagrant; (2) whether it was motivated by prosecutorial ill will; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. No one factor is controlling. State v. Crawford, 300 Kan. 740, Syl. ¶ 3, 334 P.3d 311 (2014); Bridges, 297 Kan. at 1012; State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). Before the third factor can ever override the first two factors, an appellate court must be able to say that the State can meet both the statutory harmlessness standard stated in K.S.A. 60-261 and the constitutional standard stated in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Crawford, 300 Kan. at 740, Syl. ¶ 4; Bridges, 297 Kan. at 1012-13 (citing Tosh, 278 Kan. at 97).
This court has noted that, as a practical matter, the result of the harmless error evaluation depends on the outcome of the Chapman constitutional standard. “[Bjoth the constitutional and non-constitutional error clearly arise from the very same acts and omissions,” and the constitutional standard is more rigorous. Bridges, 297 Kan. at 1015. Thus, the State necessarily meets the lower statutory standard under K.S.A. 60-261 if it meets the higher constitutional standard.
With regard to the first factor-—whether the misconduct was gross and flagrant—this court considers whether the misconduct was repeated, was emphasized, violated a long-standing rule, violated a clear and unequivocal rule, or violated a rule designed to protect a constitutional right. State v. Marshall, 294 Kan. 850, Syl. ¶ 6, 281 P.3d 1112 (2012). In analyzing whether a prosecutor’s misconduct was motivated by ill will, the court considers whether “tire misconduct was deliberate, repeated, or in apparent indifference to a court’s ruling.” 294 Kan. 850, Syl. ¶ 7.
Though the prosecutor made two incorrect statements of law regarding how the jury was to consider Parker’s guilt for the lesser included crimes, tire prosecutor also correctly told the jurors if they did not agree Parker was guilty of felony murder, then they should consider whether Parker was guilty of the lesser included offenses. See Korbel, 231 Kan. at 661 (“The words ‘if you cannot agree’ when used to preface an instruction on a lesser charge are not coercive and do not require the members of a jury to unanimously find the accused innocent of the greater charge before proceeding to consider a lesser charge.”). “Where a prosecutor makes both a misstatement of the law and a correct recitation of the applicable law in a closing argument, we have been loath[] to characterize the misstatement as being gross and flagrant misconduct. [Citations omitted.] Neither does such a situation support a finding of ill will.” State v. Naputi, 293 Kan. 55, 62, 260 P.3d 86 (2011). Similarly, we do not characterize the prosecutor’s comments here as either gross and flagrant or the product of ill will. See Jones, 298 Kan. at 339-40 (court refused to find drat prosecutor’s incorrect statement regarding juiy’s consideration of lesser included offenses was gross and flagrant or motivated by ill will because, prior to making improper comment, prosecutor correctly told jury: “[I]f you cannot agree [on the existence of premeditation], only dren do you go to second and determine whether or not the State has proven second-degree murder”).
Finally, the third factor: Was the evidence of such a direct and overwhelming nature that tire misconduct would likely have had little weight in the minds of jurors? In answering this question, the State, as the party “benefit[ting] from the prosecutorial misconduct, bears the burden to establish beyond a reasonable doubt that the error did not affect tire defendant’s substantial rights, i.e., there is no reasonable possibility the error affected the verdict.” State v. Inkelaar, 293 Kan. 414, 431, 264 P.3d 81 (2011); see, e.g., State v. Raskie, 293 Kan. 906, 918, 269 P.3d 1268 (2012) (finding prosecutor’s misstatement did not affect the outcome of the trial in light of the entire record).
The evidence presented at trial showed that Parker committed a criminal discharge of a firearm at an occupied building by “recklessly and without authority” firing his AR-15 rifle multiple times at the MC’s clubhouse while numerous people were inside. See K.S.A. 2013 Supp. 21-6308(a)(l)(A). Because Beverly was tolled during the commission of this inherently dangerous felony, the evidence clearly established that Parker was guilty of felony mur der. See K.S.A. 2013 Supp. 21-5402(a)(2) and (c)(l)(0). Accordingly, we conclude that there is no reasonable possibility that tire prosecutor s comments affected the verdict.
In passing, we note another reason for finding harmless the comments at issue here: Prior to Parkers trial in August 2013, the legislature amended the first-degree murder statute to state that there are no lesser included offenses of felony murder and that this change applies retroactively to all pending cases. See K.S.A. 2013 Supp. 21-5402(d) and (e). In State v. Todd, 299 Kan. 263, Syl. ¶ 4, 323 P.3d 829 (2014), this court held that the 2013 amendment did not violate the Ex Post Facto Clause and, thus, could be properly applied to all cases not yet final. Since Todd, tins court on numerous occasions has summarily rejected a defendant’s contention that the district court erred by not giving instructions on lesser included offenses of felony murder. See e.g., State v. Clay, 300 Kan. 401, 409, 329 P.3d 484 (2014) (“Based on Todd, we conclude Clay was not legally entitled to either an unintentional second-degree murder instruction or an involuntary manslaughter instruction as a lesser included offense of felony murder.”).
Based on K.S.A. 2013 Supp. 21-5402(d) and (e), the district court in this case should not have instructed on second-degree unintentional murder or involuntary manslaughter as lesser included offenses of felony murder because felony murder no longer has lesser included offenses. Thus, the instructions were not legally appropriate. Because Parker was not legally entitled to any instructions on lesser included offenses of felony murder, he could not have been prejudiced by the prosecutor’s comments regarding how the jury was to consider his guilt for the lesser included crimes.
Though we conclude that the prosecutor committed misconduct, the misconduct did not prejudice the jury against Parker and deny him a fair trial. Thus, we affirm Parker’s convictions and sentence. | [
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Powell, J.:
Eugenia L. Crawford appeals the district court’s denial of her motion to reinstate and extend maintenance, arguing the court had jurisdiction to modify maintenance under the terms of the divorce decree and should have considered the merits of her motion. We disagree and affirm.
Factual and Procedural Background
Eugenia and Vearl E. Crawford were married in October 1996. In October 2009, as part of the parties’ separate maintenance action, they executed a stipulation and property settlement agreement which obligated Vearl to pay Eugenia “$1025 per month commencing in tire month that either party leaves the marital residence, with a like amount to follow each month thereafter [on] the 1st day of the month until further Order of the Court. . . . Duration of the maintenance shall be 55 months.”
Vearl subsequently filed for divorce, and the matter proceeded to trial on November 19, 2010, with witnesses and testimony. According to the journal entry and decree of divorce filed on February 11, 2011, the district court found, inter alia, the following:
“5. Tlie parties were separated by Separate Maintenance Action and the partes signed and entered into a settlement agreement on October 8, 2009. The parties indicated by their signatures that the Settlement Agreement entered into by both partes was fair, just and equitable and the agreement set forth obligations and maintenance.
“6. The parties followed this Settlement Agreement until April of 2010, wherein the partes orally modified this agreement indicating that [Vearl] would pay al [sic] of [Eugenia’s] bills in lieu of any maintenance payments provided for in paragraph 3 of the Settlement Agreement.
“7. As there was no provisions [sic] in the Settlement Agreement prohibiting an oral modification of said agreement, that is now the agreement of the partes.
“8. [Vearl] has alleged more than half of his income is going to [Eugenia] and that is not fair, just or equitable.
“11. K.S.A. 60-1610(b)(2) allows for the Court to determine if maintenance payments are appropriate given a demonstrated need by [Eugenia]. The Court finds $1025 a month an appropriate award of maintenance to [Eugenia]. . . .
“12. The Court will adopt the written Settlement Agreement regarding the maintenance and debt of the parties to be paid by [Vearl] as valid, just and equitable and incorporates it herein by reference as though more fully set forth herein.
“13. The Court further finds that for a period of up to two years, as per the Settlement Agreement, [Eugenia] will take the entire amount of the maintenance payments, the mortgage and the car debt as maintenance payments to [Eugenia] as taxable income, paid by [Vearl] as income reduction for tax purposes.
“14. The Court finds that the maintenance outlined in this Decree of Divorce is valid, just and equitable and further reserves jurisdiction concerning said maintenance and the real estate of the parties for modification if necessary.
“15. The maintenance duration shall remain the same as outlined in the Settlement Agreement, which shall be effective January 1, 2011. [Vearl] will be given credit for nine (9) months of maintenance payments made through tire months of April through December.”
The parties agree the 55-month maintenance period referred to in the settlement agreement expired in October 2014.
In June 2014, Eugenia filed her motion to reinstate and extend maintenance. A hearing on the motion was held in August 2014; after hearing arguments the district court held the settlement agreement did not have a provision regarding retaining or reserving jurisdiction. The district court found that the divorce decree did state jurisdiction was reserved “ ‘concerning said maintenance . . . for modification if necessary.’ ” However, the district court held:
“Modification and reinstatement are not similar things. In this particular case, modification in the context of Kansas law means that the Court has the authority to reduce the maintenance and the amount—from the amount of $1,025 downward but the Court is without jurisdiction to increase the maintenance upwards or to lengthen the period of time.”
The district court’s journal entry stated: “The Court did reserve jurisdiction for the modification of maintenance as provided in paragraph 14 of the Decree of Divorce but there was no reservation of jurisdiction to reinstate or extend maintenance.”
Eugenia timely appeals.
Did the District Court Err in Ruling It Did Not Have Jurisdiction to Consider Eugenia’s Reinstatement and Extension Motion?
On appeal, Eugenia argues the district court erred in concluding it did not have jurisdiction to reinstate and extend maintenance. She asserts two main points in support of this argument: (1) Because Vearl objected to the settlement agreement’s maintenance provisions at the divorce hearing, the maintenance ordered by the district court was not pursuant to the agreement of the parties, making it court ordered and therefore subject to modification; and (2) even if the ordered maintenance was pursuant to the agreement of the parties, the parties agreed to the district court’s modification of tire agreement by not appealing the language in the decree of divorce reserving the district court’s jurisdiction to modify the maintenance pursuant to K.S.A. 2013 Supp. 23-2904.
Vearl counters that even if the district court retained jurisdiction to modify maintenance, it did not retain jurisdiction to reinstate or extend maintenance past October 2014. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Frazier v. Goudschaal, 296 Kan. 730, 743-44, 295 P.3d 542 (2013).
It is well established that maintenance settled by a separation agreement which is later incorporated into a divorce decree is not subject to subsequent modification by the court except as provided for by the agreement or as subsequently agreed to by the parties. In re Marriage of Hedrick, 21 Kan. App. 2d 964, 967, 911 P.2d 192 (1996); see K.S.A. 2013 Supp. 23-2712(b).
Alternatively, when a court has ordered maintenance, it retains the power to modify future maintenance payments that have not already become due, irrespective of whether the original divorce decree specifically states such retention of jurisdiction. In re Marriage of Evans, 37 Kan. App. 2d 803, 805, 157 P.3d 666 (2007); In re Marriage of Ehinger, 34 Kan. App. 2d 583, Syl. ¶¶ 3, 8, 121 P.3d 467 (2005), rev. denied 280 Kan. 982 (2006). However, the power to modify maintenance is limited to reducing such maintenance:
“ ‘At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of tire maintenance originally awarded that has not already become due. The court may not modify without the consent of the party liable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree. Thus, maintenance may be reduced downward, but not increased upward.’ ” (Emphasis added.) Ehinger, 34 Kan. App. 2d at 587 (quoting Blaylock & Lambdin, Property Division and Maintenance, 1 Practitioner’s Guide to Kansas Family Law § 4.68, p. 4-30 [Leben ed. 2004]).
See K.S.A. 2013 Supp. 23-2903.
K.S.A. 2013 Supp. 23-2904 allows a court to extend maintenance beyond the term in the original divorce decree provided such authority is specifically retained:
“If the original court decree reserves the power of tire court to hear subsequent motions for reinstatement of maintenance and such a motion is filed prior to dre expiration of the stated period of time for maintenance payments, die court shall have jurisdiction to hear a motion by dre recipient of the maintenance to reinstate the maintenance payments.”
Parenthetically, we note the relevant statutory language remains unchanged between the filing of the divorce decree in February 2011, when K.S.A. 60-1610(b)(2) was applicable, and the filing of Eugenia’s motion for reinstatement and extension of maintenance in June 2014, when K.S.A. 2013 Supp. 23-2904 was applicable. In the context of the present case, reinstatement means the extension of maintenance beyond the original term provided in the original divorce decree. See In re Marriage of Diesel, No. 93,730,2005 WL 3289430, at *2 (Kan. App. 2005) (unpublished opinion).
In light of these authorities, we need not decide whether the district court’s order in the original divorce decree amounted to an adoption of the parties’ agreement concerning maintenance or its own order because in neither case was there a specific reservation of jurisdiction to reinstate or extend maintenance beyond the 55-month period. The settlement agreement itself contains no provision for court modification, and the divorce decree only stated “the maintenance outlined in this Decree of Divorce is valid, just and equitable and further reserves jurisdiction concerning said maintenance . . . for modification if necessary.” (Emphasis added.)
Because the settlement agreement and the original divorce decree did not expressly state or contain language making it unmistakably clear that the district court had continuing jurisdiction to hear motions for reinstatement or extension of maintenance beyond the initial order, the district court lacked jurisdiction under K.S.A. 2013 Supp. 23-2904 to reinstate or extend maintenance beyond October 2014.
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Powell, J.:
Vearl W. Jones, Jr, and Linda J. Jones are the owners of real property in Wyandotte County, Kansas, that contains a house and 10.4 acres of surrounding land. Beginning in 2011, the Joneses grew hay for sale on 9 acres of the property. However, the County classified the property as residential use for both the 2012 and 2013 tax years. Both years, the Joneses unsuccessfully appealed this classification to the small claims division of the Court of Tax Appeals, now the Board of Tax Appeals (BOTA), seeking to have the property designated as agricultural which would trigger a lower ad valorem tax rate.
The Joneses then appealed the classification for tire 2012 and 2013 tax years to BOTA, arguing that the subject property, excluding the portion containing the house, was land devoted to agricultural use and should be classified as such. BOTA sustained the subject property’s original classification use as residential. The Joneses now appeal to this court, contending that the portion of their property that does not contain the house is land devoted to agricultural use. Because we agree with BOTA that the Joneses’ property is suburban residential acreage primarily used for residential purposes, we affirm.
Factual and Procedural Background
BOTA accurately recited the facts as follows (Note: The Joneses are referred to as Taxpayer.):
“The Taxpayer acquired the subject property in 1994. At tire time of acquisition, the property was used for agricultural purposes and no residence was present on the property. The subject residence was constructed on the property in 1995.
“In December 2011, the Taxpayer notified Natalie Koberlein of the Wyandotte Count}' Appraiser’s office that 9 acres of the subject property was over-seeded, fertilized, and the resulting hay crop was pre-sold. The Taxpayer does not claim the income derived from sale of the hay crop on [their] federal income tax return. Koberlein initially represented to the Taxpayer that the subject property’s classification would be changed, yet later submitted that she did not have authority to change the property’s classification for tax year 2012 and directed the Taxpayer to contact Ryan Carpenter, Assistant Wyandotte County Counselor. The Taxpayer further noted that there were vacant parcels in the subject area that were hayed that had been classified as agricultural use land by the County.
“Eugene Bryan, County Appraiser, testified that he has observed hay bales on the subject property, yet he determined that the mere presence of hay bales is not sufficient to allow property to qualify for the agricultural use classification. Bryan testified that the subject property is suburban residential acreage as described in K.S.A. 79-1476; therefore, it does not qualify for agricultural use classification. Bryan, further, submitted that Koberlein made statements beyond her authority when she represented to the Taxpayer that they may qualify for the agricultural use classification.
“The County determined that the subject property did not qualify for agricultural classification and did not change the property’s classification to agricultural use property for either tax year at issue.”
The Joneses appealed to BOTA, arguing only that the classification of the subject property for the 2012 and 2013 tax years was incorrect. BOTA sustained the subject property’s classification as residential use, determining that the land’s primary function was for residential purposes as described in K.S.A. 2013 Supp. 79-1476. As such, the subject property was excluded from land devoted to agricultural use.
The Joneses submitted a timely petition for judicial review.
Did BOTA Correctly Classify the Subject Property?
On appeal, the Joneses submit two arguments: (1) BOTA misinterpreted K.S.A. 2013 Supp. 79-1476 in determining that the subject property’s primary function was residential and not allowing a mixed-use classification; and (2) BOTA lacked substantial competent evidence supporting its determination that the subject property’s primary function was residential.
We review a decision from BOTA in the manner prescribed by the Kansas Judicial Review Act, K.S.A. 77-601 etseq. We may grant relief pursuant to K.S.A. 2015 Supp. 77-621, the pertinent portions of which provide:
“(c) The court shall grant relief only if it determines any one or more of the following:
“(4) the agency has erroneously interpreted or applied the law;
“(7) tire agency action is based on a determination of fact, made or implied by the agency, that is not supported to tire appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
We do not extend deference to an agency’s statutory interpretation and, instead, review such questions de novo. See Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013); In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1044, 271 P.3d 732 (2012). In matters of statutory interpretation, “[o]ur goal is to determine the legislatures intent through the statute’s language, which is generally done by giving ordinary words their ordinary meaning.” In re Protests of Oakhill Land Co., 46 Kan. App. 2d 1105, 1111, 269 P.3d 876 (2012). “Statutes that impose the tax are to be strictly construed in favor of the taxpayer.” In re Tax Appeal of Harbour Brothers Constr. Co., 256 Kan. 216, 223, 883 P.2d 1194 (1994).
With regard to BOTA’s factual findings, our duty is to determine whether the evidence supporting the agency’s factual findings is substantial when considered in light of the record as a whole. K.S.A. 2015 Supp. 77-621(c)(7); Sierra Club v. Moser, 298 Kan. 22, 62, 310 P.3d 360 (2013). The term “in fight of the record as a whole” is statutorily defined to include the evidence both supporting and detracting from an agency’s finding. K.S.A. 2015 Supp. 77-621(d). In reviewing the evidence in fight of the record as a whole, we neither reweigh the evidence nor engage in de novo review. K.S.A. 2015 Supp. 77-621(d).
A. Did BOTA misinterpret K.S.A. 2013 Supp. 79-1476 in determining the subject property’s appropriate classificationP
The Joneses argue BOTA misinterpreted K.S.A. 2013 Supp. 79-1476 by not allowing a mixed-use classification of residential and agricultural. K.S.A. 2013 Supp. 79-1476 provides, in pertinent part:
“Land devoted to agricultural use shall not include those lands which are used for recreational purposes,. .. suburban residential acreages, rural home sites or farm home sites and yard plots whose primary function is for residential or recreational purposes even though such properties may produce or maintain some of those plants or animals listed in the foregoing definition.” (Emphasis added.)
In short, K.S.A. 2013 Supp. 79-1476 serves to exclude from agricultural classification land primarily used for residential purposes regardless of whether such land has a subordinate agricultural use. See Board of Johnson County Comm’rs v. Smith, 18 Kan. App. 2d 662, 669, 857 P.2d 1386 (1993).
The Joneses, however, derive their argument from Directive #92-022, promulgated by the Kansas Department of Revenue, Division of Property Valuation and approved on November 3, 1992, which states:
“Many suburban residential acreages and rural homesites encompass anywhere from two to twenty acres, and in some cases even more. Although the house, garage and surrounding landscaped lawn may only occupy one acre, the remaining acreage should not be valued as agricultural land if the primary function is for residential or recreational puiposes....
“Each tract must be considered individually and delineated as to what is actually being used. While an appraiser may choose to include septic drain fields, zoning factors, etc., in the homesite delineation which might infer a minimum size, there can not be a standard size established for the homesite. Each site must be delineated on the map and the area calculated to the nearest one-tenth of an acre.”
Focusing entirely on the portion of Directive #92-022 that provides: “Each tract must be considered individually and delineated as to what is actually being used,” the Joneses contend BOTA was required to grant a mixed-use classification for the subject property. BOTAs failure to classify the portion of the subject property used for hay production was, according to the Joneses, an error of law.
We disagree because “in cases involving statutory construction, 'courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia.’” Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 323, 255 P.3d 1186 (2011) (quoting Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 [1975]). The Joneses’ argument outright ignores the remaining language in Directive #92-022 that clearly prohibits property from maintaining an agricultural classification where the primary use of the land is residential: “Although the house, garage and surrounding landscaped lawn may only occupy one acre, the remaining acreage should not be valued as agricultural land if the primary function is for residential or recreational purposes.”
Moreover, even if we were to agree with the Joneses’ construction of Directive #92-022 as allowing for a mixed-use residential and agricultural classification, as we have already suggested, it is prohibited by the statute. K.S.A. 2013 Supp. 79-1476 specifically excludes from an agricultural classification suburban residential acreages or rural home sites, either of which the Joneses’ property could be accurately described, which have as their primary function a x-esidential purpose. Because a directive cannot trump a statute, the Joneses’ argument fails. See NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 (1989) (quoting Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, Syl. ¶ 2, 691 P.2d 1303 [1984] [agency may not “modify, alter, or enlarge the legislative act which is being administered”]).
Both K.S.A. 2013 Supp. 79-1476 and Directive #92-022 clearly state that land primarily used for residential purposes cannot carry an agricultural classification. Therefore, we must reject the Jone-ses’ mixed-use argument.
B. Was BOTA’s determination that the subject land’s primary use was residential supported by substantial competent evidence?
Next, the Joneses contend that there is no evidence in the record supporting BOTAs decision that the subject property’s primary use was residential. Under an apparent assumption that the subject property was eligible for a mixed-use classification, the Joneses assert there is no factual support that the 9 acres used for growing hay is primarily used for residential purposes.
BOTA assessed the entire subject property together, however, and the facts supporting its conclusion are ample: (1) Linda Jones testified that the primary use of the property was as a home; (2) the Joneses bought the subject property in 1994 and completed construction of the house in 1995 yet only began using a portion of tire subject property for hay production in 2011; (3) the subject property contains a pond, driveway, and detached garage, all of which benefit tire home and cannot be used for agricultural purposes; and (4) Wyandotte County, the location of tire subject property, is one of the three most populated counties in Kansas.
In fight of the record as a whole, there was substantial and competent evidence upon which BOTA could rule that the primary use of the subject property was residential.
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Denied.
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The opinion of the court was delivered by
Rosen, J.:
On review of an unpublished opinion by the Court of Appeals, E.J.D. challenges the revocation of the stay of his adult sentence in an extended-jurisdiction juvenile proceeding and the denial of his motion for downward departure following the revocation of the stay.
E.J.D. experienced several encounters with the judicial system that precipitated the present appeal. On December 3, 2008, the State filed a complaint alleging that E.J.D. had committed one count of aggravated robbery and two counts of criminal threat in case number 2008-JV-000278. The aggravated robbery count alleged that E.J.D. had used a paintball gun to facilitate forcibly appropriating property that included a digital camera, a cell phone, $1 in cash, and a baseball cap from the victim. The State subsequently moved to certify him as an adult under K.S.A. 2008 Supp. 38-2347. The district court eventually denied the motion for adult certification and sentenced E.J.D. to a term of 51 months in a juvenile facility and an extended-jurisdiction adult sentence of 94 months.
On January 28, 2009, the State filed a complaint in case number 2009-JV-000011, alleging that E.J.D., while confined in the juvenile facility, committed two counts of battery on juvenile detention officers, a severity level 5 person felony. He entered a plea of no contest, and the district court adjudicated him an offender on the first count and dismissed the second count. The court denied the State’s motion to prosecute E.J.D. as an adult but determined that a preponderance of evidence demonstrated that the proceedings should be designated as an extended-jurisdiction juvenile prosecution under K.S.A. 2008 Supp. 38-2347. The court sentenced him to a term of 36 months in a juvenile correctional facility, with 24 months’ aftercare. The court also sentenced him to an adult criminal sentence of 32 months with 36 months’ postrelease supervision, with the sentence to run concurrent with the adult sentence in case 2008-JV-000278. The court stayed the adult criminal sentence on the condition that he not violate the provisions of the juvenile sentence and on the condition that he not commit a new offense.
On August 4, 2011, the State filed a motion to revoke the stay of execution of the adult sentence. The State based its motion on 86 disciplinary violations committed by E.J.D. while in custody and specified one particular act of alleged battery on another resident. On September 12, 2011, the State amended its motion to include a second incident of battery on another resident.
E.J.D. then filed a motion for a lesser sentence and a durational departure from his sentence in 2009-JV-000011. The district court denied the motion and determined that he had committed an act that would constitute a criminal act if perpetrated by an adult and ordered him committed to the custody of the Department of Corrections for 32 months, less time already served in juvenile custody.
In an unpublished opinion issued on August 2, 2013, the Court of Appeals affirmed the district court. In re E.J.D., No. 108,876, 2013 WL 3970205 (Kan. App. 2013) (unpublished opinion). This court granted E.J.D.’s petition for review on both issues that he raised in his petition. He did not seek review of a constitutional challenge that he raised in the Court of Appeals:
The first question that we address is whether the statutory scheme allows a juvenile defendant to seek a downward departure upon the lifting of the stay on his adult sentence. We agree with the analysis set forth by tire Court of Appeals and affirm its holding that the statutory scheme does not allow modification of an adult sentence after a determination that a juvenile has violated the terms and conditions of an extended jurisdiction juvenile prosecution. 2013 WL 3970205, at *4-5.
K.S.A. 2014 Supp. 38-2347 and K.S.A. 2014 Supp. 38-2364 provide for extended-jurisdiction juvenile prosecutions, which allow courts to impose a juvenile sentence and a concurrent adult criminal sentence, the execution of which is stayed on the condition that the offender does not violate the provisions of the juvenile sentence and does not commit a new offense.
When the district court took up the matter of revoking the stay of his juvenile sentence, E.J.D. requested a downward departure before imposition of his adult sentence. The district court denied the motion, citing a lack of legal authority for downward departure of adult sentences originally imposed under the juvenile code.
The standard for reviewing a lower court’s statutory interpretation is unlimited and de novo. State v. Williams, 299 Kan. 911, 925, 329 P.3d 400 (2014); State v. Kingsley, 299 Kan. 896, 899, 326 P.3d 1083 (2014).
K.S.A. 2014 Supp. 21-6817 provides for departure sentences in adult criminal proceedings. The statute provides that the defendant may file a motion for a departure sentence “[wjhenever a person is convicted of a felony.” K.S.A. 2014 Supp. 21-6817(a)(l). The corresponding section of the juvenile code specifically allows an upward departure of a juvenile sentence, to no more than double the maximum duration of the presumptive imprisonment term. K.S.A. 2014 Supp. 38-2371. That same statute also specifically denies district courts the authority to impose downward durational sentences and allows courts to consider only aggravating factors, not mitigating factors.
E.J.D. did not move for a departure on his adult sentence before it was pronounced from the bench in 2009. A criminal sentence becomes effective when it is pronounced from the bench. See State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012). The date of sentencing is the final action with respect to the duration of the sentence, even if imposition of the sentence is suspended. State v. Royse, 252 Kan. 394, 397, 845 P.2d 44 (1993).
The fundamental rule of statutory interpretation is that the intent of the legislature is dispositive if it is possible to ascertain that intent. The language of a statute is the primary consideration in ascertaining tire intent of the legislature because the best and only safe rule for determining the intent of the creators of a written law is to abide by the language that they have chosen to use. Courts therefore look to the plain and unambiguous language of a statute as the primary basis for determining legislative intent. See Merryfield v. Sullivan, 301 Kan. 397, Syl. ¶ 2, 343 P.3d 515 (2015).
K.S.A. 2014 Supp. 38-2364(b) requires that, upon making a finding supporting revocation of the juvenile sentence, “the court shall revoke the juvenile sentence and order the imposition of the adult sentence previously ordered . . . .” This explicit language supersedes any analysis of why provisions for reducing sentences in other forms of adult criminal proceedings should apply.
In the same statutory paragraph, the legislature provided for one specialized means for reducing the adult sentence: “upon agreement of the county or district attorney and the juvenile offender’s attorney of record, the court may modify the adult sentence pre viously ordered.” K.S.A. 2014 Supp. 38-2364(b). Having set out the specific means for modifying the adult sentence in the context of imposing the adult sentence in extended-jurisdiction cases, the legislature has made it clear other criminal-code modification procedures are inapplicable. Specific provisions within a statute take precedence over general statutory provisions, and the juvenile code provisions are more specific. See In re A.M.M.-H., 300 Kan. 532, 539, 331 P.3d 775 (2014).
In the present case, E.J.D. did not file a request for a departure before he was sentenced to the stayed adult sentence. He sought departure before the court revoked the stay on his adult sentence, but, as tire Court of Appeals properly held, he had waited too long and he could not obtain a departure sentence after his juvenile sentence was revoked.
E.J.D. next argues that the State failed to present sufficient evidence to prove that he committed a new offense. He contends that, while he may have engaged in misconduct after his adult sentence was stayed, he did not commit any new offenses as a matter of law. The State responded, and the Court of Appeals agreed, that E.J.D.’s videotaped and admitted misbehavior constituted batteries, which sufficed to invoke the “new offense” trigger for imposition of the adult sentence. K.S.A. 2014 Supp. 38-2364(b).
The district court is required by statute to find the commission of a new offense by a preponderance of the evidence. K.S.A. 2014 Supp. 38-2364(b). When a district court considers a question of fact that must be proved by a preponderance of the evidence, the review by this court is limited to determining whether substantial competent evidence supports the district court’s finding. State v. Bailey, 292 Kan. 449, 453, 255 P.3d 19 (2011).
The State presented the following evidence to the district court to support its allegation that E.J.D. committed a new offense:
A juvenile facility officer testified that he witnessed E.J.D. standing over another youth, launching closed-fist blows toward the youth’s head and shoulders. E.J.D., after giving a sworn statement, elected to plead no contest to a disciplinary infraction of battery. As a result, E.J.D. served 20 days in disciplinary segregation and forfeited 17 days good time credit.
A teacher at the facility testified about a fight that took place in her classroom a couple of months after the first fight. She testified that E.J.D. threw the first punch and hit another student on the back of tire head. He again entered a no contest plea to fighting, this time resulting in 30 days of disciplinary segregation and forfeiture of 15 days of good time credit.
E.J.D. testified that he initiated tire fights preemptively based on reports he had heard that tire other youths intended to harm him. The district court also viewed videotapes of tire two incidents. The district court concluded that E.J.D. had engaged in conduct that amounted to battery and that the court was therefore required to impose the original adult sentence.
The plain language of K.S.A. 2014 Supp. 38-2364(b) tells us that the district court is not limited to basing revocation of juvenile sentences in extended-jurisdiction cases on convictions. The statute speaks of “offense[sj,” not “crimes” or “convictions.” The statute also places the finding of the commission of a new offense in parallel with a determination that the juvenile violated conditions of the juvenile offense, which would not necessarily include criminal convictions. The statute may therefore be better understood as establishing conditions resembling probation revocation in adult proceedings.
In the context of adult criminal procedure, no criminal conviction, or even criminal charges, are required to justify revocation of probation. See State v. Rasler, 216 Kan. 292, Syl. ¶ 1, 532 P.2d 1077 (1975) (to sustain order revoking probation because of commission of new criminal offense, State need not prove commission of offense beyond reasonable doubt); see also Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) (parole revocation not part of criminal prosecution, so full panoply of constitutional rights in criminal proceeding does not apply to revocation proceedings); Standlee v. Rhay, 557 F.2d 1303, 1307 (9th Cir. 1977) (criminal acquittal does not bar parole revocation based on conduct asserted at criminal trial); State v. Thompson, 687 N.E.2d 225, 229 (Ind. App. 1997) (court may revoke probation under preponderance of evidence standard even when State did not convict defendant by establishing guilt beyond reasonable doubt); Vaughn v. State, 962 P.2d 149, 152 (Wyo. 1998) (court may revoke probation even though defendant acquitted in criminal proceeding based on same act).
It is not contested that E.J.D. engaged in misconduct that can be characterized as battery. The district court had before it sufficient evidence to conclude that E.J.D. had committed new offenses, even if those offenses were not formally charged. The Court of Appeals applied the proper standard of review and correctly determined that the evidence supported the district court’s decision to revoke the stay of execution of the adult sentence.
The judgment of the Court of Appeals is affirmed, and the judgment of the district court is affirmed.
Luckert, J., not participating.
Preston A. Pratt, District Judge, assigned.
Michael J. Malone, Senior Judge, assigned. | [
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Atcheson, J.:
Plaintiff Mahnaz Consolver decided to change lawyers partway through this personal injury action she filed in Sedgwick County District Court. Bradley A. Pistotnik, the forsaken lawyer, filed a lien against any recovery for his fees and expenses. After Consolver s new lawyer settled the underlying tort claim, the district court enforced the lien by awarding Pistotnik a partial fee based on the contingency clause of his contract with Consolver. The district court erred. We remand for a redetermination of the fee due Pistotnik founded on a lodestar calculation consistent with the equitable principles of quantum meruit that govern in this circumstance.
For purposes of the attorney fee issue in front of us, we need not recount the circumstances of the motor vehicle collision between Consolver and Defendant Chris Hotze. And given our conclusion that the district court applied the wrong measuring stick in fashioning the fee due Pistotnik, we similarly need not detail the evidence presented at the lien hearing. We offer only the facts essential to placing our legal determination in context.
Consolver signed a contract with Pistotnik in April 2011 to represent her in getting compensation for injuries she received in the motor vehicle collision about a month earlier. The contract set Pistotnik’s compensation as 33½ percent of any recovery realized before the final pretrial conference and 40 percent of a recoveiy after that point. If Consolver recovered nothing, she owed Pistotnik nothing for his services or the case expenses. The contract did not contain a clause governing termination of the lawyer-client relationship before resolution of the underlying personal injury claim or how Pistotnik should be compensated in that event.
Pistotnik filed suit against Hotze and undertook discovery. About a year later, Pistotnik had active settlement negotiations with Hotze’s lawyer. Hotze had offered $225,000, and his lawyer indicated $300,000 might be available if Consolver were scheduled for additional surgeiy for her injuries. Pistotnik understood Consolver to say she had been set for another surgery, but he could not confirm that understanding with her physician. Pistotnik, however, advised Hotze’s lawyer Consolver would be having more surgery. Actually, Consolver neither had the surgery nor had she ever been scheduled for the procedure. But based on Pistotnik’s representation, Hotze’s lawyer extended a $300,000 settlement offer by email on June 30, 2011, and confirmed the offer by letter 2 days later.
In the meantime, however, Consolver fired Pistotnik as her lawyer in a letter faxed to his office on June 28. Consolver hired Stephen Brave. Pistotnik promptly filed and served a statutory lien claiming $106,771 in fees and expenses. Brave did additional discovery in the case and settled the suit against Hotze in mid-2012 for $360,000.
Consolver, still represented by Brave, could not resolve Pistot-nik’s fee lien. The district court held an evidentiary hearing on July 9,2013, at which Consolver, Pistotnik, and Hotze’s lawyer testified. The district court entered an order with accompanying findings of fact and conclusions of law awarding Pistotnik $86,944 in fees and $10,156 in expenses. To determine a fee satisfying the lien, the district court began with the $300,000 offer made shortly after Pistotnik had been fired, deducted the expenses, and then applied the 33 1/3 percent contingency from the contract—yielding $96,518. Based on its finding that Pistotnik “did the majority of the work to prepare the case for settlement [or] trial,” the district court concluded 90 percent of that amount or $86,944 represented an appropriate attorney fee. Finally, the district court added in the expenses to come up with an award of $97,101 to Pistotnik in satisfaction of his lien. The district court characterized that approach as reflecting a quantum meruit determination of the compensation due Pistotnik.
Consolver has timely appealed tire district court’s fee award.
The determination of reasonable legal fees is typically entrusted to the district court’s sound discretion. Unruh v. Purina Mills, 289 Kan. 1185, 1200, 221 P.3d 1130 (2009); Johnson v. Westhoff Sand Co., 281 Kan. 930, 940, 135 P.3d 1127 (2006). A district court exceeds that discretion if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Pistotnik’s right to compensation for his legal services derives from his contractual relationship with Consolver. But the contract contained no terms dealing with payment should Consolver terminate Pistotnik before the litigation ended. In the absence of such provisions, the courts have generally held that a client must compensate the terminated lawyer based on equitable principles of quantum meruit or unjust enrichment. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 904, 220 P.3d 333 (2009); Madison v. Goodyear Tire & Rubber Co., 8 Kan. App. 2d 575, 579, 663 P.2d 663 (1983). Consolver and Pistotnik agree on this much of the law. Under a quantum meruit theory, a party conferring a benefit on another party is entitled to recover tire value of the benefit conferred if the recipient knew of the benefit and retention of the benefit without compensation would be inequitable under the circumstances. Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, Syl. ¶ 6, 910 P.2d 839 (1996); City of Neodesha v. BP Corporation, 50 Kan. App. 2d 731, 780, 334 P.3d 830 (2014) (necessary conditions for quantum meruit recovery include inequity of retaining benefit “without payment of its value”); Jones v. Culver, 50 Kan. App. 2d 386, 390, 329 P.3d 511 (2014) (same).
Before discussing the application of quantum meruit in this case, we mention several matters that either are not disputed here or do not arise on these facts. First, nobody contends Pistotnik failed to perfect an attorney lien under K.S.A. 7-108, thereby encumbering the settlement funds to the extent of any compensation due him. The statute, however, does not address how to establish the amount of compensation. Next, Consolver had a right to terminate her contract with Pistotnik at any time with or without good cause. See Kansas Rule of Professional Conduct (KRPC) 1.16(a)(3), comment 4 (2014 Kan. Ct. R. Annot. 583) (client may discharge lawyer at any time); see also Nostrame v. Santiago, 213 N.J. 109, 121, 61 A.3d 893 (2013) (client free to discharge lawyer at anytime); Balestriere PLLC v. BanxCorp, 96 A.D.3d 497, 497, 947 N.Y.S.2d 7 (2012) (well-settled public policy of New York permits a client to terminate attorney-client relationship freely at any time). Consol-ver did not discharge Pistotnik for demonstrable negligence or dereliction or some other good cause. We, therefore, do not presume to consider such a situation and expressly reserve any comment on what compensation, if any, might be equitable when a client dismisses a lawyer for good cause in a contingent-fee matter. Likewise, we do not speculate about two variations on the theme of this dispute: (1) the efficacy of a contract termination clause calling for the lawyer to receive some share of an eventual recovery or another measure of compensation; and (2) the compensation that might be due a terminated lawyer if his or her replacement recovered little or nothing for the client.
Payment based on quantum meruit depends on the value or worth of the benefit to the recipient. And the value, therefore, should be viewed from the perspective of the recipient. Put another way, the recipient ought to owe an amount roughly equivalent to what he or she might reasonably expect to pay on the open market for the goods or services constituting the benefit. Canyon Ambulatory Surgery v. SCF Arizona, 225 Ariz. 414, 422, 239 P.3d 733 (2010); Children’s Hospital Central California v. Blue Cross of California, 226 Cal. App. 4th 1260, 1274, 172 Cal. Rptr. 3d 861 (2014); Matter of Estate of Carroll, 436 N.E.2d 864, 866 (Ind. App. 1982); see Scheiber v. Dolby Laboratories, Inc., 293 F.3d 1014, 1022-23 (7th Cir. 2002). We see no reason that measure shouldn’t apply here.
In this case, the district court stepped outside the legal principles guiding quantum meruit to premise the fee award to Pistotnik on the contingency percentage in the contract with Consolver. A quantum meruit payment is fundamentally incompatible with a contingency fee in a contract for legal services. By design, a contingency fee builds in a premium over and above the fair market value of the services to account for the risk of no recovery—and, thus, no payment—not only in that case but in other cases the lawyer considers or takes. In other words, a contingency fee realized in a given case offsets uncompensated time the lawyer spends investigating or litigating matters that end up producing no revenue. See Burlington v. Dague, 505 U.S. 557, 565, 112 S. Ct. 2638, 120 L. Ed. 2d 449 (1992) (“An attorney operating on a contingency-fee basis pools the risks presented by his various cases: cases that turn out to be successful pay for the time he gambled on those that did not.”); Pennsylvania v. Del. Valley Citizens' Council, 483 U.S. 711, 719-20, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987). Pis-totnik’s lawyer acknowledged that economic reality. The premium, however, confers no added value or benefit to the client receiving a favorable settlement or judgment. That amount exceeds the fair market value of the lawyer’s services measured by what those services would cost based on the benefit conferred. In turn, a contingent-fee model should not be used to establish a quantum meruit value of a lawyer’s services to a particular client, since that would effectively require the client to subsidize the lawyer’s other contingent-fee work.
The district court, therefore, erred in its basic approach to the issue, and the result is necessarily legally flawed.
The lodestar method of calculating attorney fees provides a sounder foundation for a quantum meruit award. A court malees a lodestar fee calculation by determining a reasonable hourly rate for the legal services and multiplying that by the reasonable number of hours required to handle the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983) (outlining lodestar method); Citizens Utility Ratepayer Bd. v. Kansas Corporation Comm'n, 47 Kan. App. 2d 1112, 1126, 284 P.3d 348 (2012); Kroshnyi v. U.S. Pack Courier Services, Inc., 771 F.3d 93, 108 (2d Cir. 2014). The hourly rate should reflect the prevailing rates in the community for lawyers of comparable experience and skill doing similar work, i.e., civil litigation. Blum v. Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984). Usually, the community is considered the general geographical area in which the underlying case has been litigated. Snider v. City of Cape Girardeau, 752 F.3d 1149, 1159 (8th Cir. 2014); Navarro v. Monarch Recovery Management, Inc., No. 13-3594, 2014 WL 2805244, at *2 (E.D. Pa. 2014) (unpublished opinion). The reasonable time to perform the work commonly will be derived from contemporaneous records showing specific tasks and the time taken to perform them. The reviewing court may adjust the recorded time to eliminate duplicative work, excessive conferences, and other unwarranted inefficiencies. Hensley, 461 U.S. at 434 (no award for “hours that are excessive, redundant, or otherwise unnecessary”); Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998).
In addition, the court should take into account die criteria outlined in KRPC 1.5(a) (2014 Kan. Ct. R. Annot. 515) for determining the reasonableness of a fee, excluding whether the .fee is fixed or contingent. The KRPC 1.5 factors consider the time required, customary fees or rates for comparable legal services, constraints the litigation imposed on the lawyer in terms of deadlines or forgoing other work, the experience and skill of the lawyer, the nature of the ongoing professional relationship (if any) between the lawyer and die client, the value of what was at stake in the case, and the result obtained. They incorporate and expand upon the lodestar components of reasonable rate and reasonable time.[l]
[l]The criteria in KRPC 1.5 are used to assess the reasonableness of lawyer compensation under the rules of professional conduct. They apply to agreed-upon or contractual arrangements for payment. In most kinds of cases, a contingent fee is proper. See KRPC 1.5(f). Had Pistotnik completed Consolver’s case, the fee arrangement in their contract would have been entirely appropriate under KRPC 1.5. Although a client may pay a premium under a contingent fee contract if the case is successfully resolved, he or she receives a benefit at the outset in not having to pay for the lawyer’s services should there be no recovery. Virtually no litigation is risk free, so the arrangement is both reasonable and ethical. Here, however, the fee is not driven by the contract—Consolver terminated that agreement—but by the purely equitable considerations of quantum meruit. Those considerations depend solely on the value of the services and, therefore, exclude any premium that could be charged for the services.
A lodestar computation, folding in the relevant KRPC 1.5 criteria, should generate a fee amount approximating the fair market value of the services a lawyer has provided to a client and, thus, the value of the benefit conferred for a quantum memit award. See Perdue v. Kenny A., 559 U.S. 542, 551, 130 S. Ct. 1662, 176 L. Ed. 2d 494 (2010) (“[T]he lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.”)- The federal courts in New York, for example, have used that process, combining factors like those in KRPC 1.5 with a lodestar calculation, to establish fees due terminated lawyers on charging or attorney liens. Sequa Corp. v. GBJ Corp., 156 F.3d 136, 148-49 (2d Cir. 1998); Antonmarchi v. Consolidated Edison Co. of New York, 678 F. Supp. 2d 235, 242 (S.D.N.Y. 2010); Balestriere PLLC v. CMA Trading, Inc., No. 11 Civ. 9459, 2014 WL 7404068, at *3-5 (S.D.N.Y. 2014) (unpublished opinion).
On remand, the district court should determine the quantum memit fee due Pistotnik using the lodestar method with any appropriate modifications consistent with the relevant criteria in KRPC 1.5. We recognize this may require reopening the eviden-tiary record and trust the district court to do so in a way promoting efficient resolution of the fee dispute. In that respect, we offer a couple of observations. First, the reasonable hourly lodestar rate is a market rate for lawyers’ services in the area. The hourly rate Pistotnik may quote for his own services is not a direct proxy for the market rate in the Wichita area for experienced civil litigators, although it may have some relevance if he has been regularly hired on that basis.
Second, at the initial hearing, Pistotnik testified that he did not keep contemporaneous time records of the work he did for Con-solver. Nor did he attempt to prepare a detailed, after-the-fact accounting of his time. Rather, Pistotnik testified to a broad range of what he estimated to be the total number of hours he spent on the case—a very rough determination that came across as little better than a guess. That sort of generic reporting is unacceptable for lodestar purposes. Although the courts understandably have a distinct preference for contemporaneous time records, they can and do consider “reconstructed” records derived from a lawyer s careful review of the file and his or her studied recollection. See Hensley, 461 U.S. at 437-38 & nn.12, 13 (district court properly discounted claimed hours in lodestar calculation absent contemporaneous time records); Sheldon v. Vermonty, 237 F. Supp. 2d 1270, 1277-78 (D. Kan. 2002) (district court reduces compensable hours because time records were general and apparently not contemporaneous); Ragin v. Harry Macklowe Real Estate Co., 870 F. Supp. 510, 520 (S.D.N.Y. 1994) (same); Har-Tzion v. Waves Surf & Sport, Inc., No. 7:8-CV-137, 2011WL 3421323, at *2 (E.D.N.C. 2011) (“Although contemporaneous time records are greatly preferred, adequate reconstructions may support an [attorney fee] award.”). The district court should carefully review any such records presented on remand and resolve doubts about their sufficiency or the reasonableness of the reported time against Pistotnik, since he chose not to keep a contemporaneous accounting.
We have limited our discussion to the attorney fee component of the award in satisfaction of Pistotnik’s statutory Hen without separately addressing the expenses. The parties, too, have focused on the fees rather than the expenses. On remand, however, the district court may revisit both aspects of the overall lien award to Pistot-nik. [2]
[2] Given our disposition of the case, we need not review the implications of some of the district court’s factual findings that might be fairly questioned. For example, the district court relied on the $300,000 settlement offer as a basis for its fee calculation. The offer, however, was extended after Pistotnik had been terminated. The last offer to Consolver while Pistotnik represented her was $225,000. More troubling, however, the $300,000 offer was triggered by a misrepresentation—later corrected—that Consolver would undergo additional surgery. We fail to see how a settlement offer obtained through a mistaken representation should be considered at all in establishing a reasonable fee. The district court also never explained how it determined “the case was 90% complete” when Consolver terminated Pistotnik. The percentage has no anchor in the district court’s findings of fact or conclusions of law.
Finally, we note and quickly reject Consolver’s alternative argument that Pistotnik should receive no fee because the contract limited the contingency to a recovery he obtained for her—something that didn’t happen here. The contract is not so limited. It simply requires the agreed-upon percentage be applied to “whatever amount is recovered ... whether by settlement or trial.” More fundamentally, however, Consolver can’t terminate the contract, particularly absent good cause, and tiren rely on the terms of the contract to defeat an equitable claim for payment.
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Powell, J.:
Christopher R. Ward appeals his convictions of theft by deception and making false information by making four arguments on appeal: (1) The State failed to present sufficient evidence to support his crimes of conviction; (2) his constitutional right to a jury trial was infringed when the judge orally instructed the jury that it “must” find the defendant guilty if it had no reasonable doubt as to the truth of any of the State s claims; (3) he was denied his right to a fair trial when the prosecution mentioned an adult store and the district court failed to mitigate the resulting prejudice; and (4) cumulative errors deprived him of a fair trial.
After reviewing the record, we find there was insufficient evidence to convict Ward of theft by deception as the named victims were not induced by Ward’s fraud and for making false information because Ward altered a check written by another. We therefore reverse his convictions.
Factual and Procedural Background
In April 2010, Andrew Rhodes and Ward formed a construction company partnership called All Construction Guaranteed Roofing & Restoration (ACG) in which they operated as general contractors. In this role, Rhodes and Ward purchased and supplied the materials and hired subcontractors to complete the work. Once a project was concluded, ACG paid the invoices for materials and paid the subcontractors for their work.
Rhodes and Ward lacked a written business agreement and orally agreed to evenly split the profits of their enterprise. They incorporated ACG and opened a business checking account to which they were both authorized signers. Rhodes and Ward did not pay themselves a regular salary but, rather, would periodically review the account and determine the amount of profit that had been generated by a given job before splitting that profit. Additionally, when one partner required funds for a particular personal expense, a check for the expense would be drafted from the business account and the other partner would also receive a check from the account in the same amount.
From 2010 to 2011, ACG was profitable. However, by 2012, due to disorganized accounting practices and less opportunities to conduct business, ACG was near bankruptcy. Rhodes and Ward, in an effort to keep ACG in business, contracted to perform a large repair and painting job on Barrington Park Estates—a large complex of 4- and 8-plexes. ACG was to be paid for its work in installments; however, ACGs subcontractors insisted on payment immediately upon completing their work. As a result, ACG did not have sufficient funds on hand to complete the contract.
This prompted Ward to suggest a meeting with Orín Sweeney, a business acquaintance of his and owner of Night & Day Remodeling, to request a capital investment. Rhodes, although unacquainted with Sweeney, agreed, and Ward met with Sweeney in May 2012. Following the meeting, Ward informed Rhodes that Sweeney was willing to partner with ACG on the Barrington Park Estates contract by offering an infusion of money, so long as ACG was willing to pay back the loaned money plus remit to Sweeney $15,000 of the contracts profit. Rhodes agreed.
Sweeney testified that when ACG ran into cash-flow problems, Ward approached him in order to work out a mutually beneficial agreement whereby Sweeney would provide the money to allow ACG to complete its Barrington Park Estates project. After assessing the projects profitability, Sweeney decided to participate. On May 21,2012, he and Ward negotiated an agreement and attempted to memorialize it in a writing signed by both men. Rhodes was neither present for the contract negotiation, nor did he sign the contract. The written agreement contained multiple iterations of conflicting terms, some typewritten and others handwritten. The final iteration of contract terms represented that Sweeney would provide $20,000 to fund the remainder of the Barrington Park Estates project. ACG would then receive the next $17,000 in profits (presumably in order to fund the remainder of the project). In exchange for the $20,000, the contract provided that Sweeney would recoup his original investment plus $15,000 from the projects profits after ACG received its $17,000 from the profits. Any surplus profit thereafter would belong to ACG.
Thus, Sweeney wrote a check for $20,000 to ACG. According to Sweeneys testimony, Ward requested that Sweeney make the check out to ACG “or Chris Ward.” However, Sweeney declined to add Ward’s name to the checks payee line because his agreement was with ACG, not Ward as an individual.
In June 2012, after failing to receive payments as promised, Sweeney contacted Rhodes to garner ACG’s performance of the contract terms. Ward was out of town at the time. During their conversation, Sweeney disclosed the $20,000 check he had paid to ACG, but Rhodes discovered the check had never been deposited into ACG’s business account. When Rhodes contacted Ward by telephone to discuss the matter, Ward said he was busy and could not help resolve the discrepancy. Rhodes and Sweeney decided to file police reports.
Upon closer review of his records, Sweeney discovered that the $20,000 check he had written on his Bank of America business account with “ACG Restoration” on the payee fine and provided to Ward on May 22, 2012, had been altered to include “or Chris Ward” on the payee line. Further, the check had been deposited into Ward’s personal account at First National Bank instead of ACG’s business account.
Rhodes did not speak to Ward again until November 22, 2012. During their conversation over the telephone, Ward apologized to Rhodes for “everything.” Meanwhile, Rhodes and Sweeney came to a new agreement that allowed ACG to conclude die Barrington Park Estates project. Sweeney was eventually able to recover the original $20,000 when Sweeneys bank—Bank of America—returned the funds to Sweeneys account following a fraud affidavit filed by Sweeney.
At trial, Ward’s interpretation of the contract between Sweeney and ACG diverged from Rhode’s and Sweeneys versions. Ward testified that he and Sweeney originally agreed that Sweeney would provide a total of $45,000 in assistance for the Barrington Park Estates project: $22,500 of which Ward would receive immediately and a subsequent $22,500 that would eventually go to Rhodes. After further negotiation, Ward was to immediately receive $20,000 from Sweeney, Rhodes was to receive a total of $20,000 from the profits of the Barrington Park Estates project, and Sweeney was then to receive the remainder of the profits from the Barrington Park Estates project. Thus, according to Ward, he did not inappropriately deposit the money. When asked what he did with the $20,000 he obtained from Sweeney, Ward testified that he took it to a casino to gamble in an attempt to keep ACG in business. He also admitted that he added “or Chris Ward” to the payee line of the check in order to deposit the check into his personal account at First National Bank, an act he deemed “endorsing” the check.
On cross-examination, the State asked Ward about the entries on his personal checking account statement around the time of the $20,000 deposit, including the multiple debits from an ATM inside a casino. During the exchange, the State turned its attention to another entiy on Ward’s account statement and asked, ‘What is Cirillo’s?” The district court sustained defense counsel’s immediate objection. The defense, out of the presence of the jury, then moved for a mistrial on the basis that the reference to a “porn shop” was impermissibly prejudicial to Ward. The district court ordered the State to “stay away from that.” In response, the State reverted to asking about Ward’s casino ATM withdrawals.
The State had charged Ward with one count of theft by deception, see K.S.A. 2015 Supp. 21-5801(a)(2), and one count of making false information, see K.S.A. 2015 Supp. 21-5824. The States complaint listed “ACG Restoration or Bank of America” as the victims of Ward’s alleged theft by deception, and the jury was instructed accordingly. The jury convicted Ward as charged; the district court sentenced him to 30 months in prison and ordered restitution to First National Bank in the amount of $20,000.
Ward now appeals his convictions.
Did the State Present Sufficient Evidence to Support Ward’s Crimes of Conviction?
Ward submits three arguments in support of his larger contention that the State produced evidence insufficient for the jury to convict him of the crimes charged. First, he argues the State presented insufficient evidence for the jury to convict him of theft by deception. Second, as part of his attack against his theft by deception conviction, Ward argues it was legally impossible for him to commit theft of partnership property because he coowned said property alongside his partner. Third, he argues the State presented insufficient evidence for the jury to convict him of making false information.
When the sufficiency of evidence is challenged in a criminal case, we review all the evidence in the fight most favorable to the prosecution; the conviction will be upheld if the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt based on that evidence. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).
A. Did the State present sufficient evidence for a jury to convict Ward of theft by deceptionP
Ward contends the State -provided insufficient evidence for a juiy to convict him of theft by deception because the facts, taken in the fight most favorable to the State, could not support a conviction of theft of ACG s or Bank of Americas property. Rather, Ward argues the evidence presented could only support a conviction of theft by deception of First National Banks property because the only entity literally deceived by Ward s misrepresentation was First National Bank.
The State charged that Ward obtained $20,000 from ACG or Bank of America through a theft by deception, and the jury was correspondingly instructed. The crime of theft by deception is derived from K.S.A. 2015 Supp. 21-5801(a)(2): “(a) Theft is any of the following acts done with intent to permanently deprive the owner of the possession, use or benefit of the owners property or services: ... (2) obtaining control over property or services, by deception.” Here, in order to prove theft by deception according to the complaint, the State was required to prove (1) that Ward obtained control over property by means of a false statement or misrepresentation, (2) that the false statement or misrepresentation deceived ACG or Bank of America, and (3) that ACG or Bank of America in whole or in part relied upon the false statement in relinquishing control of the property. See State v. Rios, 246 Kan. 517, 526-27, 792 P.2d 1065 (1990).
In Kansas, the victim must be deceived by the defendant in order to support a conviction for theft by deception. See K.S.A. 2015 Supp. 21-5801(a)(2). In State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1973), the defendant was charged with theft by deception after purchasing clothing with a switched price tag. However, the Kansas Supreme Court reversed the conviction because the cashier was aware that the defendant switched the price tags and was directed nevertheless to allow the defendant to complete the transaction in order to catch the defendant in the act. 223 Kan. at 398-99, 404. Finchs misrepresentation did not deceive the victim and induce the victim to relinquish control of the property, rendering a conviction of theft by deception impossible.
Our Supreme Court recently reiterated this concept in State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015):
“Theft by deception demands a specific kind of proof from the State. The statutory language demonstrates clearly that the legislature intended to require the State to prove that the intended victim ‘was actually deceived and actually relied upon the false representation in order for the defendant to be found guilty of theft by deception.’ [Citation omitted.]”
Therefore, the essential question is whether ACG or Bank of America, the victims fisted on the State’s charging document and the victims as instructed to tire juiy, actually relied on Ward’s false representation and relinquished control of the $20,000 in reliance on Ward’s false representation. If this is not so, Ward’s theft by deception conviction cannot stand.
First, ACG was not induced into relinquishing control of the $20,000 as a result of Wards false representation. Although ACG was contractually conditioned to receive $20,000 from Sweeney, ACG was not itself in possession of the money at the time Ward altered Sweeneys check and presented it to First National Bank. Moreover, ACG was not deceived by Wards alteration of Sweeneys check as it neither had the opportunity to inspect nor to be fooled by the altered check. In fact, Rhodes was unaware that Sweeneys check had not reached its intended destination until weeks later. As such, the elements of theft by deception are not supported by the evidence in the record with ACG as the victim.
Second, the State argues that when Sweeneys check drawn on a Bank of America account was presented for deposit, it was altered in a manner that was intended to deceive Bank of America into honoring tire check and transferring the funds from Sweeneys business account at Bank of America into Wards personal account at First National Bank. Thus, a rational jury could find that Ward deceived Bank of America.
We disagree because such a jury could not find that Bank of America relied on the deception to transfer possession of its property to Ward. Under the Uniform Commercial Code (UCC), K.S.A. 84-1-101 et seq., Bank of America—as the payor bank—was induced to honor First National Banks demand for payment under the transfer warranties contained in the UCC, not because of any misrepresentations made by Ward. See K.S.A. 2015 Supp. 84-4-207(a)(3) (collecting bank warrants check not altered); K.S.A. 84-4-105(3) (“ ‘Payor bank’ means abank that is the drawee of a draft”); see also 11 Am. Jur. 2d, Banks and Financial Institutions § 909, p. 44 (collecting bank which indorses check guarantees authenticity).
Put another way, it was actually First National Bank’s property that was transferred to Wards,possession through his deception. First National Rank, as the collecting bank that honored tire fraudulent check, sought reimbursement from Bank of America as the payor bank; Bank of America paid because First National Bank warranted that the check was authentic. This fact becomes clearer after considering that once Sweeney discovered the fraud, he eventually recovered his $20,000 from Bank of America, which in turn recovered its $20,000 from First National Bank.-See 11 Am. Jur. 2d, Banks and Financial Institutions § 909, p. 44 (if prior indorsement a forgeiy, collecting bank liable to drawee bank for money paid to it by such bank). Indeed, as part of his sentence Ward was ordered to pay $20,000 in restitution to First National Bank because, after the transfers were unwound, it was First National Bank that was left without its property.
In sum, although the evidence presented in the case supports a conviction for theft by deception of First National Banks property, the State did not name First National Bank as the victim in its complaint, and the jury was not instructed to convict should it decide that Ward obtained the $20,000 from First National Bank through deception. Because the State incorrectly named ACG and Bank of America as victims in its complaint and the juiy was instructed accordingly, we must reverse Ward’s conviction of theft by deception. Because we have reversed Ward’s theft conviction, we need not address his second contention that, as a matter of law, he could not commit theft of partnership property.
B. Did the State present sufficient evidence for a jury to convict Ward of making false informationP
Ward also argues the State provided insufficient evidence to support his conviction for making false information as defined by K.S.A. 2015 Supp. 21-5824(a). Assuming the State’s factual allegations are true, Ward specifically contends the crime committed was forgeiy, arguing drat his acts constituted the altering of a written instrument. The State responds that because the false instrument concerned Ward’s own affairs, he was properly convicted of making false information. Resolving this issue requires us to interpret both the forgery and making false information statutes, and our review is unlimited as interpretation of a statute is a question of law. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S. Ct. 91 (2014).
The State observes, and we agree, that a treatise could be written on the foggy delineation between forgery and making false information in Kansas. See State v. Greathouse, No. 110,344, 2014 WL 6775814, at *2 (Kan. App. 2014) (unpublished opinion) (distinction between forgery and making false information source of some confusion). We will attempt to clear the fog by starting from the beginning.
K.S.A. 2015 Supp. 21-5824(a) defines making false information as
“making, generating, distributing or drawing, or causing to be made, generated, distributed or drawn, any written instrument, electronic data or entry in a book of account with knowledge that such information falsely states or represents some material matter or is not what it purports to be, and with intent to defraud, obstruct tire detection of a theft or felony offense or induce official action.”
Meanwhile, K.S.A. 2015 Supp. 21-5823(a)(l) defines forgery:
“(a) Forgery is, with intent to defraud:
(1) Making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed by another person, either real or fictitious, and if a real person without the authority of such person; or altering any written instrument in such manner that it purports to have been made at another time or with different provisions without the authority of the maker thereof; or making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed with the authority of one who did not give such authority.”
In order to convict a defendant of making false information, the State must prove (1) the defendant knowingly made, generated, or distributed a written instrument; (2) the defendant knew the instrument to be false; and (3) the defendant had the intent to defraud, obstruct the detection of a felony, or induce official action. See K.S.A. 2015 Supp. 21-5824(a); State v. Gotti, 273 Kan. 459, 461, 43 P.3d 812 (2002). Under the forgery statute, the State must prove (1) the defendant knowingly made, altered, or endorsed a written instrument; (2) the writing appeared to have been made by another person; and (3) the writing was made with the intent to defraud. See K.S.A. 2015 Supp. 21-5823(a)(l); Gotti, 273 Kan. at 461-62.
In Rios, 246 Kan. 517, our Supreme Court first addressed the distinction between making a false writing (now called making false information) and forgery. There, the State charged the defendants with making a falsé writing because they produced bogus refund vouchers purportedly on behalf of customers in order to obtain cash. Our Supreme Court held that although the definitions of making a false writing and forgery were similar, the two crimes were distinct and the principal factor distinguishing the two was that forgery involved “the making of an instrument which appears to have been made by another without that person’s consent.” 246 Kan. at 529. In reversing the defendants’ convictions, the court created a bright-line distinction between making a false writing and forgery that declared the specific conduct described in our forgery statute, K.S.A. 21-3710—now recodified as K.S.A. 2015 Supp. 21-5823 (“purports to have been made, altered or endorsed by another person”)—to constitute forgery and only forgery. 246 Kan. at 529-30.
In its- discussion on the distinction between forgery and making a false writing—the significance of which will become apparent later given the State’s position that Ward’s acts related to his own affairs—the Rios court recited and commented on prior instances of making a false writing:
“Previous cases of making a false writing coming before us involved: statements in an application for a bank loan, State v. Roberts-Reid, 238 Kan. 788, 714 P.2d 971 (1986); statements in a false bank loan extension intended by bank officials to deceive bank exáminers, State v. Kee, 238 Kan. 342, 711 P.2d 746 (1985); statements made on city license and sales tax registration applications, State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979); and statements in campaign finance reports, State v. Doyen, 224 Kan. 482, 580 P.2d 1351 (1978).
“In each of these cases, the charged defendant was alleged to have written or caused to be written an instrument containing false statements. The false statements were related to the defendant’s own business or affairs.” (Emphasis added.) 246 Kan. at 528-29.
Our Supreme Court revisited this issue in Gotti, 273 Kan. at 464-65, comparing the new making false information statute, see K.S.A. 2001 Supp. 21-3711 (as amended in 1997, the successor statute to K.S.A. 21-3711 [Furse], making a false writing), to K.S.A. 21-3710, the prior forgery statute. In Gotti, the defendant produced phony retail receipts purportedly initiated by another employee in order to induce a retailer into giving him merchandise. Like in our case and in Rios, the defendant claimed he should have been charged with forgery instead. In examining this question, the Gotti court engaged in a lengthy discussion of Rios:
“Rios noted two problems with the application of the false writing statute to the defendants’ actions: ‘The first problem concerns the nature of the instruments themselves. The second concerns the intended and actual use of the instruments.’ [Citation omitted.] With regard to the first concern, the court cited prior case law involving the crime of making a false witting, concluding that the prior cases involved a defendant having made a false statement regarding his or her own affairs. However, the convictions in Rios were based on Ae phony vouchers purportedly signed by Dillard’s customers: ‘In short, Ae vouchers were forged instruments.’ [Citation omitted.] The court then quoted Ae forgery statute, K.S.A. 21-3710, and concluded as follows:
“ ‘Forgery is a class E felony. Malang a false writing is a class D felony. Clearly, the legislature intended that Ae conduct proscribed by K.S.A. 21-3711 deserves a more severe penalty Aan does Ae conduct proscribed by K.S.A. 21-3710. The State herein apparently believes it is free to elevate any forgery to Ae making of a false writing at whim as the latter statute includes all forgeries. We do not agree. The forgery statute specifically proscribed Ae making of an instrument which appears to have been made by another without that person’s consent. Such other person may be real or fictitious. This is precisely what defendants are alleged to have done herein, and, hence, the conduct cannot also constitute the making of a false writing contrary to K.S.A. 21-3711.’ 246 Kan. at 529-30.” (Emphasis added.) 273 Kan. at 462-63.
The court reversed Gotti s conviction
“based on Ae first of Ae two concerns addressed by the court in Rios. K.S.A. 2001 Supp. 21-3711, with regard to the first concern, requires that the making of false information be done in Ae writer’s own name. A forgery is a writing which purports to be that of another. This case presents Ae same concern. The receipts purported to have been initiated by another employee .... However, the evidence presented to the trial court showed that the transaction was initiated by Gotti.” 273 Kan. at 463-64.
Thus, the Gotti court reaffirmed the Rios courts distinction between making false information and forgery by emphasizing that a false writing constituted forgery when the writing was purportedly that of another.
However, after a discussion with regard to the second concern about intent to defraud as also discussed in Rios, die Gotti court stated:
“While Ae [1997] amendment to K.S.A. 21-3711 could have addressed Ae second concern in Rios, as applied to Ae facts of that case, Ae amendment Ad not affect the court’s first concern that forgery is the ‘making of an instrument which appears to have been made by another without Aat person’s consent,’ while making false information involves the perpetrator's ‘own business or affairs. ’ 246 Kan. at 529.” (Emphasis added.) 273 Kan. at 465.
The references by both the Rios and Gotti courts to making false information as involving the defendant’s own business or affairs may have led another panel of our court to elevate the description of making false information as involving the defendants own Business or affairs to the primary distinguishing test between making false information and forgery. In State v. Dahlke, No. 92,755, 2006 WL 851235 (Kan. App.) (unpublished opinion), rev. denied 282 Kan. 792 (2006), the defendant made a false check in his own name, purportedly drawn on the account of Primerica Financial Services, and cashed it at a grocery store. Dahlke was charged and convicted of making false information. Again, like in the present case, Dahl-ke argued he was guilty of forgery, not making false information. Despite noting that the Gotti court held that the defendant was not guilty of making false information because “the writing was not made in regard to the defendants own affairs because it was made in the name of the other employee [and] a false writing must be done in the writers own name,” 273 Kan. at 464, the Dahlke panel upheld the defendant’s making false information conviction:
“Dahlke appears to misconstrue the legal issue as acting in one’s own name when the real question is whether the false statements are related to tire defendant’s own business or affairs. [Citation omitted.] In Gotti and Rios, the courts concluded that tire statements were not related to the defendant’s affairs because they were done entirely in someone else’s name. However, the Primerica check was made out to Dahlke and he cashed it by presenting his own driver’s license, which was recorded on tire check. The claim that the check was not related to Dahllce’s affairs is against reason. Therefore, Dahlke was not improperly charged.” 2006 WL 851235, at *11.
We respectfully disagree. As our analysis above shows, our Supreme Court held that the defendants in both Rios and Gotti were not guilty of either making a false writing or making false information because the false instruments they created were purportedly made by another, not because the documents related or did not relate to the defendants’ “own business or affairs.” Rios, 246 Kan. at 529; see Gotti, 273 Kan. at 463-65. In fact, we observe that the term “own business or affairs” is not defined, nor is it contained in the elements of either forgery or making false information. Repeated holdings by our Supreme Court have stated that the plain language of the statute governs. See, e.g., State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014). Therefore, in our view, the question is whether one is acting in ones own name and not “whether the false statements are related to the defendants own business or affairs.” See Dahlke, 2006 WL 7851235, at *11.
Two other panels of our court have followed Dahlke down this path. In State v. Spencer, No. 102,339, 2010 WL 3731585 (Kan. App.) (unpublished opinion), rev. denied 291 Kan. 917 (2010), the defendant falsified his proof of insurance card and presented it to an employee of the local county treasurer in an effort to renew his motorcycle registration. The defendant was ultimately charged with and convicted of making false information; on appeal, the defendant argued that his conduct constituted forgery instead. The panel affirmed his conviction, stating:
“Here, Spencer was attempting to renew the license plate on his motorcycle. In order to do so, he had to present proof that he had insurance coverage on the motorcycle. Spencer presented the County with a document in his own name that falsely stated he had insurance on his motorcycle. Although Spencer alleged the card was made by the insurance company, it was a falsification of Spencers own insurance card in an effort to renew his license plates.” 2010 WL 3731585, at "2.
Again, we disagree. Spencer was correct that his acts constituted forgery because he created a false document purportedly from his insurance company. The employee of the county treasurers office would not have accepted any document purportedly made by the defendant and would have renewed Spencers motorcycle registration only because of the credibility of a document purportedly from the insurance company. That was the essence of the fraud, and that was forgery according to Rios and Gotti.
In State v. Odegbaro, No. 108,493, 2014 WL 2589707 (Kan. App. 2014) (unpublished opinion), rev. denied 302 Kan. 1018 (2015), the error, in our view, is the same. There, one of the conditions of Odegbaro s probation was that she maintain full-time employment. To enforce this requirement, her probation officer required that she submit pay stubs at each of their monthly meetings. Odegbaro represented to her probation officer that she was both an employee and part-owner of a company called Cokeza Styles and subsequently provided pay stubs and a paycheck, listing her as the payee and signed by Michael Bassey, all of which were purportedly from Cokeza Styles. After an investigation revealed that Odegbaro had been receiving unemployment benefits during the time she was supposedly working for Cokeza Styles, she was charged and convicted of multiple counts of making false information. As in the other cases, Odegbaro asserted on appeal that she was guilty of forgery, not making false information, because each of the documents she submitted appeared to be made by someone other than her. Relying on Dahlke and Spencer, in addition to quoting from Gotti, 273 Kan. at 465, that “making false information involves the perpetrators own business or affairs,” the panel held that since Odegbaro “acted to further her own business affairs,” her actions constituted making false information. Odegbaro, 2014 WL 2589707, at *4. However, like in Spencer, the essence of the fraud was that the documents Odegbaro gave to her probation officer had the air of authenticity because they were purportedly made by another—the defendants fictitious employer—which allowed Odegbaro to escape (temporarily) the consequences of being unemployed contrary to the conditions of her probation. Her actions constituted forgery for that reason.
Even when viewing the evidence in the fight most favorable to the State, Ward’s addition of “or Chris Ward” to the payee fine of the check written by Sweeney creates a false instrument purportedly made by another with the intent to defraud. Such an act constitutes forgery, not making false information. See K.S.A. 2015 Supp. 21-5823(a)(1); K.S.A. 2015 Supp. 21-5824(a).
Finally, buttressing our conclusion today is Wards assertion that the written instrument in this case, the check written by Sweeney, was not made by Ward but was instead altered by him. We agree. K.S.A. 2015 Supp. 21-5823(a)(1) includes altering a written instrument as an element of forgery. However, altering a written instrument is not an element of malting false information. While the term “alter” is not defined by the forgery statute, “alteration” is defined in the UCC as “(1) an unauthorized change in an instrument that purports to modify in any respect the obligation of a party, or (2) an unauthorized addition of words or numbers or other change to an incomplete instrument relating to the obligation of a party.” K.S.A. 84-3-407(a); see also Blacks Law Dictionary 94 (10th ed. 2014) (“An act done to an instrument, after its execution, whereby its meaning or language is changed; esp., tire changing of a term in a negotiable instrument without the consent of all parties to it.”). That is exactly what happened here. Ward altered the check written by Sweeney by adding his own name to the payee line in order to allow him to deposit the funds into his personal account. Again, that act is forgery, not making false information. Accordingly, we must reverse Wards conviction of making false information.
We recognize that our decision likely is frustrating to those charged with enforcing the laws of our state given our change in direction with regard to the proper standard to be used in distinguishing making false information from forgery, and we fully appreciate the fact that their charging decisions in this case and others were no doubt in reliance on the prior decisions of our court. But we cannot follow other panels of our court where in our considered judgment they are in error. See State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010) (one Court of Appeals panel not bound by another); Uhlmann v. Richardson, 48 Kan. App. 2d 1, 13, 287 P.3d 287 (2012) (“While we must carefully consider each precedent cited to us, we also must uphold our duty to correctly determine the law in each case that comes before us. In doing so, we sometimes find that we must respectfully disagree with the opinion of another panel.”), rev. denied 298 Kan. 1208 (2013).
Because we have reversed both of Ward’s convictions, his other allegations of error are moot.
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Buser, J.:
Student Loan Marketing Association, by and through its servicing agent, Sallie Mae Servicing, L.P. (SLMA), filed suit against Richard D. Hollis for default on seven separate promissory notes. These notes, in the principal amount of $83,730, were made available by the United States Department of Health and Human Services’ Federal Health Education Assistance Loan Program (HEAL). SLMA appeals the district court’s holding that Hollis was entitled to judgment as a matter of law due to SLMA’s failure to make a prima facie case that the defendant, Hollis, was the same individual who applied for, signed or authorized the notes, and received the proceeds from these loans. We reverse and remand.
Factual and Procedural Background
In January 2003, SLMA filed a petition in Sedgwick County District Court against Hollis alleging that he defaulted on seven promissory notes. Hollis filed a pro se answer and motion to dismiss in February 2003. In his answer and attached affidavit, Hollis denied owing any money to SLMA or that SLMA lent any money to him. Hollis also denied "‘any signature on any alleged copy of the alleged "original’ document or instrument being used against me.” Among his affirmative defenses, Hollis claimed the notes were void due to fraud in the inducement. In particular, Hollis claimed the lender made deliberate misrepresentations “for the purpose of defrauding Defendant.” After retaining counsel, Hollis filed an amended answer June 2003, wherein he restated many of his affirmative defenses.
In March 2004, the district court filed a pretrial conference order based upon the parties’ completion of pretrial questionnaires. Among the issues of law identified by Hollis were: “What is the duty or obligation or undertaking by the lenders in these promissory notes, and is that duty satisfied if the lender used the Defendant’s notes to be the actual funding source of any credit or money advanced to the Defendant?” Another issue of law presented by the defense was: “What is the legal effect of the Defendant’s notice of renunciation?”
Hollis raised three issues of fact that were incorporated into the pretrial order. These issues dealt with whether SLMA or the various lenders used “Defendant’s notes as the funding source of the alleged loans made to Defendant”; whether Hollis was “fraudulently induced to enter into these alleged loan transactions based upon misrepresentations by the various lenders”; and “Did the Defendant sign the various notes instruments?” No issue of law or fact was raised by Hollis addressing whether he was, in fact, the “Richard D. Hollis” who applied for and obtained the seven promissory notes and received but did not repay the proceeds.
Shortly before trial, the district court entered an agreed-upon order granting SLMA’s motion to amend its pleading changing its name, as plaintiff, from Sallie Mae Servicing, L.P. to the correct name of Student Loan Marketing Association, by and through its servicing agent, Sallie Mae Servicing, L.P.
The district court held a bench trial in April 2004. At the outset of the trial, Hollis moved the court for judgment on the pleadings and failure to join a necessary party. Hollis claimed Sallie Mae, Inc., a Delaware corporation, had not been made a party to the proceedings, making the original and amended pleadings defective on their face. The court overruled Hollis’ motion because “[t]here was no claim set out to preserve that issue.”
In its case in chief, SLMA called as its only witness, Robin Zimmerman, an employee of SLMA who worked on the health education loan litigation accounts. According to Zimmerman, SLMA was servicing seven HEAL promissoiy notes signed by Richard D. Hollis.
All seven promissoiy notes signed by Richard D. Hollis were admitted into evidence over Hollis’ objection that Zimmerman had admitted she did not personally witness Hollis sign the documents. Six loan applications with Richard D. Hollis listed as the prospective borrower were also admitted into evidence over Hollis’ objection.
Zimmerman testified that SLMA acquired each promissory note from various lenders. Rills of sale or purchase agreements for each promissory note were admitted into evidence over Hollis’ objection. Five letters notifying the borrower of SLMA’s purchase of his loans, which were sent to Richard D. Hollis, were also admitted. Zimmerman testified that SLMA did not receive any payment from Hollis after sending these letters. All seven notes went into default for nonpayment in September 2002. An amortization schedule for each note was admitted into evidence. SLMA rested after Zimmerman’s testimony.
Hollis renewed his motion for judgment on the pleadings and raised an oral motion that “there has been no testimony whatsoever that’s come forth in their presentation or in any of the evidence that has verified that this is Mr. Hollis’ signature.” SLMA countered that it was Hollis’ burden to present evidence that the signatures on the notes were not his signatures. The district court ruled: “With the absence of any evidence that ties these documents that have been admitted, these notes and various purchasing promissory notes and applications, essentially, the Court has no way to find that the defendant, Mr. Hollis, is the same one whose signature appears on the documents in question.” The court granted Hollis’ motion for judgment as a matter of law. SLMA requested permission to reopen its case-in-chief to call Hollis as an adverse witness. The court denied the motion.
In its journal entry of judgment, the district court found that Hollis was entitled to judgment as a matter of law because SLMA failed to carry its burden of proof as to the matters set forth in the pleadings. In particular, the court found: (1) SLMA had no independent knowledge of whether Hollis received any benefit from the promissory notes; (2) SLMA’s witness did not establish personal knowledge that the notes were signed by Hollis; (3) SLMA presented no evidence to establish that Hollis is the same Richard D. Hollis who signed the notes; and (4) SLMA failed to call Hollis as an adverse witness to establish that he signed the notes.
SLMA timely appealed the court’s judgment.
Standard of Review
In 1997 the legislature modified K.S.A. 60-250 renaming a motion for a directed verdict as a motion for judgment as a matter of law. See L. 1997, ch. 173, sec. 26; K.S.A. 2004 Supp. 60-250. Accordingly, the same standard of review for a directed verdict applies to a motion for judgment as a matter of law. Stover v. Superior Industries Int'l, Inc., 29 Kan. App. 2d 235, 237, 29 P.3d 967, rev. denied 270 Kan. 903 (2000).
“ “When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict.’ [Citation omitted.]” Wilkinson v. Shoney's, Inc., 269 Kan. 194, 202, 4 P.3d 1149 (2000).
The district court determined Hollis was entitled to judgment as a matter of law because SLMA failed to sustain its burden of proof. When a district court malees a negative factual finding, it signifies the party having the burden of proof did not meet its burden. Such a finding will not be disturbed by an appellate court absent proof of an arbitrary disregard of undisputed evidence, or some extrinsic consideration such as bias, passion, or prejudice. Mynatt v. Collis, 274 Kan. 850, 872, 57 P.3d 513 (2002).
Issue on Appeal
The issue for our review is whether, resolving all facts and inferences reasonably to be drawn from the evidence in favor of SLMA, the trial court arbitrarily disregarded the undisputed evidence when it ruled that SLMA failed to make a prima facie case that the Richard D. Hollis who applied for and received student loans but defaulted in repayment was, in fact, the defendant, Hollis.
Identity of Name as Prima Facie Evidence of Identity of Person
In an action for breach of contract, die burden of proof is on the plaintiff to show: (1) execution and existence of the contract alleged in the petition; (2) sufficient consideration to support the contract; (3) performance or willingness to perform in compliance with the contract alleged; and (4) the defendant’s breach insofar as such matters are in issue. Commercial Credit Corporation v. Harris, 212 Kan. 310, 313, 510 P.2d 1322 (1973).
In the present case, there was both testimonial and physical evidence that SLMA entered into loan agreements and provided loan proceeds which were not repaid. The issue in dispute was whether Hollis was, in fact, the Richard D. Hollis who signed the loan ap plications and promissoiy notes and received but did not repay the proceeds.
SLMA asserts it met its prima facie burden of proof by introducing documentary and testimonial evidence regarding Richard D. Hollis, which is the same name as the defendant’s name. In support of its contention, SLMA relies on Bayha v. Mumford, 58 Kan. 445, 49 Pac. 601 (1897). In Bayha, an action on a creditor’s bill, the appellants challenged the defendants’ impeachment of a plaintiff s witness with a record of an 1874 embezzlement conviction by an individual with the identical name of the witness. The plaintiffs maintained this testimony was inadmissible without other evidence showing proof of identity that the individual who was convicted was the same person as the witness. Our Supreme Court determined the testimony was admissible because “identity of name is prima facie evidence of identity of person, and it devolves upon those who deny the identity to overcome the presumption by proof. [Citations omitted.]” 58 Kan. at 446.
Hollis does not dispute Bayha’s precedential value but claims that case has been “tempered” by State, ex rel., v. Dunn, 118 Kan. 184, 190, 235 Pac. 132 (1925), overruled on other grounds, Graham v. Corporon, 196 Kan. 564, 413 P.2d 110 (1966). Dunn involved a proceeding in mandamus to compel the Wichita city commissioners to hold an election based upon petitions containing tire names of purportedly qualified electors. Our Supreme Court cited Bayha’s holding and paraphrased it to state that identity of a name “raises a presumption of identity of person, which presumption may be strong or weak, depending upon many circumstances.” Dunn, 118 Kan. at 190. We read Dunn as being in harmony with Bayha’s ruling that an identity of name creates a presumption of identity of person.
In more recent times, and in the context of criminal cases involving proof of prior convictions, Kansas courts have consistently applied Bayha’s holding that “[a]bsent a denial of identity or rebuttal evidence, proof beyond the identity of the name in the document is not required for admission of the evidence . . . Identity of name is prima facie evidence of identity of person,’ and proof must be offered to overcome that presumption.” (Emphasis added.) State v. Greever, 19 Kan. App. 2d 893, 900, 878 P.2d 838 (1994) (quoting Bayha, 58 Kan. at 446); see State v. Baker, 237 Kan. 54, 54-55, 697 P.2d 1267 (1985); State v. Cippola, 202 Kan. 624, 629, 451 P.2d 199, cert. denied 396 U.S. 967 (1969); State v. Bizer, 113 Kan. 731, 732, 216 Pac. 303 (1923); State v. Maggard, 24 Kan. App. 2d 868, 878, 953 P.2d 1379, rev. denied 264 Kan. 823 (1998).
While acknowledging the presumption of identity of person, Hollis attempts to overcome it by suggesting that his current address in Wichita is different than the home addresses of Kansas City and Houston listed on the 1993 to 1996 loan documents. This, according to Holhs, creates “a presumption of fact that the Richard D. Holhs signing these promissory notes resides either in the Kansas City or Houston . . . area.” Holhs’ contention is not persuasive. First, he provides no statutory or case law support for this factual presumption of residency that he claims exists in Kansas law. Second, in both his original answer and his first amended answer Hollis averred that he was only “temporarily” residing in Wichita.
Moreover, the credibility of Hollis’ argument is further compromised by the fact that in the pretrial order, Holhs did not deny he was the Richard D. Hollis involved in the loan transactions. To the contrary, Holhs raised defenses that were valid only if he was, in fact, Richard D. Holhs. In particular, Hollis alleged he was “fraudulently induced” to enter into the loan transactions based upon misrepresentations by the various lenders and drat the SLMA or the various lenders improperly “used the Defendant’s notes” as a funding device. Finally, Hollis’ counsel in his opening statement never raised the issue of identity, but argued:
“[W]e contend that Mr. Hollis embarked on an opportunity to do his own due diligence to determine who, if anyone, was the proper party to be remitting any funds that may have been provided to him, that he did that with diligence. He made inquiry. And that his inquiry was thwarted on each and every letter from the plaintiff for the other parties, whoever they might be with regard to his inquiry as to who might be holder in due course of his note.”
In summary, Hollis did not defend this case on the theory that he was not, in fact, Richard D. Holhs. To the contrary, his legal defenses were predicated on the notion that he was, in fact, Richard D. Hollis. Most important, prior to the district court’s ruling, Hollis did not develop any evidence to overcome the presumption of identity of person that SLMA established by proving the identity of name.
The loan applications, promissory notes, SLMA business records, and testimony by Zimmerman clearly created a presumption of identity of name and person. By ignoring this presumption, the trial court arbitrarily disregarded the undisputed evidence that Hollis was, in fact, Richard D. Hollis. Resolving all facts and inferences reasonably to be drawn from the evidence in favor of SLMA, we hold the district court erred in granting Hollis judgment as a matter of law.
Finally, Hollis argues in the event SLMA’s first ground of appeal is successful, we should uphold the trial court’s “dismissal” because SLMA is not the real party of interest. Hollis raised this argument before the district court, and it was overruled. Hollis had 20 days after SLMA filed its notice of appeal to file a cross-appeal in order to present this adverse ruling for appellate review. K.S.A. 2004 Supp. 60-2103(h). His failure to file a cross-appeal precludes our consideration of this issue. See Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191, 106 P.3d 483 (2005).
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Pierron, J.:
Edward Paul Laine appeals the district court’s order setting aside a Journal Entry of Judgment and Decree of Divorce he obtained in Kansas from his wife Gale T. Gregoiy-Laine. Edward argues the Kansas district court had jurisdiction to enter the divorce, the court misinterpreted K.S.A. 60-260(b)(4) and (6) in granting the order to set aside based on the doctrine of comity, and the judge entering the order to set aside cannot substitute his judgment for the judge entering the divorce decree. We affirm.
Edward and Gale were married on May 1,1994, in Indiana, but they moved to Texas. There was one child of the marriage, Reagan, bom October 11, 2001. Reagan has never resided in Kansas. After the parties became estranged, Edward moved to Wichita in August 2000.
On January 2, 2002, Gale filed a divorce action in Texas. On January 17, 2002, Edward hired counsel and filed an answer in the Texas divorce action and then filed his first counterpetition for divorce on March 18, 2003. Edward hired different counsel and filed his second amended counterpetition for divorce on May 23, 2003.
On October 15, 2003, Gale obtained a temporary restraining order and order setting a hearing in the Texas divorce case. The order set October 29, 2003, as the hearing date to determine if a temporaiy injunction should be entered. The order restrained Edward from
“[i]nstituting any action in any other county, state, or nation attempting to obtain temporaiy or permanent orders concerning the marriage relationship of the parties, the dissolution of that relationship, spousal support, the conservatorship, custody, and support of the children of the parties, or any other order normally issued incident to a divorce proceeding or other proceeding involving the marital or parent-child relationship.”
On October 17, 2003, for whatever reason, Edward filed a petition for divorce in the Sedgwick County District Court of alleging that he had accumulated certain property within the State of Kansas during his marriage to Gale and it should be awarded to him as his sole and separate property. On that same date, Edward sent a letter to the clerk of the district court in Texas referring to the Kansas divorce action and stating he would not be available for the restraining order hearing on October 29, 2003, due to lack of advance notice. He requested a final trial date for the Texas divorce action. On October 29, 2003, the Texas district court issued a supplemental temporaiy injunction enjoining Edward from instituting, maintaining, or prosecuting divorce proceedings until resolution of the Texas divorce.
Gale received service of process of the Kansas divorce action on November 28, 2003. Gale did not enter an appearance in the Kansas divorce action. On December 30, 2003, Edward appeared with counsel before District Judge Anthony J. Powell for a default divorce proceeding. At the default hearing, Edward informed the district court there was “an ongoing domestic proceeding out of Dallas County in Texas that involves, among other things, the cus tody and visitation regarding [his] minor child.” Edward asked the court to enter orders relating to the Kansas property he had acquired during his residency in Kansas. Edward’s counsel informed the court that Gale’s attorney in Texas advised that Gale would not come to Kansas. There was no mention or discussion of the temporary injunction during the hearing. Based on In re Marriage of Salas, 28 Kan. App. 2d 553, 19 P.3d 184 (2001), Judge Powell granted a default divorce and awarded various investment accounts and savings bonds, a retirement account, a savings account, and life insurance policy to Edward. The court entered its order on December 30, 2003.
On February 2, 2004, Gale filed a motion for an order to set aside the Journal Entry of Judgment and Decree of Divorce in the Kansas divorce pursuant to K.S.A. 60-260(b)(4) and (6). Before a hearing on the motion to set aside, the Texas district court granted a Final Decree of Divorce on March 18, 2004, addressing custody of the child, child support, spousal maintenance, property division, and attorney fees. The Kansas district court heard the motion to set aside on April 12, 2004, before District Judge David J. Kaufman. By letter ruling on April 27, 2004, Judge Kaufman granted Gale’s motion based on the doctrine of comity. Judge Kaufman stated he had examined the entire record and the relevant case law and decided the case was “far beyond the law set forth in Salas.” Judge Kaufman stated the Texas court had personal jurisdiction over all parties and that Edward had actively litigated the Texas divorce case but was simply dissatisfied “with the manner in which the Texas case was proceeding.”
Edward argues the district court erred in granting Gale’s motion to set aside. He contends the Kansas district court had jurisdiction to enter the divorce pursuant to Salas. He also maintains the district court misinterpreted K.S.A. 60-260(b)(4) and (6) in granting the order to set aside based on the doctrine of comity and that Judge Kaufman could not substitute his judgment for that of Judge Powell by setting aside the Kansas divorce decree.
The district court’s decision based on the doctrine of comity falls within K.S.A. 60-260(b)(6), which allows relief where there is “any other reason justifying relief from the operation of the judgment.” The ruling on a motion for relief from judgment rests within the sound discretion of the district court and absent an abuse of that discretion will not be reversed. In re Marriage of Welliver, 254 Kan. 801, 811, 869 P.2d 653 (1994). We will find an abuse of discretion only where no reasonable person would take the view adopted by the district court. See In re Marriage of Zodrow, 240 Kan. 65, 68, 727 P.2d 435 (1986). “K.S.A. 60-260(b)(6) is to be liberally construed to preserve the delicate balance between the conflicting principles that litigation be brought to an end and that justice be done in light of all the facts.” Wirt v. Esrey, 233 Kan. 300, Syl. ¶ 2, 662 P.2d 1238 (1983).
The theory at the forefront of this case is the doctrine of comity. Judicial comity is tire principle where the courts of one jurisdiction or state give effect to tire decisions of courts of other jurisdictions or states out of deference and respect. Whether a district court should have declined jurisdiction over a case under the doctrine of comity is reviewed under the abuse of discretion standard as well. See Anderson v. Anderson, 214 Kan. 387, 392, 520 P.2d 1239 (1974); Boyce v. Boyce, 13 Kan. App. 2d 585, 590, 776 P.2d 1204, rev. denied 245 Kan. 782 (1989).
In Hepner v. Hepner, 115 Kan. 647, 223 Pac. 1095 (1924), a wife instituted an action for alimony; the husband then went into Oklahoma, secured a divorce from the wife, and pleaded the Oklahoma divorce as a bar to the action for alimony. It was held the Kansas court having prior jurisdiction of the action by the wife against her husband for alimony could not be ousted of its jurisdiction over the parties and subject matter by the institution of the later action in another state by the husband against the wife for a divorce, nor because such later action proceeds first to judgment by default in the husband’s favor. The court held the judgment in Oklahoma was not a bar to the wife’s prior action for alimony where the wife did nothing to abandon her right to litigate her cause to a conclusion in the court of prior jurisdiction. 115 Kan. 647, Syl. ¶ 1.
The Hepner court found that since the Kansas court had acquired prior jurisdiction of the parties and the subject matter, noth ing thereafter done in Oklahoma could strip the Kansas court of jurisdiction. Citing various prior Kansas decisions, the court stated:
“This is an elementary rule of comity between courts. But the rule is more than one of mere comity. It is one of fundamental necessity to the dignified and orderly administration of justice and to prevent a collision of authority between courts, with all the unseemly consequences bound to flow therefrom. [Citations omitted.]” 115 Kan. at 647-48.
See Watts v. Watts, 151 Kan. 125, 131, 98 P.2d 125 (1940).
In Boyce, the plaintiffs filed suit in Kansas for child support immediately after they lost an identical suit in Nebraska. After noting the rules of comity, the court ruled that the district court did not abuse its discretion in declining jurisdiction because disappointed plaintiffs should not be allowed to engage in forum shopping after they have lost an identical suit in another state. 13 Kan. App. 2d at 590-91. This court declined jurisdiction, stating:
“It is well established that, when a court of competent jurisdiction acquires jurisdiction of the subject matter, its authority continues until the matter is finally disposed of and no court of coordinate jurisdiction should interfere with its action. Schaefer v. Milner, 156 Kan. 768, 775, 137 P.2d 156 (1943). Courts should exercise comity between themselves in order to avoid expense, harassment, and inconvenience to the litigants. Perrenoud, 206 Kan. [559] at 573. Under principles of comity, courts of one state give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect. Head, 242 Kan. 442, Syl. ¶ 2.” 13 Kan. App. 2d at 589-90.
In Anderson, 214 Kan. at 392, our Supreme Court found the Butler County District Court did not abuse its discretion when it accepted jurisdiction over a case while related proceedings were pending before the Sedgwick County District Court. In Anderson, the father and mother of a minor child were divorced in Minnesota and child custody was given to the father. The mother was given the right to take the child on a 4-week summer vacation to Wichita. While in Kansas, the mother exceeded the 4-week stay and filed suit in Sedgwick County seeking custody of the child. She was granted temporary custody pending further proceedings. The mother and child then moved to Butler County. The father filed a K.S.A. 60-1501 action in Butler County seeking custody of the child. The Butler County District Court found that full faith and credit should be given to the Minnesota divorce and child custody decree and granted custody to the father. Our Supreme Court stated:
“Under the principle of comity the Butler district court might . . . have deferred taking action on plaintiff s application for the writ until after the District Court of Sedgwick County had conducted a final hearing, but it was not required to give priority and we discern no abuse of discretion when it proceeded to hear its own lawsuit expeditiously. While we look widi no great favor on multiple litigation or legal maneuvering for position on the part of litigants [citation omitted] we are aware of no legal impediment to Judge Benson’s entertaining the habeas corpus action. The Butler district court had jurisdiction over the parties, over the subject matter and over the child, whether or not a suit for change of custody was pending elsewhere. The two actions were separate and distinct lawsuits and die question of priority of time in filing was immaterial.” 214 Kan. at 392.
The case at bar calls for application of the doctrine of comity. Edward argues tire case is controlled by Salas, 28 Kan. App. 2d 553, and his argument is patterned along the Salas theory. However, his argument is completely without merit. The Kansas court may have had personal jurisdiction over Edward and in rem jurisdiction over the Kansas property, but Texas had prior complete jurisdiction over both parties and all property. When Edward filed his Kansas divorce action, the Texas court had already exercised jurisdiction over the matter for almost to 2 years. As per the definition of comity, the Texas court was a court of competent jurisdiction that had acquired jurisdiction over the parties and the subject matter and its authority continued until the matter was finally disposed of and a Kansas court with coordinate jurisdiction should not interfere with its action.
Salas did not have any concerns involving the issues of comity, which is a critical distinction from the case at bar. Salas involved resolution of a Kansas divorce, involving Kansas property, where the court did not have subject matter jurisdiction over a spouse living in another state. There was no competing divorce action in another state. Further, in the instant case, the issue of the temporary restraining order issued by the Texas court of competent jurisdiction was not even brought to the attention of tire district court during the default proceedings. Salas is not applicable and provides no controlling authority.
The general rule is that courts should exercise comity between themselves in order to avoid expense and harassment and inconvenience to the litigants. This general rule is applicable not only between courts of coordinate jurisdiction within the same state, but between federal courts and state courts, and between state courts of different states. See Schaefer v. Milner, 156 Kan. 768, 775, 137 P.2d 156 (1943). The district court did not abuse its discretion in granting Gale’s motion to set aside the divorce pursuant of K.S.A. 60-260(b)(6) based on the doctrine of comity.
Edward also raises issues concerning the legality of allowing Judge Kaufman to hear the motion to set aside since he did not issue the divorce decree and also whether the Texas court had personal jurisdiction over him in any event. Neither of these issues were raised before the trial court. See Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003) (Issues not raised before the trial court cannot be raised on appeal.). Even had they been properly raised, we see no possibility of their being successful.
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McAnany, J.:
Johnny Baxter and another man stole and later damaged and abandoned a Chevrolet van owned by Gateway Outdoor Advertising Company (Gateway). The van was used in Gateway’s billboard advertising business. It was equipped with an aluminum scaffold and hooks used for installing advertisements on billboards. These items were missing when tire van was recovered. Baxter pled guilty to theft and was sentenced to 12 months’ probation, with an underlying sentence of 6 months in the county jail.
At a separate restitution hearing, Neil Phalen, a representative of Gateway, testified that he bought the scaffold in approximately 1990 for $800. The only company that manufactured the scaffold is no longer in business. Phalen testified that a welding company had stated it could fabricate a new scaffold for a cost of approximately $1,500 to $1,600. Phalen replaced his scaffold approximately every 20 years, but his inspection of this particular scaffold before the theft disclosed that it was in good condition. Phalen also claimed the scaffold was a unique tool.
Baxter objected to awarding Gateway the full replacement cost for the scaffold. The judge ruled:
“Well, the purest form of justice is to put the victim back to where they were before such an act was committed. Now, this scaffolding looks to me like it’s a unique piece of equipment, unique to the business. For instance, [a] musician may have an old violin. That doesn’t mean that it’s not worth to that musician what it was years ago.
“Certainly not Mr. Phalen’s fault that he’s missing the property. And, it looks to me like that’s a unique piece of equipment that you can’t buy in the open market. And, I think that in this case restitution would encompass what he paid for, or what he’s got to pay to get it replaced, so that will be my order, okay?”
The ultimate restitution order included the full replacement cost for the scaffold. Baxter now appeals from that order. Because the district court used the replacement value of the scaffold that was lost, rather than its current fair market value, we must set aside that portion of the restitution order relating to the scaffold and remand for further proceedings to determine an appropriate restitution order for its loss.
A sentencing court has wide discretion in ordering restitution and in selecting the manner in which it is calculated. The rigorous standards for proof of damages in a civil action do not apply in calculating an amount of restitution in a criminal case. Nevertheless, the victim is not entitled to restitution that exceeds the amount of the loss. See State v. Casto, 22 Kan. App. 2d 152, 153-54, 912 P.2d 772 (1996). In calculating restitution for a loss involving personal property, the item’s fair market value is the usual standard. State v. Rhodes, 31 Kan. App. 2d 1040, Syl. ¶ 2, 77 P.3d 502 (2003). Kansas courts have consistently held that an award of restitution that exceeds fair market value constitutes an abuse of discretion. See, e.g., State v. Hunziker, 274 Kan. 655, 664, 56 P.3d 202 (2002); Rhodes, 31 Kan. App. 2d at 1042-43; Casto, 22 Kan. App. 2d at 154; State v. Hinckley, 13 Kan. App. 2d 417, 419, 777 P.2d 857 (1989).
Here, the district court valued the scaffold based upon its replacement cost, not its fair market value. The district court reasoned that the value Phalen claimed it would cost to replace die scaffolding was appropriate since it was a unique piece of equipment that one cannot buy on the open market. In reaching this conclusion, the district court’s analogy of an old violin is incomplete. True, a high quality old violin is often worth more than its original purchase price. One of the world’s most famous, the “Soil” Stradivarius built by Antonio Stradivari in 1714 and now owned and played by Itzhak Perlman, is worth millions of dollars today. Though it is unique, its value, nevertheless, is based on the market. If there is a market for old Stradivarius violins, we doubt that there is no market for used scaffolds. Or, at least, there was no evidence to that effect.
Here, there was simply no evidence presented on the price that a willing seller and a willing buyer would agree upon in the sale of a scaffold of comparable age and condition in an arm’s-length transaction. Nor was there any evidence that Phalen inquired of other outdoor advertising companies about such a transaction. Given the number of outdoor advertising companies in the state, it is hard to imagine that none would part with such a scaffold if the price were right and if Gateway were willing to pay it. That price, with an upper limit of the $1,600 replacement cost, would establish the fair market value that is the required basis for a sustainable restitution order.
Baxter argues that the court should apply a straight-line depreciation schedule to the scaffold. He reasons that if it had a useful life of 20 years and was 16 years old at the time of the theft, its value was only 20% of its original cost. Anyone who has sold a new car a few months after its original purchase will confirm that straight-line depreciation is not always an accurate measure of fair market value. The buyer who paid $2,032,000 for the 1699 “The Lady Tennant” Stradivarius violin in 2005 certainly did not think so. Depreciation is a factor to be considered, but it does not trump the ultimate test: the fair market value of the item in an arm’s-length sale.
Restitution order vacated with respect to the amount attributed to the scaffold, and remanded for further proceedings. | [
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The opinion of the court was delivered by
Nuss, C.J.:
Per the general rule stated in K.S.A. 59-617, no will is effective unless a petition is filed for probate of the will within 6 months of the date of the testator’s death. The Marshall County District Court nevertheless admitted Betty Jo Strader’s will to probate when it was found in her attorney’s office more than 4 years after her death and court intestacy proceedings were well underway. One of Betty Jo’s five adult children, Janet Pralle, appealed the admission of the will.
A panel of the Court of Appeals affirmed the district court, relying upon its interpretation of K.S.A. 59-618, which is an exception to K.S.A. 59-617’s general rule. We granted Janet’s petition for review, in part to resolve differences in interpretation of the statutory exception by various panels of the Court of Appeals.
We agree with Janet that a required element of the statutory exception allowing late filing is for the will to have been “knowingly withheld” from the probate court. And here the will was not knowingly withheld. So we reverse the decisions of the district court and the panel. We also grant Janet’s request for her attorney fees and costs incurred on appeal to our court.
Facts
Betty Jo Strader died in Blue Rapids, Kansas, on October 19, 2006, leaving an estate valued at approximately $1.3 million. She is survived by five adult children: sons Roger Strader, Alan Strader, and Eric Strader, and daughters Janet Pralle and Regina Crowell.
Betty Jo and her husband D. Gerald Strader properly executed separate mutual wills on August 28, 1985. Gerald died soon after, and his estate passed to Betty Jo. Her will devises the real and personal property related to the family oil well drilling business to Roger, Alan, and Eric, who run the enterprise. It also divides the family farm and any residual real and personal property among all five children equally.
About a week after Betty Jo’s death in October 2006, her family began searching for her will. They searched her home and safely deposit box. They also contacted the law firm of Galloway, Wiegers, and Brinegar, P.A., the successor to the firm that prepared Betty Jo’s will in 1985. But they could not find an executed copy of her will.
On December 27, 2006, Eric then filed a petition for letters of administration in Marshall County District Court alleging Betty Jo had died intestate. Jerry Weis was appointed administrator and granted letters of administration by the magistrate judge. Over Janet’s objection, the magistrate also granted Weis’ petitions to pay a $10,000 employment bonus to Eric out of the estate and to privately sell some of the estate’s personal and real property to Eric and Roger.
Janet appealed to the district court, which dismissed the case for lack of jurisdiction. But a panel of the Court of Appeals reversed and remanded for a ruling on the merits. In re Estate of Strader, No. 101,195, 2010 WL 1882146 (Kan. App. 2010) (unpublished opinion).
On remand, the district court ordered that all of the estate’s property be sold at public auction. But before the auctions could occur, around February 16, 2011, Galloway, Wiegers, and Brine-gar, P.A., contacted Bill O’Keefe—who had replaced Weis as administrator. The firm informed O’Keefe that Betty Jo’s executed will had been found in a lock box at its office “[djuring a recent review of old files and general housekeeping.”
Within the week, Eric filed petitions with the court to probate Betty Jo’s will and to stay the public auctions. He argued her will should be admitted to probate under K.S.A. 59-618’s exception to the 6-month time limit in K.S.A. 59-617. Janet objected, arguing the will could not be admitted to probate because it was filed 52 months after Betty Jo’s death—well beyond the 6-month deadline. Janet further argued K.S.A 59-618’s exception to this time limit did not apply because Betty Jo’s will was not the type covered by that statute, i.e., it was not a “knowingly withheld” will.
After a hearing, the district court admitted Betty Jo’s will to probate, relying on In re Estate of Tracy, 36 Kan. App. 2d 401, 140 P.3d 1045 (2006). There, a panel of the Court of Appeals interpreted K.S.A. 59-618 to allow the probate of a lost will 3 days after the 6-month time limit in K.S.A. 59-617 had expired. The Tracy panel stated:
“The legislative intent of K.S.A. 59-618 is to submit eveiy legally executed will to probate. It imposes a penalty on those who wrongfully withhold a will, but also provides an exception for innocent beneficiaries, allowing them to submit a will to probate beyond the 6-month time limit if they do so within 90 days after having knowledge of the existence of the will.” 36 Kan. App. 2d 401, Syl. ¶ 10.
After quoting this language, the district court opined: “[Tjhat’s exactly what we are confronted with in this case, and that decision [Tracy] disposes of the issues raised.” It also found that Betty Jo’s will had not been knowingly withheld from probate, but stated that “such a finding is not necessary as to an innocent beneficiary under K.S.A. 59-618.” Accordingly, the will was admitted, and Janet appealed.
Before the Court of Appeals panel, Janet advocated a plain reading of K.S.A. 59-618, urging reversal of the district court’s admission of the will to probate because the will had not been knowingly withheld. Her responsive siblings, together with administrator O’Keefe, generally argued that K.S.A. 59-618 does not require tire knowing withholding of a will. Moreover, they claimed any innocent beneficiary can use the statute to admit a will to probate when more than 6 months have passed since the testator’s death.
Relying on Tracy, a majority of the panel affirmed tire district court. In re Estate of Strader, 47 Kan. App. 2d 374, 383, 277 P.3d 1163 (2012). But Chief Judge Richard D. Greene dissented, relying principally on an opinion he had authored for another panel: In re Estate of Seth, 40 Kan. App. 2d 824, 196 P.3d 402 (2008). The Seth panel interpreted K.S.A. 59-618 to require a knowing with-holding before a will can be admitted to probate after the 6-month time limit has expired. Strader, 47 Kan. App. 2d at 381-83 (Greene, J., dissenting).
In light of the apparent conflict between Tracy and Seth, this court granted Janet’s petition for review pursuant to K.S.A. 20-3018(b), establishing our jurisdiction under K.S.A. 60-2101(b).
Analysis
Issue 1: The district court erred by admitting Betty Jo’s will to probate under K. S.A. 59-618 after the 6-month time limit in K. S.A. 59-617 had expired because her toill was not knowingly withheld.
Janet argues that the plain language of both K.S.A. 59-617 and K.S.A. 59-618 easily resolves this issue. She contends Betty Jo’s will should not have been admitted to probate because it clearly was not admitted within the 6-month time limit set out in K.S.A. 59-617. She additionally contends K.S.A. 59-618’s exception allowing late filing could not apply because its essential condition had not been met: the district court held no one knowingly withheld the will.
Eric counters that the panel majority correctly identified and applied the public policy of this state favoring the admission to probate of every legally executed will. Accordingly, he argues that K.S.A. 59-618 should be interpreted to protect innocent beneficiaries, whether a will has been knowingly withheld or not.
Eric also disputes that the district court specifically found the will was not knowingly withheld from probate. But that court ex pressly made this finding. Additionally, Eric has not preserved this issue for our review because he failed to file the required cross-appeal. See K.S.A. 2013 Supp. 60-2103(h) (appellee must file cross-appeal to obtain review of adverse rulings); Cooke v. Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008) (same). Therefore, we do not consider this argument.
Standard of review and principles of statutory interpretation
Statutory interpretation is a question of law over which this court exercises unlimited review. Vontress v. State, 299 Kan. 607, 611, 325 P.3d 1114 (2014). During our review of legislative enactments:
“[T]he fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. When language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.” Zimmerman v. Board of Wabaunsee County Comm’rs, 289 Kan. 926, Syl. ¶ 3, 218 P.3d 400 (2009).' State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 (2012).” State v. Holt, 298 Kan. 469, 474, 313 P.3d 826, (2013).
Regarding this fundamental rule, we have also explained: “A statute’s language is our paramount consideration because “ ‘the best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used.’ ” Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014) (quoting Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 [1876]).” State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014). And in abiding by the language the legislature has used, we assign common words their ordinary meaning. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009).
Discussion
K.S.A. 59-617 establishes the general rule we must first consider to help resolve this case. The statute provides in its entirety: “No will of a testator who died while a resident of this state shall be effectual to pass property unless a petition is filed for the probate of such will within six months after die death of the testator, except as hereinafter provided.”
Simply put, K.S.A. 59-517 functions as a statute of limitations prohibiting the admission of a will to probate more than 6 months after a testator’s death. In re Estate of Reed, 157 Kan. 602, 607-08, 142 P.2d 824 (1943) (holding the then 1-year time limitation in G.S. 1941 Supp. 59-617 to be a statute of general limitation); Tracy, 36 Kan. App. 2d at 406 (K.S.A. 59-617 is a statute of limitations). We have held a virtually identical provision to be “clear and unambiguous.” In re Estate of Colyer, 157 Kan. 347, 351, 139 P.2d 411 (1943) (affirming district court’s denial of application to probate a will that was found almost 3 years after testator’s death under the then 1-year time limitation).
By contrast, K.S.A. 59-618 is a savings provision that contains the probate code’s only exception to the general 6-month rule contained in K.S.A. 58-617. The savings provision provides in relevant part:
“Any person who has possession of the will of a testator dying a resident of this state, or has knowledge of such will and access to it for the purpose of probate, and knowingly withholds it from the district court having jurisdiction to probate it for more than six months after the death of tire testator shall be liable for reasonable attorney fees, costs and all damages sustained by beneficiaries under the will who do not have possession of the will and are without knowledge of it and access to it. Such will may be admitted to probate as to any innocent beneficiary on petition for probate by any such beneficiary, if such petition is filed within 90 days after such beneficiary has knowledge of such will and access to it . . . (Emphasis added.) K.S.A. 59-618.
The issue of when a will may be admitted to probate under K.S.A. 59-618 after the expiration of the 6-month time limit in K.S.A. 59-617 turns on the use of the word “such” at the beginning of the second sentence. Eric first contends “such” was not intended to limit K.S.A. 59-618 to situations where an innocent beneficiary can establish fault.
Specifically, he urges us to ignore die word, arguing we “must give effect to the legislative intent even though words, phrases, or clauses at some point in the statute must be omitted or inserted.” See Board of Ness County Comm’rs v. Bankoff Oil Co., 265 Kan. 525, 538, 960 P.2d 1279 (1998). But this rule of construction is subordinate to the plain language rule and generally applies only when the meaning of a statute is unclear in the context of an entire act. See, e.g., State ex rel. Topeka Police Dept. v. $895.00 U.S. Currency, 281 Kan. 819, 827, 133 P.3d 91 (2006) (determining it was not necessary to omit or insert terminology in the challenged statutory provisions because the entire act in pari materia clarified their meaning).
Both legal and lay dictionaries alike reveal the plain meaning of “such.” It means “1. Of this or that kind . . . ; 2. That or those; having just been mentioned . . . .” (Emphasis added.) Black’s Law Dictionary 1570 (Deluxe 9th ed. 2009); see also American Heritage Dictionary of the English Language 1285 (1971) (providing several definitions, including “1. Of this or that kind .... 2. Being the same as that which has been last mentioned or implied.... 3. Being the same in quality or kind .... 4. Being the same as something implied but left undefined or unsaid . . . .”) (Emphasis added.)
And applying this ordinary meaning, K.S.A. 59-618 can legitimately be read only one way: “such will” in the second sentence refers to the will “having just been mentioned” in the first sentence. In other words, it means a will that has been knowingly withheld from probate for more than 6 months after the death of a testator by a person who has possession of the will or knowledge of and access to it.
Under this plain reading, a will that has not been knowingly withheld from probate, e.g., a will that simply has been lost or misplaced, is not admissible under K.S.A. 59-618 after the 6-month time limit in K.S.A. 59-617 has expired. See Looney, 299 Kan. at 906 (“ ‘ “the best and only safe rule for ascertaining tire intention of the makers of any written law is to abide by the language they have used” ’ ” [citing Gannon, 298 Kan. at 1143; quoting Wright, 16 Kan. at 607]).
The panel majority recognized—and Eric agrees—that K.S.A. 59-618 could be read this way. But the majority ultimately rejected tire plain meaning in favor of a policy-based, result-oriented approach:
“We readily concede that the statute might also be interpreted to allow for the late filing only if a withheld will is involved. The placing of this provision in a section which discusses withheld wills and the use of ‘such will,’ perhaps referring only to withheld wills, weighs into that conclusion.
“But, we must also note that as far as any innocent beneficiary is concerned, the knowing withholding of a will, or the misplacing of the will, have the same result in that the beneficiary’s rights under the will are defeated. Allowing late filing for either reason is logical and does not absolutely depart from the language of the relevant statute.” Strader, 47 Kan. App. 2d at 382-83.
Stated plainly, the majority glosses over the use of the word “such.” It instead favors a result that protects all innocent beneficiaries, regardless of the time that has passed after the testator s death. It reasons that both the knowing withholding and the misplacing of a will defeat an innocent beneficiaiy s rights under the will, so allowing for late filing for either reason is logical. Strader, 47 Kan. App. 2d at 383.
In reaching its conclusion in this case, the majority relied on the Tracy panel’s interpretation of K.S.A. 59-618. Specifically, Tracy provided that K.S.A. 59-618 reflects the legislative intent to: “(1) submit every legally executed will to probate, (2) penalize people who wrongfully withhold wills, and (3) except innocent beneficiaries from the 6-month time limit.” Strader, 47 Kan. App. 2d at 380-81; see Tracy, 36 Kan. App. 2d at 408 (citing L. 1943, ch. 213, sec. 2).
Chief Judge Greene argued in dissent that the majority failed to properly construe K.S.A. 59-617 and 59-618 or “honor[] clear legislative policy regarding the statutory time bar for the probate of wills.” Strader, 47 Kan. App. 2d at 383. He referenced his opinion for the unanimous panel in Seth, which held the statutory term “such will” is “a will that has been knowingly withheld from probate.” 40 Kan. App. 2d at 828. We agree with Chief Judge Greene and further note the Tracy panel’s analysis of K.S.A. 59-618 is incomplete.
The Tracy panel reversed the district court’s denial of the admission of a will to probate under K.S.A. 59-617 and K.S.A. 59-618 when the petition was filed 6 months and 3 days after the testator’s death and had not been knowingly withheld. The district court determined the knowing withholding of a will was a condition that must occur before an innocent beneficiaiy can submit a will to probate outside the 6-month time limit. 36 Kan. App. 2d at 407.
The executor appealed, raising two issues. First, she argued that as a statute of limitations, K.S.A. 59-617 is an affirmative defense that must be raised by a party who objects to a petition for probate. The Tracy panel agreed and held that the lower court erred when it raised K.S.A. 59-617 sua sponte to deny the executor’s petition for probate. 36 Kan. App. 2d at 406.
Second, the executor argued the district court’s strict interpretation of K.S.A. 59-618 “ ‘conflicts with the goals of equity and good policy.’ ” 36 Kan. App. 2d at 406. Again, the panel agreed, opining that the lower court’s literal interpretation of K.S.A. 59-618 was “contrary to the underlying intent of the probate code.” 36 Kan. App. 2d at 408.
To discern this underlying intent of the code, the Tracy panel principally relied on In re Estate of Harper, 202 Kan. 150, 446 P.2d 738 (1968). At issue in Harper was whether the will’s beneficiaries had the right to proceed under a family settlement agreement without admitting the will to probate. The Harper executor argued the agreement violated public policy because it was an illegal agreement to suppress the will.
This court agreed, holding the family could not proceed under the family settlement agreement in lieu of probate. 202 Kan. at 152-55, 160. The Harper court reasoned that K.S.A. 59-618, 59-620 (repealed L. 1995, ch. 273, sec. 2) (allowing will to be deposited with probate court before death of testator), coupled with 59-621 (imposing duty on person with custody of will after testator’s death to deliver it to the court) together “express the legislative intent that the will of every person shall be offered for probate. They decree there is a clear public policy in the establishment of every legally executed will. That policy requires the probate of a will, not its suppression or to withhold it from probate.” 202 Kan. at 158.
Describing the Harper holding, the Tracy panel explained: “The court found that the statutes relating to the probating of wills express the legislative intent that the will of every person be offered for probate.” (Emphasis added.) 36 Kan. App. 2d at 408. But this blanket statement simply overlooks the Harper court’s acknowledgment of the time limit contained in K.S.A. 59-617. Even though timeliness was not at issue in Harper, this court clearly recognized that K.S.A. 59-617 limits the time in which a will may be offered for probate, stating:
“In this state no will shall be effectual to pass real or personal property unless it shall have been duly admitted to probate (59-616), and application for probate is required to be made within one year after the death of the testator. (59-617.) It is the policy of our law that all wills shall be delivered to tire probate court having jurisdiction as soon after the death of the testator as is possible.” (Emphasis added.) 202 Kan. at 157-58.
The Tracy panel’s failure to discuss the statute of limitations is not surprising, given it held K.S.A. 59-617 did not apply under its case facts because the statute was not raised as an affirmative defense by a party. But in the present case, the statutory time limit cannot be ignored—even under Tracy—because Janet specifically argued in her response to Eric’s petition for probate that K.S.A. 59-617 bars the will’s admission.
In short, the Strader majority correctly recognized this state’s long-favored policy of probating all legally executed wills. But it failed to appreciate this policy is qualified by the legislative intent clearly expressed in K.S.A. 59-617, i.e., that wills be probated within a certain time of the testator’s death. The majority’s interpretation of K.S.A. 59-618 would allow virtually any will to be admitted to probate after the 6-month statute of limitations has run, essentially making K.S.A. 59-617 unnecessary. See Gannon, 298 Kan. at 1146 (“ ‘ “There is a presumption that the legislature does not intend to enact useless or meaningless legislation.” ’ ”).
Accordingly, the Court of Appeals’ contrary holdings in Strader and Tracy are specifically disapproved. And to the extent Eric’s counsel has interpreted the Seth opinion as a softening of this “knowingly withholding” requirement, e.g., a careless withholding, that interpretation is also specifically disapproved.
Issue 2: Janet is entitled to reasonable appellate attorney fees under Supreme Court Rule 7.07(b).
Janet timely moved this court to grant her attorney fees and costs incurred on appeal in the amount of $20,444.40. Because there obviously is no lower court determination for us to consider, there is no appellate standard of review.
We begin our independent determination by acknowledging that in Kansas attorney fees cannot be awarded absent statutory authority or agreement. Johnson v. Westhoff Sand Co., 281 Kan. 930, 939, 135 P.3d 1127 (2006). But this court may award attorney fees for services on appeal if the district court had authority, e.g., by statute, to award attorney fees. Supreme Court Rule 7.07(b) (2013 Kan. Ct. R. Annot. 67). And K.S.A. 59-1504 requires drat the district court award attorney fees and necessary expenses to any person who successfully opposes the probate of a will. In re Estate of Haneberg, 270 Kan. 365, 379-80, 14 P.3d 1088 (2000). Such an award is payable out of the estate and must be “just and proper.” K.S.A. 59-1504.'
Eric implies Janet acted in bad faith because she testified she was “going to fight it all out at the end.” Accordingly, he argues it would be inequitable to award attorney fees out of the estate under K.S.A. 59-2214, which requires the district court to tax the costs of probate against the estate “unless it appears that it would be unjust and inequitable to do so.”
Attorney fees may be taxed as costs against the estate. See In re Estate of Hjersted, 285 Kan. 559, 590, 175 P.3d 810 (2008). But the general provision in K.S.A. 59-2214 concerning the payment of probate costs is trumped by the specific provision in K.S.A. 59-1504 that mandates when and how attorney fees are to be paid. See In re N.A.C., 299 Kan. 1100, 1107, 329 P.3d 458 (2014) (specific statute controls over general statute). And because K.S.A. 59-1504 requires a court to award attorney fees to a party who successfully opposqs the probate of a will, Eric’s suggestion that Janet should not be awarded attorney fees because she acted in bad faith is irrelevant. The, only question we must determine is whether the amount requested is reasonable.
An award of attorney fees under K.S.A. 59-1504 is compensatory, not penal. In re Estate of Robinson, 236 Kan. 431, 435, 690 P.2d 1383 (1984). And appellate courts are experts on the reasonableness of attorney fees. Johnson, 281 Kan. at 959.
Rule 7.07(b)(2)(C) requires a party seeking attorney fees on appeal to file an affidavit that specifies the factors considered in determining the reasonableness of the fee under the Kansas Rules of Professional Conduct (KRPC) 1.5(a) (2013 Kan. Ct. R. Annot. 503). These factors are:
“(1) the time and labor required, tire novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
“(2) the likelihood, if apparent to tire client, that the acceptance of the particular employment will preclude other employment by the lawyer;
“(3) the fee customarily charged in the locality for similar legal services;
“(4) the amount involved and tire results obtained;
“(5) the time limitations imposed by the client or by the circumstances;
“(6) the nature and length of the professional relationship with tire client;
“(7) tire experience, reputation, and ability of the lawyer or lawyers performing the services; and
“(8) whether the fee is fixed or contingent.” KRPC 1.5(a).
Eric does not specifically reference any of these factors in his response to Janet’s motion. Instead, he generally argues the amount requested is “staggering.” He also argues it “greatly exceeds the amount of fees incurred by other counsel that have been involved in the case since the beginning of the proceeding.” But he has failed to provide any citation to the record or an affidavit to support this allegation. See Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1275, 221 P.3d 588 (2009) (party making argument on appeal has burden to designate record sufficient to present its points and establish its claims).
Nevertheless, we hold Janet is not entitled to the entire amount requested. Her counsel’s affidavit and itemized statement showing the work done, time spent, and expenses incurred on her appeal include services performed in connection with the proceedings not only before this court but also the Court of Appeals. Neither the record on appeal nor the Clerk of the Appellate Courts’ electronic filing system indicates that Janet filed a motion under Rule 7.07(b) following oral argument in the Court of Appeals.
Accordingly, we conclude Janet has failed to preserve her right to the fees incurred on appeal to the panel. See Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 167, 298 P.3d 1120 (2013) (party must timely file a Rule 7.07[b] motion in order to preserve the right to appellate attorney fees); see also Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 266, 815 P.2d 550 (1991) (“[I]t would be inappropriate in petition for review cases to determine attorney fee requests on appellate work before us prior to the Court of Appeals determining attorney fee requests for appellate work before it.”); Johnson, 281 Kan. at 959 (attorney fee requests made to Court of Appeals and then Supreme Court).
The affidavit and itemized statement show that Janet’s attorney spent 29.6 hours on her appeal to this court at $250 per hour and advanced $746.90 in related expenses. We find this reasonable after considering the applicable factors listed in KRPC 1.5(a). See Lee Builders, Inc., v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 137 P.3d 486 (2006) (reducing fees requested). So we grant Janet’s motion for appellate attorney fees in the amount of $8,146.90 and order that amount to be paid to her out of the estate. See K.S.A. 59-1504.
Judgment of the Court of Appeals is reversed. Judgment of the district court is reversed.
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Marquardt, J.:
Thomas R. DeBerry appeals the Kansas State Board of Accountancy’s (Board) decision disciplining his work as a certified public accountant (CPA). We affirm.
DeBerry has been in private practice as a CPA for approximately 25 years. In August 2001, DeBerry joined the board of directors of the First State Bank of Kiowa, Kansas (Bank). DeBerry also owned Bank stock.
In May 2002, DeBerry and the Bank entered an agreement whereby DeBerry was to perform a director’s examination for the Bank. In accounting terms, a director’s examination is known as an agreed-upon procedure. The examination included verification of customers’ accounts and testing of other accounting records. DeBerry completed the examination in November 2002 and submitted the report on his CPA letterhead.
In July 2002, DeBerry renewed his CPA permit. The renewal form had boxes to indicate the types of work in which he was engaged. DeBerry checked the boxes entitled “compilation” and “tax” but did not check the box labeled “agreed-upon procedure.”
In February 2002, DeBerry signed an agreement whereby the Bank would pay him referral fees for individuals he referred to the Bank for certain types of loans. DeBerry received $422.50 in referral fees from the Bank.
In May 2003, the Board sent DeBerry a letter requesting information regarding the Bank director’s examination and details about DeBerry’s contractual relationship with the Bank. DeBerry responded that his relationship with the Bank had ended, and he had not done anything wrong by performing a director’s examination while he was on the Bank’s board of directors. The Board requested documents from DeBerry in the fall of 2003. DeBerry responded to the request through his counsel.
The investigation resulted in the Board filing a petition alleging that DeBerry’s actions violated K.S.A. l-308(a), K.S.A. l-311(a)(l) and (7), K.S.A. 1-501, K.A.R. 74-5-103(a), K.A.R. 74-5-205(c), and K.A.R. 74-11-7. The Board asked that DeBerry’s CPA permit be revoked or suspended and a $2,000 fine be imposed.
The Board held an evidentiary hearing and issued its final order in December 2003. The Board found there was clear and convine ing evidence that DeBerry willfully violated K.A.R. 74-5-205(c) by performing an agreed-upon procedure for the Bank while serving on its board of directors. The Board also found that DeBerry willfully violated K.A.R. 74-5-103(b) by accepting a referral fee for the sale of services to a client. Finally, the Board found that DeBerry violated other CPA standards and regulations by failing to obtain the proper registration status and peer review services. DeBerry’s CPA permit was suspended for 90 days, he was fined $2,000, and was ordered to successfully complete a course entitled “Professional Ethics: The AICPA’s Comprehensive Course.”
DeBerry asked the Board to stay the sanctions in the Board’s final order. The Board declined DeBeriy’s request, finding that the sanctions should extend from the date of the final order until April 15, 2004. DeBerry filed a petition for reconsideration with the Board, which was denied. DeBerry filed a petition for review with the trial court. While its decision on judicial review was pending, the trial court granted DeBerry’s request to stay the payment of the fine and attendance at the ethics course.
After considering the written submissions from the parties, the trial court affirmed the Board’s findings, concluding that the Board’s action was supported by substantial competent evidence. DeBerry timely appeals.
Violation of K.A.R. 74-5-205(c)
DeBerry argues that the Board failed to prove that he “willfully” violated K.A.R. 74-5-205(c). DeBeny maintains that in order to prove he acted willfully, the Board needed to find an intent to violate the law.
In reviewing a trial court’s decision that involved review of an administrative agency’s action, an appellate court must first determine whether the trial court followed the requirements and restrictions placed upon it and then review the administrative agency’s action under the same requirements and restrictions as the trial court. The trial court may not substitute its judgment for that of an administrative agency. The trial court is restricted to considering whether, as a matter of law, (1) the administrative agency acted fraudulently, arbitrarily, or capriciously; (2) the agency’s administrative order was supported by substantial evidence; and (3) tire agency’s action was within the scope of its authority. Lacy v. Kansas Dental Board, 274 Kan. 1031, 1040, 58 P.3d 668 (2002).
This case involves the interpretation of language found in K.A.R. 74-5-205(c), which requires that a CPA who provides attestation services must conform to the statements on standards for attestation engagements (SSAE), which are found in volume one of the American Institute of Certified Public Accountants (AICPA) Professional Standards. The AICPA professional standards are adopted by reference in K.A.R. 74-11-6. DeBerry was disciplined pursuant to K.S.A. l-311(a)(7) for “willful violation of a rule of professional conduct.”
Administrative regulations have the force and effect of law and are presumed to be valid. One who challenges an administrative regulation has the burden of showing its invalidity. In re Tax Appeal of City of Wichita, 277 Kan. 487, 495, 86 P.3d 513 (2004). The interpretation of a statute or regulation by an administrative agency charged with the responsibility of enforcing that statute or regulation is entitled to judicial deference. Deference to an agency’s interpretation is especially appropriate when the agency is one of special competence and experience. However, the final interpretation of a statute or regulation always rests with the courts. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 247, 75 P.3d 226 (2003).
The word “willfully” is not defined anywhere in the statutes or regulations relating to CPA’s. “Willful” is defined as: “Voluntary and intentional, but not necessarily malicious.” Black’s Law Dictionary 1630 (8th ed. 2004). This definition does not, however, clarify whether the requirement of intent applies solely to the behavior or whether the actor must also intend the violation of the professional standard.
Kansas appellate courts have not considered the meaning of “willful” within the context of the violation of a professional standard or regulation. Several other states have addressed the issue under similar circumstances. In Phillips v. State Bar, 49 Cal.3d 944, 264 Cal. Rptr. 346, 782 P.2d 587 (1989), an attorney was disbarred after several client complaints. On appeal, Phillips argued that he had not acted willfully because he was suffering from a personality disorder and lacked the intent to commit misconduct. The California Supreme Court concluded that willful is “ ‘ “simply a purpose or willingness to commit the act, or malee the omission referred to [and] . . . does not require any intent to violate law, or to injure another, or to acquire any advantage.” ’ [Citations omitted.]” 49 Cal.3d at 952. Therefore, to prove a willful violation, an administrative agency must prove that a party “ ‘ “acted or omitted to act purposely, that is, that [the party] knew what [the party] was doing or not doing and that [the party] intended either to commit the act or to abstain from committing it.” ’ [Citations omitted.]” 49 Cal.3d at 952; see Com. State Bd. of Nurse v. Rafferty, 508 Pa. 566, 572, 499 A.2d 289 (1985).
In the instant case, it is undisputed that DeBerry did not conform to the SSAE professional standards when performing an agreed-upon procedure because he failed to seek the appropriate level of peer review. DeBeny claimed that he was “technically” in violation of “some rules”; however, he did not have any intent to deceive or defraud.
To prove a willful violation of a CPA’s professional standards and regulations, the Board must only prove that the CPA intended to commit the forbidden act or to abstain from doing something the CPA was required to do. By DeBeriy’s own admissions, there was substantial competent evidence to prove and support the findings of his willful violation of the Board’s regulations. We agree that the Board correctly determined a willful violation occurred in the absence of a specific intent to violate the standards and regulations.
DeBerry argues that he did not willfully violate the law because he was in compliance with relevant banking industry regulations. DeBerry believes his “complete adherence to the ‘Other Guidance’ section of the AICPA Code of Professional Conduct proves that he took the appropriate precautions” to safeguard his independence during the director’s examination.
The AICPA professional standards adopted by K.A.R. 74-11-6 has a standard labeled “Other Guidance.” One paragraph of this standard reads:
“A member should also consult, if applicable, the ethical standards of his state CPA society, state board of accountancy, the Securities and Exchange Commission, and any other governmental agency which may regulate his client’s business or use his report to evaluate the client’s compliance with applicable laws and related regulations.”
At the Board hearing, DeBerry was asked about another AICPA professional standard which holds that a CPA’s independence is considered to be impaired if the CPA is a director during the period covered by the financial statements or examination. DeBerry acknowledged that language but claimed he was conforming with banking rules and regulations since those were the rides that governed his client, the Bank. DeBerry ignores the fact that he submitted the director’s examination on his CPA letterhead. The letterhead made it appear that DeBerry was acting as a CPA, not as an independent examiner.
DeBerry’s appellate brief makes repeated references to the ethical standards that cover the banking industry. However, DeBerry has not included these banking standards and regulations in the record on appeal. Without a copy of the banking standards and regulations, we are unable to conclude whether DeBerry was justified in relying on those standards instead of the AICPA professional standards and the Board’s administrative regulations. An appellant has the duty to designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails. State ex rel. Stovall v. Alivio, 275 Kan. 169, 172, 61 P.3d 687 (2003).
It is clear that DeBerry submitted his director’s examination report on his CPA letterhead, which included the title of “Certified Bank Auditor.” DeBerry signed his letter as a member of the Bank’s board of directors. Accordingly, we believe that DeBerry was acting in his capacity as a CPA at the time he submitted the report, and the Board was correct in finding that DeBerry should have followed the AICPA’s professional standards and the Board’s regulations.
We conclude there was substantial competent evidence to support the Board’s findings that DeBerry willfully violated K.A.R. 74- 5-205(c) when he performed a director s examination of the Bank while serving on the Bank’s board of directors.
Violation of K.A.R. 74-5-103(b)
DeBerry contends that he was initially charged with violating K.A.R. 74-5-103(a), but the Board eventually found he violated K.A.R. 74-5-103(b). K.A.R. 74-5-103(a) bars a CPA from paying a commission to a third party in order to obtain a client. Subsection (b) prohibits a CPA from accepting referral fees.
K.A.R. 74-5-103(b) reads, in relevant part:
“A certified public accountant may accept or pay a referral fee for the sale of services or products to a client if the following conditions are met:
“(1) The CPA or the CPA’s firm does not perform any of the following for the client:
(E) any agreed-upon procedures, as defined by the AICPA professional standards, as adopted by reference in K.A.R. 74-11-6.”
Under the Kansas Administrative Procedures Act, K.S.A. 77-501 et seq., a party must be given “a statement of the issues involved and, to the extent known to the presiding officer, of the matters asserted by the parties.” K.S.A. 2004 Supp. 77-518(c)(7). Count II of the petition alleged that DeBerry violated the regulation because the “loan referral contract with the Bank is prohibited and a violation of commission and referral fees requirements as proscribed in K.A.R. 75-5-103(a)(l)(E) [sic].” Even though the petition referenced subsection (a), DeBerry was advised of the facts supporting the charges against him, and the facts supported a violation of K.A.R. 75-5-103(b). Also, during the hearing before the Board, DeBerry testified about the charges, claiming that he had not violated the regulations because he had followed banking standards. DeBerry was not prejudiced by the wrong subsection citation in the petition.
Violation of K.S.A. l-308(a) and K.S.A. 1-501
On appeal, DeBerry contends that K.S.A. l-308(a) and K.S.A. 1-501 are “unconstitutionally vague.” DeBerry claims that he never received an application from the Board prompting him to register as a firm and, given his status as a sole practitioner, it did not occur to him to do so. To support his argument, DeBerry relies on a 10-year-old CPA directory that had been mailed to him.
Whether a statute is unconstitutionally vague or overbroad is a question of law over which an appellate court has unlimited review. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is a court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond reasonable doubt. State v. Whitesell, 270 Kan. 259, Syl. ¶ 1, 13 P.3d 887 (2000).
The Kansas Supreme Court has held that the constitutionality of a statute, the violation of which is a criminal offense, should be determined by the standards applied to criminal statutes generally, even though considered in the context of a civil suit. If a statute could subject a person to both criminal and administrative actions, the criminal standard for determining vagueness applies. State Bd. of Nursing v. Ruebke, 259 Kan. 599, 611-12, 913 P.2d 142 (1996).
A criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. The determination of whether a criminal statute is unconstitutionally vague involves a second inquiry of whether the law adequately guards against arbitrary and discriminatory enforcement. Smith v. Martens, 279 Kan. 242, 245-46, 106 P.3d 28 (2005). However, this case involves an administrative action, i.e., a fine or penalty, not a criminal offense, and we find the applicable statutes are not vague.
A CPA who issues reports that are subject to peer review must register, as a firm, under K.S.A. l-308(a). K.S.A. l-308(a) specifically mentions “any individual who operates as a sole practitioner and who issues reports subject to peer review.” Pursuant to K.S.A. l-501(a), a firm providing attest services (attestation) must undergo peer review. It is undisputed that the director’s examination DeBerry performed for the Bank was an attest service.
Attached to DeBerry’s permit renewal application were specific instructions informing applicants of the requirements for peer review. Applicants were also told that if they were issuing a report after performing an agreed-upon procedure, they must notify the Board of the date of issuance of the first report subject to peer review and register as a firm with the Board.
At the Board hearing, DeBerry not only admitted that he should have checked the appropriate box, but also that the literature which accompanied the application “gave enough criteria there that [he knew] he should have check marked the box.” DeBerry’s appellate argument that he was too confused to comply with the statutes seems to be negated by his comments to the Board. Further, the language of both statutes at issue could not be more clear. We do not find these statutes to be vague. DeBerry’s argument is without merit.
Was the Board’s Order a Final Order?
DeBerry argues that the final order from tire Board was invalid because it was signed by Susan L. Somers in her capacity as the Board’s executive director. DeBerry claims that this would have been invalid in Nebraska, and the order should have been signed either by all of the Board members or by the chairperson. DeBerry cites K.S.A. l-311(a) for the proposition that the Board, not its executive director, has tire power to revoke or suspend a CPA permit or certificate.
It is undisputed that Somers signed the Board’s final order. However, DeBerry failed to object to this in his motion for reconsideration in front of the Board or in his petition for judicial review. Issues not raised before tire trial court cannot be raised on appeal. Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). We do not see any merit in DeBerry’s argument about the validity of Somers signing the final order.
Next, DeBerry argues that the suspension of his certificate to practice did not occur until the final order was filed approximately 1 month after the hearing. DeBerry believes that this was a deliberate attempt by tire Board to have his suspension fall during tax season, thus causing him to lose clients.
K.S.A. 77-526(g) requires that a final order be issued within 30 days after the conclusion of the hearing. DeBerry’s administrative hearing was held on December 12, 2003. The certificate of service on the Board’s final order is dated January 16, 2004. The 30-day time limit is a procedural requirement, directory in nature, intended to secure order, system, and forthwith dispatch of public business. Expert Environmental Control, Inc. v. Walker, 13 Kan. App. 2d 56, 58, 761 P.2d 320 (1988).
The delay in issuing the Board’s final order was minimal and understandable, given the Christmas and New Year’s holidays which fell between the hearing and the issuance of the final order. In addition, there is no evidence that the 5-day delay was prejudicial to DeBerry. DeBerry’s permit suspension still would have been in effect until March 26, 2004. Given that fact and the complete absence of any evidence of malice from the record on appeal, we disagree with DeBerry that the timing of the issuance of the final order was in any way deliberate.
At the hearing, the Board ordered that DeBerry was required to successfully complete the AICPA comprehensive ethics exam with a score of 90 percent or higher. DeBerry now argues that since the standard pass rate is 70 percent, the requirement that DeBerry achieve a score of 90 percent is arbitrary.
K.S.A. l-311(b) allows the Board to require satisfactory completion of specified continuing education programs. DeBerry’s argument about a 70 percent score is not relevant to this discussion; that benchmark is used only when an individual pursues continuing education via a self-study program. See K.A.R. 74-4-8(d)(4). K.S.A. l-311(b) does not comment about a pass rate, meaning the Board is free to implement its own standard. It is important to note that DeBerry was ordered to attend an ethics course. Given DeBerry’s admitted lack of understanding of the AICPA professional standards, that requirement does not seem unreasonable. Further, it is not unusual that the details of the Board’s findings would be settled in the final order. Therefore, we see no inconsistency which needs to be addressed.
Finally, tire Board ordered DeBerry to pay a $2,000 fine. The final order clarified that the fine could not be paid with a credit card. DeBerry contends that this is an “unauthorized and arbitrary” modification, and questions whether this violates the Board’s contracts with certain credit card companies.
K.S.A. l-311(a) establishes the Board’s authority to impose an administrative fine of up to $2,000. There is no mention of the method of payment, which is a matter left to the Board’s discretion. Further, there is no evidence in the record on appeal of any contractual relationship between the Board and any credit card companies; such a matter would be far beyond the scope of this appeal.
We find no error in the final order.
Did the Trial Court Violate K.S.A. 77-621?
K.S.A. 77-621 governs the scope of review for agency actions. In his appellate brief, DeBerry provides this court with other examples of Board action which DeBerry believes were unreasonable, arbitrary, or capricious.
First, DeBerry questions the Board’s practice of accepting an anonymous, oral complaint. DeBerry contends that he has been disadvantaged because he does not know the identity of the person who prompted this “anonymous assassination.” At the administrative hearing, DeBerry conceded the validity of anonymous, oral complaints, acknowledging that they are frequently used in the legal profession. To complain otherwise on appeal is to invite error. A party may not invite error and then complain of that error on appeal. Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003).
Next, DeBerry contends that the Board evidenced a “departure from rationality” by comparing his actions to the incidents which occurred at Enron and WorldCom. The Board’s final order reads: “The independence of a CPA who performs attest services for the public is vital to the accountancy profession. The Enron and WorldCom debacles evidence the dangers of disregarding this tenet.” The Enron and WorldCom scandals demonstrated the problems that occur when the accounting profession fails to exercise appropriate independence. DeBerry violated professional standards relating to independence. There was no error with the Board’s use of the analogy.
Next, DeBerry contends that his $2,000 fine was in excess of the typical administrative penalty. DeBerry provides this court with information not included in the record on appeal, about past fines, which he claims cause his $2,000 penalty to be “unconscionable.” K.S.A. l-311(a)(7) allows the Board to impose a fine of up to $2,000 for a willful violation of a rule of professional conduct. We fail to see how a fine which complies with the applicable statute is unconscionable. The discipline the Board determined and imposed in other cases is irrelevant.
Next, DeBerry claims he was prejudiced by Paul Allen’s role on the Board. DeBerry claims that due to a past business relationship, Allen lured DeBerry into a violation of the CPA standards or regulations. DeBerry makes the assertion that the Board’s actions were tainted by “Allen’s desire to exert revenge” on DeBerry. The record on appeal shows that Allen recused himself from DeBerry’s hearing and did not participate in the deliberations. DeBerry’s claims of unethical and possibly criminal conduct by the Board seem irresponsible in light of the complete lack of evidence to support his assertions. DeBerry’s contentions about bias and prejudice are without merit.
DeBerry next contends that the Board failed to supply him with requested discovery. DeBerry admits that the Board told him there were no items to be produced. DeBerry theorizes that there is a cache of hidden documents being suppressed, but can provide no proof that such paperwork exists.
DeBerry next claims that Somers contradicted herself in a letter where she mentioned that she had spoken with one of the Bank’s directors who did not want to file a complaint. DeBerry essentially alleges that Somers lied when she stated that she did not have any notes from that conversation. DeBerry makes yet another accusation without any support in the record on appeal.
We have thoroughly reviewed all of DeBerry’s claims and determined that the Board’s decision was valid.
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Johnson, J.:
Charles L. Beeney appeals his jury conviction for one count of feloniously fleeing or attempting to elude a police officer in violation of K.S.A. 8-1568(b). Beeney challenges his conviction on three bases: (1) the complaint was fatally defective because it omitted essential elements of the crime and because the complaint language failed to allege a crime; (2) the instruction defining the crime was clearly erroneous because it did not ask the jury to find the elements alleged in the complaint; and (3) the evidence produced at trial was insufficient to support the fleeing or attempting to elude conviction. Finding that the complaint upon which Beeney was tried did not charge the crime alleged, we reverse.
On a foggy November morning, Trooper Gardner responded to a report that a man who may have been the subject of an outstanding arrest warrant was in the parking lot of the Tortilla King plant occupying a bluish-silver Ford Taurus with Vermont license plates. The trooper, in full uniform and operating a marked Kansas Highway Patrol vehicle, drove through the plant parking lot. The trooper parked and exited the patrol vehicle, proceeding afoot to look at some vehicles which were backed into parking spaces.
The trooper spotted a silver vehicle with Vermont tags, which from approximately three car lengths away appeared to be a Taurus. The trooper thought the car was unoccupied, but as he walked towards the vehicle a person sat up into the driver’s seat as if the person had been lying on the passenger side. The person, later identified as Beeney, started the vehicle and slowly left the parking space. As the trooper walked between vehicles, he raised his hands and told Beeney to “stop the vehicle.” The trooper would testify that he made eye contact with Beeney when he motioned his hands and gave his verbal command to stop.
The vehicle accelerated, drove past the trooper and the patrol car, and exited the parking lot. The trooper observed the vehicle’s direction of travel and heard aggressive acceleration. By the time the trooper returned to his patrol car, activated its lights and sirens, and proceeded onto the street, Beeney’s car was out of sight. The foggy conditions had produced extremely limited visibility.
In short order, the trooper found the vehicle, abandoned and damaged. The physical evidence led the trooper to believe that the vehicle had gone into the ditch and rolled. A search for the driver, by foot and by helicopter, was unsuccessful. Subsequent investigation disclosed Beeney’s identity, and he was located in custody in Harvey County.
Because Beeney was serving another sentence at the Lansing Correctional Facility, prosecution of this case was delayed for over a year. Following a preliminary hearing, the State amended the complaint. At trial, Beeney admitted being in the vehicle, but alleged that he was not the driver. After his conviction, Beeney did not file any posttrial motions.
THE COMPLAINT
The amended complaint upon which Beeney went to trial was worded as follows:
“That on or about the 16th day of November, 2001, die above named defendant, within McPherson County, Kansas, did then and there contraiy to the statutes of the State of Kansas unlawfully, feloniously and willfully flee or attempt to elude a uniformed law enforcement officer when given visual or audible signals to bring the vehicle to a stop and is involved in a motor vehicle accident during die pursuit, contrary to K.S.A. 8-1568(b), a Severity Level 9, Person Felony, 5-17 mos. (Felony Flee & Elude).” (Emphasis added.)
Originally, the complaint alleged that Beeney fled or attempted to elude a “pursuing police vehicle.” That language was replaced with “uniformed law enforcement officer” upon the State’s unopposed motion at preliminary hearing.
Beeney points to a number of omissions in the complaint which he contends renders it fatally defective. However, we will focus on the contention that fleeing or attempting to elude a uniformed law enforcement officer is not a crime proscribed by K.S.A. 8-1568.
The sufficiency of a charging document to confer jurisdiction is a question of law over which an appellate court has unlimited review. State v. Hooker, 271 Kan. 52, 60, 21 P.3d 964 (2001). However, the test for determining complaint sufficiency depends upon when the issue was first raised. State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overmled in part Ferguson v. State, 276 Kan. 428, 444, 78 P.3d 40 (2003) (extending post-Hall common sense rule to collateral attack cases). Defective complaint issues raised for the first time on appeal are subject to a common sense approach. The complaint or information is reviewed as a whole, interpreted to include facts which are necessarily implied, and construed liberally in favor of validity. Hall, 246 Kan. at 764.
Nevertheless, a defective complaint challenge will prevail, if the claimed defect has
“(a) prejudiced the defendant in the preparation of his or her defense; (b) impaired in any way defendant’s ability to plead the conviction in any subsequent prosecution; or (c) limited in any way defendant’s substantial rights to a fair trial under the guarantees of the Sixth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, § 10.” Hall, 246 Kan. at 765.
Here, Beeney did not move for an arrest of judgment and raises his defective complaint claim for the first time on appeal. However, he argues that the defect prejudiced the preparation of his defense and limited his constitutional rights. We agree.
The Sixth Amendment to the United States Constitution gives an accused the right to “be informed of the nature and cause of the accusation”; the Kansas Constitution Bill of Rights, § 10 man dates that “the accused shall be allowed ... to demand the nature and cause of the accusation against him.” Statutorily, the complaint “shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient.” K.S.A. 2004 Supp. 22-3201(b).
Here, the complaint was not drawn in the language of the statute, which reads in pertinent part:
“(a) Any driver of a motor vehicle who willfully fails or refuses to bring such driver’s vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty as provided by subsection (c)(1), (2) or (3). The signal given by the police officer may be by hand, voice, emergency light or siren. The officer giving such signal shall be in uniform, prominently displaying such officer’s badge of office, and the officers vehicle or bicycle shall be appropriately marked showing it to be an official police vehicle or police bicycle.” (Emphasis added.) K.S.A. 8-1568(a).
The complaint alleged that Beeney fled or attempted to elude a uniformed law enforcement officer, not a pursuing police vehicle or police bicycle. Thus, the complaint informed Beeney that the nature and cause of the accusation against him was his failure to stop his vehicle in response to Trooper Gardner s visual or audible signal to stop, while the trooper was afoot and the patrol car was parked and unoccupied. Indeed, in its brief, the State argues “that the crime of fleeing and eluding was complete when the Defendant failed to stop for Trooper Gardner when he raised his hands and ordered the Defendant to stop his motor vehicle but he fled from the scene.”
At the time the State alleges the crime was complete, the trooper was not in a pursuing police vehicle or bicycle. However, the State presented evidence that the trooper did give chase in a pursuing patrol car with emergency equipment activated, albeit after Beeney s vehicle was no longer visible in the fog. Therefore, if the crime of fleeing or attempting to elude does not encompass the disobeyance of a uniformed law enforcement officer who is not in a pursuing police vehicle or bicycle, tiren Beeney was denied his constitutional right to be advised of the charge against him and was prejudiced in the preparation of his defense. His conviction cannot be saved, even if a reasonable jury could have inferred that, later in the sequence of events, Beeney was fleeing or attempting to elude Trooper Gardner’s pursuing patrol car. Cf. Roach v. State, 27 Kan. App. 2d 561, 566, 7 P.3d 319, rev. denied 270 Kan. 899 (2000) (“A conviction based on an information that does not charge the crime for which the accused is convicted is void, and such a fundamental defect may be raised at any time.”).
Our analysis then turns to whether K.S.A. 8-1568 prohibits fleeing or attempting to elude a uniformed law enforcement officer who is not in a pursuing police vehicle or bicycle. Our interpretation rules are well established.
“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. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citation omitted.]” State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).
In stating the crime, the statute plainly relates the fleeing or eluding to a pursuing police vehicle or police bicycle. The statute further requires that “[t]he officer giving such signal shall be in uniform, prominently displaying such officer’s badge of office, and the officer’s vehicle or bicycle shall be appropriately marked showing it to be an official police vehicle or police bicycle.” (Emphasis added.) K.S.A. 8-1568. The conjunction “and” indicates that the legislature contemplated that the crime would involve both a uniformed law enforcement officer and a marked police vehicle.
The “police bicycle” language was added to the statute in 1996. L. 1996, ch. 180, sec. 2. Such an amendment would appear unnecessary if the legislature believed that disobeying a stop order from a uniformed law enforcement officer, without more, violated the statute.
The committee that develops our state’s pattern jury instructions has determined that a pursuing vehicle or bicycle is a required element of the crime. One of the claims that the jury must find, beyond a reasonable doubt, is “[t]hat the defendant intentionally failed or refused to bring the motor vehicle to a stop, or otherwise fled or attempted to elude a pursuing police (vehicle) (bicycle).” (Emphasis added.) PIK Crim. 3d 70.09 (1998 Supp.).
“The gist of the proscribed conduct is a driver’s failure to stop his motor vehicle after having been signaled to stop by a police officer in a police vehicle or attempting to elude the police vehicle.” (Emphasis added.) State v. Russell, 229 Kan. 124, 126, 622 P.2d 658 (1981). One perceives that the crime of fleeing or attempting to elude is intended to promote public safety by punishing anyone who instigates or refuses to terminate a police vehicle chase. Indeed, the statute is part of the uniform act regulating traffic and is specifically designated as a serious traffic offense. On the other hand, our criminal code provides a means to coerce obeyance of an officer on foot who is discharging any official duty. See K.S.A. 21-3808, Obstructing legal process or official duty. Therefore, our interpretation of K.S.A. 8-1568 is reasonable and sensible and effects the legislature’s design and intent.
In summary, we hold that an essential element of the crime of fleeing or attempting to elude, K.S.A. 8-1568, is that the uniformed law enforcement officer must be occupying an appropriately marked police vehicle or police bicycle when the visual or audible signal to stop is given to a motor vehicle driver. The complaint against Beeney did not allege that he fled or attempted to elude a pursuing police vehicle or police bicycle. The complaint did not adequately inform Beeney of the nature and cause of the accusation against him and prejudiced his ability to prepare his defense. Beeney’s conviction for fleeing or attempting to elude, in violation of K.S.A. 8-1568 must be reversed. We need not address the other issues raised by Beeney.
Reversed. | [
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Hill, J.:
The district court ordered Steve Skoczek to pay $1,700 per month child support to Marsha Skoczek. Skoczek appeals the district court’s child support order, contending that the district court should have applied an equal parenting time adjustment instead of a 20 percent parenting time adjustment when it computed his child support obligation. Our review of the record leads us to conclude that the child support order in this case was a valid exercise of district court discretion. We affirm.
A brief case history provides context.
Steve Skoczelc and Marsha Lynn Skoczelc were married in 1997. They have four minor children. In 2013, Marsha filed for divorce. Sometime later, on their own, Steve and Marsha resolved all issues except maintenance and child support. Their separation agreement provided that they would have joint legal custody of the children and they agreed to a 2-2-3 parenting plan. (A system of alternating days with the children.)
The district court approved the plan and incorporated the parties’ separation agreement and parenting plan into the divorce decree filed in May 2014. The court found that it was in the children’s best interests that Steve and Marsha receive joint custody of the children.
The district court tiren tried the issues of maintenance and child support. After applying a parenting time adjustment, the district court ordered Steve to pay Marsha $1,700 per month child support. Steve contends the court erred when it adjusted the guidelines child support figure for his parenting time. In his view, he is paying too much for child support.
General principles of law guide us.
Without a doubt, the district court is in the best position to make findings on the best interests of the minor children. In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002). We review a district court’s order determining the amount of child support for an abuse of discretion, while the interpretation or application of the Kansas Child Support Guidelines is a question of law subject to unlimited review. In re Marriage of Wiese, 41 Kan. App. 2d 553, 559, 203 P.3d 59 (2009). Judicial discretion is abused if the judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013).
As an appellate court, we review tire district court’s findings of fact to determine if those findings are supported by substantial competent evidence and are sufficient to support the district court’s conclusions of law. In doing so, we will not weigh conflicting evidence, pass on the credibility of witnesses, nor redetermine questions of fact. See In re Marriage of Atchison, 38 Kan. App. 2d 1081, 1085, 176 P.3d 965 (2008). Finally, “substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Venters v. Sellers, 293 Kan. 87, 93, 261 P.3d 538 (2011).
We must use the Kansas Child Support Guidelines.
It is mandatory to use the Kansas Child Support Guidelines (2013 Kan. Ct. R. Annot. 123). In re Marriage of Thurmond, 265 Kan. 715, 716, 962 P.2d 1064 (1998). The district court can deviate from the amount of child support listed in the Guidelines but must justify any such deviation through specific written findings in the journal entry detailing how the deviation is in a child’s best interests. Failure to make such written findings, however, is reversible error. In re Marriage of Thurmond, 265 Kan. at 716; In re Marriage of VanderVoort, 39 Kan. App. 2d 724, 732, 185 P.3d 289 (2008).
The Guidelines include various methods, worksheets, and schedules adopted by our Supreme Court to aid the district court in calculating child support. The 2013 version of the Guidelines govern the child support award here. They give the district court the discretion in situations where parents share their time equally or nearly equally to use either the shared expense formula or equal parenting time formula in setting child support. Guidelines § III.B.7. (2013 Kan. Ct R. Annot. 129). The court did not use the shared expense formula, as neither party wanted to use it. Only the equal parenting time formula is pertinent to this case since Steve asked the court to use it. This formula eliminates tire need for parents to exchange receipts for the purpose of dividing their share of the direct expenses.
To use the equal parenting time formula, the district court must first make an affirmative finding that a shared residential custody arrangement is in the best interests of the minor child, that the parents share the child’s time equally or nearly equal, and one or more of the following conditions apply:
• The parties do not agree to use the shared expense plan;
• applying the shared expense formula would place the parent designated to pay the direct expenses without the sufficient funds to be responsible for the direct expenses; or
• applying the shared expense formula is not in the best interests of ihe minor child. Guidelines § III.B.7.b.
The Guidelines also speak to adjusting child support amounts to account for larger amounts of time the child spends with the parent obliged to pay child support.
In completing a worksheet to calculate the presumptive child support obligation, the district court also has the discretion to adjust the obligation to take into account how much time the child spends with each parent if the adjustment is in the best interests of the child. See Guidelines § IV.E. (2013 Kan. Ct. R. Annot. 138). This was used by the court here.
If the child spends 35 percent or more of the child’s time with the nonresidential parent, the district court shall determine whether a time formula adjustment in child support is appropriate. The court can thus increase or decrease the support order by applying diese adjustments. When calculating the time formula adjustment, the district court shall not consider the child’s time spent at school or in day care. Guidelines § IV.E.2.b. To assist the district court, the Guidelines provide a table that may be used to calculate the amount of parenting time adjustment. See Guidelines § IV.E.2.b.
The time formula adjustment table displays three parenting time adjustment percentages:
1. A 5 percent parenting time adjustment when the child’s percentage of time with the nonresidential parent is 35 percent to 39 percent;
2. a 10 percent parenting time adjustment when the child’s percentage of time with the nonresidential parent is 40 percent to 44 percent; and
3. a 15 percent parenting time adjustment when the child’s percentage of time with the nonresidential parent is 45 percent to 49 percent. Guidelines § IV.E.2.b. (2013 Kan. Ct. R. An-not. 140).
We examine the steps taken by the district court here.
The dispute between the parties centered on which of two approaches to follow when setting the appropriate child support payment. Steve asked the district court to use the equal parenting time formula with Marsha to either pay all of tire direct expenses and receive $800 child support or receive approximately $560 child support with Steve paying all of the direct expenses. From her point of view, Marsha asked the court to calculate the presumptive child support obligation using a 15 percent parenting time adjustment. Marsha argued that it would be inequitable to use the equal parenting time formula given the great difference in their incomes, i.e., Steve earned $99,459.37 per year while Marsha earned approximately $55,912.75, and that she would incur additional expenses during the summer when Steve was unable to exercise his parenting time.
When it decided this matter, the court disagreed with Steve’s assertion that it only had the discretion to use the parenting time adjustment if the equal parenting time formula was excluded. The court believed that it had the discretion to use either method when determining child support. The district court acknowledged the parties had agreed they shared parenting time equally or nearly equally based on the 2-2-3 parenting schedule but found the evidence of their historical relationship showed Steve’s employment demands during the summer for 2 days a week over several weeks resulted in Steve exercising between 45 percent and 49 percent of the total parenting time.
The court then ordered that Marsha would care for the children on the days Steve worked during the summer on his designated parenting time and found it would not be in the best interests of the children to use either the equal parenting time formula or Marsha’s requested 15 percent parenting time adjustment provided for in the Guidelines. Instead, the district court ordered a 20 percent parenting time adjustment, which would be more eq uitable. In other words, Steve received a greater adjustment to his child support obligation than that proposed by Marsha.
After pointing out the need to calculate a new worksheet, the district court stated that it had another reason why it was not in the best interests of the children to use die equal parenting time formula—“just having issues related to who should pay the direct expenses and why and just overall what is more in the best interest of these children is a 20 percent parenting time adjustment.”
We examine the arguments raised in this appeal.
On appeal, Steve contends that the Guidelines require the district court to apply the equal parenting time formula if the shared expense formula is not applicable and the affirmative findings under Guidelines § III.B.7.b. are made. In other words, Steve is arguing that the equal parenting time formula was automatically triggered here, and the district court no longer had any discretion to order the presumptive child support amount based on the worksheet either with a parenting time adjustment or without an adjustment. We must disagree with this assertion.
Clearly, the Guidelines state that the use of the equal parenting time formula is discretionary with the court even if the court makes the findings under Guidelines § III.B.7.b. The general instruction passage states: “Use of this section is discretionary with the court. Parents who share the children s time equally or nearly equally may be eligible for . .. the Equal Parenting Time Formula.” (Emphasis added.) Guidelines § III.B.7. (2013 Kan. Ct. R. Annot. 129).
Moving to the more specific section, Guidelines § III.B.7.b. states: “The Equal Parenting Time Formula is discretionary with the court and may be used to set child support when“ the district court makes the required affirmative findings. (Emphasis added.) (2013 Kan. Ct. R. Annot. 131). Simply stated, the required affirmative findings in Guidelines § III.B.7.b. are only a prerequisite to justify the district court exercising its discretion to use the equal parenting time formula.
We see no language in §§ III.B.7. or III.B.7.b. mandating the use of the equal parenting time formula if the district court deter mines the required affirmative findings discussed above are present. The court always has the option not to make any adjustments.
Also, we are not convinced that the court made the findings contemplated in the Guidelines. Before it decided not to use tire equal parenting time formula, the district court here found that it was in dre children’s best interests for Steve and Marsha to share residential custody and that the parties did not agree to use the shared expense formula. The district court also found that Steve and Marsha agreed to share the residency of the children equally or nearly equally, an arrangement reflected in the 2-2-3 parenting plan. This is not an unequivocal affirmative finding by the district court regarding the prerequisite findings under the Guidelines. Nor is this parenting time adjustment award an implicit finding that Steve did not show they shared the children equally or nearly equally.
Even if we assumed that the district court did make the required affirmative findings to use the equal parenting time formula, the court still had the discretion to use two other methods to calculate child support if it was in the best interests of the children, i.e., calculate the presumptive child support amount either with or without a parenting time adjustment.
Steve also argues that the district court was precluded from ordering a parenting time adjustment because the time formula adjustment table only contemplates those situations where a nonresidential parent’s time ranges from 35 percent to 49 percent. This argument is predicated on his erroneous belief that sharing parenting time equally or nearly equally can only amount to 50 percent.
When the district court decided not to use the equal parenting time formula, it considered evidence that during 12 days of the summer Steve would be required to work during his scheduled parenting time and the children had historically been under Marsha’s care during this time. Despite Steve’s contention that under the 2-2-3 shared parenting schedule each parent would care for the children equally, the record supports the district court’s finding that Steve actually only exercised between 45 percent and 49 percent of the total parenting time. Ignoring holidays and vacations, the 2-2-3 shared parenting schedule provided for each parent to have the children for 50 percent of the year or approximately 182.5 days each. However, Steve’s summer work schedule shifts his actual parenting time to 170.5 days, or 46.7 percent of the year; whereas, Marsha would have the children for 194.5 days, or 53.3 percent of the year. Moreover, the evidence that Marsha would be unavailable to care for the children for 1 of the 6 weeks during the summer does not affect the finding that Steve only exercises between 45 percent and 49 percent of the total parenting time. The district court appropriately used its discretion here.
We must point out that these matters are not subject to a precise division of time and money for child support. These are not computations that must be made with scientific accuracy down to the penny. Rather, they arrive as a result of the application of child support guideline principles and the adaptation of guideline models that result in an equitable award. Each case is different. Each parent’s circumstances are unique. All children’s needs differ. The judicial eye and hand must fill in the final blanks, not a computer program.
The district court applied the correct legal standard, and its factual determinations had legally sufficient support in the evidence. Because we do not reweigh that evidence on appeal, we are left to ask whether no other person would have come to the same conclusion not to use the equal parenting time formula. We conclude that others would indeed come to the same conclusion and, thus, it cannot be an abuse of discretion.
While the parenting plan called for shared custody and equal or nearly equal care of the children, there was evidence in this case showing not only disparate incomes but Marsha having to bear additional expenses to care for the children during Steve’s parenting time. Given the standard of review, we cannot say the district court abused its discretion forgoing the equal parenting time formula and granting a 20 percent parenting time adjustment. Had the court followed Marsha’s suggestion, Steve would have had to pay more for child support.
However, to complete our abuse of discretion analysis, we must still address the district court’s deviation from the recommended time formula adjustment found in Guidelines § IV.E.2.b. when it increased the adjustment from 15 percent to 20 percent.
We examine the amount of the adjustment.
Steve argues that the district court, in determining the 20 percent parenting time adjustment, erroneously deviated from the Guidelines by relying upon the 80/20 rule previously found in the Guidelines which was replaced by the equal parenting time formula. See Guidelines § III.B.7.b.
It is clear that Steve’s argument on this point is based upon an assumption that the court only has the discretion to award Marsha the adjustment percentages found on the table provided in Guidelines § IV.E.2.b. Actually, the district court is not required to use tire table. Indeed, Guidelines § IV.E.2.b. provides that a district court may use the table provided in the Guidelines to calculate the parenting time adjustment. Again, this is a matter of discretion.
In addition, there is a well-established rule that the district court has the ability to deviate from the Guidelines when determining the amount of child support if such deviation is justified in wilting in the journal entry. See In re Marriage of Thurmond, 265 Kan. at 716; In re Marriage of VanderVoort, 39 Kan. App. 2d at 732. This discretion to deviate from the Guidelines extends to the adjustment percentages recommended in the table found in Guidelines § IV.E.2.b. In the case In re Marriage of Atchison, 38 Kan. App. 2d 1081, 1091, 176 P.3d 965 (2008), this court found that the district court had failed to properly exercise its discretion in finding a 15 percent parenting time adjustment appropriate under Guidelines § IV.E.2.b. because the district court was not aware that it could deviate higher than the maximum 15 percent figure the table in the Guidelines provided.
Here, the district court found: “After hearing arguments by counsel the court declines to use the Equal Parenting Time Adjustment but allows for a reduction in child support owed. Steve will pay to Marsha $1700 per month for Child support effective June 1, 2014.” To reach the $1,700 amount, the child support worksheet reflects a 20 percent parenting time adjustment, instead of the maximum recommended figure of 15 percent found in Guidelines § IV.E.2.b. when the child’s percentage of time with tire nonresidential parent is 45 percent to 49 percent.
When we couple those statements with those made by the court in the decree and the written findings in the child support worksheet adopted by the court, we are satisfied with the findings made by the court to support its decision to give Steve a greater reduction in child support than what Marsha suggested. We find no error here.
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Arnold-Burger, J.:
This is an appeal from a wrongful-death jury trial in which the jury returned a verdict in favor of the defendants St. Luke’s South Hospital, Inc. (St. Luke’s) and two doctors. The jury determined that none of the defendants were at fault, and then it attributed 0% of the fault for Nicole Dickerson’s death to each defendant. Virginia Dickerson, as lawful heir of Nicole Dickerson (the Estate), appeals this result because it requested that the court instruct the jury to compare the fault of three non-party doctors along with the named defendants and to list these nonparty doctors’ names on the verdict form, but the court refused. The Estate argues this was error because it was entitled to any instruction it had evidence to support, and it presented evidence of the fault of the nonparty doctors. The Estate contends that it is entitled to a new trial because, as a result of the error, the court asked the jury to attribute 100% of the fault to only 50% of the people accused of causing the harm. After a thorough review, we find that the district court erred by not instructing the court as the Estate requested, but the error did not prejudice the Estate’s substantial rights or impact the trial’s outcome. Adding additional non-party defendants would not have changed the jury’s conclusion that Nicole’s death did not result from a medication error caused by the defendant hospital and doctors (and the actions of tire hospital’s nurses).
Factual and Procedural History
Nicole Dickerson suffered from velocardiofacial syndrome, a birth defect that caused a large hole in her heart. The condition resulted in blood transfer between the left and right sides of her heart and in the underdevelopment of the artery that pumped blood from the right side of Nicole’s heart into her lungs for oxygen. Nicole underwent numerous surgeries to have the hole in her heart plugged and the artery bypassed, but these surgeries did not cure her disease, and over the years Nicole developed severe pulmonary hypertension. This means that Nicole’s body struggled to get blood to her lungs to get oxygen, which in turn depleted the amount of blood returning to her heart. A side effect of Nicole’s condition was liver congestion, which caused fluid to accumulate in Nicole’s abdomen.
At 24 years old, Nicole had run out of life-extending options and was living on hospice care, which meant her primary-care physician predicted she had as little as 3 to 6 months left to live. But Nicole’s family testified at trial that she remained lively: She was studying at community college, living with her sister—LaTosha Duckworth (a nurse who helped care for Nicole), and preparing to go on vacation when the events that led to this litigation transpired.
On April 10, 2008, Nicole arrived at St. Luke’s for an outpatient paracentesis. Nicole had elected to have the paracentesis—a palliative procedure whereby excess fluid is drained from the abdomen—before going on vacation.
In order to admit Nicole for her procedure, the admitting nurse, Chrisan Theobald, completed a medication-reconciliation form. Theobald testified that her job required her to get the patient’s most recent medical records and record the medication doses the patient was prescribed so that the next nurse could double check those doses with the patient before having the doctor confirm them. Generally, Theobald said she tried to get records from as recently as 30 days before the patient came into the hospital, but in Nicole’s case, she testified that she believed she had relied on hospital records from 5 months earlier, November 2007, to get a list of Nicole’s medications. Theobald indicated that Nicole should receive 2.5 mg of Vasotec twice a day on her form. But Nicole’s primaiy physician had lowered Nicole’s dose of Vasotec to half that amount and testified that she had been prescribing Nicole 1.25 mg of Vasotec in the months leading up to her death.
Mary Ann Lambers was the next nurse to speak directly with Nicole and her mother, Virginia Walker (a/k/a Virginia Dickerson), about Nicole’s medication. Lambers’ job required her to get an accurate account of the medications Nicole was taking as of the time she came in for her procedure and to add or subtract medications or change dosages from Theobald’s form and enter the information into the computer system. Lambers testified that while she could not recall foe details of her conversation with Nicole and Walker clearly, she knows that she spoke with them because on Theobald’s handwritten medication-reconciliation form, some blanks are filled in by Lambers indicating Nicole’s current doses of medications.
Walker says that she gave Lambers a container full of Nicole’s medications with the accurate dosing information reflected on the pill bottles and that she also gave Lambers a list of Nicole’s medications with foe correct dosing information. Lambers says she never received any medication lists or pill bottles from Nicole or Walker because these items would have been entered into her notes and tagged for Nicole’s file, but they were not. Lambers acknowledged, however, that Walker alleged a major error on Nicole’s medication form: Lambers had said that Nicole should re ceive 2.5 mg of Vasotec twice a day, and Walker said that Nicole had only been taking 1.25 mg twice a day.
While undergoing the paracentesis, the doctors noticed that Nicole had cellulitis—a skin infection—in her leg, and they recommended she undergo a round of antibiotics to treat the condition. Nicole decided to stay overnight at the hospital to have the antibiotics administered intravenously.
Dr. Shelley Edwards was the hospitalist on duty when Nicole was admitted, and she treated Nicole only on Nicole’s first night at St. Luke’s. When Nicole arrived in Edwards’ unit, Nicole had very low blood pressure, with the systolic number at only 68 to 70. Because Nicole’s condition seemed dire for a patient admitted into the internal-medicine unit, Edwards made a point to investigate Nicole’s condition immediately. Edwards pulled Nicole’s chart and learned about her heart disease, about the fact that she was on hospice care, how she had come in for palliative paracentesis, and about the cellulitis in her legs. Edwards said she focused primarily on Nicole’s hospitalization in November 2007 to get a sense of what to expect when she visited Nicole. After a quick view of these records, Edwards said she went to see Nicole, who was with her mother.
Edwards described Nicole’s appearance as something she had not seen before or since and said that Nicole looked like she was 25 going on 85 with incredible swelling in her abdomen, genitals, and legs because of her heart failure. Edwards said Nicole had gained 20 pounds of fluid since her last visit 5 months before. At Nicole’s last visit, she could stand on her own, Edwards said, but when Edwards saw her she could not get out of a chair unless she was hoisted. Edwards also noted that she was dizzy, exhausted, depressed, tearful, and incontinent.
Edwards said Walker was very concerned that Nicole had not been given her medication and that Edwards had initially consented to giving it to Nicole—including the 2.5 mg dose of Vaso-tec—but then changed her mind when she saw the results from some lab tests she had ordered. The lab results showed Edwards that Nicole was experiencing acute renal failure, which Edwards believed would Mil her. Accordingly, Edwards testified that she entered a hold order on all of Nicole’s medications pending a cardiology consultation. In Edwards’ notes on Nicole’s chart, she mentioned that Nicole often presented with low blood pressure and that Nicole lived with low blood pressure according to Walker. Edwards nevertheless stressed that Nicole suffered from low blood pressure and kidney failure before any medications in any amount were given to her and that paracentesis could cause kidney failure.
Dr. Paul Chan consulted on Nicole’s case at Edwards’ request for a cardiologist. His nurse practitioner interviewed Nicole and Walker before he met with them, and, like the nurses before her, recorded that Nicole took 2.5 mg of Vasotec twice a day in her notes. Chan admitted he did not follow up on this dosing information and that he would not have knowingly doubled Nicole’s dose of the medicine. Chan said, however, that Nicole’s dose of the heart medication was so low that doubling it was not necessarily medically significant and stated that taking Nicole off the medication when her blood pressure began dropping might actually have caused her heart to fail more quickly.
Dr. Douglas Anderson took over as the third hospitalist on Nicole’s case. Anderson believed he had ordered Nicole’s medications in the dosages she had been taking before she had been hospitalized. He said that when he took over Nicole’s care he looked at the notes on her chart. He admitted to approving the continuation of Nicole’s Vasotec even as her blood pressure continued to drop, and he admitted that low blood pressure could be a side effect of Vasotec, though he cautioned that Nicole took such a low dose of Vasotec that it would not have a negative impact on most patients, as some patients took as much as 40 mg per day and she took only 5 mg. Anderson admitted that he had looked at the cardiologists’ notes and that in a handwritten note given to him at trial Nicole’s dose appeared to be only 2.5 mg once a day. But Anderson said he had not seen the handwritten note while he had been treating Nicole and that the typed notes said she should be given 2.5 mg of Vasotec twice a day. Anderson said that while Vasotec could cause kidney failure and low blood pressure, it was unlikely in the amount given to Nicole.
Dr. Teresa Tovrea treated Nicole for the last 4 days she stayed at St. Luke’s until her transfer to another hospital. Tovrea said when she came on shift, she reviewed all of Nicole’s records and then went to check on her. To her, Nicole looked very ill—swollen, unable to get out of bed even to use the restroom, her legs were weeping, and the skin on her legs was starting to slough from the swelling. Tovrea said she was so concerned about Nicole’s condition that she called Dr. Martin Zink—a cardiologist—to ask what options there were for Nicole who was now in end-stage heart failure and acute renal failure. He ordered Dobutamine, a heart medication, and they moved Nicole to the intensive-care unit (ICU). Tovrea thought Nicole’s outlook was very grim.
Zink treated Nicole when called in by Tovrea; he had been her doctor in November 2007, the last time Nicole had been at St. Luke’s. He noted that Nicole’s condition had deteriorated in the past 5 mondas since he had last seen her—her legs were very swollen, for example. In November 2007, he had prescribed 2.5 mg Vasotec twice daily to Nicole, and he said this is what he believed she had been taking from dien until he saw her in April. He agreed that if she had been taking a lower dose, he should have known about it. But he did not believe that changing Nicole’s Vasotec dosage impacted her condition because die dosage amounts were so low and her renal failure was acute. He thought giving Nicole the amount of Vasotec that he approved was appropriate under the circumstances.
After moving to the ICU, Tovrea said Nicole’s vital signs continued to deteriorate and multiple organ systems began to fail. Walker and Duckworth said diat they wanted all life-saving measures to be taken, and die specialists were saying nothing could be done to cure Nicole’s conditions. Ultimately, Tovrea said she transferred Nicole to a branch of St. Luke’s on the Plaza (the Plaza) on April 16, 2008, after the team of doctors had concluded her liver, lungs, heart, and kidneys were failing, and Chan had suggested die Plaza might be able to perform ultrafiltration. Tovrea said that she had given Nicole 2.5 mg of Vasotec twice a day and that she thought this was appropriate because of Nicole’s condition—even if it had not been the dose she had been on at home. Further, even if it was an error, Tovrea said that it was the cardiologists’ job to prescribe medications specific to their specialty. Tovrea also said that transferring Nicole earlier would not have changed the outcome of Nicole’s care.
At the Plaza hospital, Nicole died. Walker instituted this wrongful death action on behalf of the Estate against St. Luke’s for the actions of its nurses, specifically Lambers and Theobald, as well as against doctors Edwards, Anderson, and Tovrea.
Before trial, the Estate dropped Anderson as a party to the suit. Notably, the Estate did not sue Chan or Zink. In the pretrial order, the Estate asserted that the joint negligence of the nurses (acting on behalf of St. Luke’s) and the named doctors had caused Nicole’s death in that they had given her double the dosage of Vasotec from what she was used to, which had caused her blood pressure to drop and her kidneys to fail and had led to her death. Conversely, the defendants argued that they had not caused Nicole’s death. But the defendants asserted that if the Estate was able to reach the jury on the issue of their fault, then the jury “must also consider the comparative fault of all defendants against whom this suit was initially brought and any non-parties against whom there is evidence of negligence.”
Accordingly, the pretrial order noted that the comparative fault of any party or nonparty was an issue of fact to be determined by the jury and a disputed issue of law to be resolved by the court. Both parties and the court approved the pretrial order containing this language.
At trial, both parties advanced theories consistent with the pretrial order. The Estate’s expert, Dr. Herbert J. Stern, opined that all of the doctors and nurses involved in Nicole’s care—specifically nurses Lambers and Theobald and doctors Anderson, Chan, Edwards, Tovrea, and Zink—deviated from the standard of care that Nicole had a right to expect by doubling her dose of Vasotec, not noticing or correcting this error, not withdrawing the Vasotec when Nicole’s blood pressure fell and her kidneys failed, by continuing to prescribe the Vasotec, by incorrectly transcribing the family’s statements about Nicole’s prescriptions, and by not transferring her to the Plaza sooner for potentially life-saving treatment. Specifi cally, Stem said that giving Nicole double the dose of Vasotec that she had been used to led to the drop in her blood pressure, which caused her acute kidney failure that caused her death. Stem noted that the number one reason that people die in hospitals when they should not die is because of medication errors. Yet Stern did admit that paracentesis can cause kidney failure, that Nicole was in “some degree” of kidney failure before she had been given any amount of Vasotec, and that the kidney specialists considered that “degree” to be acute.
Conversely, the defendants5 expert, Dr. Joseph Billadello, testified that paracentesis causes blood pressure to drop. He said this happens because the procedure egresses fluid from the body and the vessels and causes recoagulation as the fluid is drained. According to Billadello, nothing that happened to Nicole—including her death—could be attributed to tire small increase in Vasotec. Billadello told the court that Nicole died because she suffered from heart failure.
At the close of evidence and outside of the jury5s presence, the court reviewed its proposed instructions with the parties. Before trial, the Estate had proposed a jury instruction comparing the fault of nonparties to the action, specifically Anderson, Chan, and Zink. The Estate wanted to instruct the jury that it could compare the fault of these nonparties and to name these nonparties as potential wrongdoers on the verdict form. The court’s proposed instruction No. 10 did not compare the fault of these nonparty doctors; and the Estate objected, pointing out that evidence of the negligence of nonparties existed in this case. The court responded that it understood but that it would not compare die fault of nonparties.
When the court asked the parties if they objected to the verdict form, the Estate’s attorney again objected, stating:
“Judge, I would renew my objection about the comparative fault of the parties. I think there is evidence of comparative fault of more than tire parties in this case, and that we’ve asked that their fault be compared and the Court has ruled it won’t be compared. So I can submit an instruction with other parties in there. I’ve got a verdict form that is not perfect, but I’ll submit it. . . .”
The defense argued that the Estate should not be allowed to elect whose fault to compare because it could have sued other parties if it wanted to and it did not sue the nonparties that it now wanted named to compare their fault. According to the defense, comparative fault is an affirmative defense only and, therefore, only defendants can force the court to compare the fault of nonparties.
The court ultimately concluded that the evidence focused on the people named in the lawsuit—St. Luke’s, Edwards, and Tovrea— and declined to list nonparties on the verdict form.
When the jury returned, the court read the instructions. The court instructed the jury that as to fault:
“1. Your first obligation is to determine if any defendant is at fault.
"2. If you decide that any defendant is at fault, you must then assign a percentage of fault to each defendant you find to be at fault.
“3. For a defendant not at fault, show 0% on the verdict form.
“4. If you find any defendant at fault, show 1% to 100% on the verdict form for that defendant.
“5. If one or more defendants are assigned fault, the total of all fault must be 100%.”
The juiy was also instructed that it could only assign fault to St. Luke’s, Tovrea, and Edwards.
In closing arguments, the defendants posed a hypothetical question: “Just what exactly is negligence?” First, the defendants’ attorney gave the legal standard—if the doctors’ performance deviated from the standard of care expected by professionals in the same field and community under the same circumstances then they were negligent. Then, the defense explained that
“Doctor Cox and Dr. Anderson and Dr. Edwards and Doctor Tovrea are all members of the same profession and you heard about all of them and the—so if these two doctors [Edwards and Tovrea] did tire—operated the same way as the other two whose care was not called into question, then they weren’t negligent. In fact, that’s exactly what they did.”
But the Estate’s attorney had the chance to rebut this argument, and he noted:
“You know, Mr. Wagstaff addressed Dr. Edwards, Doctor Anderson, Dr. Cox and Dr. Tovrea and what I know is it is not appropriate for you to speculate about why Doctor Anderson and Dr. Cox are not here, but I’ll tell you this, nowhere in the instructions from the Court are you going to find anything that says there is any standard other than what we’ve addressed here and what is in the instructions.
“What happened with—I guess what I am saying and what happened with Anderson and Cox and why they are not here is completely irrelevant to your decision and needs to be so. So here’s the deal: There is some evidence in this case of negligence by people that aren’t here, but your instructions from the Court are very clear and you’re not to speculate about those [people]. But here’s what we know: Did you find any party to be at fault? And tire parties we’re talking about here are Saint Luke’s South and there is the instruction that says Saint Luke’s South, everyone understands they’re responsible for the nurses [and doctors Edwards and Tovrea].”
After deliberating and posing no questions to the court, the jury returned a verdict in favor of the defendants. It attributed 0% of the fault to each listed defendant.
The Estate moved for a new trial on the grounds that the district court should have instructed the jury to compare the fault of non-parties and should have listed the names of the nonparties it had requested on the verdict form. The district court denied the Estate’s motion for a new trial. The Estate appealed the denial of its motion and the outcome of the trial.
Analysis
While the Jury Should Have Been Instructed to Compare the Fault of the Nonparty Doctors, the Estate Fails to Show the Requisite Prejudice for Reversal.
The Estate argues that the district court erred by not instructing the jury that it could compare the fault of people who were not parties to the lawsuit and by not giving the jury the opportunity to apportion fault to nonparties on the verdict form. Specifically, the Estate contends it put forth evidence of the wrongdoing of three additional doctors—Anderson, Chan, and Zink. The Estate complains that it was logically inconsistent to tell the jury that it had to attribute 100% of the fault to the named defendants, when evidence showed that other individuals’ actions also contributed to Nicole’s death.
Conversely, the defendants ask this court to uphold the district court’s decision to not give the instruction because they argue that (1) the instruction was not meant to be used by plaintiffs who have control over the parties involved in litigation; and (2) even if a plaintiff can legally request the instruction, the district court’s failure to give it here did not harm the Estate.
To determine if the district court erred by not instructing the jury on the comparative fault of nonparties Anderson, Chan, and Zink, this court employs a multi-step analysis. See Foster v. Klaumann, 296 Kan. 295, 301, 294 P.3d 223 (2013). First, it exercises unlimited review over questions of appellate jurisdiction and issue preservation. Second, this court exercises unlimited review to determine whether the requested instruction was legally appropriate. Third, if this court finds the instruction was legally appropriate, it looks at the record in the light most favorable to the requesting party to determine whether sufficient evidence would have supported giving the instruction. If the instruction would have been legally appropriate and it was factually supported by sufficient evidence, then the district court erred, and this court moves to the final step of the analysis. Under the fourth and final step, this court examines the error to determine if it is harmless. 296 Kan. at 301-02; see K.S.A. 2014 Supp. 60-261.
1. The Estate Preserved This Claim for Appellate Review.
First, this court must ensure that the Estate preserved its claim that the district court erred by not instructing on the comparative fault of nonparties for this court’s review. See Foster, 296 Kan. at 301. A party preserves a claim that the district court erred by not giving a requested instruction for review on appeal by requesting the instruction at trial, objecting at trial to the court’s refusal to give the instruction, and by giving the trial court grounds for the objection. See K.S.A. 2014 Supp. 60-251(c)(1), (c)(2)(A), and (d)(1)(B).
This court may review the Estate’s claim because it requested a nonparty comparative-fault instruction and objected to the court’s decision to not give it. The Estate proposed a jury instruction and a jury-verdict form that compared the fault of Anderson, Chan, and Zink in addition to the fault of the named defendants. Further, when the court discussed the jury instructions with the parties and told them it did not intend to give an instruction on the fault of nonparties, the Estate objected. Again, when the court showed its proposed verdict form to the parties and it did not include the names of tire nonparties that the Estate alleged had been at fault, the Estate again objected. Accordingly, the Estate preserved this claim of error for appellate review.
2. A Nonparty Comparative-Fault Instruction Was Legally Appropriate.
Second, this court must determine if it would have been legally appropriate for the district court to instruct the jury on tire comparative fault of the nonparty doctors. See Foster, 296 Kan. at 301. To be legally appropriate, the requested instruction must fairly and accurately state the applicable law when viewed in isolation and it must be supported by the particular facts of the case. State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). Specifically, then, this court must decide if the Estate’s requested instruction correctly stated die law and if it applied in the Estate’s case against Nicole’s doctors and St. Luke’s.
Here, the Estate’s requested instruction correctly stated the law. In fact, the Estate requested an instruction identical to the instruction given by the court, except tire Estate’s requested instruction listed Anderson, Chan, and Zink as additional persons to which the jury could assign fault. Both the instruction the Estate requested and the instruction the court gave mirrored the Kansas pattern instruction for explaining the verdict in a comparative-fault case, PIK Civ. 4th 105.03. But see PIK Civ. 4th 105.04 (comparative fault—where claim made against one not joined as party, i.e., a nonparty).
While district courts are not required to use Kansas’ pattern instructions, the instructions are strongly recommended because they have been designed by a knowledgeable committee that aimed to bring accuracy and clarity to juiy instructions. Hibbert v. Randsell, 29 Kan. App. 2d 328, 331-32, 26 P.3d 721 (applying discussion of criminal pattern instructions to civil instructions), rev. denied 272 Kan. 1417 (2001); see State v. Dixon, 289 Kan. 46, Syl. ¶ 10, 209 P.3d 675 (2009). Though the Kansas Supreme Court has acknowledged that courts should not hesitate to modify or add to the pattern instructions if the facts of a particular case require modi fication, it has also clarified that without a particular need to modify an instruction, courts should follow the recommended wording. Hibbert, 29 Kan. App. 2d at 331-32; see State v. Dominguez, 299 Kan. 567, 576, 328 P.3d 1094 (2014); Dixon, 289 Kan. 46, Syl. ¶ 10. The Estate therefore accurately stated the law of comparative fault in its proposed instruction.
But the parties strongly disagree over whether the Estate’s instruction would have been appropriate or applicable in this case. The Estate contends the district court was obligated to give the instruction requested. The Estate maintains that Kansas law requires courts to give nonparty comparative-fault instructions when any party requests it and the court has evidence of the nonparties’ fault. Conversely, the doctors and St. Luke’s argue that a plaintiff in the lawsuit may never request that the court compare the fault of nonparties because the comparative-fault statute was designed to benefit defendants.
On this point, we agree with the Estate. The district court must give an instruction that a party requests if sufficient evidence supports giving it. Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, Syl. ¶ 1, 228 P.3d 1048 (2010); Wright v. Sourk, 45 Kan. App. 2d 860, 872-73, 258 P.3d 981 (2011), rev. denied 293 Kan. 1114 (2012). Although the defendants point out that the Estate did not cite to a single case where a plaintiff requested that the fault of a nonparty be compared in the jury instructions or on a verdict form and our research did not uncover such a case in Kansas, the lack of caselaw illustrating the plaintiff s position is understandable. It malees sense because adding nonparties to a verdict form does not financially benefit a plaintiff; it can only decrease and never increase the amount of damages a plaintiff may recover from parties to a lawsuit. This is because comparing the fault of a nonparty with the fault of the parties only reduces the amount of fault potentially attributable to the defendant or defendants. Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 189, 643 P.2d 158, aff'd on reh. 232 Kan. 194, 653 P.2d 816 (1982). It does not permit the plaintiff to recover from the nonparties or otherwise increase the recovery available to the plaintiff. 231 Kan. at 189. Thus, tire fact that other plaintiffs have not appealed on this issue is not relevant to our determination here.
Moreover, the defendants’ argument that only defendants can request the instruction is based entirely off the comparative-fault statute, not the comparative-fault jury instruction. Specifically, the defendants’ note that Kansas courts have clarified that the comparative-fault/negligence statute, K.S.A. 2014 Supp. 60-258a(c), confers rights on any party against whom a claim is asserted, i.e., a defendant, to join additional negligent parties. See McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 772, 667 P.2d 289 (1983); Brown v. Keill, 224 Kan. 195, 203-07, 580 P.2d 867 (1978).
But, this is not a case of joinder. The statute’s plain language permits defendants—and only defendants or third-party defendants—to add parties to lawsuits when they argue that the additional parties are partially responsible for the harm they allegedly caused. See K.S.A. 2014 Supp. 60-258a(c). This joinder statute exclusively deals with a defendant’s right to join a party to the lawsuit. But there is a logical reason for this specific language: A plaintiff could have joined the additional parties it considered to be at fault by simply naming them as defendants in the original action, and defendants could not. The legislature therefore had to create the right of defendants to bring in additional parties separately, which it did in K.S.A. 2014 Supp. 60-258a(c). See also Haley v. Brown, 36 Kan. App. 2d 432, 437, 140 P.3d 1051 (2006) (“The comparative fault statutory scheme is simple. The plaintiff can choose the parties [the plaintiff] wishes to sue, and the defendants can bring in others if they are considered to be at fault.”).
But as Kansas caselaw has long noted, joinder is legally distinct from a request to compare the fault of a nonparty, and only joinder is a defendant-specific right. See Brown, 224 Kan. at 205-07 (noting that formal joinder is not a necessary prerequisite for comparing the fault of an entity or individual); Haley, 36 Kan. App. 2d at 436-37. Conversely, the language of the nonparty comparative-fault instruction—unlike the language of the comparative negligence joinder statute—does not indicate that it creates a right only for defendants. Compare PIK Civ. 4th 105.04 with K.S.A. 2014 Supp. 60-258a(c).
In fact, the comments to the pattern instructions clearly note that the instruction should be given whenever there is evidence of fault of a nonparty: “Where the evidence warrants it, the court musí add that person . . . solely for the purpose of determining and allocating fault upon a one hundred percent basis [by] including [that] person[] in the special verdict form.” (Emphasis added.) PIK Civ. 4th 105.04, Comment; see also Greenwood v. McDonough Power Equipment, Inc., 437 F. Supp. 707, 712 (D. Kan. 1977) (discussing earlier version of nonparty comparative-fault instruction). The comments to PIK Civ. 4th 105.04 likewise do not discriminate against which party may request the instruction but note instead that “[a] party to the action may claim that . . . persons other than parties to the action caused or contributed to the injuiy and damage claimed.” (Emphasis added.) The use of the word “a” is relevant because it does not say that tire defense may make a claim against an individual who is not a party to the lawsuit and then request the individual’s fault be compared but that “a” party may do this, as in any party to the action may do this, including the plaintiff. See PIK Civ. 4th 105.04, Comment.
Though the giving of the pattern instructions is of course not mandatory and the comments to the pattern instructions are not binding on this court, it is important to note that a knowledgeable tions wrote the instructions, as well as the comments to the instructions. Hibbert, 29 Kan. App. 2d at 331-32. Moreover, the pattern instructions should be the starting point in the preparation of any set of jury instructions. 29 Kan. App. 2d at 331. Further, the notion that any party should be able to request to compare the fault of nonparties is supported by caselaw, which states that to promote judicial efficiency courts should compare the fault of nonparties when the evidence requires it. Gaulden v. Burlington Northern, Inc., 232 Kan. 205, 213, 654 P.2d 383 (1982) (“We have consistently held that all issues of liability, including the causal negligence or fault of all parties to an occurrence, should be determined in one lawsuit, whether the participants are all formally joined as par ties to that lawsuit or not.”)- And there is certainly nothing cited by the defendants to undermine the principle of law with which this discussion began: A trial court must give an instruction requested by a party if sufficient evidence supports it. Puckett, 290 Kan. 406, Syl. ¶ 1.
So, while it is hard to imagine many plaintiffs making the unusual and financially risky request to compare the fault of additional non-party entities in jury trials, the defendants’ argument that Kansas law precludes them from doing so must fail. On the contrary, regardless of whether the plaintiff or the defendant requests the instruction, district courts should take into consideration all potential tortfeasors against whom evidence exists—parties or not—and allow the juiy to apportion fault amongst them. In sum, then, the requested instruction was an accurate statement of applicable law under the test’s second step.
3. Evidence Supported Instmcting the Jury on the Nonparty Doctors’ Fault.
Under the third step, this court determines whether sufficient evidence supported comparing the fault of the nonparty doctors to the fault of the named defendants. See Foster, 296 Kan. at 301. Sufficient evidence in this context is evidence that, when viewed in the light most favorable to the Estate, would allow reasonable minds to reach different conclusions based on the theory the Estate wished to advance through the requested instruction. See Puckett, 290 Kan. at 419. In other words, if reasonable people could disagree over whether Anderson, Chan, and Zink were negligent in caring for Nicole based on the evidence presented at trial, then the district court should have instructed the jury to compare their relative fault.
The district court ruled that sufficient evidence did not support giving this instruction, but we disagree. Sufficient evidence existed to allow the jury to compare the fault of Anderson, Chan, and Zink. All three of these doctors—like the doctors named in the litigation-—-admitted to prescribing or continuing Nicole’s Vasotec under the mistaken belief that she had been on 2.5 mg twice a day before coming to the hospital; and all three doctors said they did not stop giving it to her when her blood pressure dropped, despite knowing that it could cause low blood pressure.
Further, the Estate’s expert, Dr. Stern, testified that the non-party doctors were at fault in causing Nicole’s death. He said that Anderson deviated from the standard of care by continuing Nicole’s Vasotec even when her blood pressure numbers were very low. Further, multiple witnesses opined that it would have been the job of the cardiologists treating Nicole—Chan and Zink—to control Nicole’s Vasotec because the hospitalists were obligated to defer to them when it came to medications prescribed under the cardiology specialty, like Vasotec was.
In light of the fact that the Estate’s expert testified that Nicole died because of a Vasotec error, which caused low blood pressure, her kidney failure, and her subsequent death, a reasonable jury could have concluded Anderson, Chan, and Zink were each partially causally responsible for Nicole’s death had the verdict form and instructions allowed for it to do so. Sufficient evidence therefore supported the Estate’s request to compare the fault of the nonparty doctors, and the district court erred by not instructing the juiy that it could compare the fault of the nonparty doctors, with the fault of the named parties and by not including their names on the verdict form. But not eveiy error requires reversal, so this court must turn to the final step of the instructional-error analysis. See K.S.A. 2014 Supp. 60-261; Foster, 296 Kan. at 301-02.
4. The Error Was Harmless.
Fourth, this court determines whether the district court’s error requires this court to reverse the district court’s decision or whether the error was harmless in light of the entire record. See Foster, 296 Kan. at 301-02. An error is harmless if it did not affect a party’s substantial rights and if a trial’s outcome would have been the same even if the error had not occurred. See K.S.A. 2014 Supp. 60-261; State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vaiy depending on whether the error implicates a constitutional right. 292 Kan. at 565. Because the Estate does not allege the violation of a constitutional right, this court must be persuaded that there is no reasonable probability that the error affected the trial’s outcome or it must reverse the district court’s decision. See 292 Kan. at 565; see also Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 310-11, 263 P.3d 767 (2011) (applying Ward nonconstitutional harmless-error test in civil context).
Here, the Estate argues that failing to give the instruction changed the trial’s outcome because it asked the jury to do something logically inconsistent: namely, to attribute 100% of the fault to only half of the people allegedly at fault. Conversely, the defendants note that the jury expressed no confusion over its task and still attributed no fault to any defendant listed. Adding nonparties for the comparison of fault, the defendants contend, does not lead to the conclusion that a jury would increase the amount of fault attributed to the already named parties.
Here, we agree with the defendants. Had the jury attributed any fault to the defendants, the error might well have been reversible because this court would be forced to agree that the jury attributed 100% of the fault to less than 100% of those who caused the harm. But to be clear, such an error would have benefitted the Estate because more fault would have been assigned to the parties that the Estate could recover from. Here, however, the jury found the existing named parties were not at fault. These parties would still be 0% at fault no matter how many more nonparties were added: 0 divided by 3 is 0 as 0 divided by 6 is 0.
Further, under the instructions, the jury’s first duty was to determine if the defendants were at all at fault, and it determined they were not. Once it made this determination, the list of names that it could attribute fault to in the second step was immaterial. Since the juiy decided the defendants did not cause Nicole to die, it did not matter what names were listed on the verdict form because apportionment of fault always comes after determination of fault. A different list of names could not change the determination of fault, only die apportionment of fault. But it is the determination of fault that the Estate is complaining about. On the verdict form, the Estate is alleging an error to question 2, but it loses its case under question 1.
Moreover, that the jury determined the named defendants were not at fault indicates that the jury believed the defendants’ theory of the case-—Nicole did not die because of a Vasotec error. Consequently, adding more nonparties and alleging the same theory would not have caused the jury to attribute fault to the named parties but to find that even more people played no role in causing Nicole’s death.
Accordingly, while the district court should have instructed the jury to compare the fault of the nonparty doctors, this error did not impact the trial’s outcome. The district court’s judgment is affirmed.
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Granted.
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Per Curiam:
This is an original proceeding in discipline filed by tire office of the Disciplinary Administrator against the respondent, Benjamin N. Casad, of Prairie Village, an attorney admitted to the practice of law in Kansas in 1992.
On June 23, 2015, 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 July 8, 2015. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on September 1, 2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.1 (2015 Kan. Ct. R. Annot. 442) (competence); 1.3 (2015 Kan. Ct. R. Annot. 461) (diligence); 1.4(a) (2015 Kan. Ct. R. Annot. 482) (communication); and 8.4(d) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct prejudicial to the administration of justice).
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. In January 2013, the Leavenworth County District Court appointed the respondent to represent R.B., an elderly man, in a criminal appeal following R.B. s conviction for forgery, a severity level 8 felony; conspiracy to commit forgery, a severity level 10 felony; and theft, a class A misdemeanor. The court sentenced R.B. to a 10-month prison sentence for the forgery conviction, a 6-month prison sentence for the conspiracy conviction, to run concurrently to the forgery sentence, and a 12-month jail sentence for the theft charge. The court granted R.B.’s request for probation and placed R.B. on probation for a period of 12 months.
“9. On May 21, 2013, the respondent timely filed a brief on behalf of R.B. However, the respondent failed to comply with Supreme Court Rule 6.02(a)(4) by adequately citing to the record on appeal.
“10. In the brief, the respondent argued that R.B. s statutory right to a speedy trial had been violated. On August 30, 2013, the state timely filed its brief. In its brief, the state conceded that R.B.’s statutory speedy trial rights were violated regarding the forgeiy and theft convictions. Thus, the state agreed that those two convictions should be reversed.
“11. On September 4, 2013, the Court of Appeals notified the respondent diat he failed to comply with Supreme Court Rule 6.02(a)(4) by adequately citing to the record on appeal. The court ordered the respondent to submit a corrected brief on or before September 16, 2013. The respondent failed to submit a corrected brief. On October 10, 2013, the court issued an order dismissing R.B.’s appeal ‘for failure to resubmit an amended brief pursuant to Supreme Court Rule 6.02.’ On November 13,2013, the clerk of the appellate courts issued the mandate dismissing R.B.’s appeal.
“12. The respondent did not have contact with R.B. at any time during the appeal. The respondent did not provide R.B. with a copy of the brief he filed on R.B.’s behalf. The respondent did not provide R.B. with a copy of the court’s order directing him to resubmit an amended brief. The respondent did not provide R.B. with a copy of tire order dismissing R.B.’s appeal. The respondent never notified R.B. that his appeal had been dismissed.
“13. In December 2013, Greg Robinson, R.B.’s trial counsel, learned that R.B.’s appeal had been dismissed. After several unsuccessful attempts to contact the respondent by phone and electronic mail message, Mr. Robinson spoke to the respondent. The respondent told Mr. Robinson that he was considering fifing a motion to recall the mandate. At the conclusion of the conversation, Mr. Robinson believed that the respondent was going to file something to remedy tire dismissal.
“14. Mr. Robinson contacted tire court and learned that the respondent had not taken any action to remedy the dismissal.
“15. On March 5,2014, Mr. Robinson filed a motion in district court requesting that the district court order the respondent to file a motion to recall the mandate or appoint new appellate counsel. On March 10,2014, the respondent filed a motion to recall tire mandate in the Court of Appeals.
“16. On June 16, 2014, the respondent self-reported his conduct to the disciplinary administrator’s office.
“17. On September 26, 2014, the respondent attempted to file an amended brief. The clerk of tire appellate courts refused to accept and file the brief.
“18. On October 23, 2014, the Court of Appeals summarily denied the respondent’s motion to recall the mandate.
“19. On November 17, 2014, the respondent attempted to file a motion for an extension of time to file a motion for reconsideration of the denial of the motion to recall the mandate. The time period for filing a motion for rehearing or modification had already expired. The respondent explained that he had several other matters that required attention and did not have sufficient time to complete tire motion for reconsideration or file for extension of time before the deadline passed. The clerk of the appellate courts refused to accept the motion for filing.
“20. If R.B.’s appeal had not been dismissed, R.B.’s convictions of forgery and theft would have likely been reversed and his sentences on those convictions vacated as tire state conceded the speedy trial violations regarding those convictions.
“21. At some point, R.B. was found in violation of his probation for failure to pay restitution. R.B. remains on probation as he is on a fixed income and has been unable to satisfy the restitution obligation.
“22. Had R.B.’s convictions for forgery and theft been reversed as a result of a successful appeal, his criminal history classification would have been lowered. Thus, should R.B. later be convicted of or pleaded guilty to another offense, he may now be subject to a harsher sentence than he would have been had the appeal been successful.
“Conclusions of Law
“23. Based upon the respondent’s stipulation and the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 8.4(d), as detailed below.
“KRPC 1.1
“24. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The respondent failed to exercise the requisite preparation by failing to prepare and file a brief which comported with the Supreme Court Rules. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.1 by filing a brief which failed to adequately cite to the record on appeal in violation of Supreme Court Rule 6.02.
"KRPC 1.3
“25. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent R.B., by failing to timely submit a corrected brief to the Court of Appeals, citing to tire record on appeal. Because the respondent failed to act with reasonable diligence and promptness in representing his client, the hearing panel concludes that the respondent violated KRPC 1.3.
“KRPC 1.4
“26. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable re quests for information.’ The respondent did not have contact with R.B. at any time during the appeal. The respondent did not provide R.B. with a copy of the brief he filed on R.B. s behalf. The respondent did not provide R.B. with a copy of the court’s order directing him to resubmit an amended brief. The respondent did not provide R.B. with a copy of tire order dismissing R.B.’s appeal. The respondent never notified R.B. that his appeal had been dismissed. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a).
“KRPC 8.4(d)
“27. ‘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 failed to file a brief that comported with tire Supreme Court Rules. As a result of the respondent’s misconduct, R.B. lost his opportunity for a direct appeal of his convictions. The injury is particularly grave in this case as the state has conceded that two of the three counts should have been dismissed due to speedy trial violations. Further, the respondent failed to comply with an order of tire Court of Appeals. As such, tire hearing panel concludes that the respondent violated KRPC 8.4(d).
“American Bar Association Standards for Imposing Lawyer Sanctions
“28. 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.
“29. Duty Violated. The respondent violated his duty to his client to provide competent and diligent representation and adequate communication. Further, the respondent violated his duty to the profession to comply with court orders which resulted in prejudice to the administration of justice.
"30. Mental State. The respondent knowingly id not respond to the Court of Appeals’ order and did not communicate with his client regarding the case. The respondent negligently violated his duties to comply with Supreme Court rules regarding citation to the record on appeal.
“31. Injury. As a result of the respondent’s misconduct, the respondent caused actual serious injury to his client.
“Aggravating and Mitigating Factors
“32. 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:
“33. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 8.4(d). Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
“34. ’Vulnerability of Victim. R.R. is an elderly, indigent criminal defendant. R.B. was vulnerable to the respondents misconduct.
“35. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1992. The respondent began practicing law in 1996. At the time of the misconduct, the respondent has been practicing law for approximately 17 years.
“36. 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:
“37. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined.
“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 Rules of Professional Conduct. The respondent suffers from depression, anxiety, and alcoholism. The respondent has not consumed alcohol for 9 years. Based upon the testimony presented, it is clear that the respondents depression and anxiety 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 self-reported the misconduct. Thereafter, the respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted tire facts and the rule violations.
“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 Leavenworth, Kansas. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by the testimony of Mr. Robinson and David Graham and by several letters received by the hearing panel. Respondents Exhibits A, B, C, E, G, and H.
“42. Remorse. At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct.
“43. In addition to the above-cited factors, tire hearing panel has thoroughly examined and considered the following Standards:
‘4.42 Suspension is generally appropriate when: . . . (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
‘4.43 Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.’
‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.
‘6.23 Reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.’
“Recommendation
“44. The disciplinary administrator recommended that the respondent be censured and that the censure be published in the Kansas Reports. The disciplinary administrator further recommended that the respondent be ordered to comply with terms of the KALAP monitoring agreement. The respondent also recommended that he be censured and that the censure be published in the Kansas Reports. The respondent recommended that tire KALAP agreement be extended to 3 years’ duration (instead of die existing 1-year agreement).
“45. The respondent’s failure to comply with the Court of Appeals’ order— and die impact of that conduct — is troubling to the hearing panel. However, the respondent presented compelling mitigating evidence — including evidence that he has not had any other complaints filed against him since his admission in 1992. Thus, die hearing panel concurs with the recommendations of die parties and recommends to the Supreme Court that the respondent be censured and that the censure be published in the Kansas Reports. The hearing panel also recommends that the Kansas Supreme Court should order the respondent that he must comply with the KALAP agreement and is persuaded by counsel’s recommendation that the KALAP agreement should be extended to a total of 3 years. Further, the hearing panel directs the respondent to complete a full physical examination with a physician within 30 days of the date of diis report. Finally, should a request be made to the respondent to execute any additional releases to allow the members of the disciplinary administrator’s office to discuss the respondent’s treatment with treatment providers, the respondent shall execute an appropriate release within 30 days of the date of the request. Should the respondent fail to comply with any portion of the KALAP agreement during the next 3 years or fail to comply with any other direction of the Kansas Supreme Court or of this hearing panel, the hearing panel recommends that the Kansas Supreme Court enter at the request of the disciplinary administrator an order to show cause why this case should not be reopened and other discipline imposed.
“46. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the par ties 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) (2015 Kan. Ct. R. Annot. 350). 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. Respondent was also given adequate notice of the hearing before the panel and the hearing before this court. He filed no exceptions to the hearing panels final hearing report. With no exceptions before us, the panel’s findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2015 Kan. Ct. R. Annot. 369). Furthermore, the evidence before the hearing panel clearly and convincingly establishes that the charged misconduct was in violation of KRPC 1.1 (2015 Kan. Ct. R. Annot. 442) (competence); 1.3 (2015 Kan. Ct. R. Annot. 461) (diligence); 1.4(a) (2015 Kan. Ct. R. Annot. 482) (communication); and 8.4(d) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct prejudicial to the administration of justice) and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions.
The remaining issue before this court is tire appropriate discipline for respondent’s violations. As noted above, the hearing panel recommended a published censure but supplemented that suggested sanction by recommending placement of conditions on the respondent for 3 years. To reiterate, those recommended conditions were that the respondent comply with the KALAP agreement and that the duration of the agreement be extended to a total of 3 years; that respondent complete a full physical examination with a physician within 30 days of the date of the final panel report; and that, within 30 days of a request from the Disciplinary Administrator’s office, respondent execute appropriate releases to his treatment providers. Finally, the hearing panel recommended that, should the respondent fail to comply with any portion of the KALAP agreement during the next 3 years or fail to comply with any other direction of the Kansas Supreme Court or of the hearing panel, then, at the request of tire Disciplinaiy Administrator, this court should issue an order to show cause why this case should not be reopened and other discipline imposed.
At the hearing before this court, both the Disciplinary Administrator and the respondent requested that this court follow the panels recommendation of published censure with supplemental post-reprimand conditions. Naturally, we give due regard to the recommendations of the panel and the parties, but we are not bound by such recommendations. See In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756 (2014); Supreme Court Rule 212(f) (2015 Kan. Ct. R. Annot. 371) (“The recommendation of the panel or the Disciplinaiy Administrator as to sanctions to be imposed shall be advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended by the panel or the Disciplinary Administrator/’). Instead, this court endeavors to fashion a disciplinaiy sanction in each case that is appropriately penal for the past violations given the particular facts and circumstances — both aggravating and mitigating — but with the additional goal of ordering such corrective measures as will protect the public against future transgressions.
Here, as the panel observed, the respondent engaged in both intentional and negligent behavior, which implicated both suspension and reprimand as generally appropriate sanctions under the American Bar Association Standards for Imposing Lawyer Sanctions. The mitigating circumstances in this case would ordinarily counsel that we accept the recommendation of the lesser penalty of reprimand. But the panels determination that years-long supplemental conditions would also be advisable for the respondents professional rehabilitation convinces us that it is more appropriate to underpin those conditions with a suspension.
Accordingly, we suspend the respondent from the practice of law in the state of Kansas for a period of 60 days but stay the imposition of that suspension upon certain conditions. First, the respondent shall comply with the terms of his current agreement with KALAP, including any extension period that KALAP may deem necessary for respondent’s professional rehabilitation. Next, respondent shall obtain a full and complete physical examination by a physician and shall follow through with all of the doctors recommendations. Further, the respondent shall forthwith comply with any request from the Office of the Disciplinary Administrator to provide releases to medical care providers to enable that office to obtain reports and discuss respondent’s treatment regimen and progress. Finally, upon completion of all of the conditions, the respondent shall make satisfactory proof to the Office of the Disciplinary Administrator, upon which that office shall terminate the suspension, as if it were for a definite term. See Supreme Court Rule 219(c) (2015 Kan. Ct. R. Annot. 403). A minority of the court would tie the conditions of the stay to the period of time respondent is working with KALAP.
Conclusion and Discipline
It Is Therefore Ordered that Renjamin N. Casad be and is hereby suspended from the practice of law in the state of Kansas, in accordance with Supreme Court Rule 203(a)(2) and (5) (2015 Kan. Ct. R. Annot. 293), for a period of 60 days, but imposition of that discipline shall be stayed upon the terms and conditions outlined above.
It Is Further Ordered that, pursuant to Supreme Court Rule 219(c), respondent shall be eligible for reinstatement without a hearing, in the same manner as if this suspension were for a definite period of time.
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. | [
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Schroeder, J.:
Nina Eva Hajda timely filed this medical malpractice suit against six doctors, the University of Kansas Hospital (the Hospital), and the University of Kansas Medical Center (KUMC). She timely issued summonses on all of the parties, but she failed to obtain valid service. Pursuant to K.S.A. 2014 Supp. 60-203(b) and the district court’s order, after the statute of limitations had run, Hajda re-served tire six doctors and received permission from the district court to amend her petition. In the amended petition, Hajda changed the name of the defendant entities she initially served from KUMC and the Hospital to the Kansas University Hospital Authority (KUHA). K.S.A. 2014 Supp. 60-203(b) extends the time to obtain service if the original attempt at service is determined to be defective due to an irregularity in form, procedure, or a defect in making service. Additionally, if the service is obtained within the statutoiy deadlines of subsection (b), the service date relates back to the date the petition was filed.
Valid service on the six doctors was subsequently obtained within the statutory time frame of K.S.A. 2014 Supp. 60-203(b), and the service related back to when tire petition was filed. However, filing a lawsuit and naming the wrong party is not an irregularity in form or procedure or a defect in making service. K.S.A. 2014 Supp. 60-203(b) cannot be used to extend the time upon which valid service on a party not initially named as a defendant can be obtained. The district court correctly granted KUIiA’s motion to dismiss.
Hajda also requests that we change the district court judge and/ or assign her case’s venue to another judicial district. We deny her requests. We affirm in part, reverse in part, and remand for further proceedings.
Facts
Hajda began treatment at the Hospital on December 7, 2010. Following several months of treatment, Hajda consulted an attorney in February 2011 regarding a potential medical malpractice claim against the Hospital and several of Hajda’s physicians. On December 12, 2012, Hajda filed a pro se pleading alleging medical malpractice against the Hospital; KUMC; Gary A. Johnson, M.D.; Rhonda Johnson, Ph.D.; Rachel Van Horn, M.D.; Emily Rangel, M.D.; Evelyn Reynolds, M.D.; and Nancy E. Hammond, M.D. On December 17, 2012, Hajda attempted to serve all the defendants by serving a single summons on the office of James Pottorff, general counsel for KUMC. The summons was actually served on Pot-torff s administrative assistant, Patrick Phillips.
On August 13,2013, the district court sent Hajda a letter stating her case was on the dismissal docket for failure to prosecute. On August 26, 2013, Hajda requested an entry of default judgment against the defendants for failure to answer. At the dismissal hearing on August 30, 2013, the district court gave Hajda 60 days to re-serve the defendants.
On October 29, 2013, Hajda filed a motion requesting permission to amend her petition to “correct the misnomer and properly name” KUHA as a defendant, replacing the Hospital and KUMC. Hajda also filed a motion for an extension of time to re-serve the defendants. On November 15,2013, following a hearing on Hajda’s motions, the district court granted her motion to amend her petition to change the name of the defendant from the Hospital and KUMC to KUHA and granted her motion for additional time to serve the defendants.
Hajda filed summonses to serve the defendants on November 20, 2013, and service was obtained on the defendants between November 23, 2013, and December 10, 2013. On December 10, 2013, defense attorney Brad Watson filed a motion to dismiss pursuant to K.S.A. 2014 Supp. 60-212(b)(5) on behalf of the six doctors. KUHA filed a motion to dismiss on December 12, 2013, pursuant to K.S.A. 2014 Supp. 60-212(b)(2) and K.S.A. 2014 Supp. 60-212(b)(6), because the statute of limitations had run before valid service was obtained on KUHA. On January 27, 2014, Hajda filed a request for default judgment against Dr. Van Horn. Hajda then filed a motion for default judgment against Dr. Van Horn on February 11, 2014, for her failure to answer.
On February 13, 2014, the district court held a hearing on the defendants’ motions to dismiss. As a preliminary matter in response to Hajda’s motion for default judgment against Dr. Van Horn for failure to answer, Watson explained on the record he was the attorney of record for all six doctors and was actually answering on behalf of all six doctors. Following a discussion on whether Dr. Van Horn had been served, the district court clarified its decision would apply to all the defendants including Dr. Van Horn and denied Hajda’s motion for default judgment.
At the February 13, 2014, hearing, the district court judge summarized based on her recollection what had occurred at the August 30, 2013, dismissal docket:
“At that time, in August, the plaintiff requested an entiy of default based on the fact that none of the defendants had answered, and while that dismissal docket is usually not on the record, and in this case wasn’t, the Court, without looking at the files or dealing with any statute of limitations issue, directed the plaintiff, or told the plaintiff, that the Court didn’t believe she had good service, for the sole reason that the Court knew that KU didn’t usually ignore service, number 1.
“Number 2, the Court also knew that... it was difficult to get proper service on KU and the doctors, because I know of attorneys that couldn’t get correct service on the correct department.
“MS. HAJDA: Entity
“THE COURT: Entity.
“MS. HAJDA: Entity, yes
“THE COURT: Thank you. So at that time, what the Court did was solely inform the plaintiff to re-serve on the correct entity or defendants. The Court also told the plaintiff to speak with counsel to get some advice as to getting proper service, I believe the plaintiff at that time told me she’d already talked to attorneys who had told her she had gotten good service, but the Court so encouraged her at that time wherein, that’s when the Court entered an order telling her to reserve the defendants within 60 days and that I would reset this case in 90 days.”
The district court went on to state that the real issue governing whether the district court should grant the defendants’ motions to dismiss was whether Hajda’s petition was filed and service of process obtained within the statute of limitations. The district court clarified it did not believe the issue had been previously decided when it entered an order telling Hajda to re-serve the defendants within 60 days.
The district court held that the issue was strictly a matter of law and found:
(1) Hajda knew or should have known she had suffered injury by April 1, 2011;
(2) Pursuant to K.S.A. 2014 Supp. 60-203, K.S.A. 2014 Supp. 60-206, K.S.A. 2014 Supp. 60-304, and K.S.A. 2014 Supp. 60-513, in conjunction with the case involving Fisher v. DeCarvalho, 298 Kan. 482, 314 P.3d 214 (2013), the case was not commenced within the statute of limitations;
(3) The district court’s prior hearings were not intended to vitiate any statute or bar any defense;
(4) The original service did not provide constructive notice to the defendants;
(5) The original service did not substantially comply with the requirements of the service statute; and
(6) The improper service was not based on irregularity in form or procedure.
The district court granted the defendants’ motions to dismiss.
Hajda filed an objection to the journal entry prepared by the defendants’ counsel. Following a hearing on Hajda’s objection, the district court denied Hajda’s objection. The district court considered her objection to the journal entry as a motion for reconsideration. Hajda refused to sign the journal entry.
On April 25, 2014, Hajda appealed the district court’s dismissal of her case as well as all findings, rulings, and decisions relating to the order and to the case.
Analysis
On appeal, Hajda argues 10 separate issues. Despite Hajda’s numerous arguments, the arguments fall into four main categories—the most important issue being whether the district court erred in dismissing the case on February 13, 2014, because it was not commenced within the statute of limitations. Before addressing that issue, we will address whether the district court erred in denying Hajda’s first motion for default judgment at the August 30, 2013, dismissal docket.
Did the district court err in denying Hajda’s first motion for default judgment?
On appeal, Hajda argues the original service on the general counsel’s office for KUMC was valid service as to all the defendants and that the district court erred in ordering her to re-serve the defendants rather than granting her motion for default judgment.
K.S.A. 2014 Supp. 60-203(a) provides the statutory requirements for commencing a civil action such as a medical malpractice suit:
“(a) Time of commencement A civil action is commenced at the time of: (1) Filing a petition with the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by paragraph (1).”
Service of process is controlled by statute. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Nationwide Mutual Ins. Co. v. Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Cady, 298 Kan. at 738-39. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature’s intent. 298 Kan. at 739. We find no ambiguity in the statute.
While there is no transcript of what occurred at the August 30, 2013, hearing, there is a trial docket entiy granting Hajda 60 days to re-serve the defendants. There is no record of the district court denying Hajda’s request for default judgment; however, when tire trial docket entiy granting Hajda additional time to re-serve the defendants is combined with the district court’s recollection of the hearing and Hajda’s own recollection of the hearing, the record before us reflects the district court denied Hajda’s request for default judgment based on insufficient service.
Under K.S.A. 2014 Supp. 60-255(a), a party may request default judgment when “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend” against the suit. “On request and a showing that a party is entitled to a default judgment, the court must render judgment against the party in default for the remedy to which the requesting party is entitled.” K.S.A. 2014 Supp. 60-255(a). However, “[i]n a case where the defendant does not appear the record must show a legal service, or the judgment will be void, and the rule is the same whether the service relied upon was personal or constructive.” Repine v. McPherson, 2 Kan. 340, 346 (1864). “Jurisdiction over the person of the defendant may be acquired only by issuance and service of process in the method prescribed by statute or by voluntary appearance. [Citation omitted.]” Kansas Bd. of Regents v. Skinner, 267 Kan. 808, 812, 987 P.2d 1096 (1999).
In her initial pleading, Hajda named as defendants the Hospital, KUMC, and the six doctors. Hajda attempted to serve all the defendants via agent service through the office of Pottorff, general counsel for KUMC. Before default judgment could be issued against the defendants, the record had to show legal service. K.S.A. 2014 Supp. 60-304(a) provides that service of process on an individual must occur by
“serving the individual or by serving an agent authorized by appointment or by law to receive service of process. If the agent is one designated by statute to receive service, such further notice as the statute requires must be given. Service by return receipt delivery must be addressed to an individual at the individual’s dwelling or usual place of abode and to an authorized agent at the agent’s usual or designated address. If the sheriff, party or party’s attorney files a return of service stating that the return receipt deliveiy to the individual at the individual’s dwelling or usual place of abode was refused or unclaimed and that a business address is known for the individual, the sheriff, party or party’s attorney may complete service by return receipt deliveiy, addressed to the individual at the individual’s business address.”
There were multiple issues with Hajda’s initial service. First, for the six doctors, there was no indication in the record that Pottorff was an authorized agent to receive service of process. See Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 370, 548 P.2d 719 (1976) (where the relationship of principal and agent is in issue, party relying thereon has the burden of establishing such a claim). The second issue was with Hajda’s serving of the Hospital and KUMC. Hajda was attempting to sue the Hospital; however, she sued the wrong entities. Per Kansas statutes, tire correct party should have been the University of Kansas Hospital Authority (KUHA), which is an independent instrumentality of the State, is a politic and corporate entity, and has the capacity to sue and be sued in its own name. K.S.A. 2014 Supp. 76-3304(a); K.S.A. 2014 Supp. 76-3308(a)(4). The record is veiy clear that KUHA is not the same entity as the Hospital or KUMC.
When serving a governmental body, service of process should be made by “serving the clerk or secretary or, if the clerk or secretary is not found, any officer, director or manager thereof.” K.S.A. 2014 Supp. 60-304(d)(4). The record on appeal fails to substantiate that service on Pottorff through his assistant Phillips met the statutory requirements for service of process on any of the named defendants.
Finally, Hajda also alleges the defendants should have had constructive notice of the suit even if the service failed to give actual notice. Hajda provides no caselaw in support of her argument. All of Hajda’s alleged proof of constructive notice is contained in an appendix to her brief on appeal but cannot be found in the record. Failure to support a point with pertinent authority or 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. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). An issue not briefed by the appellant is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). The burden is on the party making a claim to designate facts in the record to support that claim; without such a record, the claim of error fails. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644-45, 294 P.3d 287 (2013). Including documents in the appendix of a brief does not make those documents part of the record that may be considered for appellate review. Romkes v. University of Kansas, 49 Kan. App. 2d 871, 886, 317 P.3d 124 (2014); see Supreme Court Rule 6.02(b) (2014 Kan. Ct. R. Annot. 40).
The record on appeal reflects there was a substantial question pending before the district court of whether Hajda had obtained valid service on any of the named defendants. Without service on the named defendants, the district court did not have jurisdiction to grant Hajda’s motion for default judgment. Additionally, Hajda’s motion for default judgment failed to comply with the statutory requirement of K.S.A. 2014 Supp. 60-254(c) for default judgments involving requests greater than $75,000, which required that she provide notice to “the party against whom relief is sought of the amount of money for which judgment will be taken.” The district court did not err in denying Hajda’s first motion for default judgment.
Did the district court err in granting the defendants’ motions to dismiss?
Despite Hajda’s initial invalid attempt at service, K.S.A. 2014 Supp. 60-203(b) provides a statutory option to cure invalid service:
“If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to an irregularity in form or procedure or a defect in making service, tire action is considered to have been commenced at the applicable time under subsection (a) if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.”
On appeal, Hajda argues the district court misinterpreted a recent Kansas Supreme Court case interpreting K.S.A. 60-203(b)-— Fisher, 298 Kan. at 484—when it relied on that case to find service had occurred outside the statute of limitations and then dismissed Hajda’s claim without providing her an opportunity to cure. In Fisher, the district court and Kansas Court of Appeals found that “Fisher was not entitled to the additional time to effect service after the adjudication of invalidity, pursuant to K.S.A. 60-203(b), because her initial attempt at service did not appear to be valid, as required by Grimniett v. Burke, 21 Kan. App. 2d 638, Syl. ¶ 4, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996).” Fisher, 298 Kan. at 484. However, the Kansas Supreme Court found that Fisher should have been afforded the opportunity, within the time limits set forth in K.S.A. 60-203(b), to attempt to effect a valid service of process after the district court’s adjudication of invalidity. 298 Kan. at 484. The Fisher court reversed and remanded the case with directions for the district court to afford the plaintiff that opportunity. 298 Kan. at 484, 502.
In Fisher, 298 Kan. at 496-502, the Kansas Supreme Court discussed how, in previous restrictive interpretations of K.S.A. 60-203(b), panels of the Court of Appeals had opined that the legislature did not intend to set the bar so low that K.S.A. 60-203(b) could be applied to save any cause of action any time service of process was found to be defective for any reason. However, our Supreme Court stated that the function of the court is not to decide how low the bar should he set, but rather its job is to simply construe what the legislature has said about setting the bar. Fisher, 298 Kan. at 501-02. The Kansas Supreme Court held:
“We ... find the language of K.S.A. 60~203(b) to be crystal clear. That language does, indeed, provide that its provisions can be applied to save a cause of action any time service of process is purported to have been made and is thereafter found to be defective for any reason. Any suggestion to the contrary is hereby disapproved.” 298 Kan. at 502.
At the dismissal hearing held on August 30, 2013, the district court gave Hajda an additional 60 days to re-serve the defendants. However, because there is no transcript, it is impossible to tell exactly why the 60 days were given. Following re-service, the defendants filed motions to dismiss; and at the February 13, 2014, hearing, the district court summarized to the best of its recollection what had occurred at the August 30, 2013, hearing, as previously mentioned.
Similarly to the events in Fisher, Hajda’s initial attempt at service does not appear to have been valid on any of the named defendants when she first filed the lawsuit. In order to cure the invalid service per K.S.A. 2014 Supp. 60-203(b), the purported service must be adjudicated to have been invalid due to an irregularity in form or procedure or a defect in making service. The district court judge’s entry does not state why the district court ordered Hajda to reserve the defendants, but if the district court had not felt the service was defective, there would not have been a need to order Hajda to re-serve the defendants. Because the provisions of K.S.A. 2014 Supp. 60-203(b) can be applied to save a cause of action any time service of process is purported to have been made and is thereafter found to be defective, Hajda was correctly afforded the opportunity to attempt to effect a valid service of process on the parties initially named in her petition.
Here, however, the district court improperly applied K.S.A. 2014 Supp. 60-203(b) and only gave Hajda 60 days to reattempt service. Clearly, K.S.A. 2014 Supp. 60-203(b) provides for 90 days in which to effect service once it has been determined the current service of process is invalid. This error by the district court is really immaterial as it pertains to the six doctor defendants, but it is important that the order of the district court reflect the correct amount of days to effect valid service as contained in the statute, including the right for an additional 30 days after the first 90 days when good cause has been shown.
Because Hajda should have been granted 90 days to effect valid service, the real question at the motion to dismiss hearing should have been: Was service cured pursuant to K.S.A. 2014 Supp. 60-203(b)? Exactly 60 days after the district court ordered Hajda to re-serve the defendants, Hajda asked die district court for an extension of time to re-serve the defendants. K.S.A. 2014 Supp. 60-203(b) provides that upon a showing of good cause, the district court may extend the allowed time for re-service an additional 30 days. The district court granted Hajda’s request for 30 more days to obtain service on November 15,2013. Hajda then obtained valid service on the defendants with die last defendant served on December 10, 2013. The record now redects all but one of the six doctors and the newly named defendant, KUHA, were served within the statutorily provided 90 days, with the last one seived within tire extra 30-day period granted for good cause.
Thus, we must answer whether Hajda correctly re-served the defendants pursuant to K.S.A. 2014 Supp. 60-203(b) for the action to relate back to the filing date for the six doctors and KUHA. At this point we must begin to separate our discussion on service as to the six doctors and the newly named defendant, KUHA.
The record reflects the district court found Hajda’s initial service on the six doctors was invalid, but she obtained valid corrected service on the six doctors per statute within die statutory time limits, causing the effective date of the service to relate back to the filing date of the petition. See K.S.A. 2014 Supp. 60-203(b); K.S.A. 2014 Supp. 60-303; K.S.A. 2014 Supp. 60-304(a). Thus, Hajda’s cause of action against the six doctors was timely initiated within the applicable statute of limitations for her cause of action, and the district court erred in granting the motion to dismiss as to the six doctors. We now turn to answer the service question on KUHA and find K.S.A. 2014 Supp. 60-203(b) does not protect Hajda’s late service on KUHA.
Hajda originally served the Hospital and KUMC to initiate this cause of action. They are separate and distinct entities from KUHA and, thus, they are not the same parties for which K.S.A. 2014 Supp. 60-203(b) was designed to address. When Hajda ultimately obtained service on KUHA pursuant to the district court’s order, it was the first time KUHA had been provided with notice of this action.
We now address the question of whether the initial service of the wrong parties, the Hospital and KUMC, qualifies as an irreg ularity in form, procedure, or defect in making service that allows the defect to be cured under K.S.A. 2014 Supp. 60-203(b) once KUHA was identified as the correct party and served. We think not.
The record reflects the initial service was attempted on the Hospital and KUMC, not KUHA. Hajda cannot save her claim under K.S.A. 2014 Supp. 60-203(b) by serving the correct party after the statute of limitations had run. Our analysis cannot stop at this point because the district court granted Hajda’s motion to amend her petition on October 29, 2013, in order to correct the misnomer and replace the Hospital and KUMC with KUHA.
Did the order granting Hajda’s motion to amend her petition save her claim against KUHAP
KUHA argued at the motion to dismiss hearing that the district court erred when it allowed Hajda to amend her petition. On appeal, KUHA changed its argument and now argues it was served outside the statute of limitations and that the re-service cannot bring KUHA into the suit as no attempt was ever made to serve it the first time. KUHA does not specifically argue on appeal the district court erred when it allowed Hajda to amend her petition. K.S.A. 2014 Supp. 60-215(a)(2) provides that a party may amend its pleading with the opposing party’s written consent or the court’s leave. At the time the district court granted leave, KUHA was not a party to the action.
While there is an argument the district court erred in allowing Hajda to amend her petition to include KUHA as a party, KUHA did not directly raise this point in its brief. An issue not briefed by a party on appeal is deemed waived and abandoned. Superior Boiler Works, 292 Kan. at 889. KUHA does argue on appeal that it did not receive service until after the statute of limitations lapsed. Kansas caselaw is clear that in order to stop the statute of limitations from running, the petition must be timely filed and service of process must be timely obtained on the named defendants. See Le v. Joslin, 41 Kan. App. 2d 280, Syl. ¶¶ 2, 5-6, 202 P.3d 677 (2009); cf. K.S.A. 2014 Supp. 60-301. If timely filing of the petition is not made or timely service is not obtained, then the statute of limitations runs. In addition, an appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 916, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013).
A trial court is given broad discretionary power under K.S.A. 2014 Supp. 60-215 to permit or deny the amendment of pleadings, and its actions will not constitute reversible error unless it affirmatively appears that die amendment allowed or denied is so material it affects the substantial rights of the adverse party. Tullis v. Pittsburg State Univ., 28 Kan. App. 2d 347, 351, 16 P.3d 971 (2000). Allowing Hajda’s petition to be amended after the statute of limitations had run to bring in a new party clearly affects the substantial rights of KUHA.
“In the event an amendment is necessary to change the name of a party after the statute of limitations has expired, as it has in this case, the amended petition would only relate back to the date of the original petition if the requirements of K.S.A. 60-215(c)(2) are met: (1) the claim arose out of the same conduct, transaction, or occurrence set forth in the original pleading; and (2) within the statute of limitations, including the period for sendee of process, the party to be brought in by amendment (a) received notice of the action, and (b) knew or should have known that but for a mistake concerning the identity of the proper party the action would have been brought against the party.” Vorhees v. Baltazar, 283 Kan. 389, 413, 153 P.3d 1227 (2007).
The record is insufficient to determine whether KUHA received notice of the action or knew or should have known that except for a mistake concerning the identity of the proper party, the action would have been brought against KUHA within the statute of limitations.
Hajda does attempt to include some materials she believes show KUHA was aware of or should have been aware of the suit within the statute of limitations; however, the documents are included in the appendix to her brief and are not in the record. There is no transcript of the hearing on Hajda’s motion to amend her pleading. The record simply shows Hajda’s motion was granted. At the dismissal hearing on February 13, 2014, Hajda argued KUMC in- eludes the Hospital and because the president and CEO of the Hospital also sits on the board of directors of KUHA, then serving the general counsel for KUMC was sufficient to show KUHA knew or should have known about the suit. The record on appeal fails to reflect any of these relationships. KUHA asserts in its brief that it was not made aware of the suit until it received service on November 22, 2013, and die statute of limitations had run.
Hajda cannot use K.S.A. 2014 Supp. 60-203(b) to keep the statute of limitations from lapsing by claiming a party she never timely served should have known about the pending action. The record reflects Hajda attempted service on KUMC and tire Hospital and if that service had been defective, then K.S.A. 2014 Supp. 60-203(b) could have been used to fix the defect. K.S.A. 2014 Supp. 60-203(b) cannot be used to fix the defect of suing the wrong party. The district court correctly granted KUHA’s motion to dismiss as the statute of limitations on Hajda’s claim had run before valid service was obtained.
Did the district court err in denying Hajda’s second motion for default judgment against Dr. Van Horn?
Hajda also argues the district court erred when it denied her second motion for default judgment against Dr. Van Horn because counsel for the six doctors only filed his pleading on behalf of five of the doctors. Hajda claims Dr. Van Horn failed to answer or reply and die district court erred in denying her motion. Hajda’s argument fails.
The confusion arises because the motion to dismiss filed by attorney Watson on behalf of the doctors initially stated:
“Come Now Defendants Gary A. Johnson, M.D., Evelyn Reynolds, M.D., Rhonda Johnson, Ph.D., Nancy Hammons, M.D., and Emily Rangel, M.D. (hereinafter collectively referred to as these ‘Defendants’) by and through their counsel of record, and for their Joint Motion to Dismiss Plaintiff s Petition for Damages in this matter, state as follows!.]”
While it appears Dr. Van Horn was not a party to the motion in the opening paragraph, Dr. Van Horn was named on the second page of the motion and tire last page of the motion to dismiss stated:
“WHEREFORE, for the above and foregoing, Defendants Gary Johnson, M.D., Rhonda Johnson, Ph.D., Rachel Van Horn, M.D., Emily Rangel, M.D., Evelyn Reynolds, M.D., and Nancy Hammond, M.D. respectfully request this Court enter its Order dismissing Plaintiff s Petition filed on December 12, 2012, for their costs incurred herein, or in the alternative, these Defendants respectfully request an additional 14 days in which to answer or otherwise file their responsive pleading to Plaintiffs Petition for Damages, and for such other and further relief as this Court deems just and equitable.” (Emphasis added.)
Following a discussion on whether Dr. Van Horn had been served, the district court clarified that its decision would apply to all the defendants including Dr. Van Horn. The record clearly reflects Watson intended to answer for Dr. Van Horn and did so by including her name in the body of the answer. Hajda’s claim on this point is without merit. Additionally, we note Hajda does not include any pertinent authority showing why Dr. Van Horn’s response was insufficient. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contraiy authority is akin to failing to brief the issue. Tague, 296 Kan. at 1001. An issue not briefed by the appellant is deemed waived and abandoned. Superior Boiler Works, 292 Kan. at 889.
Next, Hajda argues the district court erred when it denied her request for default judgment on the basis of failing to keep Dr. Van Horn informed. Hajda’s argument is without merit and fails to recognize the district court’s obligation to follow and apply K.S.A. 2013 Supp. 60-254(c), which states:
“A default judgment must not differ in land from, or exceed in amount, what is demanded in the pleadings. Before a default judgment is taken in an action in which the pleading of the party seeking relief states only that the amount sought as damages is in excess of $75,000, without demanding a specific amount of money, as provided in subsection (a) of K.S.A. 60-208, and amendments thereto, the party seeking relief must notify the party against whom relief is sought of the amount of money for which judgment will be taken. Notice must be given by return receipt delivery, or as the court orders, at least 14 days before the date judgment is sought. Eveiy other final judgment should grant relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.”
As previously stated, interpretation of a statute is a question of law over which appellate courts have unlimited review. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). K.S.A. 2014 Supp. 60-254(c) is clear and unambiguous. Giving the words their plain meaning, this means that before Hajda could obtain a default judgment against Dr. Van Horn, she had to provide Dr. Van Horn with notice of the hearing and the actual amount of damages she was seeking at least 14 days before the motion for default judgment was set for hearing. When asked at the February 13,2013, hearing whether Hajda had provided the required notice to the defendants, Hajda replied: “Not—not—not until August, but I was seeking legal aid in order to do that.” Dr. Van Horn was not in default, and Hajda failed to comply with the requirements of K.S.A. 2014 Supp. 60-254(c). The district court did not err in denying her second default judgment motion.
Was the district court guilty of extreme bias P
In her brief, Hajda makes multiple references to the extreme bias she allegedly experienced from the district court judge. Hajda asks this court to reverse the district court’s decision on this basis and remand her case to a different district court judge and judicial district. We have carefully reviewed all of Hajda’s complaints and deem it unnecessary to repeat them here. We find Hajda’s complaints reflect conjecture and speculation on her part without valid support in the record. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contraiy authority is akin to failing to brief the issue. Tague, 296 Kan. at 993. We recognize Hajda is pro se, but that does not give her the right to malee improper and unnecessary attacks on the district court.
The fact tire district court ruled against her “presents a legally insufficient basis for a finding of bias or prejudice on the part of the trial judge.” State v. Hurd, 298 Kan. 555, 570, 316 P.3d 696 (2001); see K.S.A. 20-311d(d). Additionally, the record reflects Hajda never filed a motion or an affidavit pursuant to K.S.A. 20-311d setting out the basis of why she thought the district court judge should recuse. We understand the need to liberally construe pro se pleadings, see State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010), (pro se pleadings are liberally construed), but Hajda has failed to follow the proper statutory procedure under K.S.A. 20-311d and has established no prejudice. Her request to change the district court judge is without merit. The motion to reverse the judgment of the district court based on bias is denied, and Hajda’s requests to assign tire case to a different judge and/or a different venue are denied.
Conclusion
Hajda failed to comply with K.S.A 2014 Supp. 60-254(c) in submitting her motion for default judgment in excess of $75,000 when she did not providing notice to the party she claimed was in default of the amount of money she wanted to take default judgment against. The district court misinterpreted K.S.A 2014 Supp. 60-203(b) as it applied to the six doctors. The district court should not have granted the six doctors’ motion to dismiss as Hajda obtained valid service upon all six doctors within the time frame allowed by K.S.A. 2014 Supp. 60-203(b). The district court properly granted KUHA’s motion to dismiss as it was not serviced with notice of the suit before the statute of limitations lapsed. K.S.A. 2014 Supp. 60-203(b) cannot be used to circumvent the running of the statute of limitations when the wrong party is identified in the petition. Here, Hajda amended her petition to name KUHA as a defendant and deleted KUMC after the statute of limitation had lapsed. K.S.A. 2014 Supp. 60-203(b) corrects defective service, not a defect in naming the party being sued. Hajda’s requests to change the district court judge and/or assign her case’s venue to another judicial district are without merit and denied.
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Schroeder, J.:
Josh and Sarah Ohlmeier obtained a judgment against Whitney Jones for the diminished value loss to their 2011 Chevrolet Traverse (Traverse) as a result of an automobile accident in the amount of $4,185 plus a judgment for their attorney fees in the amount of $15,440 pursuant to K.S.A. 2014 Supp. 60-2006. Jones appeals.
We affirm the judgment for diminished value loss but find we must reverse the judgment for attorney fees pursuant to K.S.A. 2014 Supp. 60-2006 as diminished value loss does not qualify as “property damages only” under the statute to sustain the award of attorney fees. We affirm in part and reverse in part.
Facts
This matter was tried to the district court. As the trial began, bofo parties stipulated to the admission of foe Ohlmeiers’ exhibits, including Mike Orton’s expert report, Jones’ exhibits, and the following facts:
“1. The subject 2011 Chevrolet Traverse (‘Traverse’) was initially purchased as a rental on April 29, 2010.
“2. The Traverse was sold to Superior Chevrolet at auction with 27,801 miles on October 24, 2011.
“3. Plaintiffs purchased tire Traverse as a certified pre-owned vehicle from Superior Chevrolet on November 17, 2011.
“4. On March 12, 2012, Plaintiffs’ Traverse was struck by Defendant and/or a vehicle driven by Defendant (a 1995 Buick LeSabre) at the intersection of 67th Street and southbound 1-35 in Johnson County, Kansas.
“5. At the time of the collision, the Traverse had 36,138 miles on it.
“6. Plaintiffs’ Traverse was repaired by Superior Chevrolet, a repair facility authorized by General Motors.
“7. The repairs to the Traverse were initially paid by Plaintiffs’ insurer Farmers Insurance.
"8. On April 20, 2012, Farmers submitted to Defendant’s insurer, Key Insurance Company, its reimbursement request for repairs to Plaintiffs’ vehicle ($7,192.01) and for a rental vehicle for Plaintiffs ($849.92).
“9. On April 25, 2012, Key Insurance Company made payment to Farmers Insurance for the Traverse’s repairs and for the car rental.
“10. On May 9, 2012, Plaintiff Sarah Ohlmeier sent a demand for diminished value to Key in the amount of $6,400.00.
“11. On October 12, 2012, Plaintiffs[ ] sent a certified demand through their attorney A. Scott Waddell to Defendant for diminished value in the amount of $4,185.00 and faxed a copy of the same to Key.
“12. On October 17, 2012, Defendant responded to Plaintiffs’ counsel that she received the October 12, 2012 demand.
“13. On October 25,2012, Key acknowledged receipt of the October 12,2012 demand, made no offer, but requested supporting documentation to support the claim for $4,185.00 in diminished value.
“14. On October 25, 2012, Plaintiffs’ counsel forwarded supporting documentation to Key per Key’s October 25, 2012 request.
“15. On November 7, 2012, Key made an offer of $750.00 to settle Plaintiffs’ claim for diminished value.
“16. On January 14, 2013, Plaintiffs’ Petition for Damages against Defendant was filed.
“17. On February 7, 2013, Key made a settlement offer pursuant to K.S.A. 60-2006 to settle all of Plaintiffs’ claimed property damages in the amount of $2,092.50.
“18. On the date of trial, March 25, 2014, Defendant admitted liability and withdrew the defense of insufficient service of process as Defendant stopped communicating with her counsel and did not appear at trial to offer testimony regarding those issues.”
The Ohlmeiers based their case on the testimony and exhibits from their expert witness, Mike Orton. Prior to his testimony, Jones objected to Orton’s qualifications as an expert witness and asked the district court for an opportunity to voir dire Orton on his qualifications. The district court denied Jones’ request and instead offered her the opportunity to cross-examine Orton. The district court stated it could and would make its determination on whether Orton was an expert following cross-examination. The district court allowed Jones a standing objection as to foundation.
Orton testified he operated a collision repair business and consulted on diminished value. According to Orton, diminished value is the sudden and immediate loss of value due to the vehicle being in an accident. It is calculated by determining “[t]he value of the vehicle immediately before the accident, less the value of the vehicle immediately after the accident, unless repairs are contem plated, which restore a portion in that value. The remaining residual loss is the diminution of value.” Orton testified that even if fully repaired, the Traverse’s diminished value loss as a result of the March 12, 2012, accident equaled $5,239. Despite Orton’s testimony, both parties agreed that if the Ohlmeiers were entitled to diminished value loss, they were limited to the amount requested in the pretrial order of $4,185.
Under cross-examination, Orton admitted he did not know the Traverse had previously been a rental vehicle and thus did not take into account what effect that would have on the value of the Traverse in calculating the current amount claimed for tire diminished value loss. Orton admitted he did not have any formal education in the psychology of car buying, how to interpret statistics, or how to survey the buying public. During Orton’s cross-examination, Jones introduced into evidence a Carfax report showing a diminished value loss of $140. Following Orton’s testimony, the district court found Jones’ objections went to the weight of Orton’s testimony and not its admissibility. The district court ruled Orton qualified as an expert, and his testimony was admissible.
Sarah testified she arrived at her $4,185 demand by getting trade-in values from three different sources and subtracting the trade-in value from the Kelley Blue Book value which she assumed was the market value before the accident. Leonard Gregson, Vice President of claims with Key, testified for the defense. While he admitted there was a stigma attached to vehicles that have been in an accident, he testified to an alternative means of calculating the diminished value loss, tire Rule 17c test, which sets the diminished value loss at 10% of the preaccident value.
At the conclusion of the trial, the district court asked Jones to submit a memorandum setting out her value for the diminished value loss suffered by the Traverse. In her memorandum, Jones argues the district court should use either the Carfax report which “took into account the prior history of our accident, the mileage and the prior ownership by a California rental agency and came up with a reduction of $140 . . . based on millions of transactions, and [its] approach has withstood the scrutiny of millions of potential used car buyers successfully,” or the district court should use the Rule 17c test which was developed by State Farm in a Georgia class action case to deal with diminished value loss. The 17c test gave a diminished value loss of $1,273.20.
On April 7,2014, the district court filed its journal entry in which it awarded $4,185 in diminished value loss and determined the Ohlmeiers were entitled to attorney fees. Over Jones’ objection, the district court found that diminished value loss was “property damage” and the Ohlmeiers were entitled to attorney fees under K.S.A. 2013 Supp. 60-2006. The district court ordered the Ohl-meiers to file a motion for attorney fees with the court. Jones timely filed a motion to alter or amend the judgment. The district court denied Jones’ motion on May 1,2014. Jones filed a notice of appeal of the April 7, 2014, journal entry and all subsequent adverse rulings on May 2, 2014. A journal entry was filed on May 9, 2014, in which the district court awarded the Ohlmeiers $15,440 in attorney fees.
Analysis
Sufficiency of the Evidence
Was Orton qualified as an expert?
On appeal, Jones argues the evidence was insufficient to support die verdict because the district court erred when it qualified Orton as an expert witness. Jones argues the district court erred in qualifying Orton as an expert because Orton did not have any “ ‘special knowledge, skill, experience!,] or training’ in the field of determining [the] amount of diminished value.” Orton was also an admitted consumer advocate for increasing the awareness of diminished value loss.
An appellate court must apply the statutory law on evidence as it was at the time of the challenged evidentiary ruling. State v. Hart, 297 Kan. 494, 510, 301 P.3d 1279 (2013). Multiple inquiries are involved when the admission or exclusion of evidence is challenged on appeal.
At the time of the trial, the admission of expert witness testimony was controlled by K.S.A. 60-456(b) which stated:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at tire hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
An appellate court reviews the admission or exclusion of expert testimony under K.S.A. 60-456 for an abuse of discretion. See Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 70, 274 P.3d 609 (2012). 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. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). To testily as an expert, the witness must be skilled or experienced in the profession to which the subject of his or her testimony relates. State v. Gaona, 293 Kan. 930, 948, 270 P.3d 1165 (2012); see also K.S.A. 60-456 (generally governing the admissibility of lay and expert opinion testimony). An expert witness is not allowed to testily about the weight or credibility of evidence, for those matters are strictly within the province of the jury. State v. Stieben, 292 Kan. 533, 538, 256 P.3d 796 (2011).
At trial, Orton testified he had an associate degree in automotive technology, worked in the vehicle repair industry since 1973, and for the last 7 years he has advised on diminished value loss with Collision Consulting of Missouri. In the last 10 years he has prepared approximately 50 formal reports evaluating diminished value loss. It was not arbitrary, fanciful, unreasonable, based on an error of law, or based on an error of fact for the district court to determine Orton was skilled or experienced in evaluating a vehicle’s diminished value loss. Simply because Orton is a consumer advocate, does not mean he is not qualified to be an expert witness.
Jones also argues for the first time on appeal the district court erred in qualifying Orton as an expert witness because Orton’s testimony failed the Frye test. Jones argues the Ohlmeiers presented no evidence Orton’s approach to calculating the amount of diminished value loss was generally accepted as reliable within Orton’s particular scientific field.
“If expert opinion testimony based on scientific methods or procedures is offered as evidence in Kansas state courts, the offering party must satisfy the Frye test. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). That test requires a ‘showing that the basis of a scientific opinion is generally accepted as reliable within the expert’s particular scientific field.’ State v. Shadden, 290 Kan. 803, 819, 235 P.3d 436 (2010).” In re Care & Treatment of Girard, 296 Kan. 372, 372, 294 P.3d 236 (2013).
A party may not object at trial to the admission of evidence on one ground and tiren on appeal argue a different ground. Butler v. HCA Health Svcs. of Kansas, Inc., 27 Kan. App. 2d 403, 435, 6 P.3d 871, rev. denied 268 Kan. 885 (1999). At trial, Jones stipulated to the admission of Orton’s expert report into evidence and then objected to Orton’s testimony for lack of foundation based on Orton’s lack of qualification as an expert witness. There was no timely objection by Jones claiming Orton’s report and testimony failed the Frye test. Orton’s testimony was helpful to the district court, and it did not abuse its discretion in qualifying Orton as an expert witness.
Was the evidence sufficient to establish diminished value lossP
Jones argues the evidence was not sufficient to support the district court’s verdict for diminished value loss because, despite Orton’s testimony, the diminished value loss of the Ohlmeiers’ vehicle is still just a potential future loss and Orton’s testimony was mere speculation about what might happen in the future.
To support this claim, Jones argues Orton’s report was flawed because it:
• Did not accurately reflect comparable vehicle asking prices;
• Did not take into account all the variables that could lower the vehicle’s value; and
• Orton’s explanation of the methodology and rationale for figures used was too conjectural and speculative to form a basis for measurement of any such loss.
Here, we review mixed questions of fact and law by applying a bifurcated review standard. The court’s factual findings are generally reviewed under the substantial competent evidence standard. Its conclusions of law based on those facts are subject to unlimited review. See Gannon v. State, 298 Kan. 1107, 1175-76, 319 P.3d 1196 (2014). Substantial competent evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Gannon, 298 Kan. at 1175. When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the verdict will not be disturbed on appeal. Gannon, 298 Kan. at 1175-76.
Damages need not be established with absolute certainty. The court can estimate damages using a reasonable basis for computation and the best evidence available under the circumstances. However, claims for damages that are conjectural and speculative cannot form a sound basis for an award. Miller v. Johnson, 295 Kan. 636, 677, 289 P.3d 1098 (2012) (citing McKissick v. Frye, 255 Kan. 566, 591, 876 P.2d 1371 [1994]). Neither party directs us to any Kansas caselaw where a claim for diminished value loss has been allowed as a form of property damage, and we have been unable to find one.
At trial, Jones’ own witness testified that diminished value loss is real and it is simply a matter of how much an accident affects the value. It is not our job to reweigh the evidence or determine the credibility of witnesses. When the evidence is looked at in the light most favorable to the Ohlmeiers, the evidence was sufficient to support the judgment of $4,185 for the diminished value loss. The admitted evidence included Orton’s testimony and written report evaluating a multitude of factors that could affect the Traverse’s value; documentation of trade-in offers the Ohlmeiers received after the accident; and approximate preaccident valuations of the Traverse. While it is impossible to establish the diminished value loss with absolute certainty, the number arrived at by the district court was reasonable and supported by substantial competent evidence.
Does KS.A. 2014 Sup-p. 60-2006 authorize judgment for attorney fees?
Here, Jones argues the district court erred in finding the Ohl-meiers were entitled to attorney fees under K.S.A. 2014 Supp. 60- 2006 because inherent diminished value is an economic loss and not property damage. As we consider the Ohlmeiers’ claim for diminished value loss, we must determine a definition for diminished value loss. We have been unable to find a definition for diminished value loss in Kansas caselaw, therefore, we turn to Texas caselaw which states:
“The term ‘diminished-value damages’ refers to a loss in the market value of a vehicle allegedly caused by market perceptions that a vehicle involved in an accident, though fully repaired, is woith less than the same vehicle that has never been damaged. See American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W. 3d 154, 156 (Tex. 2003).” Dardos v. Fleming, Hovenkamp & Grayson, 194 S.W.3d 603 (Tex. App. 2006).
We agree with the Texas definition of diminished value loss.
However, before we address the merits of Jones’ claim, we must determine if Jones timely appealed this issue to provide us with jurisdiction to consider the attorney fees issue on appeal.
Do we have jurisdiction on appeal?
On April 7,2014, the district court filed its journal entry in which it awarded judgment for $4,185 in diminished value loss and determined the Ohlmeiers were entitled to attorney fees. Over Jones’ objection, the district court found that diminished value loss was “property damage” and ordered Jones to pay the Ohlmeiers’ attorney fees pursuant to K.S.A. 2014 Supp. 60-2006. The district court ordered the Ohlmeiers to file a motion for attorney fees with the court. On April 11,2014, Jones filed a motion to alter or amend the judgment. The district court denied Jones’ motion on May 1, 2014. Jones filed a notice of appeal of the April 7, 2014, journal entry and all subsequent adverse rulings on May 2, 2014. A journal entry on the Ohlmeiers’ motion for attorney fees was filed on May 9, 2014, in which the district court awarded the Ohlmeiers $15,440. Jones did not file a notice of appeal of the May 9, 2014, journal entry.
On appeal, the Ohlmiers argue this panel does not have jurisdiction over the portion of the judgment granting attorney fees because Jones failed to timely appeal the May 9, 2014, journal entry.
An appeal may be taken to the appellate court as a matter of right from any final decision. K.S.A. 2014 Supp. 60-2102(a)(4). A “final decision” generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court. The phrase “final decision” is self-defining and refers to an order that definitely terminates a right or liability involved in an action, or that grants or refuses a remedy as a terminal act in the case. In re T.S.W., 294 Kan. 423, 433, 276 P.3d 133 (2012). An outstanding motion for attorney fees and costs does not affect the finality of a judgment and therefore does not toll the time for appeal. Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 374, 789 P.2d 211 (1990). However, when attorney fees are a component of damages, judgment is final when both liability and damages are determined. Ramsey v. Lee Builders, Inc., 32 Kan. App. 2d 1147, 1153, 95 P.3d 1033 (2004).
Jones is not appealing the amount of the attorney fees; she is appealing the district court’s authority to award attorney fees under K.S.A. 2014 Supp. 60-2006. In fact, at oral argument, Jones’ counsel said die amount was not being appealed. They were appealing the court’s judgment of April 7, 2014, granting attorney fees. The district court ruled that K.S.A. 2014 Supp. 60-2006 was applicable to the case in its April 7, 2014, journal entry. In fact, in its May 9, 2014, journal entry, the district court stated: “This court has previously found that plaintiffs are entitled to attorney’s fees under this statutory provision. The issue before the Court now, is what amount constitutes a ‘reasonable’ fee for this case.”
There is no Kansas caselaw directly on point for this issue; however, it appears die Kansas Supreme Court in Snodgrass determined that a decision on die merits is distinct from attorney fees taxed as a cost of the action. 246 Kan. at 374 (Although the legislature could explicitly require a trial court to decide the issue of attorney fees as part of the merits of the case, the statutes now treat attorney fees as an element of costs to be awarded to the prevailing party. The legislature has characterized an award of attorney fees as something separate from the merits of the underlying case.). See K.S.A. 2014 Supp. 60-2006(a). Because attorney fees are separate from the merits of the case, the district court’s journal entry stating tire Ohlmeiers were entitled to attorney fees was not a final order and Jones’ appeal was premature.
The timely filing of a notice of appeal ordinarily is jurisdictional. State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014). The appeal must be filed within 30 days from “entry of the judgment.” K.S.A. 2014 Supp. 60-2103(a). Pursuant to Supreme Court Rule 2.03(a), a premature notice of appeal filed after oral pronouncement of the judgment becomes effective when the journal entry of final judgment is filed:
“A notice of appeal that complies with K.S.A. 60-2103(b)—filed after a judge of the district court announces a judgment to be entered, but before the actual entiy of judgment—is effective as notice of appeal under K.S.A. 60-2103 if it identifies the judgment or part of the judgment from which the appeal is taken with sufficient certainty to inform all parties of the rulings to be reviewed on appeal.” (2014 Kan. Ct. R. Annot. 12).
Jones’ premature appeal became effective after the journal entry of final judgment was entered on May 9, 2014. Jones clearly identified she was appealing die authority of the district court to order the payment of Ohlmeiers’ attorney fees. Jones appealed after die district court announced the Ohlmeiers were entitled to attorney fees but before die actual journal entry establishing the amount of attorney fees was filed.
Does K.S.A. 2014 Supp. 60-2006 authorize a judgment for reasonable attorney fees P
Now that we have determined we have jurisdiction over this portion of the appeal, we proceed to answer die question of whether a diminished value loss qualifies as a property damage loss under K.S.A. 2014 Supp. 60-2006(a) to support a judgment for attorney fees. The district court awarded attorney fees pursuant to K.S.A. 2014 Supp. 60-2006(a) which states:
“In actions brought for the recovery of property damages only of less than $15,000 sustained and caused by the negligent operation of a motor vehicle, the prevailing party shall be allowed reasonable attorney fees which shall be taxed as part of the costs of the action . . . .” (Emphasis added.)
Jones argues there are no Kansas cases directly addressing whether the diminished value loss that a vehicle suffers, even though it has been completely and properly repaired to the satisfaction of the owners, qualifies as property damage only under K.S.A. 2014 Supp. 60-2006(a). Property damage only is not defined in K.S.A. 2014 Supp. 60-2006 and appears to be ambiguous as to what qualifies as property damage only. We must ascertain the legislative intent behind the use of “property damages only” in the statute.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). The most fundamental rule of statutory construction is that die intent of the legislature governs if diat intent can be ascertained. Nationwide Mutual Ins. Co. v. Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Cady, 298 Kan. at 738. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Cady, 298 Kan. at 738.
The plain language of K.S.A. 2014 Supp. 60-2006(a) states that attorney fees shall be awarded to the prevailing party for actions brought as a result of an automobile accident for property damage only, if the prevailing party also complied with &e provisions of K.S.A. 2014 Supp. 60-2006(b). We have been unable to find any Kansas cases applying K.S.A. 2014 Supp. 60-2006(a) to define what property damage only means. The caselaw in other jurisdictions discussing a vehicle’s diminished value loss primarily focus on whether specific insurance policies are broad enough to provide coverage for the diminished value loss, not the definition of property damage within a statute that provides a right to attorney fees under certain conditions. See State Farm Mut. Auto. Ins. v. Mabry, 274 Ga. 498, 556 S.E.2d 114 (2001). Thus, we need to define the term “property damages only” as used in K.S.A. 2014 Supp. 60-2006(a). A panel of this court has previously held:
“When a plaintiff brings an action for damage to personal property, damages are measured by the cost of repair (plus reasonable compensation for plaintiffs loss of use while the property is being repaired) unless the repair costs exceed the value of the damaged property, in which case the plaintiff s damages are measured by the fair market value of the damaged property immediately before the loss.” Warren v. Heartland Automotive Services, Inc., 36 Kan. App. 2d 758, 760, 144 P.3d 73 (2006).
The parties here agree the vehicle damage was fixable and was repaired by Jones to the Ohlmeiers’ satisfaction. There is no issue or dispute Jones timely paid for the costs incurred by the Ohl-meiers to repair the Traverse as well as their out-of-pocket expenses for a temporary rental vehicle while the repairs were being completed.
As we look at the legislative history, we see the statute was amended by adding “property” and “only” to the already-existing term in the statute of “damages” to give us the current term of property damages only. The legislative history also reflects the change was being made to clarify personal injury loss was not covered under the statute and to encourage the quick resolutions of claims involving property damage only when the loss suffered was less than $7,500 and easy to determine. Minutes of Senate Committee on Judiciary, Room 514-S Statehouse at 10 a.m. on March 13, 1995. The statute has subsequently been amended to increase the threshold from $7,500 to $15,000. As another panel of this court said: “The purpose of the statute is said to be ‘the promotion of prompt payment of small but well-founded claims and the discouragement of unnecessary litigation of certain automobile negligence cases.’ [Citations omitted.]” Arnold v. Hershberger, 4 Kan. App. 2d 24, 24, 602 P.2d 120 (1979). If the intent was to promote settlement, then adding diminished value loss into the mix of “property damages only” claims would be counterproductive to promote the prompt payment for repairs to automobiles involved in accidents.
Finally, we note tire legislature knows how to pick and choose die words it puts into legislation. In K.S.A. 2014 Supp. 60-258a, the legislature specifically discusses “economic loss” as a type of damage that could be recovered. It did not include that very same verbage in K.S.A. 2014 Supp. 60-2006(a). Here, the legislature specifically used the term “property damages only,” and “only” is the adjective in that phrase modifying, limiting, and restricting “property damages.” It does not expand it. It places a limit on what is considered property damage. Clearly, the statute refers only to the physical damage to the vehicle and the cost to repair it, not the economic loss claimed through diminished value that will lessen over time as the vehicle ages.
If the legislature intended property damage to be all-inclusive, there would have been no need to limit it by the word “only.” The legislature clearly included economic loss as an additional form of damages in K.S.A. 2014 Supp. 60-258a. Similarly, if the legislature had intended to include the economic loss of diminished value in K.S.A. 2014 Supp. 60-2006(a), it would have made a point to delineate it.
K.S.A. 2014 Supp. 60-2006(a) applies to the property damage repair costs—the amount it costs to fix the damage suffered by the vehicle to the satisfaction of the owners—not the “inherent diminished value” lost with owning a vehicle reflecting it was involved in an accident. Therefore, we find diminished value loss does not qualify under the definition of “property damages only” to allow the recovery of the prevailing parties’ attorney fees pursuant to K.S.A. 2014 Supp. 60-2006(a).
Affirmed in part and reversed in part. | [
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Green, J.:
Max Rieke & Brothers, Inc., (Rieke) appeals from the trial court’s decision vacating an arbitration award entered in Rieke’s favor and ordering a new arbitration hearing. We are unable to address the merits of Rieke’s arguments on appeal, however, as this court lacks jurisdiction. K.S.A. 5-418(a)(5) directs that an appeal may be taken from “[a]n order vacating an award without directing a rehearing.” (Emphasis added.) There was not a final and appealable order in this case as the trial court ordered a new arbitration hearing. Accordingly, we dismiss Rieke’s appeal.
The instant case involves a dispute over payment for services rendered by Van Deurzen after the collapse of a portion of a modular retaining wall designed by Van Deurzen and built by Rieke for a Home Depot store in Shawnee, Kansas.
Van Deurzen had been initially contacted by John F. Lutjen & Associates, the civil engineer for the Home Depot project, to produce design drawings for a modular retaining wall. Van Deurzen’s design drawings were made available to installers who would then bid on the modular retaining wall portion of the Home Depot project. Rieke was the low bidder for the construction of the Home Depot project, which included constructing the modular retaining walls.
Rieke entered into a contract with Van Deurzen in which Rieke agreed to pay Van Deurzen $12,200 plus expenses to produce modular retaining wall structural design calculations and construction documents. Article 3 of the contract relating to additional services stated in part: “Additional Services not included in the Scope of Basic Services shall be provided for a[n] additional fee if authorized or confirmed in writing by [Rieke] and they shall be paid for by [Rieke] as provided in this Agreement.” Ünder Article 9 of the contract, the parties agreed that “[c]laims, disputes or other matters in question between [Rieke] and [Van Deurzen] arising out of or relating to this Agreement or breach thereof not exceeding Fifty Thousand Dollars ($50,000.00) shall be subject to and decided by arbitration.”
After a portion of the modular retaining wall collapsed, Van Deurzen provided services that included investigating the wall failure and performing additional design services for the wall reconstruction. Van Deurzen claimed that these services were authorized by Rieke. Van Deurzen billed Rieke for these-services.
When Rieke refused to pay for the services, Van Deurzen filed a demand for arbitration with the American Arbitration Association under Article 9 of the contract. Rieké then filed an application with the district court to stay arbitration. Rieke argued that it was no longer subject to the terms and conditions of the contract as the contract had terminated when it paid Van Deurzen for the design of the wall. Rieke maintained that the additional work performed by Van Deurzen occurred after the contract had terminated. Moreover, Rieke asserted that it had no agreement with Van Deurzen for the performance of the additional work; Van Deurzen responded to Rieke’s application to stay arbitration, contending that Rieke requested the additional services for the investigation of the wall failure, that the contract applied to the additional services, and that the parties were subject to arbitration under the contract.
The trial court conducted a hearing on Rieke’s application to stay arbitration where it heard testimony from John Van Deurzen and Leon Rieke, secretary of Rieke. The trial court denied Rieke’s application to stay arbitration, finding that the dispute relating to the failure of and the investigation of the wall arose out of the agreement under the contract and that paragraph 9.1 of the contract relating to arbitration controlled. The trial court stated that issues concerning whether the services were proper, whether the services were defective, and whether Van Deurzen’s rate was proper would have to be decided in arbitration.
The arbitrator denied Van Deurzen’s claim and entered an award in favor of Rieke, finding that there had been no agreement between the parties for Van Deurzen’s additional services. Van Deurzen moved to vacate the arbitrator’s award, contending that the arbitrator exceeded his powers and entered a decision that was contrary to the trial court’s findings and order. The trial court conducted a hearing on Van Deurzen’s motion to vacate the arbitration award. At the hearing, the trial court stated that it had previously decided that there was a contract between the parties as to the additional services. The trial court noted that the issues of how much Van Deurzen should be paid for its services and whether Van Deurzen performed services according to the standard of care in the industry were matters for arbitration. Determining that the arbitrator had exceeded his powers and the trial court’s orders, the trial court vacated the arbitration award and ordered a new hearing before a new arbitrator.
On appeal, Rieke argues that the trial court erred in finding that the arbitrator exceeded his powers and in granting Van Deurzen’s motion to vacate the arbitrator’s award. In addition, Rieke argues that under the contract in this case, the arbitrator’s award should be final.
Nevertheless, before reaching the merits of Rieke’s argument, we must consider Van Deurzen’s contention that this court lacks jurisdiction over the appeal. Van Deurzen argues that an order vacating the arbitrator’s award and ordering a new arbitration award is not final and appealable under K.S.A. 5-418.
Appellate courts have only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to Article 3, § 3 of the Kansas Constitution, and it is the appellate court’s duty to dismiss an appeal when the record discloses a lack of jurisdiction. State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001). Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003).
Moreover, Van Deurzen’s argument requires interpretation of K.S.A. 5-418. 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 trial court’s interpretation of a statute. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
In interpreting K.S.A. 5-418, we bear in mind the following principle:
“The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
K.S.A. 5-418 governs appeals under the Kansas Uniform Arbitration Act, K.S.A. 5-401 et seq. Van Deurzen cites to Kansas Gas & Electric Co. v. Kansas Power & Light Co., 12 Kan. App. 2d 546, 751 P.2d 146, rev. denied 243 Kan. 779 (1988), where this court recognized that the Uniform Arbitration Act was intended to limit appeals to those final in nature. See also NEA-Topeka v. U.S.D. No. 501, 260 Kan. 838, 842, 925 P.2d 835 (1996) (recognizing that Uniform Arbitration Act follows Kansas general rule of prohibiting piecemeal appeals by requiring final judgment). We recognize that K.S.A. 5-418 was meant to limit appeals in proceedings under the Kansas Uniform Arbitration Act. K.S.A. 5-418 lists only six specific instances in which a party may bring an appeal:
“(a)An appeal may be taken from: (1) An order denying an application to compel arbitration made under K.S.A. 5-402;
(2) An order granting an application to stay arbitration made under subsection
(b) of K.S.A. 5-402;
(3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award;
(5) An order vacating an award without directing a rehearing; or
(6) A judgment or decree entered pursuant to the provisions of this act.
“(b) The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.” (Emphasis added.)
K.S.A. 5-418(a)(5) states that-a party may bring an appeal from “[a]n order vacating an award without directing a rehearing.” Under K.S.A. 5-418(a)(5), the clear intent of the legislature was to limit a party’s right to appeal an order vacating an arbitration award to situations where the trial court had not ordered a rehearing. In the instant case, the trial court vacated the arbitrator’s award and ordered the parties back to arbitration for a rehearing. Because the trial court directed a rehearing in this casé, K.S.A. 5-418(a)(5) provides no authority for Rieke’s appeal.
Although the trial court stated that if an appeal is filed, this matter would be stayed until the appellate court rendered its decision. Again, the right to appeal is statutory. Here, the trial court’s statement furnished no right of appeal to the appellant.
The instant case is analogous to Hodes v. Comprehensive Health Associates, 9 Kan. App. 2d 36, 670 P.2d 76 (1983). There, this court dismissed the appeal because the trial court’s denial of a motion to stay arbitration was not a final appealable order under K.S.A. 5-418. In noting that the right to appeal is strictly statutory in nature, this court reviewed K.S.A. 5-418(a)(l) and (2), which set forth the right to immediate appeal from orders on applications made under K.S.A. 5-402. This court determined, however, that K.S.A. 5-418(a)(1) and (2) did not authorize the right to appeal from an order denying an application to stay arbitration made under K.S.A. 5-402(b). In reaching its decision that no immediate appeal was available in that case, this court quoted from the California case of Jardine-Matheson Co., Ltd., v. Pacific O. Co., 100 Cal. App. 572, 575-76, 280 Pac. 697 [1929]), as follows:
“ ‘[T]he fact that the legislature saw fit to specify in one code section tire different orders and judgment from which appeals may be taken clearly indicates, in our opinion, an intention to restrict the appeals in such proceeding to tire orders and judgment therein specified; and the obvious reason for not including among such appealable orders the one which directs the parties to proceed with the arbitration was that if at the very threshold of the proceeding the defaulting party could appeal and thereby indefinitely delay the matter of arbitration, the object of the law and the purpose of the written agreement of the parties would be entirely defeated.’ ” 9 Kan. App. 2d at 38.
Similar to the decision in Hodes, we find no statutory authority granting Rieke the right to bring an immediate appeal from the trial court’s order vacating the arbitration award and directing a rehearing. K.S.A. 5-418 is specific in setting forth the orders and judgments from which an appeal can be brought. K.S.A. 5-418(a)(5) restricts the right to an immediate appeal from an order vacating an arbitration award to those situations where the trial court has not directed a rehearing. There is no other provision under K.S.A. 5-418 that gives Rieke the right to bring an immediate appeal from the trial court’s order. Based on the plain language of K.S.A. 5-418, we determine that the trial court’s decision vacating the arbitration award and ordering a rehearing is not a final appealable order. The instant appeal must be dismissed as this court lacks jurisdiction.
Appeal dismissed. | [
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Caplinger, J.:
Defendants Sandra Porting and Kim D. Angel appeal the trial court’s denial of their motions to suppress. They contend the trial court erred in finding that a recently released parolee had authority to consent to a search of the residence in which the evidence was found. We affirm, finding the State established by a preponderance of the evidence that (1) the parolee had common authority or sufficient relationship to the property to give valid consent to search the residence; and (2) the searching officers had reasonable grounds to believe the parolee had apparent authority to consent to the search.
The facts were stipulated to by the parties. On December 27, 2002, Eugene Hanson was released from the custody of the Kansas Department of Corrections at the Hutchinson Correctional Facility after serving approximately 18 months in prison. Prior to his imprisonment, Hanson had lived with his mother for several years at a residence located at 1130 West 20th Avenue in Hutchinson. Hanson’s former girlfriend, defendant Porting, also resided at the 20th Avenue residence, and she and her children continued to reside there while Hanson was imprisoned.
Hanson’s preapproved release plan required Hanson to reside at the 20th Avenue residence upon his release. Prior to his release, Hanson requested that his parole officer, Edward Mora, accompany him to the residence. Hanson did not want to jeopardize his parole status and was concerned because of rumored drug use by Porting.
Mora requested that Hutchinson police officers accompany Mora and Hanson to the residence to assist with clearing the residence for parole. When they arrived, Hanson entered die home and Mora followed. The two police officers remained outside. Hanson gave Mora consent to search the residence.
Hanson led officers to the northeast bedroom of the house, which Hanson had occupied with Porting prior to Hanson’s incarceration and would occupy again upon his return. There, they encountered Porting and two men in the bedroom. One of the two men was defendant Kim Angel, an absconder from parole. Angel had personal belongings at the residence, had spent the prior night with Porting, and had been at the residence all day. .
Porting and Angel filed motions to suppress the evidence against them, arguing Hanson was not a resident as he had spent the last 18 months incarcerated and, therefore, did not have the authority to consent to the search. Following a hearing, the trial court denied the motions.
Porting and Angel were convicted separately, pursuant to bench trials on stipulated facts. The defendants preserved their objections to the admission of the physical evidence that resulted from the search of die house.
Authority to Consent to Search
In these consolidated appeals, the defendants contend the trial court erred in finding Hanson had authority to consent to a search of the residence.
When, as here, the facts material to a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which this court has unlimited review. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003). The State bears the burden of proving the lawfulness of the conduct in question by a preponderance of the evidence. State v. Kriegh, 23 Kan. App. 2d 935, 937, 937 P.2d 453 (1997).
Before considering the parties’ arguments, we initially note that the parties stipulated that defendant Angel was an overnight guest. Angel thus had standing to object to the search. See Minnesota v. Olson, 495 U.S. 91, 109 L. Ed. 2d. 85, 110 S. Ct. 1684 (1990) (overnight guests have expectation of privacy in home).
The defendants initially argue that although Hanson was a past and prospective resident of the 20th Avenue residence, he was not a resident at the time of the search. Thus, they conclude be lacked access to or control of the property and could not have agreed to the search.
The trial court found Hanson had authority to consent because he was both physically present at the residence and intended to remain permanently. Although the trial court did not cite legal authority or support for its ruling, it appears the court analyzed the issue as one of residency of the defendant. See K.S.A. 2004 Supp. 77-201, Twenty-third, (establishment of permanent residence requires physical presence in location and intent to remain there).
While we agree with the trial court’s determination that Hanson was a resident of the 20th Avenue address, we affirm the trial court’s ruling for a different reason. We find the State proved by a preponderance of the evidence that Hanson’s consent to the search was a valid third-party consent.
In United States v. Matlock, 415 U.S. 164, 171, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974), the Supreme Court held that when the prosecution seeks to justify a warrantless search by proof of voluntaiy consent, it is not limited to proof that consent was given by the defendant. Rather, the State may show that permission to search was obtained from a third party who possessed common authority over the premises, or other sufficient relationship to the premises or effects sought to be inspected. See State v. Savage, 27 Kan. App. 2d 1022, 1026, 10 P.3d 765, rev. denied 270 Kan. 903 (2000).
Matlock was applied by this court in State v. Ratley, 16 Kan. App. 2d 589, 594, 827 P.2d 78 (1992). Although not entirely analogous, Ratley’s holding is instructive. There, the defendant’s wife left the parties’ marital home for a “safe house” after being physically abused by her husband. Planning to return to recover personal belongings, she met with law enforcement and signed a written consent to search the marital residence. During the subsequent search, agents seized marijuana and marijuana plants. The trial court granted the defendant’s motion to suppress, finding the wife had abandoned the marital home by no longer occupying the premises jointly with her husband.
This court reversed, finding the issue was not whether the wife and husband jointly occupied the premises but whether the wife had mutual authority or other sufficient relationship to the premises at the time she gave the consent to search. 16 Kan. App. 2d at 591. Citing Matlock, the Ratley court noted: “Recent United States Supreme Court cases appear to be decided [based] on whether the third party had common authority to consent, not on whether the third party jointly occupied the premises.” 16 Kan. App. 2d at 591.
Because the defendant’s wife had fled to a “safe house,” the court found she did not voluntarily surrender her control or access to the residence. Additionally, the court noted there was no evidence the husband had done anything to restrict or control access to the residence. The Ratley court thus concluded the defendant’s wife had the authority to consent to a search of the residence. 16 Kan. App. 2d at 594.
Unlike Ratley, Hanson’s absence from the residence for a period of time was due to his own actions rather than the violent actions of a spouse. Nevertheless, as in Ratley, there was no evidence that Hanson voluntarily and permanently surrendered control or access to the premises. Nor was there any evidence that anyone had changed the locks or attempted to restrict Hanson’s access to the premises in any way.
Arguably, we are presented here with even more compelling evidence upon which to find authority to search than that relied upon by the court in Ratley. The defendant’s wife in Ratley did not intend to return permanently to the marital residence but rather returned only to obtain her belongings. Hanson, on the other hand, indisputably intended not only to return to the home, but to reside permanently at the residence. In fact, he was required to reside there as a condition of his release. Moreover, Hanson had lived at the residence for several years prior to his incarceration, and his parole plan had been approved based upon his residing at the same location upon his release. Finally, upon his release, Hanson immediately returned to the residence.
Under these circumstances, we conclude the State established by a preponderance of the evidence that Hanson had common authority or sufficient relationship to the property to give a valid consent to a search of the residence.
Apparent Authority to Consent to Search
The trial court’s holding can also be affirmed under the apparent authority rule, “ which makes valid a consent to search when tire facts available to an officer would warrant a person of reasonable caution to believe the consenting party had authority over the premises to be searched.’ [Citation omitted.].” 27 Kan. App. 2d at 1026.
In Illinois v. Rodriguez, 497 U.S. 177, 188-89, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990), the Supreme Court determined that a consent to search is valid when the facts available to an officer would warrant a person of reasonable caution to believe tire consenting party had authority over the premises to be searched. In Ratley, 16 Kan. App. 2d at 595, our court applied Rodriguez, finding that since the officers knew the parties were married and there was no evidence that the husband had moved to revoke the wife’s authority or the wife had given up her authority, the officers could reasonably rely on the wife’s apparent authority.
Several factors in this case support a finding that Hanson had apparent authority to consent to the search. He resided at the 20th Avenue residence with his mother and Porting for several years prior to his incarceration. His preapproved parole plan required that he reside at that address following his release, and he immediately returned to the residence upon his release. Moreover, there was no evidence whatsoever to suggest that Hanson was not welcome or permitted to return to the residence after his release. Given these factual circumstances, we conclude the State proved by a preponderance of the evidence that Hanson’s parole officer could reasonably rely on Hanson’s apparent authority over the premises to be searched.
Search of the Bedroom
Defendants argue that even if Hanson did have the authority to consent to the search of the house, he did not have the authority to consent to a search of Porting’s private bedroom. They argue the door was closed at the time the officer entered the house and was opened by Hanson, who was acting as the State’s agent. Because the room contained Porting’s personal, private belongings, the defendants argue Porting had an expectation of privacy in the room. They point out that courts have repeatedly recognized that parolees do not have the authority to consent to search of another’s private areas in a residence. United States v. Cantley, 130 F.3d 1371, 1376-77, (10th Cir. 1997); State v. West, 185 Wis. 2d 68, 94, 517 N.W.2d 482 (1984); State v. Johnson, 748 P.2d 1069, 1073-74 (Utah 1987), abrogated on other grounds by State v. Doporto 935 P.2d 484 (Utah 1997).
We are not persuaded. There is no indication Hanson was acting as an agent of the State, given that Hanson requested the search. Further, the record indicates Porting did not have exclusive control over the bedroom. Porting and Angel were found in Hanson’s mother’s home in the room Porting shared with Hanson prior to his incarceration and the room Hanson intended to occupy upon his return.
Finally, Porting argues that Mora, Hanson’s parole officer, acted as a “stalking horse” for law enforcement officers, allowing them to evade the usual warrant requirements such as probable cause. We find this assertion equally unpersuasive. There is no indication that Mora collaborated with Hutchinson police to circumvent probable cause. Instead, Mora requested the police accompany Hanson and Mora to the residence. The police did not initiate any action and stood by outside during the search.
We thus find the district court did not err in denying the defendants’ motions to suppress.
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The opinion of the court was delivered by
Biles, J.:
In July 2009, while fleeing police during a high-speed chase, Kaston Hudgins rear ended another vehicle, killing both occupants. A juiy convicted him of two counts of first-degree felony murder and one count of fleeing or attempting to elude a police officer. In this direct appeal from those convictions, Hudgins challenges: (1) time constraints imposed on defense counsel’s voir dire; (2) admonishments by the district court in the jury’s presence about the time defense counsel was taking during voir dire; (3) the district court’s refusal to change venue; (4) prosecutorial misconduct; (5) the exclusion of evidence; and (6) the State’s decision to charge felony murder rather than the more specific offense of involuntary manslaughter while driving under the influence. He also argues cumulative error denied him a fair trial. We affirm.
Factual and Procedural Background
A Cherokee County sheriff s deputy initiated a traffic stop after he saw a vehicle driven by Hudgins run a stop sign. Hudgins pulled over but sped away while the deputy was making initial radio contact with dispatchers. The uniformed deputy pursued Hudgins in a marked patrol car with its top, front, and back emergency lights activated and an audible siren in operation. The chase began about 9:15 p.m. While evading the deputy, Hudgins periodically turned his vehicle’s headlights off and on, drove in the left-hand lane toward oncoming traffic, and passed at least one other vehicle on the shoulder. Vehicle speeds reached 120 miles per hour.
About 11 miles from where the pursuit began, Hudgins crashed into the rear of another vehicle at an intersection. His vehicle was estimated to be travelling about 98 miles per hour with the headlights turned off the instant before the collision. The two occupants in the second vehicle, a mother and her 13-year-old daughter, died. Hudgins was 22 years old at the time. His blood alcohol level was .15 grams per 100 milliliters of blood.
The State charged Hudgins with two counts of first-degree felony murder based on the underlying felony of fleeing or attempting to elude a law enforcement officer and one count of fleeing and eluding a law enforcement officer. A jury convicted him of all three counts. He was sentenced to two concurrent hard-20 sentences for the felony murders, plus a consecutive 6-month prison sentence for felony fleeing and eluding. Hudgins timely appeals. Jurisdiction is proper under K.S.A. 2014 Supp. 22-3601(b)(3) (life sentence).
Time Constraints on Defense Counsel’s Voir Dire
The district court agreed with counsel to use an extensive, jointly prepared 18-page questionnaire that was mailed to prospective jurors in the weeks leading up to trial. This questionnaire covered such subjects as the possible influence of pretrial publicity, prospective jurors’ biographical and family information; political and religious views; attitudes toward mental illness, alcoholism, law enforcement, and the criminal justice system; knowledge of the case and opinions of guilt; and relationships with potential witnesses and the victims.
More than 120 prospective jurors were summoned the first day of jury selection, which ultimately took about a day and half. From this larger group, the clerk initially called at random 42 names to sit in the jury box for voir dire examination. When one of those 42 was excused for cause, tire clerk randomly picked a new person to replace the one excused. The State would then conduct an initial questioning of tire new panelist to determine whether there was cause to strike, then defense counsel was free to resume examining any prospective juror in the box. The prospective jurors who had not yet been called into the jury box stayed in the courtroom and observed the proceedings.
The attorneys and the court ultimately questioned a total of 62 persons, from which a final group of 42 were passed for cause by both sides. After peremptory challenges, 12 jurors and 2 alternates were impaneled to hear the case, none of whom had been the subject earlier of unsuccessful defense motions to strike for cause. Approximately 60 prospective jurors, who were originally summoned on the first day, were never questioned, and the district court released them on the second day of the proceedings.
During tire first afternoon of voir dire, shortly after the court had ruled on a for-cause challenge to a prospective juror made by defense counsel, tire court commented to defense counsel, “I’m going to have to ask that you pick up the pace a little bit.” It appears from the record this remark came after defense counsel was silent for about 3 minutes while reading a questionnaire before resuming questioning. Counsel responded, “I will your honor, I just had to review this.”
Later, near the end of the first day while in chambers away from the prospective jurors, the district court asked defense counsel to “[gjive me your best estimate of how much longer you think you’ll be.” Counsel responded he was not sure. Earlier, tire court had advised that the panel appeared to be “getting vety restless,” adding, “I counted one time you went three minutes without saying a single word. That’s when I interrupted you. And [the jury panel] is reading that. And they don’t like that.”
The district court further noted it had approved the questionnaire’s use to facilitate the selection process, and defense counsel agreed, commenting that his voir dire preparation had consumed nearly 30 hours. The trial court then responded,
“Well, I would expect with that land of preparation that this would be snap, snap, snap, moving right along. And yet it almost leaves me with the impression that each of these is a new case study for you, that you’re going through that questionnaire as though you haven’t seen it before.”
Shortly thereafter, the court emphasized, “I don’t want to cut you off. I certainly don’t want to prejudice your client. But I have an obligation to move this case along.”
At about 5 p.m., the district court told the prospective jurors it had believed the jury was going to be picked by that time, but it was apparent selection could not be completed, even if the session continued until 5:30 p.m. The court then called a recess until the next morning, adding it would “put some time limits on [defense counsel] to complete this.” It remarked the jury would be picked by mid-moniing the next day.
The following day, defense counsel continued questioning individual potential jurors for approximately an hour before the court called all counsel into chambers. Again outside the juiy’s presence, the court reminded defense counsel it had agreed months earlier to allow the detailed written questionnaires so the attorneys would have necessary information before voir dire. The court then criticized defense counsel’s questions that morning, which focused on relationships with and attitudes toward law enforcement. The court said such questions were not relevant because the essential facts were not in dispute and it was unclear how police officer credibility would play a factor in this particular case. Defense counsel replied that his inquiries sought to discover inherent biases. The court responded:
“But you have been at this for over five—yeah, little bit over five hours. And I think if you want to ask them a few—each one a question or two, okay.
“But I said yesterday, at 10:30 you’re done. And I don’t want to just embarrass you by saying I’m taking this over. But if you’ve got a few more questions to ask, go airead. And tiren if you have anybody you want to challenge for cause, do it so that we can conclude this thing.”
The court then reconvened at 10:08 a.m., leaving defense counsel 22 minutes to finish. After additional questioning, defense counsel passed for cause the panel of 42 as then constituted.
Hudgins complains on appeal that the district court “cut-off otherwise searching questioning of potential jurors after less than five hours.” He further argues: “[W]hen the district court arbitrarily cut off defense counsel’s reasonable and searching questioning of jurors regarding their prior opinions and biases, it similarly cut off any way to reliably guarantee that this juiy was impartial.” Hudgins claims the restriction on defense counsel’s voir dire violated his rights under the Sixth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights and that we should reverse his convictions and remand the case for a new trial “before an impartial juiy.” In his argument regarding the district court’s denial of his motion to change venue, which we address below, Hudgins also suggests the lack of “full and liberal voir dire” prevented him from ensuring pretrial publicity did not impermissibly bias the jury pool.
Standard of Review
A district court “may limit [voir dire] examination by the defendant, his attorney, or the prosecuting attorney if the court believes such examination to be harassment, is causing unnecessaiy delay or serves no useful purpose.” K.S.A. 22-3408(3). The trial court has broad discretion in controlling voir dire in criminal cases. State v. Hayes, 258 Kan. 629, 631, 908 P.2d 597 (1995). And because die appropriate scope and extent of voir dire varies from case to case, no fixed rules apply. Deference to the trial court’s discretion is the hallmark of voir dire issues in criminal appeals. 258 Kan. at 631.
To obtain reversal under these circumstances, a defendant must demonstrate that (1) die district court abused its discretion in limiting voir dire; and (2) the defendant was prejudiced by that limitation. State v. Piolettt, 246 Kan. 49, 54, 785 P.2d 963 (1990). A district court abuses its discretion in limiting voir dire when the limitations imposed are arbitrary, fanciful, or unreasonable. Hayes, 258 Kan. at 631-32; see State v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014) (abuse of discretion when no reasonable person would take same view, ruling based on error of law, or error of fact on which ruling was based not supported by substantial competent evidence).
Discussion
The purpose of voir dire is “to enable the parties to select competent jurors who are without bias, prejudice, or partiality.” Hayes, 258 Kan. at 631. But in fulfilling that purpose, the trial court necessarily must reasonably maintain its authority to control voir dire when it deems it appropriate, even to speed up tire process. State v. Lockett, 232 Kan. 317, 323, 654 P.2d 433 (1982) (citing State v. Welch, 121 Kan. 369, 374-75, 247 P. 1053 [1926]). The court also has discretion when deciding whether voir dire questioning is improper because it does not concern the jury’s function in the case. Lockett, 232 Kan. at 323.
In these proceedings, tire record shows the district court intervened to avoid what it perceived as unnecessary delay and needless questioning. Both are appropriate reasons to limit voir dire examination under K.S.A. 22-3408(3). Notably, Hudgins articulates no particular prejudice resulting from the district court’s directive other than a conclusory argument that Hudgins’ constitutional rights were violated. The closest Hudgins gets to discussing prejudice is to assert in his brief that the court’s time limitations confined his ability to explore prospective jurors’ “prior opinions and biases.” And when asked about this at oral argument, Hudgins’ counsel characterized the time limitations as arbitrary in light of the serious crimes being prosecuted and extensive pretrial publicity.
But the voir dire record discloses relatively little inquiry from defense counsel about pretrial publicity. In fact, defense counsel repetitively focused on other topics such as personal associations with law enforcement, familiarity with witnesses, experience with alcohol and driving, willingness to follow jury instructions and the evidence, defendant’s right not to testify, burden of proof, and experience with the criminal justice system. It is difficult to attribute error to the district court based on a concern that it prevented inquiry into pretrial publicity when defense counsel did not pursue that subject any more than he did. In other words, it does not appear counsel’s inquiiy into pretrial publicity was rushed or that counsel was otherwise prevented from developing further support for the motion to change venue during voir dire.
Similarly, it is difficult to glean from the voir dire record any unreasonable or arbitrary exercise of the court’s discretion. Unfettered opportunity for limitless voir dire is not required. See K.S.A. 22-3408(3). And during the time allotted for questioning, the district court did not limit the subject matter of Hudgins’ voir dire examination or the manner in which questions were posed. See Hayes, 258 Kan. at 633 (district court did not unduly restrict voir dire when defense was allowed to probe many subjects without interruption, and any interruptions restricted improper questioning and instructed juiy on legal principles necessaiy to answer questions); Jackson, 234 Kan. at 86 (no undue restriction on voir dire when district court did not limit scope of exam, but required defendant to question panel as a whole, then follow up with individual jurors). Hudgins even continued questioning individual jurors wbo he had unsuccessfully moved to strike for cause—twice resulting ultimately in the excusal of the potential juror in question. The district court also gave fair warning of its intention to set a time limitation and allowed defense counsel to extend his examination into a second day.
Coupled with the extensive information available to counsel through the pretrial questionnaires, the record belies any assertion that the district court abused the broad discretion with which it was empowered when placing a time limitation on voir dire. See Hayes, 258 Kan. at 631. Moreover, even if we were to hold that the district court unreasonably pressed counsel to proceed by setting a mid-morning cutoff on the second day, there is no indication this prejudiced Hudgins. Hudgins does not contend on appeal, nor did he before the district court, that any time constraint adversely affected his ability to exercise challenges, for example. See State v. Maxwell, 151 Kan. 951, 956-57, 102 P.2d 109 (1940) (no prejudice demonstrated by restricting inquiiy as to jurors’ political and religious beliefs when defendant inquired if beliefs would preclude jurors from rendering impartial verdict and defendant did not contend he would have exercised peremptoiy challenges based on the prohibited inquiry). And Hudgins ultimately passed for cause the 42 panelists from whom the final 12 jurors and 2 alternates were chosen.
We hold the district court did not abuse its discretion—nor is prejudice shown—by prodding defense counsel to complete voir dire or setting the mid-morning time limitation on the second day.
Remarks to “Pick up the Pace”
Although Hudgins does not treat this as a separate issue in his brief, we do here because he suggests the district court made disparaging comments to defense counsel in front of the jury and implies this combined with the other jury selection issues prejudiced him. After reviewing the record, we disagree.
To put this claim in perspective, it is necessary to first look at what the defendant is referring to. There are two comments in question. The first, as noted previously, came after defense counsel was silent for about 3 minutes while reviewing a juror questionnaire as approximately 110 prospective jurors (both tiróse in the box and those in the courtroom waiting to be called) looked on. At that point, the court said to defense counsel, “I’m going to have to ask that you pick up the pace a little bit.” Counsel responded, “I will your honor, I just had to review this.” The second is when the district court at the end of the first day of jury selection remarked to the panel and those in the courtroom:
“Well, I told my wife—she said, What time will you be home?’ I said, “WeTl have the jury picked by 5,1 can guarantee that.’ I can tell you’re worn out, all of you. And even if we went to 5:30,1 don’t think we’re going to finish.
“So here’s tire plan. We’re going to recess tonight; start at 9 in the morning. That means the gallery has to come back, too. But we will be—14 of you will have to stay and try the case, but the rest of you will be dismissed before noon tomorrow. I’m going to put some time limits on [defense counsel] to complete this, and we’ll have the jury picked hopefully by our mid-morning break tomorrow morning.” . ■
Standard of Review
Allegations of judicial misconduct must be decided on the surrounding facts and circumstances. The party alleging.judicial misconduct bears the burden of showing his or her substantial rights were prejudiced. If a proper and reasonable construction will render the conduct unobjectionable, it is not prejudicial. State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002).
Discussion
When it is necessary to comment on counsel’s conduct, especially in the jury’s presence, the trial court should do so in a dignified, restrained manner; avoid repartee; limit comments and rulings to drose reasonably required for the orderly progress of the trial; and refrain from unnecessarily disparaging persons or issues. State v. Gadelkarim, 256 Kan. 671, 676, 887 P.2d 88 (1994), abrogated on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006).
In Gadelkarim, the court refused to find prejudice when the trial court told the jury not to blame defense counsel for the manner of jury selection—requesting 36 jurors to be examined for cause. It held the comment might explain why the trial might start late or simply be an explanation of the mechanics of the trial process to the potential jurors. 256 Kan. at 678. Similarly, in State v. Mahkuk, 220 Kan. 74, 551 P.2d 869 (1976), the court discerned no prejudice from the trial court’s allegedly continuous interruptions of counsel in voir dire and not allowing certain questions to be asked. The Mahkuk court noted the interruptions largely came in response to irrelevant questioning and held the district court was within its discretion to limit improper inquiry during the voir dire examination. 220 Kan. at 77; see also Hayes, 258 Kan. at 636 (rejecting prejudice claim when trial court referred to counsel’s “adroit questioning”).
In Hudgins’ case, the district court’s request that counsel “pick up the pace” occurred during what appears to be. a lengthy pause between questions. And the court later explained in chambers that its comment, was prompted by its observation that the panelists were getting very restless and did not appreciate the need for the silence. In context, the remark at worst is a mild warning that most certainly is within the proper exercise of a trial court’s authority to control voir dire and avoid undue delay. It certainly does not appear demeaning. We further note Hudgins does not claim the court’s tone was inappropriate or unprofessional, nor could we infer this from the record. See Hayes, 258 Kan. at 636. As such, the court’s comment cannot reasonably be characterized as either improper or prejudicial.
The district court’s explanation to the 100 or more prospective jurors that defense counsel would have some time limitations on the second day of voir dire also does not appear improper, unprofessional, or prejudicial. The comment was made in the setting of informing those who were making themselves available for jury service what to expect in order to manage their time and affairs. And while it can be acknowledged the time restriction was aimed at die defense because die State had already passed the 42 panelists for cause, the district court’s remark did not appear to disparage eidier counsel by casting blame upon or criticizing them.
In sum, a careful review of the voir dire examination record does not reveal the court’s comments were disrespectful or implied partiality toward one counsel or party or the other. Like the comments in Gadelkarim, Mahkuk, or Hayes, the statements at issue here may be explained as the district court acting within its discretion to control the pace of voir dire and conveying information about the manner in which the case would proceed based on its legitimate concern for the trial participants. We hold this challenge to the proceedings to be without merit.
Change of Venue
Hudgins argues the district court erred by denying his motions for change of venue from Cherokee County based on pretrial publicity. He contends this publicity, coupled with his challenges to his voir dire examination, deprived him of his Sixth Amendment right to an impartial jury. Again, some additional background is necessary.
Prior to trial, Hudgins sought a change of venue, alleging media coverage had “been so great that it... produced so much prejudice in tire community that tire likelihood of . . . receiving a fair and impartial trial is doubtful.” In that same motion, Hudgins requested an order for expert services to procure a public opinion poll to support the motion. The State objected. The district court denied both requests, citing State v. Krider, 41 Kan. App. 2d 368, 373-74, 202 P.3d 722 (2009), in which the Court of Appeals held the same district court had not abused its discretion in denying a venue change after discerning from the juiy selection process no prejudice in the venue.
Hudgins later renewed his venue motion in reaction to publicity surrounding a civil bench trial arising from die collision. In large part, Hudgins relied on newspaper quotes from the civil trial judge’s ruling that Hudgins was the only party at fault in the collision and the media’s dissemination of facts such as Hudgins’ speed and blood alcohol level at the time of the collision. Hudgins attached several area newspaper articles about the civil trial and its resulting $5.5 million judgment. Hudgins further alleged in a follow-up pleading that a review of 90 jury questionnaires sent out in preparation for a scheduled June 21,2011, trial revealed 75 percent of respondents “indicated a strong bias against [Hudgins] or some other reason that would make service as a juror suspect on this panel.”
On June 15, 2011, the district court heard the renewed motion. During that hearing, the court indicated it had mailed 200 questionnaires to prospective jurors. Ultimately, the district court took tire motion under advisement until it could see how jury selection went. Shortly thereafter, the district court granted Hudgins’ motion to replace his trial attorney, appointed new counsel, and continued the trial date. Following another postponement, the district court set trial for March 13, 2012.
In preparation for that March trial, the same questionnahe was sent to a different group of prospective jurors. The record contains 115 questionnaires received in February and March 2012. Of those, 83 indicated they had heard about the case after being apprised of the charges, names of the defendant and victims, and date of tire alleged crimes, Fifty-five reported having formed an opinion as to Hudgins’ guilt or innocence as a result. ■
But of the 12 jurors and 2 alternates eventually impaneled, 6 had reported not hearing about the case prior to filling out their questionnaires. Five others .reported having heard about the case or believing they had heard about the case but denied forming any opinions about it. Three others reported having formed opinions about the case, but during voir dire two of those agreed they could reach their verdict based on the evidence and instructions presented at trial, while the other recanted his prior opinion about Hudgins’ guilt based on what he had learned during voir dire. And as noted earlier, of the more than 120 prospective jurors summoned, only 62 were questioned by counsel before 42 of those were passed for cause by both sides prior to exercising peremptory challenges.
After jury selection was complete, the district court denied the renewed motion to change venue it had kept under advisement. It reasoned that each juror said he or she could serve fairly and impartially and noted that each who had expressed preconceived notions of guilt “backed off those notions” and said they could render a verdict based on the law and the evidence.
Standard of Review
“A defendant requesting a change of venue based upon pretrial publicity must satisfy the district court that there exists in the county where the prosecution is pending so great a prejudice against tire defendant that he or she cannot obtain a fair and impartial trial in that county. The defendant bears the burden to show prejudice exists in the community as a matter of demonstrable reality and to show that the level of prejudice makes it reasonably certain that the defendant cannot obtain a fair trial.” State v. Roeder, 300 Kan. 901, Syl. ¶ 1, 336 P.3d 831 (2014).
A constitutional claim that pretrial publicity requires a change of venue can arise in two contexts: presumed prejudice and actual prejudice. State v. Longoria, No. 108,333, 2015 WL 968385, at *12 (Kan. March 6, 2015). Hudgins bases his venue challenge on an “actual prejudice” argument, focusing on the factors enumerated in State v. Higgenbotham, 271 Kan. 582, 23 P.3d 874 (2001). See Roeder, 300 Kan. at 908-09 (employing actual prejudice analysis because defendant relied on Higgenbotham factors and did not claim presumed prejudice). Under the actual prejudice analysis, the district court’s denial of a venue change is reviewed for abuse of discretion. Roeder, 300 Kan. at 909. Defendant’s burden is a “steeply uphill battle.” 300 Kan. at 909. The defendant must prove community prejudice was a “ ‘demonstrable reality’ ” such that it was “ ‘reasonably certain be or she could not have obtained a fair trial.’ ” 300 Kan. at 910 (quoting Higgenbotham, 271 Kan. at 591-92).
Discussion
To determine whether actual prejudice existed, this court considers nine factors: (1) the degree of publicity circulated through the community; (2) the degree the publicity circulated through areas to which venue could be changed; (3) the length of time from the dissemination of the publicity to the trial date; (4) the care exercised and ease encountered in jury selection; (5) the familiarity with publicity and its resultant effects upon prospective jurors or trial jurors; (6) challenges exercised by the defendant in jury selection, both peremptory and for cause; (7) the connection of government officials with the release of the publicity; (8) the severity of the offense charged; and (9) the particular size of the area from which the prospective jurors are drawn. 300 Kan. at 910 (citing Higgenbotham, 271 Kan. at 592). For clarity, we address each factor in turn.
Degree of publicity through the community
The publicity regarding Hudgins’ criminal charges appears to have been significant, especially when it combined with the civil bench trial results. Most prospective jurors indicated hearing about the deaths or were at least vaguely familiar with the family, the parties, or witnesses—although it is difficult to determine from the record whether this resulted from the relatively small community affected or the publicity.
Degree of publicity in areas to which venue could be changed
Hudgins did not present evidence about the degree of publicity circulated through areas to which venue could be changed. He excuses this by arguing the district court’s denial of his request for fees to conduct a poll malees it impossible for him to satisfy this showing and that his failure should not be held against him for that reason.
Time between the publicity and the trial date
The trial occurred approximately 31 months after the fatality collision, but only 11 months after the civil case and its attendant publicity. And the voir dire examination record shows a few jurors had seen some publicity about the upcoming trial a day or so prior to being questioned.
The care exercised and ease encountered injury selection
As noted, given the more than 120 persons summoned for voir dire, it appears it was comparatively simple to get 42 passed for cause by both sides before moving to peremptory challenges. And of the three jurors ultimately picked who had expressed initial opinions about defendant’s guilt in their pretrial questionnaires, defense counsel had not moved to strike any of &em for cause. In addition, the district court’s use of an extensive questionnaire to assist with juxy selection demonstrates exceptional care in the process.
Familiarity with publicity and its resultant effects
Again, the publicity appears to have been significant, especially when combined with the civil bench trial and its result. But most all prospective jurors agreed they could set aside any opinion they had about the case, remain fair and impartial, and follow the law as instructed by the district court. Those who admitted they could not do this were excused by the district court prior to peremptory challenges being exercised.
Challenges exercised by defendant injury selection
In his appellate brief, Hudgins gives no particular attention to this factor, stating only that he made several motions to strike prospective jurors “some of which were granted and some of which were not.” This court’s review of the record has been more detailed. Hudgins made 17 motions to strike for cause. Of those, 10 were sustained by the district court; but only one of Hudgins’ successful motions to strike appears related to the prospective juror’s exposure to pretrial publicity. Hudgins’ other successful motions to strike were based on other factors, such as prospective jurors’ family associations, predisposed notions regarding alcohol use, or, in one instance, the prospective juror’s profound hearing loss. In comparison, the State successfully challenged 8 prospective jurors for cause. One additional prospective juror was struck on a joint motion due to a felony conviction that rendered him statutorily ineligible to serve. See K.S.A. 2014 Supp. 43-158(c) (jury service exclusion for those with felony convictions within 10 years). Another was excused, on her own motion, to attend to a family medical emergency.
After accepting a pool of 42 panel members following voir dire, each party exercised 14 peremptory challenges. And as noted previously, no one who Hudgins sought to strike for cause during voir dire examination ended up serving on the final jury panel.
Connection of government officials with publicity
There is no evidence any government official was responsible for the publicity in the record, other than the comments by the civil trial judge that Hudgins was the only person at fault.
Severity of the offense charged
Clearly, die crimes charged were very serious and die circumstances tragic. Such an occurrence in a relatively small community would be expected to reach more deeply into die population.
Size of the area from which prospective jurors are drawn
Hudgins claims based on census information that Cherokee County had a population of persons 18 or older in 2012 of approximately 16,004, with a total population of 20,226.
In the ultimate balancing of these factors, difficulty in impaneling a competent and unbiased jury has been a key consideration. See Roeder, 300 Kan. at 914 (“Perhaps most importantly... ‘there was no undue difficultly] in [i]mpaneling a jury.’ ”) (quoting Higgenbotham, 271 Kan. at 594); State v. Verge, 272 Kan. 501, 505, 34 P.3d 449 (2001) (impartial jury impaneled after lawful, proper jury selection process, despite survey indicating 96 percent of venue county residents had heard about case and 64 percent believed defendant guilty); Higgenbotham, 271 Kan. at 595 (no abuse of discretion given lack of evidence of problems selecting jury, despite extensive pretrial publicity and survey demonstrating more than half of venue county population believed defendant was or probably was guilty); see also State v. Jackson, 262 Kan. 119, 131-32, 936 P.2d 761 (1997) (few problems impaneling impartial jury even though 36 percent of total panel excused for cause because all jurors were “rigorously questioned” and indicated they could listen to the evidence and reach verdict impartially).
In Hudgins’ case, a few factors weigh in favor of a change in venue, but the balance does not. Importantly, the record does not demonstrate difficulty impaneling a competent and unbiased jury. As discussed, only 62 of the more than 120 prospective jurors summoned needed to be examined to pass the required 42 prospective jurors for cause. And all of the impaneled jury members indicated they could remain impartial and fair while following the law. Indeed, Hudgins directs us to no individual jurors who he claims should not have been seated on the final jury. Compare State v. Carr, 300 Kan. 1, 104-24, 331 P.3d 544 (2014) (analyzing specific juror challenges).
Because jury selection was not unduly difficult, we hold Hudgins fails to demonstrate actual prejudice from pretrial publicity. We cannot conclude that community prejudice from the publicity was a demonstrable reality such that it was reasonably certain Hudgins could not obtain a fair trial in Cherokee County. The district court did not abuse its discretion in denying the change of venue motions.
Prosecutor’s Explanation of Lesser Included Offenses
Hudgins argues next that the prosecutor committed reversible misconduct when discussing lesser included offenses of the felony-murder charges. This issue arises because tire district court instructed the jury on five lesser included offenses of each felony-murder charge. In doing so, the court gave the standard PIK instructions as to how the jury is to consider lesser included offenses: (1) “When there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of a lesser offense only”; and. (2) before stating the elements of each lesser offense: “If you do not agree that the defendant is guilty of the [immediately more serious offense], you should then consider the lesser included offense of. . . .”
But during closing arguments, the prosecutor attempted to explain what the instructions meant, saying:
“[F]irst, you look at first degree murder. And only if he’s not guilty of first degree murder do you go on. If he’s guilty of first degree murder, you don’t consider the lessers. Because the Judge tells you if you do not agree that he’s guilty of first degree murder, then you consider the lessers. Read that backwards. What it means is you only consider the lessers if he is not guilty.” (Emphasis added.)
Similarly, in rebuttal the prosecutor told the jury:
“[Y]ou start at the top with felony murder. And you have to agree to go to the lessers . . . .”
“. . . You have to agree he is not guilty of felony murder. . . . Sure, the other crimes fit because they’re lesser includeds [sic], ...
“But tire most severe crime that he’s guilty of is felony murder. And you only look at the lessers if he’s not guilty of that. Once you find him guilty of that, you stop, the test is over, and you’re done.” (Emphasis added.)
Standard of Review
Appellate review of a prosecutorial misconduct claim based on improper comments requires a two-step analysis. First, an appellate court decides whether the comments at issue were outside the wide latitude a prosecutor is allowed, e.g., when discussing evidence. If so, there was misconduct. Second, if misconduct is found, an appellate court determines whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013).
Appellate courts consider three factors in analyzing the second step: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor s part; and (3) whether tire evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the jurors’ minds. But none of these factors individually controls; and before the third factor can override the first two, an appellate court must be able to say the harmlessness tests of both K.S.A. GO-261 and Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), have been met. State v. McCullough, 293 Kan. 970, 990-91, 270 P.3d 1142 (2012).
When both constitutional and nonconstitutional errors clearly arise from die same acts and omissions, an appellate court begins with a harmlessness analysis of the constitutional error. If the constitutional error is reversible, an appellate court need not analyze whether the lower standard for harmlessness under K.S.A. 60-261 also has been met. Bridges, 297 Kan. 989, Syl. ¶ 16. Under both standards, the party benefiting from the error bears die burden to demonstrate harmiessness. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013).
Discussion
A misstatement of the law during a prosecutor s closing argument can deny a defendant a fair trial when “ ‘die facts are such that the jury could have been confused or misled by the statement.” State v. Williams, 299 Kan. 509, 544, 324 P.3d 1078 (2014) (quoting State v. Phillips, 295 Kan. 929, Syl. ¶ 5, 287 P.3d 245 [2012]).
Hudgins argues that because the jury was instructed its verdicts must be unanimous, the prosecutor s statements diat lesser included offenses could be considered only if the juiy found him “not guilty” of felony murder effectively meant the jury must unanimously agree he was not guilty before considering the lesser included offense. We recently considered a similar problem involving the same prosecutor and agreed it is improper to instruct or tell a jury that it must unanimously agree to acquit the defendant of the charged offense before it can consider lesser included offenses. See State v. Parker, No. 111,044, 2015 WL 968403, at *6 (Kan. March 6, 2015).
State v. Hurt, 278 Kan. 676, 101 P.3d 1249 (2004), is almost exactly on point and is cited by Hudgins in arguing for reversal of this conviction. In Hurt, defendant was charged with first-degree murder and the jury was instructed on that offense, as well as lesser included offenses of intentional second-degree murder and vol-untaiy manslaughter. In closing arguments, the prosecutor said:
“ ‘If you’re not convinced—first of all, if you are convinced that he’s guilty of first-degree premeditated murder, check the guilty box, and you’re done with that count. ‘Cause, if you’re convinced that he’s guilty of that highest count, you need not go down any further to consider second-degree or voluntary.
“ ‘It’s only if you’re not convinced, all 12 of ya, that he’s guilty of premeditated, and then you move your way down and ask yourself, Well, certainly, he intended to but maybe it wasn’t premeditated. Again, read that definition of premeditation to yourselves and ask yourself, how can there [have] been any dispute that this was premeditated.
“ ‘Finally, if you’re not convinced that this was a premeditated or even an intentional second-degree murder, then you’re required to consider voluntary manslaughter.’ ” 278 Kan. at 681-82.
Hurt argued the statement that all 12 jurors must be unconvinced of guilt on the more serious crime before the jury considered the lesser included offenses improperly required the juiy to unanimously acquit him of first-degree murder before considering lesser included offenses. The court held “it would be improper to state that all 12 jurors had to agree that there was a reasonable doubt before the juiy could consider a lesser included offense.” 278 Kan. at 682. But it was not convinced that was the meaning conveyed by the statement, so the court accepted in light of the ambiguity the proposition that the remarks were improper and turned to whether the error was reversible. It concluded it was not. See 278 Kan. at 682-85.
There are three potential scenarios when a jury begins deliberation on the highest offense. First, the jury can unanimously agree the defendant is guilty. Second, the jury can disagree with one another with some jurors believing the defendant is guilty and others not. Third, the jury can unanimously agree the defendant is not guilty of the primary offense. The concern here is that the prosecutor s statement, “You only go start working your way down the lesser included crimes if you find the defendant not guilty of capital murder,” informs the juiy it cannot consider the lesser included offenses if the jurors disagree with one another, i.e., there is not unanimity.
As in Hurt, the prosecutor s statement in Hudgins’ case is at best ambiguous taken in context because the term “not guilty” could mean the juiy had to unanimously agree the State had not proven him guilty before considering the lesser included offenses. In other words, a jury of mixed conclusions would simply deadlock without trying to reach agreement on a lesser included offense. Resolving this in Hudgins’ favor, as in Hurt and Parker, we hold it was error for the prosecutor to make these statements. Therefore, we move to the second prong of the analysis.
Hudgins seizes on the analysis in Hurt to argue that the prosecutor’s comment “misstated clear and long-standing law regarding the juiy’s function” and therefore was gross and flagrant. Presumably, although not mentioned, Hudgins implies the same demonstrates the prosecutor’s ill will. This misstep, he argues, compels reversal because Hudgins’ defense was directed exclusively at convincing the juiy to convict him of a lesser included offense rather than first-degree felony murder.
But we fail to see how the statement at issue can reasonably be seen as gross and flagrant, although the precedent from Hurt would put the prosecutor on notice of the potential for ambiguity. The prosecutor’s statement was ambiguous with only one interpretation being that the prosecutor improperly told the jury it could only consider lesser included offense instructions if it unanimously found the defendant was not guilty of capital murder. In addition, the jury was instructed on the method of considering lesser included offenses from our standard PIK instructions, including resolving reasonable doubts in favor of convicting of the lesser offense—just like the jury in Hurt. From this, we are unable to conclude the jury would have latched onto the prosecutor’s interpretation and ignored contrary written jury instructions.
Moreover, the evidence of Hudgins’ guilt was so direct and overwhelming that, had the jury in fact adopted the prosecutor’s incorrect interpretation, the error would have little weight in the jurors’ minds. See Parker, 2015 WL 968403, at *7. The eyewitness testimony of the deputy and motorists at the scene confirmed Hudgins was fleeing from the deputy both immediately before and at the time of the collision—injuries from which irrefutably killed the victims. There is nothing in the record to suggest otherwise, which leaves us with no reasonable possibility the prosecutor’s comments affected the jury’s verdict.
We hold the prosecutor’s misstatement as to the process for considering lesser included offenses did not so prejudice the jury as to deny Hudgins a fair trial.
Evidence Regarding High-Speed Pursuit Policy
Hudgins argues next that the district court improperly excluded evidence that the deputy who pursued him violated departmental policy in doing so. Hudgins contends this evidence was relevant to causation in the felony murder context and that refusing to permit him to introduce it infringed on his constitutional right to present a defense. Because we agree with the State that Hudgins did not make an adequate proffer of the excluded evidence, we hold this issue is not preserved for appellate review and do not reach its merits. Again, some additional background is necessary.
In his opening statement, defense counsel told the jury there were policies about how police conduct high-speed chases and who can conduct them, which policies could be considered as contributing factors in connection with the crimes charged. During a break in the trial, the State moved to exclude any evidence of departmental pursuit policies on relevance grounds. Hudgins argued the evidence was “highly relevant to the situation” because tire deputy pursued Hudgins for 11 miles allegedly in violation of departmental policy. The district court ruled the evidence was not relevant because the deputy was pursuing Hudgins, regardless of whether he acted within the policy when doing so.
Cocounsel then prompted the lead defense lawyer to make a proffer, to which, counsel responded, “Yes, naturally, I would proffer that the Court accept the policy in the record for review for purposes of appeal. And I object. I just formally object for the record.”
But the trial transcript does not reflect that a written department policy was actually marked as an exhibit or provided to the district court informally. The record on appeal does not include the departmental policy; the deputy’s testimony in the civil trial, to which defense counsel referred at one point in the discussion with the district court; or the deputy’s personnel file, which trial counsel alluded to as being available for introduction into evidence.
In his appellate brief, Hudgins refers to the deputy “not acting within the sheriff department’s own policies on high speed pursuit,” but the only record citations are to the statements of defense counsel referred to above. And at oral argument, Hudgins’ counsel conceded that neither the policy nor any other written document was in the record to articulate how the deputy supposedly violated departmental policy. In other words, except for counsel’s conclu-sory statements, there is nothing for this court to review to determine the claimed relevancy of this excluded evidence.
K.S.A. 60-405 governs the adequacy of a proffer and provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.” (Emphasis added.)
The party being limited by the exclusion of evidence has the responsibility of proffering sufficient evidence to the trial court in order to preserve the issue on appeal. Failure to make a proffer of excluded evidence precludes appellate review because there is no basis to consider whether the trial court abused its discretion. State v. Evans, 275 Kan. 95, 99-00, 62 P.3d 220 (2003).
We hold the proffer and the record on appeal in this case do not satisfy the defendant’s responsibility to provide an adequate record permitting our review of this issue. From the record created by Hudgins, we are not aware what, if any, departmental policy might be in dispute or how that policy may have been violated. As a result, we lack sufficient information to determine whether evidence of the unspecified violation might have been relevant. See State v. Boleyn, 297 Kan. 610, 622, 303 P.3d 680 (2013) (defining relevance and setting out standard of review for district court’s relevance determinations).
Failing to Charge DUI Manslaughter
Next, Hudgins argues the district court erred in binding him over for trial for felony murder with the underlying felony of fleeing and eluding a law enforcement officer. He argues he should have been charged with involuntary manslaughter while driving under the influence, K.S.A. 21-3442, because it was the more specific offense. He relies on State v. Williams, 250 Kan. 730, 736, 829 P.2d 892 (1992).
In Williains, the defendant was charged with indecent liberties arising from conduct with his step-granddaughter. The defendant moved to dismiss, arguing he should have been charged with aggravated incest, which he claimed was the more specific criminal offense, rather than indecent liberties. After the district court dismissed the indecent liberties charge this court affirmed, reasoning: “For the general statute versus specific statute rationale to be applicable to the two crimes, the indecent liberties statute must be viewed as a statute generally prohibiting certain sexual behavior and the aggravated incest statute as applying to the identical prohibited conduct by a person related to the victim.” 250 Kan. at 736. The court noted these particular statutes evinced the legislature’s clear intent to establish certain sex offenses were applicable when family relationships were not involved, while a different crime (aggravated incest) applied when committed by a person related to the victim, which under the statutes constituted a less serious offense. 250 Kan. at 736.
The State relies on State v. Helms, 242 Kan. 511, 748 P.2d 425 (1988), in which the court rejected an argument that the State lacked discretion to charge rape, rather than tire allegedly more specific crime of indecent liberties. The Helms court agreed indecent liberties required proof of an element not required to prove rape but reasoned that rape also required proof of elements not present within the crime of indecent liberties. It added: “Although both crimes may be coincidentally present in the same set of factual events, the two crimes are directed at different actions.” 242 Kan. at 426. The court noted the defendant’s interpretation would result in perpetrators who rape children under 16 to be punished less severely than those who rape adults, which it concluded would “require an assumption that the legislature intended to afford less protection to the most vulnerable segment of our society.” 242 Kan. at 427.
Under the rationales of both Williams and Helms, involuntary manslaughter while driving under the influence, K.S.A. 21-3442, is not a more specific crime than felony murder, K.S.A. 21-3401(b), with the underlying felony of fleeing and eluding a law enforcement officer, K.S.A. 8-1568(b). The State was not required to charge Hudgins with DUI manslaughter. In this instance, each crime requires proof of conduct the other does not.
At a minimum, DUI manslaughter requires proof the defendant was operating a vehicle under the influence of alcohol—while the felony-murder, fleeing and eluding, obviously does not. Similarly, the felony-murder, fleeing and eluding, crime requires proof a defendant was fleeing from a law enforcement officer at the time of tire killing, while DUI manslaughter does not. In short, DUI manslaughter does not criminalize identical conduct as felony murder, fleeing and eluding, as committed by a specific class of offenders, i.e., those who were intoxicated at the time of the offense.
Accordingly, we hold that the legislature did not intend DUI manslaughter to be the exclusive statute under which Hudgins’ conduct could be punished.
Cumulative Error
Because prosecutorial misconduct was the only error arising from the issues raised and it has been determined to be harmless, cumulative error analysis is inapplicable. See State v. Todd, 299 Kan. 263, 286, 323 P.3d 829 (2014).
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Bukaty, J.:
Russell M. Rice appeals the order of the district court requiring him to reimburse the Kansas Department of Social and Rehabilitation Services (SRS) for amounts it paid for support of two of his children prior to Rice’s parental rights being terminated. No judgment had been rendered for such support prior to the termination. We affirm.
The parties do not dispute the underlying facts. The reimbursement at issue in this appeal involves two natural children of Rice, one bom in July 1985, the other bom in December 1986. SRS provided the children with financial assistance in the amount of $7,867 during the period of December 1996 through May 1999. It also provided the children with medical care payments in the amount of $6,041.66. By a hearing held on October 10, 1997, and a journal entry filed January 14,1998, the district court terminated Rice’s parental rights to the children. This court affirmed the termination order in an unpublished opinion.
On April 30, 1999, SRS filed a petition for reimbursement for past child support and medical payments made on behalf of the two children and for continued support. SRS subsequently revised its demand to request only reimbursement for the child support and the medical expenses it paid prior to the termination of parental rights order. Ultimately, the parties stipulated that SRS had provided a total of $4,027.86 for the care of the two children prior to the termination order.
Relying upon K.S.A. 39-718b and In re Morgan, 24 Kan. App. 2d 324, 943 P.2d 77 (1997), the district court concluded that SRS was entitled to reimbursement of expenditures made prior to the termination of parental rights. In its June 2004 reimbursement order, the court awarded judgment against Rice and Alayne L. Brown, jointly and severally, in the amount of $3,756.86. We are not sure why the amount differs from the amount stipulated to for the care provided by SRS prior to the termination of Rice’s parental rights.
The only issue in this appeal is whether SRS can claim reimbursement for expenditures it made prior to the termination order when no judgment or other court order had been entered prior to that time to establish Rice’s obligation for support or reimbursement to SRS. This issue requires us to determine the scope and extent of SRS’s authority to recoup expenditures pursuant to K.S.A. 39-718b. Interpretation of a statute is a question of law over which this court possesses unlimited review. See State ex rel. Secretary of SRS v. Cook, 29 Kan. App. 2d 292, 293, 26 P.3d 76 (2001).
In pertinent part, K.S.A. 39-718b provides:
“(a) Except as provided in subsection (b), a child’s parent, parents or guardian shall be liable to repay to the secretary of social and rehabilitation services any assistance expended on the child’s behalf, regardless of the specific program under which the assistance is or has been provided. When more than one person is legally obligated to support the child, liability to the secretary shall be joint and several. The secretary shall have the power and authority to fríe a civil action in the name of the secretary for repayment of the assistance, regardless of the existence of any other action involving the support of the child.”
In construing any statute, a court must give effect to the intent of legislature, if the intent may be ascertained. Where a statute is unambiguous, the legislature is presumed to have effected its intent in the language of the statutory scheme enacted. See Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005). Unless specifically defined by statute, words should be given their ordinary meaning, and a statute should not be interpreted to include or exclude meanings generally attached to those words. See GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
K.S.A. 39-718b is not ambiguous. Other than clearly defined exceptions, which neither party has shown to be applicable here, any parent or legal guardian of a child is liable to repay any assistance expended on behalf of that child by SRS. Kansas courts have determined that this duty ceases once a parent’s rights and obligations are terminated by law. See State ex rel. Secretary of SRS v. Clear, 248 Kan. 109, 804 P.2d 961 (1991).
“A person who has relinquished parental rights through adoption, a voluntary termination of parental rights, or an involuntary severance of parental rights is no longer a parent. These statutory procedures contemplate a complete severance of the child’s ties and relationship with his or her natural parents. The parent whose rights have been severed is relieved of all duties and obligations to the child.” Clear, 248 Kan. at 117.
Relying upon Clear, Rice claims that since he no longer is a parent of the children who received SRS assistance, he is no longer liable for any SRS expenditures on behalf of the children regardless of when the expenditures were made. His rebanee is misplaced. The Kansas Supreme Court clarified and expanded upon Clear in Michels v. Weingartner, 254 Kan. 44, 864 P.2d 1189 (1993). The court, while acknowledging the holding in Clear, ruled that a parent whose rights had been terminated was still liable after severance of parental rights for payment of child support which became due prior to the termination. Michels, 254 Kan. at 47-49.
Rice’s argument that Michels is distinguishable on the facts is without merit. He urges that Michels involved private child support payments where a judgment was in effect against an individual prior to termination of his parental rights as opposed to a claim after termination by SRS for reimbursement of public funds expended to support the child prior to termination. We find no basis either in the statutes or sound public policy for distinguishing the two situations.
It is true that child support payments differ in at least one respect from the type of assistance expended by SRS in caring for the needs of a child. Child support is a judicially imposed obligation determined according to a parent’s ability to provide for the child as established by court-created guidelines. In contrast, reimbursement for assistance expended by SRS for the needs of a child is a statutorily imposed obligation determined solely by SRS expenditures on behalf of the child. See Cook, 29 Kan. App. 2d at 295.
Whether or not a child support order is in effect, Kansas courts have recognized a common-law duty on the part of parents to provide for their children. Courts will recognize an action brought to enforce this duty under an equitable theory. See State ex rel. Secretary of SRS v. Guy, 23 Kan. App. 2d 943, 946, 937 P.2d 1252 (1997) (citing State ex rel. Secretary of SRS v. Castro, 235 Kan. 704, 711-12, 684 P.2d 379 [1984]).
“The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation . . . laid on them not only by nature her self, but by their own proper act, in bringing them into the world; for they would be in the highest manner injurious to tiieir issue, if they only gave their children life that they might afterwards see them perish. By begetting them therefore, they have entered into a voluntary obligation, to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from theirparents.” [Citations omitted.]’ ” Castro, 235 Kan. at 712.
The State, in the exercise of its parens patriae duties, is authorized to provide assistance to children who are not receiving adequate provision by their parents. However, if such assistance is provided while the duty to provide for the child rests with a parent or legal guardian, the State is entitled to recoup its expenditures made in providing for the children. K.S.A. 39-718b; See In re Marriage of Walje, 19 Kan. App. 2d 809, 811, 877 P.2d 7, rev. denied 255 Kan. 1002 (1994).
Until a parent’s rights to a particular child are legally terminated, the duty to provide for that child remains. If the State is required to intervene to provide assistance for the benefit of the child during that time, a debt is created against the parent by operation of the statute and the common law. The liability of the parent arises at the time SRS provides the assistance, and there is no sound reason why a subsequent termination order should relieve or satisfy that debt liability. The State may properly enforce that debt by filing an action for reimbursement against the parent under K.S.A. 39-718b. We hold that it is the status of the parent at the time SRS provided support to the child as opposed to the status of the parent at the time SRS makes its claim that determines responsibility for reimbursement. The date the claim for support is made-— whether it be for direct support as in Michels or for reimbursement of public funds as here — is immaterial.
Rice presents no persuasive argument for treating the statutorily imposed obligation of a parent to reimburse SRS for its support of his or her child differently from his or her obligation to provide direct support to the child. Adopting Rice’s argument would foreclose SRS from seeking reimbursement for expenses incurred on behalf of a child when the bills for the services provided have not been processed before parental rights are terminated. There is nothing within the language of K.S.A. 39-718b to suggest that the Kansas Legislature intended such a result.
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Greene, J.:
Gregory C. Bender, trustee of two trusts for-his children, appeals the judgment of the district court which held that the trusts, as purchasers of land conditioned on commitment of title, had sustained no legally cognizable damage caused by the negligence or breach of contract of defendants Kansas Secured Title and Abstract Co., Inc. (Kansas Secured Title), abstractor, and Chicago Title Insurance Co. (Chicago Title), title insurer, in connection with the trusts’ purchase of land, even though the defendants admitted that a blanket easement covering the entirety of the property had been missed during their title search and that a natural gas pipeline crossed a portion of the property. We review the protracted proceedings in district court, discuss applicable principles of law for such disputes in Kansas, conclude that the district court erred in some regards, reverse the judgment, and remand for further proceedings with directions.
Factual and Procedural Background
Bender is the trustee of two trusts for his children, Colton B. Bender and Skylar Louise Bender. On September 30, 1999, on behalf of the trusts, Bender purchased 160 acres of land located at S.E. 37th Street in Shawnee County, Kansas, near the Douglas County line. Bender purchased the property for $167,500, intending to develop a rural subdivision.
As part of the sales agreement, the seller agreed to provide Bender with marketable title and title insurance. Chicago Title issued the commitment for title insurance, with Kansas Secured Title serving as its agent and abstractor. The only material exception listed in the title policy was an easement to Martin Marietta Cor poration covering 1 acre in the corner of the property for an active quarry. After the closing, Bender received the title insurance policy, which stated in relevant part:
“4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE
“(b) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest, as insured, or to prevent or reduce loss or damage to the insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this policy. If the Company shall exercise its rights under this paragraph, it shall do so diligently.
“(d) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding, the insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding, and all appeals therein, and permit the Company to use, at its option, the name of the insured for this purpose. Whenever requested by the Company, the insured, at the Company’s expense, shall give the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as insured. . . .
“7. DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE
“This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described.
“(a) The liability of the Company under this policy shall not exceed the least of;
(i) the Amount of Insurance stated in Schedule A; or,
(ii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy.”
After the closing, Bender waited approximately 1 year to begin development. In August 2000, Bender met with a land surveyor, and they quickly began developing layouts of the subdivision with the goal of designing as many salable lots, as feasible. Bender wanted to get a plat on file with the county as quickly as possible because he was under the impression that “at any given time” Shawnee County might change its requirements for residential or rural development.
On September 10, 2000, while riding his four-wheeler across the properly, Bender discovered for the first time what seemed to be an active pipeline on his property. Upon inquiry, Bender learned that it was an active natural gas pipeline owned by Williams Pipeline Company (Williams). Within 24 hours, Williams confirmed that it had a blanket easement across the entire property.
Bender contacted Kansas Secured Title with this information almost immediately. On September 15,2000, Kansas Secured Title sent Bender a copy of Williams’ right-of-way and a note confirming that the easement covered the entire quarter section. In this correspondence, Kansas Secured Title admitted that the easement had been missed during its title search. Bender hired an attorney and filed a claim with Chicago Title to recover the purchase price of the property because the blanket easement effectively foreclosed any development activity.
In December 2001, Bender received a proposed partial release from Williams, which would have narrowed the easement to 33 feet on each side of the pipeline. The instrument of release, however, required that Bender agree to “relieve Grantor of any liability or damage due to cathodically protected pipelines.” According to Bender, it seemed “backwards” that he was asked to take on the liability of a pipeline drat he was not aware of and that had not been an exception to his title commitment, and he refused to execute the partial release.
After further discussions with Chicago Title’s attorney failed, Bender initiated this litigation on March 8,2002, against both Kansas Secured Title and Chicago Title, based on contract and negligence, and requesting judgment of $167,500, plus interest and costs. Kansas Secured Title and Chicago Title answered, contending that Bender was limited by the policy to actual damages sustained by reason of the easement and that his damages were limited.
The district court conducted a bench trial in early July 2003 and issued its memorandum decision in September 2003, containing no discussion of Bender s negligence claims but concluding the language of the title insurance policy restricted recoverable damages to diminution in value. The court concluded that Bender had shown no such diminution in value
“so long as the defendants obtain an unconditional narrowing of the pipeline easement to 33 feet either side of the pipeline as it presently is located. Defendants are ordered to obtain without delay, either through negotiation or litigation, documents from Williams Gas Pipeline releasing the easement on all portions of plaintiff s property other than the 66-foot easement previously described. If defendants are unable to obtain such a release then the court will reopen this case for reconsideration of the damage issue.”
In December 2003, pursuant to the court’s order, the defendants procured and tendered to Bender a partial release narrowing the easement to the 66 feet containing the pipeline but containing the following language:
“It is further understood and agreed that Grantee will not erect, construct, or create any building, improvement, structure, or obstruction of any kind either on, above, or below tire surface of the ground on the strip or tract of land above reserved and excepted unto Grantor, or change the grade thereof, or cause or permit these things to be done by others, without first having obtained the express written permission of Grantor. The Grantee shall assume, indemnify, and save harmless Grantor, its successors and assigns, from all cost, loss, damage, expense, or claim of any nature arising from any acts of Grantee so permitted by Grantor or from the existence of any construction so permitted. The covenants contained in this paragraph shall constitute covenants running with the land and shall be binding upon and inure to the benefit of the parties hereto, their personal representatives, heirs, successors, and assigns.” (Emphasis added.)
In February 2004, the district court issued a second memorandum decision, concluding that the partial release satisfied the defendants’ obligation under the title policy and the prior order of the court. Bender then asked the court to address its negligence claim against Kansas Secured Title and its claim for attorney fees. In July 2004, the district issued a third memorandum decision concluding that tire negligence claim failed for the same reason that the contract claim failed, i.e., that Bender had not suffered any damage. Attorney fees were denied.
Bender appeals.
Did the District Court Err in Concluding that Bender Had Sustained No Damages Caused by the Breach of Contract?
Should the Policy Limitations on Liability be Enforced?
Bender first challenges the district court’s enforcement of contract language restricting cognizable damages to the lesser of purchase price (amount of insurance) or diminution of value. 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. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001).
Citing Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, 80, 483 P.2d 1072 (1971), Bender maintains that because the title insurance policy is an adhesion contract, this court “ ‘must ascertain that meaning of the contract which the insured would reasonably expect.’ ” Bender suggests the typical land purchaser would reasonably expect the computation of damages to include actual loss caused by a title defect rather than the damage limitation clause contained in the policy.
The district court concluded in material part:
“The Gotoing case does not stand for the proposition that all provisions of an insurance policy are inherendy unconscionable. The test for whether a contract provision is unconscionable is set out in Adams v. John Deere Co., 13 Kan. App. 2d 489, 774 P.2d 355 (1989). The Adams Court held that
‘unless the provision in question is, under the circumstances, so outrageous and unfair in its wording or its application that it shocks the conscience or offends the sensibilities of the court, or is against public policy, it must be enforced.’ 13 Kan. App. 2d at 492.
The provision in question defines the manner in which damages sustained by an insured under the policy are to be calculated. It provides that the insured’s damage shall be the difference between the value of the property without the encumbrance and the value of the property with the encumbrance. Thus, if the value of the plaintiff s property has been reduced by the tide defect he will be paid the amount by which the value has been reduced. This enables plaintiff to either retain or sell the property and remain whole.”
We agree. Contrary to Bender s argument, Gowing does not generally hold that the court “must ascertain that meaning of the contract which the insured would reasonably expect.” Instead, the rule adopted was that the test is what a reasonable person placed in the position of the insured would have understood the policy language to mean. Gowing, 207 Kan. at 82. Despite being a contract of adhesion, an insurance contract must be construed consistent with its plain and ordinary meaning in the absence of unconscionability or ambiguity. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998); see St. Francis Hospital & School of Nursing, Inc. v. Eckman, 212 Kan. 131, 133, 510 P.2d 175 (1973); Ed Bozarth Chevrolet, Inc. v. Black, 32 Kan. App. 2d 874, 886, 96 P.3d 272 (2003) (“It is to be emphasized that a contract of adhesion is not unconscionable per se, and that all unconscionable contracts are not contracts of adhesion.”).
Here, we conclude that there is neither unconscionability nor ambiguity in the policy provisions restricting damages. Unconscionability is not shown because the language in the damage limitation clause does not appear to be one-sided, is precisely stated, and is not unfairly surprising and deceptive bargaining conduct has not been proven. See Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 758-59, 549 P.2d 903 (1976); Adams v. John Deere Co., 13 Kan. App. 2d 489, 496-98, 774 P.2d 355 (1989). The language is also not ambiguous. Courts should not strain to create an ambiguity where, in common sense, there is none. First Financial Ins. Co., 265 Kan. at 694. Language in an insurance policy is not ambiguous unless there is genuine uncertainty as to which of two or more possible meanings is proper. 265 Kan. at 698. We believe the language hmiting damages is not capable of more than one meaning: the liability of the insurer shall not exceed the lesser of the amount of insurance or the diminution in value suffered by reason of the title defect. The district court did not err in enforcing the liability Hmitation.
Was There Evidence of Diminution in Value by Reason of the Easement?
Bender next argues that the district court erred in concluding that there was no diminution in value “so long as” defendants procured a narrowing of the easement. When a district court has made findings of fact as a basis for its legal conclusions, the function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). An appellate court’s review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004). “ The court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.’ [Citation omitted.]” State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 775, 69 P.3d 1087 (2003).
Bender argues that at the time of trial the entire tract remained subject to the blanket easement and that “the land was valueless because merchantable title could not be given to a prospective purchaser.” He contends that so long as he was precluded from using the property as intended, he was entitled to a return of the full purchase price, or “the amount of insurance.”
At trial, the defendants offered evidence on the issue of diminution in value through the testimony of Robert Taggart, an appraiser who testified that, given his opinion of highest and best use of the property and as long as the easement could be narrowed, there was no diminution in value. In accepting Taggart’s testimony, the district court reasoned in material part:
“The assumption made by Mr. Taggart that the easement can be narrowed is a correct assumption. His testimony is tire only evidence before the court on the issue of the diminution in value. He testified that it is his expert opinion that there is no diminution in the value of plaintiff s property resulting from the existence of the pipeline easement once it is appropriately narrowed.
“Under paragraphs 4 and 6 of the Conditions and Stipulations contained in the tide insurance policy Chicago Tide has the right to negotiate or litigate for removal of the easement. Under paragraph 4 the plaintiff has a duty to cooperate. Chicago Tide took some steps toward narrowing the easement and obtained a conditional release of portions of the easement that required plaintiff to execute a broad release of liability and indemnification agreement in favor of Williams. Plaintiff did not wish to sign this release of liability. However, plaintiff did not tell Chicago Tide what its objections to the release were and thus, did not cooperate in obtaining the easement release. The court finds that under the measure of damages contained in die tide policy Chicago Tide is obligated to obtain a release of the easement over all portions of the plaintiff s property other than those portions necessary to cany out the purpose of the easement, which release should not require plaintiff to release Williams from liability and to indemnify Williams from loss.”
We have numerous questions about this aspect of the district court’s order, none of which seem to be addressed by the parties: Was the defendants’ action in procuring the tender of a partial release “diligent” as required by the policy? Was it prudent for the district court to allow procurement of the release after trial where none had been procured at' time of trial? Was Bender required to accept such an indemnification obligation given the limited cooperation required by the policy (policy required Bender only to aid in lawful act to “establish the title to the estate or interest as insured,” not improve title to best available alternative)? Should not the parties have been limited at trial to evidence of diminution based upon the state of title at time of trial, i.e., with the blanket easement covering the entire tract? Was the Taggart opinion of no diminution in value admissible given its apparent false assumption that an unconditional partial release of the easement could be procured? Notwithstanding these substantial concerns, the parties have not preserved any such issues in this appeal, and we decline to address or determine the appeal on issues not presented by the parties.
Following defendants’ efforts to comply with the district court’s initial order, the district court was faced with a dilemma: although Bender was offered a partial release of the easement, the instrument still required indemnification by the grantee. Without permitting any further evidence as to diminution of value, the district court ultimately concluded that the indemnification requirement was not “unreasonable,” stating:
“The problem with plaintiff s argument [that the indemnification provision creates a liability that would not exist at common law] is that in order for the indemnification clause to come into effect, the plaintiff must place a building, improvement or structure on or change the grade of the land covered by the right-of-way easement. The owner of the servient estate does not have the right to interfere with the use of the right-of-way by the owner of the dominant estate. Aladdin Petroleum Corporation v. Gold Crown Properties, Inc., 221 Kan. 579, 586, 561 P.2d 818 (1977). So long as plaintiff does not do any of those things, no liability is created for plaintiff. This paragraph merely allows plaintiff to use the land covered by the right-of-way in a manner not otherwise permitted, if he/she gets the permission of the owner of the right-of-way and assumes the liability for any damages caused by tire use. The court does not find this restriction to be unreasonable under the circumstances. The plaintiff has not presented any evidence that the right-of-way easements existing on the property used by Mr. Taggart to support his opinion that such a right-of-way does not diminish the value of the property do not contain a similar restriction.”
Bender argues on appeal that the district court erred by not “reconsidering] the damage issue since no ‘unconditional’ narrowed easement was secured as initially ordered.” We agree.
First, we construe the proposed indemnification language as far more problematic than did the district court; clearly, it did not fulfill the terms of the court’s initial order. Second, and more importantly, the district court failed to consider whether Bender’s undertaking such an indemnification obligation would serve to diminish the value of Bender’s interest in the land. We see no reason that appraisal testimony could not be offered on the question which remained after the final tender of partial release: what impact on fair market value, if any, has the proposed indemnification obligation? Clearly, there is no factual basis in the record for a conclusion that the indemnification obligation would not diminish value of the tract in the marketplace.
Based upon this analysis, we conclude that the district court erred in concluding that there was no diminution in value triggering liability under the policy without evidence addressing the impact of all provisions of the proposed release on market value. We reverse and remand for further proceedings not inconsistent with this opinion.
Did the District Court Err in Denying Relief Against the Defendant Kansas Secured Title on Bender’s Theory of Negligence?
Bender next argues that the district court erred in concluding that his tort claim failed against the abstractor, Kansas Secured Title, because no damages were shown. Whether the district court applied the wrong measure of damages is a question of law, and our review is unlimited. Werdann v. Mel Hambelton Ford, Inc., 32 Kan. App. 2d 118, 124, 79 P.3d 1081 (2003), rev. denied 277 Kan. 928 (2004); see Tongish v. Thomas, 16 Kan. App. 2d 809, 829 P.2d 916, aff'd 251 Kan. 728, 840 P.2d 471 (1992).
In holding against Bender, the district court reasoned:
“Basically, plaintiff contends that Kansas Secured Title negligently faded to discover the easement and list it as an exception in the title insurance commitment. It is undisputed that Kansas Secured Title did not discover the easement and that the easement is an impediment to plaintiff s title. However, plaintiff s claim against Kansas Secured Title must fail for the same reason that his Count I claim against Chicago Title on the title policy fails. In its February 19 memorandum decision the court found that with the proposed partial release of easement secured by Chicago Title pursuant to the court’s original memorandum decision, plaintiff has not suffered any damage.”
The unstated premise underpinning this conclusion is that the Bender’s negligence claim against the abstractor must be evaluated with the same damage limitations and conditions as the contract claim against the title insurer. Obviously, if the abstractor’s liability in tort is not entitled to be qualified by the terms and conditions of the title insurance policy, there was no contractual obligation of cooperation by Bender, there was no right of the abstractor to make diligent attempt to establish title after the fact of its purported negligence, there was no contractual ceiling on damages as the amount of insurance, there was no contractual measure of damage as diminution of value, and the district court’s initial order that defendants procure a partial release would be an unusual outcome.
The threshold question, therefore, is whether an abstractor, against whom the real estate purchaser asserts a negligence claim, is entitled to have its liability measured or restricted by the terms and conditions of the title insurance policy that may have been issued to the buyer in connection with the same transaction. This is a difficult question that may not have been considered by the district court. If the answer to the question as framed is “yes,” we must reverse the district court’s conclusion that Bender’s negligence claim failed because the district court impliedly imposed the contractual terms and conditions in measuring damages for negligence. If the answer to the question as framed is “no,” we must reverse on the same grounds as we reversed on the contract claim. The only practical difference may be the scope and nature of proceedings on remand.
At the outset, we review the traditional claims that may arise upon failure of title in a real estate transaction. Generally, a title insurer is strictly liable in contract for covered losses resulting from title defects not reported to the insured and not excepted or excluded from coverage by a policy provision. 11 Thompson on Real Property § 93.01, p. 226 (2d Thomas ed.). In Kansas, an abstractor is hable for all negligent errors and omissions not only to his or her employer but to all persons who purchase or invest in land relying on an abstract furnished for that purpose and without regard to privity. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 259, 553 P.2d 254 (1976), disapproved in part on other grounds Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 78, 652 P.2d 665 (1982). Accordingly, in the most typical real estate transactions, the purchaser who suffers failure of title after requiring a title commitment as a condition of purchase has a claim based in contract against the title insurer and a claim based in tort against the abstractor. (See Ford, 220 Kan. at 254-58, for an overview of the relationship between abstractor and insurer and their respective liability as the law has evolved in Kansas.) The difference between a tort and a contract action is that a breach of contract is a failure of performance of a duty arising under or imposed by agreement, whereas a tort is a violation of a duty imposed by law. Atkinson v. Orkin Exterminating Co., 230 Kan. 277, 634 P.2d 1071 (1981) (adopting 5 Kan. App. 2d 739, 625 P.2d 505 [1981]).
In determining whether tort liability of an abstractor must be measured with the benefit of title insurance terms and conditions, we rely heavily upon the analysis and supporting authorities cited by our Supreme Court in its hallmark case establishing tort liability of an abstractor. In this case, our Supreme Court cited with apparent approval a Michigan Supreme Court decision to conclude that contractual privity should not be required as a condition of abstractor liability. See Ford, 220 Kan. at 259 (citing Williams v. Polgar, 391 Mich. 6, 215 N.W.2d 149 [1974]). In the Michigan case, that court was compelled to address the issue whether such liability should be governed by the statute of limitations applicable to tort actions or that applicable to contract actions. The court adopted the tort standards, holding that “there is a valid tort cause of action in the nature of negligent misrepresentation arising from a contract for an abstracter s services in favor of a non-contracting damaged third-party whose reliance on the abstract could be foreseen.” (Emphasis added.) 391 Mich, at 26. Moreover, the statute cited by our Supreme Court in Ford measures the adequacy of an abstractor s bond as “payment by the applicant of any and all actual damages that may be sustained.” (Emphasis added.) K.S.A. 58-2802(b)(2).
Given our Supreme Court’s apparent approval of the Williams rationale and conclusion, and its reliance on the abstractor’s bond statute as providing guidance in such matters, consistency would dictate that liability of an abstractor should be evaluated as an independent tort or negligent misrepresentation action, including application of the same measure of damages, and we so hold.
Applying our holding to the record before us, we conclude that the district court erred in holding that Bender’s negligence claim against Kansas Secured Title failed by reason of his failure to have shown damages on that claim. The district court’s finding was premised on the erroneous assumption that the measure of damages for the tort claim was identical to the measure of damages for the contract claim, and that all terms and conditions of the policy regarding the insurer’s opportunity to establish title, the obligation of Bender to aid in such opportunity, and the express limitation on amount of recoverable damages are simply not applicable to the tort claim against the abstractor. Accordingly, we reverse the district court’s conclusion and judgment against Bender and remand for further proceedings not inconsistent with this opinion.
Summary and Conclusion
Summarizing our holdings, the district court’s judgments against Bender and in favor of Kansas Secured Title and Chicago Title are reversed. On remand, the district court is directed to determine the contractual liability of Chicago Title based upon evidence of diminution of value, if any, as a result of the language contained in any partial release that has been tendered at time of trial on remand. The court is also directed to determine the tort liability of Kansas Secured Title based strictly upon tort principles and without regard to contractual terms and conditions; this means, for example, that the current state of title without regard to mere tender of partial release shall be the benchmark for assessment of Bender’s damages, unless it can be shown that Bender has failed to mitigate losses under traditional tort mitigation analysis. See Noel v. Pizza Management, Inc., 258 Kan. 3, 14, 899 P.2d 1013 (1995).
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The opinion of the court was delivered by
Biles, J.:
This is a consolidated appeal from two aspects of Manuel C. Alcala’s criminal sentence after he pleaded guilty to first-degree premeditated murder for killing his estranged wife. He challenges: (1) a no-contact order prohibiting communication with the victim’s family; and (2) a restitution order requiring him to pay attorney fees incurred by the victim’s mother in child in need of care (CINC) proceedings involving the couple’s children and a separate legal action'for her to adopt the children. We vacate the no-contact order and affirm the restitution order.
We have previously held that no-contact orders such as die one in this case constitute an illegal sentence because they are probation conditions that cannot be imposed in conjunction with prison sentences. See State v. Bowen, 299 Kan. 339, 359, 323 P.3d 853 (2014); State v. Plotner, 290 Kan. 774, 782, 235 P.3d 417 (2010). The State concedes the error and agrees the no-contact order must be vacated.
As to the restitution order, we affirm the district court. We hold that a sufficient causal link exists between Alcala’s unlawful conduct and the attorney fees in the CINC proceedings and the adoption case. We hold further that the district court properly rejected the claim that any restitution plan was unworkable because Alcala failed to meet his burden of proof on that issue by presenting evidence regarding his inability to pay upon release.
Factual and Procedural Background
Alcala pleaded guilty to first-degree premeditated murder for killing his wife, Ashley Alcala, with whom he was in the process of divorce. The district court sentenced him to life imprisonment without parole for 25 years and ordered Alcala not to have contact with Ashley’s family.
The State subsequently filed a notice of intent to seek restitution on behalf of Ashley’s mother, Karren Bacon. The State wanted Alcala to reimburse Bacon for Ashley’s funeral expenses and for attorney fees Bacon incurred in tire CINC proceedings involving the couple’s children, finalizing Bacon’s adoption of those children, and probating Ashley’s estate.
At the restitution hearing, the State put on testimony from Bacon and her attorney, James Willard. Bacon testified she hired Willard to help her retain custody of the children when the CINC proceedings began. Willard testified that Alcala’s brother and sister-in-law initially attempted to gain custody of the children and that his representation was necessary to ensure Bacon got custody. Willard also described his services and fees in the CINC, adoption, and probate cases. Alcala offered no evidence but requested the court take judicial notice that he was incarcerated.
In a motion filed after the hearing, Alcala focused on the fees for the CINC proceedings, claiming that hiring an attorney was a personal choice Bacon made to represent her personal interests. And because of this, he argued, the causal connection with Alcala’s crime was too attenuated. Alcala also argued Willard’s fees in the CINC case were excessive and unnecessary, noting for example that Willard charged for attending hearings in Alcala’s criminal case. In an amended motion, Alcala argued restitution should be denied as unworkable because he was incarcerated and had no way to pay and the State had failed to prove he would work, or would be able to work, while imprisoned.
The State responded by arguing Alcala’s crime, i.e., felling Ashley, directly or indirectly caused the CINC case, noting Bacon was an “interested party” under state law in the CINC case, so it was logical and reasonable that Bacon, a nonattorney, would retain counsel. The State further urged the court to reject Alcala’s claim about workability because he failed to put on evidence supporting a finding that restitution was unworkable, despite having tire burden of proof. The State also contended there was no legal authority that incarceration alone renders a restitution plan unworkable.
The district court sided with the State, ordering Alcala to pay restitution to Bacon totaling $43,230.77. That total broke out as follows: $17,717.22 for funeral and cemetery expenses; $18,107 for attorney fees in the CINC proceedings; $3,000 for attorney fees for the adoption; and $4,406.55 for attorney fees and expenses for the estate probate proceedings. The court specifically found Al-cala’s acts “did, in fact, cause those expenses which are declared, by the Court, to be reasonable.” The court further held it did not find exceptional circumstances rendering the restitution plan unworkable and did not expressly order restitution payable while Al-cala is incarcerated. The court partially enforced the restitution order after it was entered by paying out assets previously seized from Alcala.
Alcala timely appealed the no-contact order and the finding that Ashley’s murder caused the attorney fees Bacon incurred in the CINC proceedings and the adoption case. Alcala does not challenge the reasonableness of the attorney fees awarded in the CINC proceedings and adoption case, nor does he challenge the restitution ordered for the funeral/cemetery and probate expenses.
Jurisdiction is proper. See K.S.A. 2014 Supp. 22-3601(b)(3) (direct appeal to Supreme Court when life sentence imposed).
The No-Contact Order
The parties correctly agree that the district court’s no-contact order is an illegal sentence and must be vacated. A no-contact order is a probation condition. It is inappropriate to combine a no-contact order with a prison sentence because to do so exceeds a sentencing court’s authority under K.S.A. 2014 Supp. 21-6604(a). See Bowen, 299 Kan. at 359 (life sentence and no-contact order inappropriate combination of dispositions under K.S.A. 21-4603d[a], recodified as K.S.A. 2014 Supp. 21-6604[a]). “The appropriate remedy is to vacate the no-contact order but leave the remainder of the sentence intact.” 299 Kan. at 359.
In line with our caselaw, we hold that the no-contact order should be vacated, while leaving intact the remainder of Alcala’s sentence. See Plotner, 290 Kan. at 782; State v. Post, 279 Kan. 664, 669, 112 P.3d 116 (2005).
Restitution for Attorney Fees
Alcala argues the attorney fees for the CINC proceedings and adoption case are too causally remote from his criminal conduct because they are only “an indirect and tangential expense related to [the] crime.” He also suggests the CINC attorney fees are not recoverable because they could have been paid through the CINC case. See K.S.A. 2014 Supp. 38-2241(d) (interested party status to any person with whom the child has resided for a significant period of time within 6 months of filing CINC proceedings); K.S.A. 2014 Supp. 38-2205(c) (authorizing district court to appoint attorney for an interested party with status under K.S.A. 2014 Supp. 38-2241[d]).
In addition to arguing die causation issue, the State raises an initial preservation question as to die adoption fees because Alcala failed to challenge them in his amended motion to the district court after the restitution hearing. The State contends this failure amounts to an implicit waiver. But this concern does not take into account Alcala’s arguments at the hearing in which he challenged generally all restitution sought by the State—particularly on the question subject to this appeal—causation. And the district court in its restitution order found each item of attorney fees was caused by Alcala’s crime. Accordingly, we will consider the fee awards for both the CINC proceedings and the adoption.
Standard of Review
In reviewing a district court’s restitution award, factual findings underlying the causal link between the crime and the loss are reviewed for substantial competent evidence. The restitution amount and the manner in which restitution is to be made are reviewed for abuse of discretion. State v. Hall, 298 Kan. 978, 989, 319 P.3d 506 (2014) (quoting State v. Hand, 297 Kan. 734, 736-37, 304 P.3d 1234 [2013]).
Discussion
K.S.A. 2014 Supp. 21-6604 sets out the dispositions a district court may adjudge when a person is convicted of a crime, including restitution. K.S.A. 2014 Supp. 21-6604(b)(l) states:
“In addition to or in lieu of any of the [dispositions authorized by subsection (a)], the court shall order die defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant’s crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” (Emphasis added.)
We consider first Alcala’s suggestion that attorney fees in the CINC case should not qualify for restitution because Bacon could have had court-appointed counsel. This argument is without merit for at least two reasons. First, Alcala made no showing that Bacon would have been financially unable to employ an attorney, which is a statutory prerequisite for court-appointed counsel under the CINC statute. See K.S.A. 2014 Supp. 38-2205(c). He simply makes the conclusory argument that “[sjhe could have been entitled to appointed counsel in the CINC case, negating tire fees necessary for a private attorney.” Second, the argument that Bacon could have secured court-appointed counsel is really an issue regarding the reasonableness of the expenses incurred because appointed counsel is also entitled to compensation, i.e., this argument concerns the difference in costs between hired and appointed counsel, rather than a circumstance that breaks the causal hnk between the crime and the expenses. But Alcala did not appeal the district court’s determination that the expenses Bacon incurred were reasonable, so we cannot consider whether the restitution award might have been less had Bacon been represented by counsel appointed by the CINC court. Accordingly, the controlling question remains whether Bacon’s attorney fees in the CINC proceedings are “damage or loss caused by” the murder. See K.S.A. 2014 Supp. 21-6604(b)(1).
Under the statute’s causation language, “ ‘ “restitution for a victim’s damages or loss depends on the establishment of a causal link between the defendant’s unlawful conduct and the victim’s damages.” ’ ” Hall, 298 Kan. at 990 (quoting State v. Goeller, 276 Kan. 578, 580-81, 77 P.3d 1272 [2003]). But the realities of attributing the consequences of criminal conduct present a range of possibilities for restitution—some more easily resolved than others. For example, losses directly or immediately caused by criminal conduct, such as injuries to persons or property, are clearly compensable as restitution. See Goeller, 276 Kan. at 582-83 (causation requirement met in DUI case to compensate victim for medical bills incurred after collision with intoxicated defendant who drove his vehicle left of center); State v. Sammons, 276 Kan. 574, 576-77, 78 P.3d 470 (2003) (restitution for value of tools stolen and not recovered because victim would have use of the tools but for the theft).
But the issue presented in this case resides.somewhere toward the other end of the spectrum—where the outcome has not been so clear because the losses were more tangentially caused by the criminal conduct. Compare Hall, 298 Kan. at 991 (upholding restitution for sexual assault victim’s relocation expenses when defendant lived and worked in same apartment complex and law enforcement advised victim to move for her safety); Hand, 297 Kan. at 739-40 (increased insurance premium due to theft claim against policy); and State v. Beechum, 251 Kan. 194, 202-03, 833 P.2d 988 (1992) (upholding restitution award for costs of moving murder victim’s child to child’s other parent); with State v. Hunziker, 274 Kan. 655, 657-58, 664-68, 56 P.3d 202 (2002) (discretion abused by awarding victim’s attorney fees for advising on court procedures and preparation of a “restitution booklet” detailing losses caused by vandalism).
Hall and Beechum are particularly relevant. In Hall, the court found substantial competent evidence supported a causal link between the attempted rape at the victim’s apartment complex by a resident-employee of that complex and the victim’s relocation expenses, consisting of moving van rental and a security deposit. 298 Kan. at 990-91. The Hall court concluded the award was supported by evidence that the victim suffered physical injuries, the attacker worked and resided at the victim’s apartment complex, and police told her to relocate for her safety and to avert possible harm. This court held the relocation expenses could “be fairly regarded as caused by [the defendant’s] crime of attempted rape.” 298 Kan. at 991.
In Beechum, the district court awarded restitution to a murder victim’s son and the child’s father for airfare to transport the child to the father’s home and the father’s lost wages when accompanying the child on the trip. The Beechum court rejected the defendant’s argument that the costs were too tangential, holding:
“Restitution orders must have limitations. Not all tangential costs incurred as a result of a crime should be subject to restitution.... Because of [tire defendant’s] crime, the victim’s son went to New York to live with his father. The father lost work to accompany his son. The expenses incurred resulted from and were caused by [the defendant’s] crime. The trial court did not abuse its discretion in ordering restitution.” 251 Kan. at 203.
The attorney fees in Alcala’s case present a similar question of tangential costs. The evidence established some causal connection between the crime and the attorney fees because, but for the murder, there would have been no CINC or adoption cases. And Bacon, as the children’s grandparent and person with whom the children were placed after their mother’s murder, was a statutory interested party in the CINC proceedings, who was entitled to participate in the CINC case. See K.S.A. 2014 Supp. 38-2241(c) and (d). On the other hand, the attorney s services were necessary so Bacon could get custody of the children to the exclusion of others who sought custody. In other words, though the CINC case itself was caused by the murder, Bacon’s participation may be seen as serving a personal purpose, in addition to aiding in the children’s placement. And as Alcala points out, the children’s interests were represented in the CINC proceedings by guardians ad litem. See K.S.A. 2014 Supp. 38-2205(a) (directing district court to appoint attorney to serve as guardian ad litem for children subject to CINC proceedings).
As to the CINC proceedings, we hold that the relationship between Alcala’s criminal conduct and the attorney fees is not so tangential as to remove the district court’s discretionary authority to award them as restitution under the statute. See Beechum, 251 Kan. at 203. Alcala’s killing of his wife, who was also the mother of his children, set in motion a foreseeable chain reaction regarding the children’s placement. After the murder Alcala was the children’s only living parent, and he was incarcerated for having committed the crime. A child in need of care proceeding was the obvious next step. See K.S.A. 2014 Supp. 38-2202 (d)(1) (child in need of care includes person less than 18 who is without adequate parental care, but not due solely to parent’s lack of financial means).
Once CINC proceedings were initiated, it was reasonable that one or more interested parties, as that term is defined by law, would participate in the court’s determination of the children’s best interests in terms of temporary and permanent placement. See K.S.A. 2014 Supp. 38-2241. An interested party’s need for an attorney follows from the right to participate in the proceedings and is a recognized incident of such participation under K.S.A. 2014 Supp. 38-2205(c). The CINC proceedings and the attorney fees Bacon incurred to participate in die proceedings can be “fairly regarded as caused by” the murder. See Hall, 298 Kan. at 991. Accordingly, we hold that substantial competent evidence establishes that the attorney fees in the CINC proceedings were “caused by the defendant’s crime.” K.S.A. 2014 Supp. 21-6604(b)(l).
As to the fees for completing the adoption, we similarly see a causal link to the crime. This expense, to secure custody of the children left in Bacon’s charge as a result of Ashley’s murder, is indistinguishable from the expenses approved in Beechum to transfer custody of the murder victim’s child to the child’s other parent. We hold that substantial competent evidence of causation existed to sustain the district court’s decision to include this expense in the restitution award.
Workability of Restitution Plan
Finally, Alcala argues the district court erred in ordering restitution because the restitution plan is unworkable. He bases this assertion on his lengthy prison sentence and limited earning potential while incarcerated. This argument has no merit.
Under K.S.A. 2014 Supp. 21-6604(b)(l), restitution is the rule and a finding that restitution is unworkable is the exception. Goeller, 276 Kan. at 583. The burden is on the defendant to come forward with evidence of “compelling circumstances” that render the restitution plan unworkable. See K.S.A. 2014 Supp. 21-6604(b)(1); Goeller, 276 Kan. at 583 (concluding statute made restitution the rule and required defendant to produce evidence to support claimed inability to pay underlying argument that restitution was unworkable). Defendant’s imprisonment alone is not sufficient to render restitution unworkable. See 276 Kan. at 583.
The district court did not order Alcala to pay a fixed amount of restitution per month, nor did it explicitly order Alcala to begin payments while incarcerated. This indicates further restitution will not be collected until he is paroled, if that ever occurs. See State v. Alderson, 299 Kan. 148, 151, 322 P.3d 364 (2014) (restitution not due while prisoner incarcerated unless district court unambiguously declares contrary intent on the record). Having presented no evidence of his inability to pay restitution after his possible parole, Alcala failed to sustain his burden of demonstrating the restitution plan was unworkable.
In summary, the district court’s no-contact order is vacated. The district court’s restitution order is affirmed.
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Stand ridge, J:
In 2007, Christopher A. Belone was convicted of second-degree murder and other crimes relating to the beating death of his girlfriend, Linda Begay. The Kansas Supreme Court subsequently reversed Belone’s convictions and remanded his case for a new trial, where he was convicted of unintentional second-degree murder and-violation-of a protective order. This is Belone’s direct appeal from that second trial. Belone alleges a number of trial errors, some of which he argues deprived him of his constitutional right to a fair trial. Finding no error, we affirm.
Facts
On July 29, 2006, City of Lawrence Police Officers Anthony Brixius and Micah Stegall responded to Gaslight Village trailer park following reports of criminal damage to property and a possible domestic dispute. Officer Brixius spoke with Keith Bowers, who said Begay showed up at his trailer covered in blood and told Bowers that she had been at Frank Mallonee’s trailer when Belone came inside and began beating her with a two-by-four. Bowers took Begay to the hospital.
At the hospital, Begay appeared intoxicated and hysterical. She told hospital staff she had been assaulted by her boyfriend. Begay had a large cut on the bridge of her nose, blood on her face, and bruises on her face, arms, legs, chest, stomach, and buttocks. Begay complained of pain all over but emphasized the pain in her abdomen. A CT scan of Begay’s abdomen showed bruising to her duodenum. Begay died on August 1, 2006, from peritonitis caused by blunt force trauma to her abdomen.
The State charged Belone with second-degree murder, kidnapping, obstructing legal process or official duty, and violating a protective order. Following a lengthy trial, the jury convicted Belone as charged. Belone’s convictions were affirmed by this court in State v. Belone, No. 99,176, 2010 WL 173950 (Kan. App.) (unpublished opinion), rev. granted 291 Kan. 913 (2010). On review, the Kansas Supreme Court reversed Belone’s convictions and remanded the case for a new trial based on a finding that the district court violated Belone’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution by admitting into evidence testimonial statements made by Begay to law enforcement in State v. Belone, 295 Kan. 499, 285 P.3d 378 (2012).
Following a second trial, which is the subject of this appeal, the jury found Belone guilty of unintentional second-degree murder and violating a protective order. The district court sentenced Be-lone to a controlling term of 438 months’ imprisonment.
Analysis
Belone raises the following issues on appeal with regard to his second trial: (1) the district court violated his Fifth Amendment right to remain silent by admitting into evidence his testimony from the first trial; (2) the district court erred in upholding his conviction for unintentional second-degree murder because the juiy also found him not guilty of involuntary manslaughter; (3) the district court violated his Sixth Amendment confrontation rights by admitting into evidence the testimony from a police officer, which created an inference that Begay had identified Belone as her at- taclcer; (4) the district court violated his Sixth Amendment confrontation rights by admitting testimonial hearsay from medical personnel that Begay had identified Belone as her attacker; (5) the district court erred in denying his motion for a mistrial based on the admission of improper character evidence; (6) the State violated his Fourteenth Amendment due process rights by failing to disclose exculpatoiy evidence prior to trial; and (7) the district court erred by using his prior convictions to increase his sentence without requiring them to be proved to a jury beyond a reasonable doubt. We address each of these arguments in turn.
1. Admissibility of Belone’s testimony from the first trial
Belone presents two arguments in support of his claim that the district court erred in allowing the transcript of his testimony from the first trial to be read to the jury at the second trial. First, Belone contends the State was substantively barred from introducing his testimony from the first trial because doing so violated his Fifth Amendment right to remain silent. Second, Belone contends the State was procedurally barred from introducing his testimony from the first trial because the State failed to endorse him as a witness at the second trial.
This court’s standard of review for admissibility of evidence is well known:
“When a party challenges the admission or exclusion of evidence on appeal, the first inquiry is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. When tire adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.” State v. Walters, 284 Kan. 1, Syl. ¶ 2, 159 P.3d 174 (2007).
Here, there is no dispute that Belone’s testimony was relevant. Belone’s challenge to the admission of his prior testimony focuses solely on whether the district court’s decision to allow it was proper as a matter of law.
Before the first trial, the State filed a motion requesting permission to introduce into evidence the statements Begay made to law enforcement, within which she identified Belone as the indi vidual who had beaten her. The State based its argument on the rule of forfeiture by wrongdoing, which creates an exception to the right of a defendant to confront witnesses testifying at trial. The rule is grounded in the notion that a defendant who obtains the absence of a witness by his or her own wrongdoing forfeits his or her constitutional right to confrontation. See Belone, 295 Kan. at 502-03. The district court initially ruled Begay’s testimonial statements to the officers were inadmissible because tire State failed to meet its burden to prove by a preponderance of the evidence that Belone was responsible for Begay’s unavailability by causing her death. At some point not disclosed by the record, however, the district court reversed itself and determined the statements to the officers were admissible because they fit within the forfeiture by wrongdoing exception.
To that end, Officer Brixius testified at the first trial that when he spoke with Begay at the hospital, she reported her boyfriend had beaten her and identified her boyfriend as Belone. Brixius later i-etumed to the hospital and made an audio recording of his interview with Begay, within which she confirmed drat Belone was the person who beat her. The recording of die interview was played for the juiy.
Belone iater took the stand in his own defense. Belone testified that he went to Mallonee’s trailer because Mallonee was going to help him build a porch. Belone said that he found Begay in die back bedroom of the trailer naked from die waist down. He claimed he tried to get her dressed, but she attacked him. Belone stated he must have accidentally hit Begay in the nose as they struggled. Belone said that after he tried to clean Begay up in the bedroom, they left in his truck to go home but Begay ultimately jumped out of the truck.
On appeal, our Supreme Court reversed Belone’s convictions, holding that the forfeiture by wrongdoing exception did not apply to the statements Begay made to law enforcement officers. The court explained that at the time of Belone’s trial, Kansas law only required the State to show by a preponderance of the evidence that the defendant was responsible for the witness' unavailability in order to trigger the forfeiture by wrongdoing exception. But after Belone’s trial, the United States Supreme Court ruled that the forfeiture by wrongdoing exception only applies when the State has proved by a preponderance of the evidence that the defendant’s act of wrongdoing was specifically intended to prevent the witness’ testimony. Belone, 295 Kan. at 503 (citing Giles v. California, 554 U.S. 353, 368, 128 S. Ct. 2678, 171 L. Ed. 2d 488 [2008]). Based on the change in applicable law, our Supreme Court held that the district court erred in admitting Begay’s testimonial statements to the police because the State did not show that Belone killed Begay for the specific purpose of preventing her from testifying at trial. The court determined that the error was not harmless under the constitutional harmless error test, reversed Belone’s convictions, and remanded the case for a new trial. 295 Kan. at 504-05.
At the end of the fourth day of Belone’s second trial, the prosecutor advised the district court that the State had no further witnesses but requested permission to wait until the following morning to rest its case. The prosecutor explained the State wanted to make sure all of the exhibits die State intended to introduce into evidence had been offered. The court granted the State’s request. Thereafter, the district court spoke with Belone about his right to remain silent and advised Belone that he could have the evening to decide whether he would testify.
Later that night, the State provided the defense with notice of its intent to read Belone’s testimony from the first trial to the jury. When trial reconvened the next morning, defense counsel objected to the admission of Belone’s testimony from the first trial. In support of his objection, Belone relied on Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968), to argue that introducing his testimony from the first trial would violate his Fifth Amendment right to remain silent. Belone also argued that the State was procedurally barred from introducing his testimony from the first trial because the State failed to endorse Belone as a witness at the second trial. The district court overruled Belone’s objections, and Belone’s prior testimony subsequently was read to the jury.
a. Right to remain silent
The Fifth Amendment to the United States Constitution protects an individual from testifying under government compulsion. This protection is waived when an individual voluntarily testifies on his or her own behalf. See State v. Simmons, 78 Kan. 852, 853, 98 P. 277 (1908). The waiver remains in effect for purposes of a second trial as long as the defendant voluntarily testified at the first trial. State v. Willcox, 240 Kan. 310, 313-14, 729 P.2d 451 (1986); Simmons, 78 Kan. 852, Syl. ¶ 1. If the defendant’s testimony at the first trial was compelled by introduction into evidence of what is later determined to be an illegally obtained prior confession by that defendant, however, the waiver is deemed invalid. Harrison, 392 U.S. at 222; State v. Pabst, 273 Kan. 658, 665-66, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002); see Willcox, 240 Kan. at 313-14.
On appeal, Belone seeks to expand the legal circumstances under which a defendant’s waiver of the right to remain silent at a first trial is later deemed invalid for purposes of using that testimony at a second trial. Specifically, Belone urges us to hold that if a defendant’s testimony at the first trial was compelled by evidence later deemed inadmissible under any constitutional 'provision, the defendant’s testimony cannot be used in a second trial unless the State can show that the defendant would have testified regardless of that evidence later deemed inadmissible on constitutional grounds. But Belone seeks more from the Supreme Court’s holding in Harrison than that case provides.
In Harrison, the prosecutor introduced three confessions that the defendant allegedly made while he was in custody. After the confessions were introduced, the defendant took the stand in order to offer his own version of the events in question. Although the jury ultimately found him guilty, the defendant’s conviction was reversed on grounds that “[his] confessions had been illegally obtained and were therefore inadmissible in evidence against him.” 392 U.S. at 220. On remand, the prosecutor did not offer the illegally obtained confessions but instead offered a transcript of the defendant’s previous testimony from the first trial. The trial court admitted that testimony over the defendant’s objection, and the jury again convicted the defendant. On appeal, the defendant argued that his testimony from the first trial should have been suppressed because it was “the inadmissible fruit of the illegally procured confessions.” 392 U.S. at 221. The United States Supreme Court ultimately agreed and reversed the defendant’s conviction. In so doing, the Court held that use of the defendant’s testimony was problematic because the defendant testified only after the prosecutor had introduced into evidence “three confessions, all wrongfully obtained.” 392 U.S. at 222. Critical to our analysis here, the Court held that “impelled” testimony obtained as a result of a Fifth Amendment violation (i.e., the admission of the illegally obtained confessions) was inadmissible as the “fruit of the poisonous tree.” 392 U.S. at 222.
It is clear from the “fruit of the poisonous tree” analysis used by the Supreme Court that the holding in Harrison applies when a defendant’s testimony at the first trial was compelled by the introduction into evidence of what is later determined to be an illegally obtained prior confession by that same defendant. The analysis in Harrison is premised on the exclusionaiy rule. Because the underlying confession was obtained in violation of the constitutional right to be protected from testifying under government compulsion, the government is precluded from introducing the evidence at trial in order to deter the government from engaging in similar violations. Based on the analysis in Harrison, the taint that results from introducing the illegally obtained confession into evidence affects that defendant’s in-court testimony.
In sum, we construe the holding in Harrison to preclude the State from introducing a defendant’s prior testimony in a subsequent trial only when the prior testimony was compelled by (1) improper admission of evidence (2) that was illegally obtained, such as through the use of unconstitutional law enforcement practices. Conversely, if a defendant’s testimony was compelled as a result of evidence that was legally obtained but constitutionally inadmissible, Harrison does not operate to preclude use of the testimony in a later trial. Using language regularly associated with the exclusionary rule, legally obtained evidence is not a poisonous tree and therefore cannot taint any fruit it ultimately bears. There fore, even if a defendant’s testimony at the first trial was compelled by evidence later deemed inadmissible because it deprived the defendant of constitutional rights, the defendant’s testimony from the first trial does not constitute fruit of tire poisonous tree subject to suppression at a subsequent trial under the rule announced in Harrison.
Notably, the manner in which we construe the rule in Harrison is consistent with the Supreme Court’s analysis of the case almost 2 decades later in Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). In Elstad, the defendant argued that statements the police had obtained in violation of the requirements set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), “tainted” the statements that the defendant had made after being fully advised of and waiving his Miranda rights. The Court rejected the defendant’s argument that the rule in Harrison required the suppression of the statements the defendant made after the appropriate Miranda waiver. It explained:
“This Court has never embraced the theory that a defendant’s ignorance of the full consequences of his [or her] decisions vitiates their voluntariness. [Citations omitted.] If the prosecution has actually violated the defendant’s Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal, the rule announced in Harrison v. United States, 392 U.S. 219[, 88 S. Ct. 2008, 20 L. Ed. 2d 1047] (1968), precludes [the] use of that testimony on retrial. . . . But the Court has refused to find that a defendant who confesses, after being falsely told that his [or her] codefendant has turned State’s evidence, does so involuntarily. [Citation omitted.] The Court has also rejected the argument that a defendant’s ignorance that a prior coerced confession could not be admitted in evidence compromised the voluntariness of his [or her] guilty plea. [Citation omitted.] Likewise, in California v. Beheler, [463 U.S. 1121, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983)], the Court declined to accept defendant’s contention that, because he was unaware of the potential adverse consequences of statements he made to the police, his participation in the interview was involuntary. Thus we have not held that the sine qua non for a knowing and voluntary waiver of the right to remain silent is a full and complete appreciation of all of the consequences flowing from the nature and quality of the evidence in tire case.” 470 U.S. at 316-17.
The Supreme Court’s opinion in Elstad reiterates that the rule of Harrison was intended to be limited to those circumstances in which a defendant is compelled to testify at trial as a result of the Fifth Amendment violation that occurs when the defendant’s own illegally obtained confession is used against that defendant at trial. See Harrison, 392 U.S. at 221 (testimony from first trial should have been suppressed because it was “the inadmissible fruit of die illegally procured confessions”); see also Littlejohn v. Trammell, 704 F.3d 817, 849 (10th Cir. 2013) (“By its terms, Harrison is applicable only where a defendant’s testimony is impelled by die improper use of his oion unconstitutionally obtained confessions in violation of the Fifth Amendment.”); Cosby v. Sigler, 435 F.3d 702, 707 (7th Cir. 2006) (“Since [the petitioner/defendant’s] statement was not illegally obtained, and therefore not improperly admitted, the state bears no . . . burden [under Harrison]” to “show[] that her testimony was not compelled by the admission of the statement.”); United States v. Gianakos, 415 F.3d 912, 919 (8th Cir.) (distinguishing Harrison on basis that defendant’s testimony “was not the fruit of an illegally obtained confession”), cert. denied 546 U.S. 1045 (2005); United States v. Bohle, 475 F.2d 872, 876 (2d Cir. 1973) (“We see no reason to extend the ‘fruits’ doctrine to testimony ‘impelled’ by mere evidentiary hearsay error, as distinct from unconstitutional police practices.”); State ex rel. LaSota v. Corcoran, 119 Ariz. 573, 581-82, 583 P.2d 229 (1978) (distinguishing Harrison based on fact that evidence which allegedly impelled defendant to testify was improperly introduced, not illegally obtained); Towe v. State, 304 Ark. 239, 242, 801 S.W.2d 42 (1990) (“Harrison is inapplicable to routine evidentiaiy rulings.”); State v. Billie, 881 So. 2d 637, 639 (Fla. Dist. App. 2004) (“The Harrison decision . . . creates a special rule applicable solely to the circumstance in which an illegally obtained confession has been introduced, the defendant takes the stand to reply to the illegally obtained confession, and the court is satisfied that the defendant took the stand for that reason and no other.”); Brown v. State, 153 Md. App. 544, 583, 837 A.2d 956 (2003) (appellant’s wife’s testimony was “ ‘technically inadmissible’ ” due to general policies of state statutory law and did not infringe upon basic constitutional values or defendant’s right to a fair trial), cert. denied 380 Md. 618 (2004); State v. Hunt, 339 N.C. 622, 638, 457 S.E.2d 276 (1994) (“Even if defendant’s testimony at his first trial was induced by evidence which was inadmissible under the rules of evidence, and not because it was unconstitutionally obtained, the Harrison exception to the general rule permitting the testimony to be offered at the second trial would not apply.”)'
Turning to the facts of this case, the Kansas Supreme Court held Begays statements to the police were inadmissible because introducing them deprived Belone of his constitutional right to confront a witness who, through her pretrial testimonial statements, effectively was testifying against him. The holding that Begay’s statements to law enforcement were improperly admitted at Belone’s first trial was based solely on evidentiary principles—specifically, a change in the law between the time of Belone’s trial and his appeal to the Supreme Court—and not on a determination that the evidence had been illegally obtained. Indeed, defense counsel admitted that the error was “not anything that was egregiously done by the State during the first trial or maliciously or anything like that.” In the absence of any evidence that the statements made by Begay to the police were coerced or otherwise obtained in a manner that would violate Belone’s statutory or constitutional rights, Belone’s testimony from the first trial does not constitute fruit of the poisonous tree subject to suppression at a subsequent trial under the rule announced in Harrison.
b. Endorsing Belone as a witness
Alternatively, Belone argues his testimony from the first trial was inadmissible because the State never endorsed him as a witness. This issue is reviewed under an abuse of discretion standard, and “the final determination is whether the defendant’s rights have been prejudiced.” State v. Allen, 21 Kan. App. 2d 811, 815, 908 P.2d 1324 (1995), rev. denied 259 Kan. 928 (1996). A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge, (2) a ruling is based on an error of law, or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based. State v. Huddleston, 298 Kan. 941, 960, 318 P.3d 140 (2014).
When a criminal case is filed, a prosecutor is required to “endorse the names of all witnesses known” on the charging docu ment. K.S.A. 22-3201(g). At later times prescribed by the court, a prosecutor may endorse additional witnesses that have become known. K.S.A. 22-3201(g). This statute confers broad discretionary power on the trial court in allowing a late endorsement of a witness. State v. Martens, 274 Kan. 459, 471, 54 P.3d 960 (2002).
An appellate court will generally uphold a late witness endorsement unless the defendant was surprised and the testimony was critical or, in other words, of “ ‘a climactic and highly damaging nature/ ” Mien, 21 Kan. App. 2d at 816. Nevertheless, our Supreme Court also has held that it will not condone surprise caused by the intentional withholding of the name of a witness as a part of the prosecution’s trial strategy. State v. Stafford, 213 Kan. 152, 164, 515 P.2d 769 (1973), modified 213 Kan. 585, 518 P.2d 136 (1974). “The purpose of the endorsement requirement is to prevent surprise to the defendant and to give the defendant an opportunity to interview and examine the witnesses for the prosecution in advance of trial.” State v. Shelby, 277 Kan. 668, 674, 89 P.3d 558 (2004). Thus, “[t]he trial court commits reversible error by allowing a late endorsement when such endorsement results in surprise or material prejudice to defendant, preventing ‘a fair preparation of his [or her] defense.’ ” State v. Green, 252 Kan. 548, 553-54, 847 P.2d 1208 (1993).
On appeal, Belone argues he was unfairly surprised and prejudiced by the State’s notice that it intended to read his testimony from the first trial. Because Belone’s prior testimony was not the product of illegally obtained evidence, however, his testimony from the first trial was voluntary and admissible. Moreover, Belone knew from the outset that the State believed he was a critical witness to the criminal charges alleged against him. Finally, Belone knew better than anyone the facts to which he previously testified. Thus, although perhaps unanticipated, we find no merit to Belone’s claim that he was unfairly surprised when given the State’s notice that it intended to read his prior testimony into evidence at the second trial.
Of course, even if he could have established unfair surprise, Belone has not shown how the State’s notice deprived him of the opportunity to adequately prepare his defense. This is not a situ ation where the State provided late notice of a previously unknown witness who possessed relevant information about the charges lodged against Belone. Again, Belone knew he was a critical witness to the State and knew better than anyone the facts to which he previously testified. In fact, Belone could have testified in his casein-chief to explain his prior testimony or further justify his theory of the defense.
In sum, we find no merit to Belone’s claim that he was unfairly surprised or prejudiced when given the State’s notice that it intended to read his prior testimony into evidence at the second trial.
2. Inconsistent verdicts
Belone argues his conviction for unintentional second-degree murder must be vacated because it is inconsistent with the juiy’s finding that he was not guilty of the lesser included offense of involuntary manslaughter. Whether a juiy’s inconsistent verdicts should result in a new trial is a question of law over which this court exercises unlimited review. See State v. McKissack, 283 Kan. 721, 733, 156 P.3d 1249 (2007).
The district court provided the jury with several options relating to its verdict as to the killing of Begay. The first option was the principal offense—intentional second-degree murder and was followed by three lesser included offenses: voluntary manslaughter, unintentional second-degree murder, and involuntary manslaughter. Belone’s argument centers on the district court’s jury instructions for unintentional second-degree murder and involuntary manslaughter. The jury was instructed, in relevant part:
“In Count I, the defendant is charged with the crime of murder in the second degree—unintentional. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant killed Linda Begay unintentionally but recklessly under circumstances showing extreme indifference to the value of life; and
“2. That this act that caused the death of Linda Begay occurred on or about the 29th day of July, 2006, in Douglas County, Kansas.”
The jury was also instructed on the lesser included offense of involuntary manslaughter:
“If you do not agree that the defendant is guilty of murder in the second degree—intentional, voluntary manslaughter or murder in the second degree— unintentional, you should then consider the lesser included offense of involuntary manslaughter.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant unintentionally killed Linda Begay;
“2. That it was done recklessly; and
“3. That this act that caused the death of Linda Begay occurred on or about the 29th day of July, 2006, in Douglas County, Kansas.”
The jury ultimately returned verdicts of not guilty on the charge of intentional second-degree murder, not guilty on the charge of voluntary manslaughter, guilty on the charge of unintentional second-degree murder, and not guilty on the charge of involuntary manslaughter. After the verdicts were read, tire jurors were polled and each individually confirmed the verdicts.
Belone argues, as he did below, that the jury’s verdicts were inconsistent. In support of his argument, Belone reasons that (1) the jury’s verdict of not guilty for the crime of involuntary manslaughter necessarily means tire jury had reasonable doubt as to one or more of the elements of involuntary manslaughter, (2) all of the elements of involuntary manslaughter are included in the crime of unintentional second-degree murder, and so (3) the jury must also have had reasonable doubt as to one or more of the elements of unintentional second-degree murder.
An inconsistent jury verdict is defined as:
“ ‘Where an accused is charged with separate and distinct crimes, although of a similar character, in two or more counts, a verdict of acquittal on one or more counts and of conviction on tire others is not ordinarily or necessarily inconsistent, at least where each offense requires different evidence or involves factual variations. When accused is convicted on one count and is acquitted on another count, the test is whether the essential elements in the count wherein accused is acquitted are identical and necessary to proof of conviction on the guilty count.
“ ‘Hence, where the elements of the two offenses are identical, a verdict of not guilty on one count is inconsistent with a verdict of guilty on the other count. Also, a verdict which acquits accused of a crime which includes acts necessary to the commission of another crime for which he is found guilty is inconsistent. However, acquittal under a count charging a major offense is not inconsistent with a conviction under a count charging a lesser included offense.’ ” (Emphasis added.) State v. Beach, 275 Kan. 603, 616, 67 P.3d 121 (2003) (quoting 23A C.J.S., Criminal Law § 1407, pp. 347-48).
Belone contends the jury verdict in this case is inconsistent by definition because it falls within the scenario described by the italicized language above: all of the elements of the crime for which he was acquitted (involuntary manslaughter) are also elements of the crime for which he was convicted (unintentional second-degree murder). We disagree.
Reckless second-degree murder, Belone’s crime of conviction, is the felling of a human being committed “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 21-3402(b). Involuntary manslaughter is the unintentional felling of a human being committed “recklessly.” K.S.A. 21-3404(a). “Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” K.S.A. 21-3201(c). The difference between the two crimes is the degree of recklessness required to prove culpability. Reckless second-degree murder requires proof of “extreme indifference to the value of human life.” See State v. Engelhardt, 280 Kan. 113, 135, 119 P.3d 1148 (2005); State v. Pope, 23 Kan. App. 2d 69, 77, 927 P.2d 503 (1996), rev. denied 261 Kan. 1088 (1997). By selecting “guilty” on the verdict form for unintentional second-degree murder and “not guilty” for involuntary manslaughter, the jury clearly expressed its finding that Be-lone’s actions were more than merely reckless; to wit: reckless “under circumstances showing extreme indifference to the value of human life.” Verdicts are not inconsistent if they can be reconciled in any manner upon any rational basis. State v. Meyer, 17 Kan. App. 2d 59, Syl. ¶ 3, 832 P.2d 357 (1992). For these reasons, we are not persuaded that Belone’s conviction for unintentional second-degree murder is inconsistent with the jury’s finding that he was not guilty of involuntary manslaughter.
But even if the jury’s verdicts were somehow inconsistent, “Kansas courts have repeatedly recognized that the conduct of a juiy is sometimes devoid of logic and that inconsistent verdicts may result. Even in cases where the two verdicts are irreconcilable, the convictions will not be reversed on grounds of inconsistency. [Citations omitted.]” State v. Davis, 275 Kan. 107, 120, 61 P.3d 701 (2003). A verdict, though inconsistent, is not erroneous so long as there is sufficient evidence to support it. State v. Herron, 286 Kan. 959, 966, 189 P.3d 1173 (2008). Belone does not acknowledge this authority or otherwise allege that the evidence was insufficient to support his conviction for unintentional second-degree murder. Accordingly, Belone has waived any argument on this point. See State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012) (an issue not briefed by appellant is deemed waived and abandoned).
In a separate argument related to the jury’s verdict, Belone challenges whether the jury’s finding of guilt on the unintentional second-degree murder charge was truly unanimous. Belone’s challenge is based on the involuntary manslaughter instruction, which instructed the juiy: “If you do not agree that the defendant is guilty of murder in the second degree . . ., you should then consider the lesser included offense of involuntaiy manslaughter.” More specifically, Belone argues that if the jury had truly agreed on his guilt for unintentional second-degree murder, the jury would never have considered and then reached a verdict on involuntary manslaughter; instead, the jury would have left the verdict form blank.
Our Supreme Court addressed a similar argument raised in the context of juiy instruction error in State v. Roberson, 272 Kan. 1143, 1154, 38 P.3d 715, cert. denied 537 U.S. 829 (2002), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). The defendant argued that an instruction stating “ ‘[i]f you do not agree that the defendant is guilty’ ” was erroneous because it required the jury to reject a conviction on the greater charge before considering lesser included offenses. 272 Kan. at 1154. Our Supreme Court rejected this claim because there was nothing in the instruction requiring a unanimous decision on the greater charge before considering the lesser charges. Reading all the instructions together indicated that the “juiy was fully and accurately informed that it could consider the lesser offenses.” 272 Kan. at 1155.
Here, the jury was instructed that the charged offense included lesser offenses and that Belone could be found guilty of the charged offense, a lesser offense, or could be found not guilty. Taking these instructions together with the elements instructions, the jury was fully and accurately informed that it could consider tire lesser offense of involuntary manslaughter. There was nothing in the instruction requiring a unanimous decision on the greater offense of unintentional second-degree murder before considering the lesser offense. Simply put, there is no basis on which to conclude the juiy had any reasonable doubt as to Belone’s guilt of unintentional second-degree murder.
3. Inferences that could be drawn from Officer Brixius’ testimony
Before Officer Brixius testified, the State proposed that the following special instruction be read to the jury: “ The court has previously ruled that any statements Linda Begay made to law enforcement officer Anthony Brixius are inadmissible hearsay. You should not concern yourselves with the reasons for this ruling.’ ”
Belone objected to the instruction, arguing that it unnecessarily focused the jury on inadmissible evidence. The district court overruled Belone’s objection, noting that without the instruction the jury would be left with the impression that Officer Brixius never interviewed Begay during the course of his investigation. The special instruction was read to the jury prior to Brixius’ testimony. During Brixius’ direct examination, he stated that the police investigation initially began as one involving criminal damage to property; but after speaking to Begay at the hospital, tire focus of the investigation changed to one involving domestic violence. Brixius’ testimony continued as follows:
“Q: At that point did you have a suspect?
“A: Yes.
“Q: And who was your suspect?
“A: Mr. Belone.”
Belone did not object to this testimony.
Belone claims that the special instruction and Brixius’ statement that he considered Belone a suspect after speaking to Begay allowed the jury to infer that Begay told Brixius that Belone was her attacker, evidence which the Supreme Court previously ruled inadmissible as violative of his rights under the Confrontation Clause. We decline to reach the merits of Belone’s claim, however, because he failed to preserve the issue for appeal by lodging an objection on these grounds following Brixius’ testimony. Belone does not acknowledge his failure in this regard; rather, he contends that his objection to the special instruction prior to Brixius’ testimony was sufficient to raise the Confrontation Clause issue below. But Be-lone’s objection to the special instruction was lodged before the specific testimony he now challenges on appeal and the objection he did make was not based on a deprivation of rights under the Confrontation Clause. See State v. Breedlove, 295 Kan. 481, 490, 286 P.3d 1123 (2012) (party may not object at trial to admission of evidence on one ground and then on appeal argue different ground); State v. Dukes, 290 Kan. 485, 489, 231 P.3d 558 (2010) (“[I]t is the defendant’s responsibility to ‘rais[e] his Confrontation Clause objection.’ ”).
K.S.A. 60-404 provides that no verdict shall be set aside based upon the erroneous admission of evidence unless an objection was “timely interposed and so stated as to make clear the specific ground of objection.” See State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009) (“[T]he legislature’s intent in enacting K.S.A. 60-404 is clear: a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review.”). Generally, constitutional grounds for reversal are subject to this same rule, and objections raised for the first time on appeal are not properly preserved for appellate review. State v. Raskie, 293 Kan. 906, 919, 269 P.3d 1268 (2012); see State v. Randolph, 297 Kan. 320, 335, 301 P.3d 300 (2013) (holding that if an appellate court was to overlook die lack of an objection “ ‘because it is necessary to serve die ends of justice or to prevent the denial of [a defendant’s] right to a fair trial, these and other caselaw exceptions would soon swallow the general statutory rule’ of K.S.A. 60-404”); State v. Harris, 293 Kan. 798, 813, 269 P.3d 820 (2012) (noting disapproval of any past loosening of K.S.A. 60-404 requirement of specific and timely objections). And consistent with this rule, our Supreme Court has declined to address confrontation issues for the first time on appeal. See, e.g., State v. Williams, 299 Kan. 509, 548-50, 324 P.3d 1078 (2014); State v. McCaslin, 291 Kan. 697, 708-09, 245 P.3d 1030 (2011); Dukes, 290 Kan. at 489-90; State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002).
Because Belone failed to properly preserve his Confrontation Clause issue, this court will not reach the merits of his argument.
4. Admissibility of statements Begay made to her nurses
Next, Belone challenges the district court’s decision to allow the jury to consider statements Begay made at the hospital to her nurses that implicated Belone as her attacker. Belone contends these statements constituted testimonial hearsay and violated his Sixth Amendment right to confrontation.
Although this court generally reviews the admission of hearsay evidence for an abuse of discretion, we exercise an unlimited review when the evidentiaiy ruling in question may have violated an individual’s constitutional rights. State v. Robinson, 293 Kan. 1002, 1023, 270 P.3d 1183 (2012).
As previously stated, both the Sixth Amendment and the Kansas Constitution Bill of Rights § 10 provide that a criminal defendant has the right to be confronted by the witnesses against him or her. This right bars admission of a specific kind of hearsay, called testimonial hearsay, “unless a court finds that the declarant is unavailable as a witness and that the defendant had a prior opportunity to cross-examine the declarant.” Robinson, 293 Kan. at 1024. Non-testimonial hearsay, on the other hand, does not implicate a defendant’s constitutional right to confrontation. 293 Kan. at 1024. Thus, if the challenged testimony is considered testimonial hearsay, it should not have been admitted into evidence because Belone had no opportunity to cross-examine Begay. But if the challenged testimony is considered nontestimonial hearsay, it did not implicate Belone’s constitutional right to confront witnesses against him and the jury was permitted to consider it so long as it was admissible under a recognized exception to the hearsay rule. Because Belone’s challenge is limited to whether the statements were testimonial, we need not address the specific hearsay exceptions the district court found applicable to the statements.
The United States Supreme Court has named three “ ‘core classfes]’ ” of testimonial statements: (1) statements serving as in- court testimony or the functional equivalent of in-court testimony, especially pretrial statements; (2) statements made outside of court but “ 'contained in formalized testimonial materials’ and (3) informal statements made. outside of court but “ 'under circumstances which would lead an objective witness reasonably to believe that tire statement would be available for use at a later trial.’ ” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). Although the United States Supreme Court has failed to clearly delineate the circumstances embraced by the third class—the class relevant to the present issue— our Supreme Court in State v. Brown, 285 Kan. 261,291, 173 P.3d 612 (2007), named four factors that are key to making that determination:
“(1) Would an objective witness reasonably believe such a statement would later be available for use in the prosecution of a crime?
“(2) Was the statement made to a law enforcement officer or to another government official?
“(3) Was proof of facts potentially relevant to a later prosecution of a crime the primary purpose of the interview when viewed from an objective totality of the circumstances, including circumstances of whether
(a) the declarant was speaking about events as they were actually happening, instead of describing past events;
(b) the statement was made while the declarant was in immediate danger, i.e., during an ongoing emergency;
(c) the statement was made in order to resolve an emergency or simply to learn what had happened in the past; and
(d) the interview was part of a governmental investigation?; and
“(4) Was the level of formality of the statement sufficient to make it inherently testimonial; e.g., was the statement made in response to questions, was the statement recorded, was the declarant removed from third parties, or was the interview conducted in a formal setting such as in a governmental building?”
In 2011, our Supreme Court found it necessary to reevaluate the factors set forth in Brown based on subsequent opinions issued by the United State Supreme Court that further refined the analysis to be used in deciding the testimonial nature of statements made in the context of medical treatment. See State v. Miller, 293 Kan. 535, 567-82, 264 P.3d 461 (2011); State v. Bennington, 293 Kan. 503, 509-24, 264 P.3d 440 (2011). In Miller, the court was asked to decide whether the statements made by a 4-year-old vie- tim of sex crimes to a sexual assault nurse examiner (SANE) were testimonial. The court began its discussion with the Brown factors but noted that numerous other states had examined die testimonial nature of statements made to medical professionals and that “tire majority of jurisdictions have determined that when there is a medical purpose to the examination, the statements are nontestimon-ial.” 293 Kan. at 558-59, 562. The Miller court then discussed four United States Supreme Court decisions issued after Brown, all of which analyzed the Confrontation Clause in the context of statements to medical professionals. In one of these cases, the United States Supreme Court explained that “ ‘only testimonial statements are excluded by the Confrontation Clause. Statements to friends and neighbors about abuse and intimidation and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules.’ [Citation omitted.]” 293 Kan. at 568.
The Miller court ultimately concluded that the United States Supreme Court opinions “suggest a general rule that statements made to health care professionals during the course of treatment ... would generally not be testimonial because the purpose of such statements is not to produce evidence for use at trial.” 293 Kan. at 569. The court further noted, however, the importance of analyzing the testimonial nature of statements “in the context in which they were made, rather than with broad, categorical rules.” 293 Kan. at 575. As such, the Miller court declined to categorically exclude statements to medical professionals from Confrontation Clause analysis. 293 Kan. at 575-76.
As our Supreme Court recently explained in State v. Jones, 295 Kan. 1050, 1056, 288 P.3d 140 (2012):
“[W]hether statements made to a SANE are testimonial is a “highly context-dependent inquiry.’ [Citation omitted.] ‘Because the focus is on objective facts, “the relevant inquiiy is not the subjective or actual purpose of the individuals involved . . . , but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.” [Citation omitted.]’ [Citation omitted.] Relying primarily on [Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 1156, 179 L. Ed. 2d 93 (2011)], Miller adopted a nonexclusive list of the most relevant considerations for establishing the testimonial nature of a victim’s statement to a SANE. Those factors include ‘whether the SANE was a State actor or agent, whether there was an ongoing emergency, whether the encounter was formal, and whether the statements and actions of both [tire victim] and tire SANE reflect a primary purpose focusing on the later prosecution of a crime.’ [Citation omitted.]”
Although Miller addressed statements made to a SANE, the same analysis would logically apply to statements made to any medical professional, with the same emphasis on whether the statements and actions reflected a primary purpose of medical treatment or a primary purpose of later prosecution of a crime.
In this case, die district court ruled before trial that certain statements Begay made to medical personnel were nontestimonial and, therefore, did not implicate Belone’s constitutional confrontation rights. Specifically, the court found that the particular statements at issue were not made for the purpose of an investigation, as Begay never mentioned Belone’s name or provided any information that would aid in any investigation or prosecution of Belone. On appeal, Belone challenges the admission of statements Begay made to nurses Karin Feltman and Robert Bond.
a. Begay’s statements to Karin Feltman
When Begay arrived at die emergency room on July 29, 2006, Feltman was her primary nurse. Feltman described Begay’s demeanor as “very hysterical,” screaming, and crying. Feltman said Begay was intoxicated but “clinically sober” and was alert, oriented, and answering questions appropriately. While Feltman examined Begay’s numerous injuries, Begay said that her boyfriend had beaten her, but she never stated his name. Feltman reported that Begay repeatedly said, “ ‘He threw me to the ground. He threw me on the ground. He shoved me. He beat me with a fucking stick. He hit me with a log. He flung me around by my hair. He shoved me down.’ ” Feltman also reported that Begay complained of throat pain. When Feltman tried to ascertain whether the pain was from swallowing, Begay responded that her throat was swollen and that “he” grabbed Begay by die throat and shoved her up against the wall. Feltman also stated that Begay complained of head pain and that her scalp was tender to the touch. Begay told Feltman, “ ‘He flung me around by my hair.’ ”
Belone alleges tliat Begay’s statements to Feltman were testimonial because, although not made to law enforcement, Begay’s repeated use of the term “he” and her reference to her “boyfriend” as the attacker demonstrate that Begay wanted people to know who had beaten her. Belone claims that because Begay indirectly identified him as her attacker, the statements were made for the purpose of prosecuting him.
Using the analysis set forth by our own Supreme Court and the United States Supreme Court, however, we find Begay’s statements to Feltman were not testimonial in nature. Although Begay did tell Feltman when she arrived at the hospital tliat her boyfriend had beaten her, she did so in the context of describing the nature of her injuries. Begay’s statements were not made to law enforcement or any other government official in any type of formal interview. Instead, Begay’s statements served as an explanation of her physical condition when she arrived at the emergency room. Begay did not ask Feltman to call the police and did not provide Feltman with Belone’s name or any other identifying information about Be-lone. Under these facts, an objective witness would likely believe that Begay’s statements existed only to explain her injuries to an emergency room nurse. Nothing in the record suggests that the statement carried any land of investigative formality or that either Begay’s or Feltman’s primary purpose in the conversation was to preserve die events for future prosecution. As such, the district court’s decision to admit the hearsay statements did not violate Belone’s rights under the Confrontation Clause.
b. Begay’s statements to Robert Bond
Bond was Begay’s nurse on the evening of July 30, 2006. Bond observed a laceration on Begay’s nose and bruising on her arms, stomach, and face. Bond testified that he always asked his patients what happened to them and when he asked Begay, she responded that she had “passed out after drinking and woke up to being beaten with a 2x4.” Although Begay told Bond that her boyfriend was the person who beat her, she did not say who her boyfriend was or identify him by name.
Belone argues that Begay s statements to Bond were testimonial. Specifically, Belone claims that the statements were made for the purposes of prosecution because Bond testified in tire first trial that Begay also told him that her boyfriend “should be in jail for what he did.”
Using the analysis set forth by our own Supreme Court and the United States Supreme Court, however, we find Begays statements to Bond were not testimonial in nature. Even taking into account Begay’s statement at the first trial that her boyfriend should be in jail for what he did, Begay’s statements were made in response to Bond’s questioning about what had happened to her. Begay’s statements were not made during a formal interview, and they were not made in the presence of law enforcement or any other government official. Begay did not ask Bond to call the police or provide Bond with Belone’s name or any other identifying information about Belone. Under these facts, an objective witness would likely believe that Begay’s statements existed only to explain her injuries to her nurse. Again, there is nothing in the record to suggest that the statements carried any kind of investigative formality or that either Begay’s or Bond’s primary purpose in the conversation was to preserve the events for future prosecution. As such, the district court’s decision to admit the hearsay statements did not violate Belone’s rights under the Confrontation Clause.
5. Motion for mistrial
Belone argues the district court erred in denying his motion for mistrial after the State improperly elicited bad character evidence from a witness in violation of K.S.A. 60-447(b) (evidence of a trait of an accused’s character tending to prove guilt or innocence). K.S.A. 22-3423(l)(c) provides that “[t]he trial court may terminate the trial and order a mistrial at any time that he [or she] finds termination is necessary because . . . [prejudicial conduct, in or outside the courtroom, malees it impossible to proceed with the trial without injustice to either the defendant or the prosecution.”
On appeal, a district court’s decision denying a motion for mistrial is reviewed under an abuse of discretion standard. Judicial discretion is abused if the judicial decision (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Hams, 293 Kan. at 814. In evaluating a motion for mistrial, this court must first determine whether the district court abused its discretion in deciding if there was a fundamental failure in the proceeding. Secondly, we must decide whether the district court abused its discretion in deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition, instruction, or other action. State v. McCullough, 293 Kan. 970, 980, 270 P.3d 1142 (2012); Harris, 293 Kan. at 814-15. Additionally, an appellate court exercises de novo review of a challenge to the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence. State v. Holman, 295 Kan. 116, Syl. ¶ 6, 284 P.3d 251 (2012).
At trial, Mallonee testified that he lived across the street from Belone and Begay. Mallonee stated that in the early morning hours of July 29, 2006, Begay came to his door. The two “ played around a little bit,’ ” and Begay passed out in one of the bedrooms. Later on, Belone knocked on Mallonee’s door. Mallonee did not let Be-lone come inside because Begay was there and Mallonee did not want them to argue. Instead, Mallonee walked with Belone to Be-lone’s trailer and then got in Belone’s truck and the two went to buy some beer. After returning to the trailer park, they drank beer in Belone’s truck before Mallonee left and went to another trailer nearby. Mallonee testified that “quite some time” later, he saw Begay standing in the middle of the street with blood all over her face. Mallonee said that when he saw Begay, he did not do anything to help her “[bjecause . . . [Belone] was around there. He was probably just up the street, and I didn’t trust him. He could have a gun or—because I think he was after me, too.” Defense counsel objected, and the following discussion took place outside the hearing of the jury:
“MR. ROBINSON [defense counsel]: Your Honor, I’m going to object. This is propensity evidence. There is nothing at all suggesting—there is no evidence before this court that Christopher Belone did anything. The State just elicited from Mr. Mallonee that, oh, I was afraid of Chris, too. I didn’t want him beating me up. There is no evidence Chris even did it at this point.
“They are eliciting—there is no foundation. Thefe has been nothing laid by this witness that he saw anything, that he knew anything,/that Christopher Belone did anything, and now all we’re getting in is what—the prior bad acts. Is that what we’re doing because of his knowledge and history of Chris? Because that’s exactly what they just got out, and that’s what I have been fighting this whole trial about, to say we need to keep this out and they just elicited it.
“MS. KEMPLE [the prosecutor]: That was not a prior bad act at all. It was not an act that Christopher did at all. There was no alleged act that he did. He said I did not do a certain thing because I was afraid of a certain situation. And that’s what he was speaking to.
“MR. ROBINSON: He said, ‘I was afraid he would come get me, too.’ That’s what he said. He didn’t say he was afraid of a situation. He said he was afraid the defendant would come get him, and that’s just what they elicited.
“THE COURT: One, I don’t think the State elicited that. Seemed pretty spontaneous to me. Two, he’s just giving his state of mind. He’s not mentioning a prior bad act. He’s saying this is what his relationship or reaction to Mr. Belone is or was.
“Now I do caution the State. That’s it. Okay.
“MS. KEMPLE: Uh-huh.
“THE COURT: Exploring that—
“MR. ROBINSON: I can’t explore it.
“THE COURT: You can if you want to.
“MR. ROBINSON: I can’t, because as soon as I do that, well, Judge, he opened the door again.
“And the thing is, this is self-serving statements. If he has motive. And the Government dang well knows what my position is in reference to Mr. Mallonee, so that’s self-serving to say I’m afraid of him, but I’m a good guy, so I’m sitting up here drunk on my porch so I can’t come back at him. Now I can’t—unless I open the door to everything that we are trying to keep out of tills trial. So based on his statement, I ask for a mistrial.
“THE COURT: Denied. Go ahead.”
In explaining his objection to the district court, Belone appeared to argue the testimony was inadmissible as a prior bad act under K.S.A. 60-455, which prohibits evidence of prior crimes or civil wrongs “on a specified occasion” from being admitted to prove a defendant’s propensity to commit the charged crime. State v. Garcia, 285 Kan. 1, 12, 169 P.3d 1069 (2007). On appeal, however, Belone does not challenge the district court’s ruling as a violation of K.S.A. 60-455. Instead, Belone argues the testimony constituted improper character evidence under K.S.A. 60-447, introduced for the purpose of showing that he was untrustworthy and had a propensity for violence. ,
A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground. Breedlove, 295 Kan. at 490; see King, 288 Kan. at 342 (purpose of rule in K.S.A. 60-404 requiring a timely and specific objection is to give district court opportunity to consider as fully as possible whether evidence should be admitted and therefore reduce chances of reversible error); State v. Johnson, 266 Kan. 322, 335-36, 970 P.2d 990 (1998) (“ The specific grounds for an objection must be given at trial to preserve an issue for appeal.’ ”). Because Belone failed to properly preserve this issue below, he has waived this argument on appeal. See State v. Richmond, 289 Kan. 419, 428-30, 212 P.3d 165 (2009) (declining first-time appellate review of K.S.A. 60-447 claim when trial counsel failed to assert statute as grounds for objection).
Even if this court were to reach tire merits of Belone’s K.S.A. 60-447 argument, however, he is still not entitled to relief. K.S.A. 60-447 provides, in relevant part, that “when a trait of a person’s character is relevant as tending to prove conduct on a specified occasion,” the evidence may be admitted by the prosecution in a criminal case “only after the accused has introduced evidence of his or her good character.” K.S.A. 60-447(b)(ii). But the statement made by Mallonee in his testimony does not constitute character evidence tending to prove that Belone was untrustworthy or violent. Rather, the statement reflected Mallonee’s state of mind, indicating that Mallonee was understandably afraid that Belone had found out about his interaction with Begay and would be coming after him next.
Because Belone fails to establish a fundamental failure at trial relating to the admission of Mallonee’s testimony, the district court did not abuse its discretion in denying Belone’s motion for mistrial on this basis.
6. Disclosing of exculpatory evidence
Belone contends the State violated his rights under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to disclose exculpatory evidence prior to trial. Although we exercise unlimited review over the district court’s decision as to the existence of a Brady violation, we give deference to the district court’s findings of fact. State v. Warrior, 294 Kan. 484, Syl. ¶ 13, 277 P.3d 1111 (2012).
“[Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.
“There are three components or essential elements of a Brady violation claim: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) tire evidence must be material so as to establish prejudice.” Warrior, 294 Kan. 484, Syl. ¶ 10.
During a search of the crime scene in Mallonee’s trailer, law enforcement collected a blue shirt and a white shirt, each of which had blood stains. At trial, Alan Mattox, a forensic scientist for the Kansas Bureau of Investigation, testified for the State. During Mat-tox’s direct examination, defense counsel noticed that Mattox appeared to be referring to notes. Defense counsel objected on grounds that the defense had not been provided tire notes. The prosecutor responded that she had never seen the notes either and that the State did not have access to them during discovery. The district court called a recess in order to allow defense counsel an opportunity to examine the notes. Upon examination, defense counsel discovered a “printout phone log” reflecting communication between Mattox and the prosecutor related to forensic testing of the shirts found in Mallonee’s trailer. The phone log read as follows:
“[Mattox:] ‘One last question. Do we need to collect samples to try to determine who was wearing the shirts? For example, if a shirt is left at a burglary without bloodstains, we would collect the collar area to try to detect a DNA profile. Let me know ASAP.’
"[The prosecutor:] . . . ‘No, there is no need to determine who was wearing the blue or white shirts. It’s our understanding that they were already at the crime scene, left there by the previous occupant of the room. It appears to us that there is blood on them and so just test one test sample of the blood on each shirt. And, of course, whose blood, DNA is all we really need. So yes, only a representative sample needs to be tested, not all stains.’ ”
Defense counsel argued that this information was exculpatory because the State was trying to use the shirts as a basis to link Belone to the crime scene. Defense counsel claimed the phone log should have been turned over to the defense because it supported an inference that the State already had determined the shirts belonged to someone other than Belone. Belone contends that if he had been made aware of this information, he could have had more testing done on the shirts. In response, the prosecutor argued that Belone already knew the State believed the shirts belonged to someone other than Belone. The prosecutor explained that before the first trial, the State was under the impression that the shirts found at the crime scene belonged to the previous occupants of Mallonee’s trailer, Shelly Welcher or her children. The State later learned during Belone’s testimony that the white shirt found at the scene belonged to him. The prosecutor argued the information in the phone log was not new evidence because the log had always been available to Belone, the State had endorsed Mattox as a witness, the shirts already had been admitted into evidence at the first trial, and the shirts were available to Belone for independent testing.
The district court ruled that the information relating to the prosecutor’s opinion about the shirts did not constitute a Brady violation. Specifically, the court held that speculation on the part of Belone that further testing could have produced exculpatory evidence does not qualify as Brady evidence. The court also, noted that the defense had access to the shirts, the defense could have had them tested independently, and the report detailing the testing done was available to the defense during the first trial. The court also ruled that the information was not discoverable because it was not part of the expert report.
As to the first Brady element, Belone argues that the phone log was exculpatory because the State’s belief that the shirts belonged to someone else indicated a lack of evidence placing him at the scene of the crime. Evidence is exculpatory if it tends to disprove a fact in issue that is material to guilt or punishment or if it may be used to impeach inculpatory evidence of the prosecution. See Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); State v. Lackey, 295 Kan. 816, 823, 286 P.3d 859 (2012). “[Ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. ‘ “A reasonable probability is a probability sufficient to undermine the confidence of the outcome.” ’ ” Haddock v. State, 282 Kan. 475, 507, 146 P.3d 187 (2006).
On this first element, we agree with the district court that the information in the phone log did not constitute exculpatory evidence. That the State may have initially believed the shirts at the crime scene belonged to someone else does not disprove Belone was present in the bedroom at the time the crime was committed. And if additional testing of the shirts had revealed the presence of another individual’s DNA, that evidence would not have disproved Belone’s presence either. There was no evidence in the record to support a finding that further testing could have produced exculpatory evidence.
As to the second element, we find no evidence to establish that the information in the phone log was ever suppressed by the State. Belone was already aware that the State initially believed the shirts belonged to someone else. At the first trial, Officer Brixius testified he found a blue shirt and a white shirt in Mallonee’s trailer. Welcher testified that the clothes on the floor of Mallonee’s trailer belonged to her children and that the blue shirt belonged to her son. Testimony from detectives indicated that Belone was wearing a black mesh shirt when he was booked into jail. Belone later testified that tire white shirt belonged to him, and he gave it to Begay to help stop her nose from bleeding. Before Belone’s testimony, there was no evidence in tire record to suggest that the State was aware tire white shirt belonged to Belone.
Moreover, there was no evidence to suggest that the State was untruthful in reporting that it was not aware the phone log existed. Instead, the record reflects that the State never had access to the information contained in Mattox’s notes. In response to defense counsel’s objection, the prosecutor claimed that the State did not have Mattox’s notes containing the phone log because they were Mattox’s work product. Belone does not challenge this fact on appeal. Additionally, a Brady violation does not occur when a defendant or counsel knew about the evidence and could have obtained it prior to or during trial. State v. Walker, 221 Kan. 381, 384, 559 P.2d 381 (1977); State v. Wilson, 41 Kan. App. 2d 37, 53, 200 P.3d 1283 (2008).
Nevertheless, Belone claims that the phone log was clearly prejudicial to his defense because, in the absence of his ability to review the information set forth in the log, he testified at the first trial that the white shirt found in Mallonee’s trailer belonged to him. If this information had been provided to him prior to his testimony, Be-lone alleges that the defense strategy might have been different. Belone also notes that this admission was used against him at the second trial when a detective testified about a comparison analysis of the white shirt found at the crime scene and a video of a shirt worn by Belone on the day of Begay’s attack. As previously discussed, however, Belone has failed to establish that the information in tire phone log was so material to his defense; in other words, Belone has failed to establish that there is a reasonable probability that the result of the trial would have been different had the phone log been provided to the defense.
In an alternative argument made for the first time on appeal, Belone also argues that he was entitled to receive the phone log pursuant to K.S.A. 22-3213(2), which provides: “After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement (as hereinafter defined) of die witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified.” But Belone failed to make this argument below when he raised the Brady issue, and he provides no support to show that he ever moved for production under the statute at any time following Mattox’s testimony at the first trial. Issues not raised before the district court cannot be raised on appeal. State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012).
7. Criminal history
Finally, Belone argues his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because it was enhanced based on a criminal history that was not proved to a jury beyond a reasonable doubt. Belone concedes in his brief that the Kansas Supreme Court has previously rejected this claim in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2001). This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Our Supreme Court recently reaffirmed its holding in Ivory, ruling that the use of prior convictions to enhance a sentence is constitutional and does not violate Apprendi. State v. Baker, 297 Kan. 482, Syl. ¶ 4, 301 P.3d 706 (2013). Accordingly, there is no merit to Belone"s argument on this point.
Affirmed. | [
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Malone, J.:
The State appeals the trial court’s denial of its motion to correct Pernell Montgomery's sentence. The issue is whether the 2000 amendment to K.S.A. 21-4720(b)(5), see L. 2000, ch. 37, sec. 1; K.S.A. 2004 Supp. 21-4720(b)(5), which requires an appellate court to remand a case for resentencing when it reverses a defendant’s primary conviction, can be applied ret roactively to Montgomery’s case. We hold the amendment was intended to clarify rather than change existing law, and its retroactive application to Montgomery’s case does not prejudice his substantive rights.
On December 19, 1996, Montgomery was convicted by a jury of aggravated robbery, a severity level 3 person felony, and attempted rape, a severity level 4 person felony. At sentencing on January 24,1997, the trial court established the aggravated robbery conviction as the primary offense for sentencing purposes; with a criminal history score of A, Montgomery received the standard presumptive sentence of 194 months’ imprisonment. The trial court specifically noted that Montgomery’s standard presumptive sentence for attempted rape would have been 162 months’ imprisonment had his full criminal history score been applied to that offense. However, the attempted rape conviction, as the nonbase offense, was scored as a criminal history category I, and Montgomery received the standard presumptive sentence of 41 months’ imprisonment, concurrent with the aggravated robbery sentence. Montgomery also received a postrelease supervision term of 36 months.
Montgomery appealed his convictions but raised no sentencing issues. On August 6, 1999, this court reversed Montgomery’s aggravated robbery conviction and affirmed the conviction of attempted rape. State v. Montgomery, 26 Kan. App. 2d 346, 350, 988 P.2d 258 (1999).
On March 11, 2004, the State filed a motion to correct Montgomery’s sentence. Montgomery was serving his postrelease supervision term for attempted rape at the time the State filed its motion. In fact, Montgomery’s postrelease supervision had been revoked for a violation, and he was incarcerated when the motion was filed. In its motion, the State argued that when the aggravated robbery conviction was reversed on appeal, the attempted rape conviction became the primary or base offense. Thus, according to the State, Montgomery’s 41-month sentence for attempted rape, which was calculated without applying the criminal history, became illegal. The State argued Montgomery should be resentenced for the attempted rape conviction so that his full criminal history score could be applied to that offense.
The trial court ruled that Montgomery’s sentence for attempted rape was legal when imposed and did not become illegal when the primary conviction was reversed. The trial court noted that K.S.A. 21-4720(b)(5) was amended in 2000 to require an appellate court to remand a case for resentencing when it reverses the defendant’s primary conviction. However, the trial court ruled that the amendment only applied prospectively and did not affect Montgomery’s case. Thus, the trial court denied the motion. The State timely appeals.
The question of whether a sentence is illegal is a question of law over which an appellate court’s review is unlimited. State v. Huff, 277 Kan. 195, 199, 83 P.3d 206 (2004). Furthermore, this case involves interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et. seq., which is subject to unlimited review. State v. Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001).
On appeal, the State reasserts its argument that once Montgomery’s aggravated robbery conviction was reversed, the sentence for the attempted rape conviction no longer conformed to the sentencing guidelines and was therefore illegal. The State also argues that the 2000 amendment to 21-4720(b)(5) did not change the law, but instead clarified existing law. Thus, according to the State, the amendment should be retroactively applied to Montgomery’s case. We shall focus on this argument as we deem it to be dispositive of the issue on appeal.
Some background on sentencing in multiple conviction cases might be helpful. Pursuant to the KSGA, subject to a few exceptions, all of a defendant’s prior convictions must be counted in determining the defendant’s criminal history classification for sentencing purposes. K.S.A. 21-4710. In a multiple conviction case, however, die criminal history is not applied to each count. Rather, the sentencing court must establish a “base sentence” for the “primary crime,” which is the count with the highest severity level ranking. K.S.A. 21-4720(b)(2). The defendant’s full criminal history score is applied in determining the base sentence. However, the remaining “nonbase” sentences are calculated without applying any criminal history score. K.S.A. 21-4720(b)(5). This is the case even when the sentencing court runs the sentences on each count concurrently. State v. Starr, 259 Kan. 713, 723, 915 P.2d 72 (1996).
The State argues that, in a multiple conviction case, if the defendant’s primary conviction is reversed on appeal, the case should be remanded for resentencing in order for the court to determine the new base sentence. This is precisely how the KSGA now operates. The current statute, K.S.A. 2004 Supp. 21-4720(b)(5), reads:
“Nonbase sentences will not have criminal history scores applied, as calculated in the criminal history I column of die grid, but base sentences will have the full criminal history score assigned. In the event a conviction designated as the primary crime in a multiple conviction case is reversed on appeal, the appellate court shall remand the multiple conviction case for resentencing. Upon resentencing, if the case remains a multiple conviction case the court shall follow all of the provisions of this section concerning the sentencing of multiple conviction cases." (Emphasis added.)
However, the statute in effect at the time of Montgomery’s convictions, K.S.A. 21-4720(b)(5), did not contain the italicized portion. This language was added by amendment in 2000. See L. 2000, ch. 37, sec. 1. The State argues that when 21-4720(b)(5) was amended, the legislature was clarifying existing law, not changing the law; thus, retroactive application of the amendment to Montgomery’s case is appropriate.
In determining whether the provisions of any statute apply prospectively or retroactively, the general rule is that a statute operates only prospectively unless there is clear language indicating the legislature intended otherwise. This rule has been modified where the statutory change is merely procedural or remedial in nature and does not prejudicially affect the substantive rights of the parties. State v. Martin, 270 Kan. 603, 608-09, 17 P.3d 344 (2001). Courts have recognized an exception to the presumption against retroactivity involving amendments designed purely to clarify the meaning of a prior enactment. See In re Care & Treatment of Hunt, 32 Kan. App. 2d 344, 358-60, 82 P.3d 861, rev. denied 278 Kan. 845 (2004).
In Hunt, the court addressed the retroactivity of amendments to the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., and ultimately declined to apply the “clarifying amendment exception” to that Act. 32 Kan. App. 2d at 358-62. However, in suggesting factors to determine whether the exception applies, the Hunt court noted that “ ‘courts may rely upon a declaration by the enacting body that its intent is to clarify the prior enactment.’ ” 32 Kan. App. 2d at 361 (quoting Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272, 1284 [11th Cir. 1999], cert. denied 528 U.S. 1136 [2000]).
Here, the State has provided numerous references to the legislative history of the 2000 amendment to K.S.A. 21-4720(b)(5). Minutes of both the Senate Subcommittee on the Judiciary and the House Committee on the Judiciary regarding Senate Bill 488 (2000) indicate the amendment was intended to clarify existing law on sentencing in multiple conviction cases:
“SB 488 amends the sentencing guidelines law to clarify the law in a multiple conviction case when a defendant has the primary crime conviction reversed on appeal.” (Emphasis added.) Minutes, Senate Subcomm. on the Judiciary, February 21, 2000 (S.B. 488).
“Representative Shari Weber appeared before the committee as a proponent of the bill. She explained that it would clarify the law with regard to if the primary crime of conviction in a multiple conviction case was reversed.” (Emphasis added.) Minutes, House Comm, on the Judiciary, March 13, 2000 (S.B. 488).
Further, the Legislative Research Department’s Supplemental Note on S.B. 488 indicates the amendment was a clarification of the law:
“SB 488 clarifies the criminal sentencing law to provide that if the primary crime of conviction in a multiple conviction case is reversed, the appellate court is required to remand the case to district court for re-sentencing.” (Emphasis added.)
We agree with the State that the legislature’s intent in passing the 2000 amendment to K.S.A. 21-4720(b)(5) was to clarify how the statute was to operate rather tiran to change the existing law. However, the analysis concerning retroactive application of the amendment does not stop here. Even when the legislature expresses a clear intent for a statutory amendment to operate retroactively, courts must question whether such application would affect a defendant’s vested or substantive rights and, thus, violate due process. In re Hunt, 32 Kan. App. 2d at 362 (relying on Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220-28, 73 P.3d 753 [2003]). If retroactive application of a statutory amendment prejudices a defendant’s substantive rights, it will not be permitted by the courts. In re Hunt, 32 Kan. App. 2d at 362; see also State v. Barnes, 278 Kan. 121, 129, 92 P.3d 578 (2004) (retroactive application of statutory amendment to penalty against manufacturing methamphetamine determined unconstitutional as violative of the Ex Post Facto Clause of the United States Constitution, Art. I, § 10).
Here, in denying the State’s motion to correct Montgomeiy’s sentence, the trial court stated: “In any event, because application of the amendment would nearly quadruple Montgomeiy’s sentence, the amendment must be viewed as a substantive change in the law which can only be applied prospectively.” At first blush, the trial court’s analysis seems persuasive. On closer examination, however, it is clear that the amendment merely outlines the procedure the courts should follow in determining a base sentence when a defendant’s primary conviction is reversed on appeal.
As the trial court noted at Montgomeiy’s sentencing in 1997, the standard presumptive sentence for attempted rape would have been 162 months’ imprisonment had that been his base sentence at the time. The KSGA has always provided that a defendant’s full criminal history shall be applied to the base sentence. The State is only attempting to have the attempted rape conviction established as the primary offense now that the aggravated robbery conviction has been reversed. The sentence the State now seeks to impose on Montgomery for attempted rape is not additional punishment to that prescribed by law at the time he committed the offense. For instance, had Montgomery’s aggravated robbery conviction been overturned by the trial court (e.g., on a postjudgment motion), Montgomery would have originally received 162 months’ imprisonment for attempted rape. Moreover, Montgomeiy’s original sentence, with the aggravated robbery conviction, was a controlling term of 194 months’ imprisonment. Thus, if resentencing occurs as suggested by the State, Montgomeiy’s new sentence of 162 months’ imprisonment will still be less than the original sentence. Cf. State v. Heywood, 245 Kan. 615, 620, 783 P.2d 890 (1989) (sentencing following remand is not presumed vindictive unless the new sentence exceeds the original sentence).
In summary, we conclude that the 2000 amendment to K.S.A. 21-4720(b)(5) was intended to clarify rather than change existing law. See K.S.A. 2004 Supp. 21-4720(b)(5). We also conclude that retroactive application of the amendment to Montgomery’s case does not prejudice his substantive rights and, thus, does not violate due process. Rather, application of the amendment to Montgomery’s case only results in Montgomery receiving the sentence for attempted rape he would have received in 1997 had it been his only crime of conviction at the time.
Finally, Montgomery argues that the State has waived or abandoned its right to seek resentencing by not raising the issue at the time this court reversed the aggravated robbery conviction. He argues the State was required to have filed a motion for rehearing with this court or a petition for review with the Kansas Supreme Court in order to preserve this issue for consideration. We disagree. Montgomery’s direct appeal raised no sentencing issues, and this court never expressly modified Montgomery’s sentence in its original decision. It appears from the record that the Kansas Department of Corrections (KDOC) took it upon itself to adjust Montgomery’s controlling sentence in this case to 41 months’ imprisonment without any order from our court. Although the State could have filed its motion sooner than it did, we conclude tire State never waived or abandoned its right to do so.
Had Montgomery completely served his sentence for attempted rape and been discharged from KDOC custody at the time the State filed its motion, we would question whether the courts retained any jurisdiction over Montgomery to correct his sentence. However, at the time the State filed its motion, Montgomery was still serving his postrelease supervision term which was an integral component of his original sentence. See K.S.A. 2004 Supp. 21-4704(e)(2); McComb v. State, 32 Kan. App. 2d 1037, 1043, 94 P.3d 715, rev. denied 278 Kan. 846 (2004). In fact, Montgomery was incarcerated on a postrelease supervision violation when the State’s motion was filed. Thus, the trial court retained jurisdiction over Montgomery’s case. Regardless of what Montgomery’s current KDOC status may be, the courts have continued to retain jurisdiction over the case while the appeal has been pending.
For the reasons stated herein, the trial court’s denial of the State’s motion to correct Montgomeiy’s sentence is reversed and the case is remanded with directions for the trial court to resentence Montgomery for attempted rape as the primary conviction, with credit for time served.
Reversed and remanded with directions. | [
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Denied.
Unpublished | [
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The opinion of the court was delivered by
Beier J.:
Defendant Brenton Lee Hobbs was involved in a fight outside a bar in Emporia after being escorted outside. The fight may have begun and certainly ended when Hobbs punched Scott Nienke, and Nienke fell to the ground, hitting his head on the bumper of a car. Nienke suffered a life-threatening injury but ultimately survived. Hobbs was arrested and later convicted of aggravated battery.
Hobbs appealed his conviction to'the Court of Appeals, arguing that there was insufficient evidence to find him guilty of aggravated battery. The panel rejected Hobbs’ argument and affirmed his conviction. We accepted Hobbs’ petition to review the panel’s conclusion that aggravated battery under K.S.A. 2011 Supp. 21-5413(b)(1)(A) requires the State to prove only that the defendant’s act that caused great bodily harm or disfigurement was intentional, not that the result of the act was intentional.
Factual and Procedural Background
On the night of August 11, 2011, Hobbs went to an Emporia bar with several friends and acquaintances to celebrate a birthday. Because he had recently lost his identification, he called ahead to ensure that he could get into the bar. He was informed by the bar’s owner that he would be able to enter but would not be served alcohol. When Hobbs arrived, Michael Watson, an employee of the bar, confirmed to Hobbs that he was welcome to enter but could not order or drink alcohol. Watson also warned Hobbs that he would have to leave if anyone saw Hobbs drinking.
Despite the warnings, Watson eventually saw Hobbs drinking alcohol. Watson approached Hobbs and told him that he would have to leave. Watson escorted Hobbs toward the door until he saw Clint Crawford, the bar’s bouncer, and asked him to take Hobbs outside. Hobbs and Crawford eventually reached tire door of the bar.
Crawford and Elsie Thompson, who had been outside with Nienke, would eventually testify that Hobbs was agitated and did not want to leave. According to both Crawford and Thompson, Nienke attempted to intervene to calm Hobbs. Crawford said that, when Nienke approached Hobbs, Hobbs “tensed up” and looked like “[h]e was expecting ... a fight, more or less.” Both Crawford and Thompson said Hobbs then punched Nienke; Nienke had not touched Hobbs.
After Nienke was hit, “he immediately went stiff’ and “fell backwards and hit his head on the bumper of a car and he was hit with enough force that he actually slid under the car.” Thompson went to help Nienke, grabbing his head and yelling his name to try to rouse him. She noticed blood coming from his ear and told Crawford to go inside and tell Watson to call 911.
Hobbs would eventually testify to a different version of tire events. According to him, “[o]nce I got to the doors, to the threshold, as I was walking out, I got a push from behind.” Hobbs testified that he turned around and began arguing with Crawford. Crawford and a couple of others who had gathered outside told Hobbs that he needed to leave. Nienke also told Hobbs that he needed to leave and began walking toward Hobbs.
Hobbs said Nienke continued to walk closer to Hobbs, and Hobbs shifted from arguing with Crawford to arguing with Nienke. As Nienke drew closer, Hobbs eventually had to look up at the much bigger Nienke. Nienke, according to Hobbs, “put his hand around my neck and pushed me” into the back bumper of a parked car. Nienke kept his hand around Hobbs’ neck, despite Hobbs telling him that he needed to let go. Finally, Hobbs punched Nienke. When Nienke fell, Hobbs attempted to leave the bar parking lot, but Watson and another bar patron caught him and held him until police arrived.
Nienke was taken to the hospital, and Hobbs was arrested. The doctor treating Nienke determined that he had suffered a “basilar skull fracture,” which would have required a significant impact to be inflicted. At trial, the doctor testified that “[t]his was a veiy serious injury. This gentleman faced lifetime debility and death.”
Hobbs was charged with aggravated battery under K.S.A. 2011 Supp. 21-5413(b)(l)(A), which requires that he “[kjnowingly caus[e] great bodily harm to another person or disfigurement of another person.”
The district court judge gave the following jury instruction on the elements of the crime:
“The defendant is charged in count 1 with the crime of aggravated battery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally caused great bodily harm or disfigurement to another person;
“2. That this occurred on or about the 12th day of the August, 2011, in Lyon County, Kansas.
“Aggravated battery as defined above is a general intent crime. The requisite general intent is merely the intent to engage in the underlying conduct which results in great bodily harm. The State is not required to prove that the defendant intended the precise harm or result that occurred.” (Emphasis added.)
The jury also was instructed:
“Ordinarily, a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.”
The juiy found Hobbs guilty of aggravated batteiy. The district judge sentenced Hobbs to a prison term of 43 months.
On appeal to the Court of Appeals, Hobbs argued that there was insufficient evidence to find him guilty of aggravated batteiy because, in his view, K.S.A. 2011 Supp. 21-5413(b)(l)(A) required that he “knowingly caused the great bodily harm that was suffered.” The panel rejected his argument, relying on the characterization of aggravated battery as a general intent crime. As such, the panel ruled, “only the underlying act that caused great bodily harm or disfigurement must be intentional,” and there was “sufficient evidence upon which a jury could find beyond a reasonable doubt that Hobbs intentionally hit Nienke with such force as to cause him great bodily harm.” State v. Hobbs, No. 107,667, 2013 WL 1457940, at *3 (Kan. App. 2013) (unpublished opinion).
Discussion
The only issue before us on Hobbs’ petition for review is whether there was sufficient evidence for his jury to find him guilty of aggravated battery under K.S.A. 2011 Supp. 21-5413(b)(l)(A). But Hobbs’ argument is predicated on statutory interpretation.
An appellate court’s standard of review for a challenge to the sufficiency of the evidence in a criminal case is
“whether, after reviewing all the evidence in a light most favorable to the prosecution, the reviewing court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility.” State v. Lloyd, 299 Kan. 620, Syl. ¶ 3, 325 P.3d 1122 (2014).
Statutory interpretation and construction, in contrast, raise questions of law reviewable de novo on appeal. State v. Brown, 299 Kan. 1021, 1031, 327 P.3d 1002 (2014).
“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). But if a statute is plain and unambiguous, this court will not speculate about legislative intent or turn to canons of construction or legislative history. State v. Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012). On tire other hand, where a criminal statute is silent or ambiguous on a matter, the rule of lenity applies to mandate that tire statute be construed in favor of the accused. Cf. State v. Thompson, 287 Kan. 238, 249, 200 P.3d 22 (2009) (statute silence or ambiguity on unit of prosecution construed in favor of defendant).” State v. Reese, 300 Kan. 650, 653, 333 P.3d 149, (2014).
Hobbs argues that merely describing aggravated batteiy under K.S.A. 2011 Süpp. 21-5413(b)(l)(A) as a “general intent” crime is incorrect and that the statute’s reference to “knowingly” applies to both tire defendant’s underlying act and its specific resulting harm. Our adoption of Hobbs’ view would add to the elements the State traditionally has had to prove to convict a defendant for a general intent crime. See Gross v. State, 24 Kan. App. 2d 806, 808, 953 P.2d 689 (1998) (general intent crime requires only that the underlying act be intentional rather than accidental); see also K.S.A. 2011 Supp. 21-5202) (culpable mental state may be established by proof of intentional, knowing, reckless conduct); State v. Mitchell, 262 Kan. 434, Syl. ¶ 8, 939 P.2d 879 (1997) (specific intent more than general intent required by K.S.A. 21-3201).
The plain language of the statute alone does not supply a clear response to the issue Hobbs raises. The phrase “knowingly causing great bodily harm to another person or disfigurement of another person” is less than precise. We therefore look beyond tire plain language of the statute to determine its meaning. Such statutory construction may require analysis of legislative histoiy, application of canons of construction, and examination of substantive background considerations. See State v. Prine, 297 Kan. 460, 475, 303 P.3d 662 (2013).
K.S.A. 21-3414, the predecessor statute for K.S.A. 2011 Supp. 21-5413, was originally enacted in 1969 and remained unchanged until 1992. As originally enacted, that statute defined aggravated battery as:
“Aggravated batteiy is tire unlawful touching or application of force to the person of another with intent to injure that person or another and which either:
“(a) Inflicts great bodily harm upon him; or
“(b) Causes any disfigurement or dismemberment to or of his person; or
“(c) Is done with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, dismemberment, or death can be inflicted.” K.S.A. 21-3414 (Weeks).
Under this version of the statute, this court treated aggravated battery as a specific intent crime. See State v. Diaz & Altemay, 232 Kan. 307, 311, 654 P.2d 425 (1982) (“[T]he aggravated battery charged required proof that the accused intentionally applied force to the person of [the victim], with intent to injure him.”); State v. Seely, 212 Kan. 195, 203, 510 P.2d 115 (1973) (“It may be seen that a particular intent,’ i.e., an intent to injure, is an essential element of [aggravated battery] in any of its alternative forms.”); see also State v. Synoracki, 253 Kan. 59, 71, 853 P.2d 24 (1993) (“Under Kansas law, aggravated battery is a specific intent crime.” [citing Diaz & Altemay and Seely]). Intent to injure, not merely to act in such a way that injury resulted, was an express specific element of the crime.
The legislature amended K.S.A. 21-3414 in 1992 but retained the “intent to injure” language. The amendment was scheduled to go into effect on July 1, 1993. See K.S.A. 1993 Supp. 21-3414a(c); L. 1992, ch. 239, sec. 52.
In 1993, before the 1992 amendment could go into effect, the legislature amended K.S.A. 21-3414 again. This time it removed the “intent to injure” language. The pertinent part of the statute then read:
“(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.” K.S.A. 1993 Supp. 21-3414.
This court never directly addressed whether this version of the statute outlined a general or specific intent crime. The Court of Appeals, however, consistently treated aggravated battery under K.S.A. 21-3414 as a general intent crime. See, e.g., State v. Esher, 22 Kan. App. 2d 779, 784, 922 P.2d 1123 (1996) (“The language of 21-3414[a][l][C] simply requires proof that the defendant intentionally caused physical contact with another person.” )•, overruling on other grounds recognized by In re C.P.W., 289 Kan. 448, 213 P.3d 413 (2009).
In 2010, the legislature repealed K.S.A. 21-3414 and enacted a new aggravated batteiy statute and defined culpable mental states. K.S.A. 2011 Supp. 21-5413(b), applicable to the charged 2011 crime, now states:
“Aggravated batteiy is:
(1)(A) Knowingly causing great bodily harm to another person or disfigurement of another person;
(B) knowingly 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) knowingly 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.”
K.S.A. 2011 Supp. 21-5202 now defines the culpable mental states applied under Kansas criminal statutes:
“(a) Except as otherwise provided, a culpable mental state is an essential element of every crime defined by this code. A culpable mental state may be established by proof that the conduct of the accused person was committed ‘intentionally/ ‘knowingly or ‘recklessly.’
“(b) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
(1) Intentionally;
(2) knowingly;
(3) recklessly.
“(f) If the definition of a crime prescribes a culpable mental state that is sufficient for the commission of a crime, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the crime, unless a contrary purpose plainly appears.
“(g) If the definition of a crime prescribes a culpable mental state with regard to a particular element or elements of that crime, the prescribed culpable mental state shall be required only as to specified element or elements, and a culpable mental state shall not be required as to any other element of the crime unless otherwise provided.
“(i) A person acts ‘knowingly,’ or ‘with knowledge,’ with respect to the nature of such person’s conduct or to circumstances surrounding such person’s conduct when such person is aware of the nature of such person’s conduct or that the circumstances exist. A person acts ‘knowingly,’ or ‘with knowledge,’ with respect to a result of such person’s conduct when such person is aware that such person’s conduct is reasonably certain to cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as ‘knowingly,’ ‘known,’ or ‘with knowledge’ are general intent crimes.”
The Court of Appeals panel framed the issue before it as whether K.S.A. 2011 Supp. 21-5413(b) outlines a general or specific intent crime. Hobbs, 2013 WL 1457940, at *3. Because K.S.A. 2011 Supp. 21-5202(i) identifies all crimes with a culpable mental state of “knowingly” as general intent crimes, tire panel concluded that “aggravated battery is a general intent crime in which only the underlying act that caused great bodily harm or disfigurement must be intentional.” Hobbs, 2013 WL 1457940, at “3.
The problem with this straightforward rationale is that it fails to account for the fact that K.S.A. 2011 Supp. 21-5202(f) demands application of the culpable mental state to all material elements of a crime if the statute does not distinguish among the material elements of the crime. The panel’s rationale also ignores K.S.A. 2011 Supp. 21-5202(g), which provides that a prescription of a culpable mental state for a particular element means that the mental state is required only for the element specified.
The only actus reus prohibited under K.S.A. 2011 Supp. 21-5413(b)(1)(A) is “causing great bodily harm to another person or disfigurement of another person.” It matters not how this is achieved. K.S.A. 2011 Supp. 21-5202(i) addresses the application of knowingly to both the nature of a person’s conduct and the result of a person’s conduct: “[Wjith respect to the nature of such person’s conduct” a person acts “ ‘knowingly’ ” “when such person is aware of the nature of such person’s conduct or that the circumstances exist,” and “with respect to a result of such person’s conduct” a person acts “ ‘knowingly’ ” “when such person is aware that such person’s conduct is reasonably certain to cause the result.”
Harmonizing K.S.A. 2011 Supp. 21-5413(b)(l)(A) and K.S.A. 2011 Supp. 21-5202(f), (g), and (i) to the greatest extent possible— see State v. Coman, 294 Kan. 84, 93, 273 P.3d 701(2012) (court considers provisions of an act in pari materia with view to reconciling, bringing provisions into workable harmony); State v. Frierson, 298 Kan. 1005, 1012, 319 P.3d 515 (2014) (court assumes legislature does not intend to enact useless, meaningless legislation)—leads us to conclude that the legislature does not intend for “general intent” to necessarily mean what it once did and that “knowingly,” as used in K.S.A. 2011 Supp. 21-5413(b)(l)(A), means that the accused acted when he or she was aware that his or her conduct was reasonably certain to cause the result. This does not mean that the accused must have foreseen the specific harm that resulted. Instead, it is sufficient that he or she acted while knowing that any great bodily harm or disfigurement of the victim was reasonably certain to result from the action.
Because statutes defining crimes equivalent to our battery and aggravated battery statutes vary widely among jurisdictions, only a handful of other states have statutes containing similar language. See, e.g., Ill. Comp. Stat. ch. 38 5/12-4(a) (2006) (“he or she knowingly . . . [cjauses great bodily harm or permanent disability or disfigurement”); Neb. Rev. Stat. § 28-308(1) (2008) (“person commits the offense of assault... if he or she intentionally or knowingly causes serious bodily injury to another person”). Among those jurisdictions, diere does not appear to be a consensus interpretation or construction of the language used.
Appellate courts interpreting the Illinois statute have required more than the underlying act to be intentional. See People v. Lovelace, 251 Ill. App. 3d 607, 619, 622 N.E.2d 859 (1993) (“Under the battery and aggravated battery statutes, a defendant charged with knowingly causing great bodily harm or bodily harm must be consciously aware that his conduct is practically certain to cause great bodily harm or bodily harm, i.e., the result of his conduct is in issue.”). In contrast, Nebraska has interpreted its statute to outline a general intent crime, as that term has traditionally been understood. See State v. Williams, 243 Neb. 959, 963, 503 N.W.2d 561(1993) (offense is general, not specific, intent crime; “that is to say, the intent required . . . relates to the assault, not to the injury which results”).
We regard our current overall statutory framework as more similar to that in Illinois than to that in Nebraska. Like Kansas statutes, Illinois statutes define the various culpable mental states, see, e.g., Ill. Comp. St. ch. 38 5/4-5 (2006) (defining “knowledge”), and require: “If the statute defining an offense prescribed a particular mental state with respect to the offense as a whole, without distinguishing among the elements thereof, the prescribed mental state applies to each such element.” Ill. , Comp. St. ch. 38 5/4-3 (2006); cf. K.S.A. 2011 Supp. 21-5202(f). Nebraska generally has not statutorily defined the various culpable mental states applied under its criminal statutes. See, e.g., State v. Bol, 21 Neb. App. 931, 936, 845 N.W.2d 606 (2014) (“knowingly” not defined by statute).
Having determined what is required to be proved beyond a reasonable doubt under K.S.A. 2011 Supp. 21-5413(b)(l)(A), we turn to whether the evidence was sufficient for a jury to find Hobbs guilty of aggravated battery in this case.
Hobbs’ argument drat the evidence against him was not sufficient is limited to the assertion that “the State presented no evidence that Mr. Hobbs intended the harm Mr. Nienke suffered.” As fully discussed above, the State was not required to prove that Hobbs intended the precise harm that Nienke suffered. It need only prove that Hobbs punched Nienke while knowing that some type of great bodily harm or disfigurement of Nienke was reasonably certain to result from die punch.
When we view the evidence at trial in the light most favorable to the prosecution, as we must, we are convinced that a rational factfinder could have found Hobbs guilty beyond a reasonable doubt. At trial, witnesses testified that Nienke did not initiate contact with Hobbs and that Nienke was simply trying to persuade Hobbs to leave die bar. Crawford testified that, as Nienke approached Hobbs, Hobbs appeared to be preparing for a fight. Witnesses also testified that Nienke “immediately went stiff’ after the punch, that is, before hitting his head on the bumper of a car. From tins evidence, it would be reasonable for a jury to infer that Hobbs acted while knowing that some type of great bodily harm or disfigurement was reasonably certain to result from the punch, even if he did not anticipate Nienke’s precise injuiy. The evidence against Hobbs was sufficient to uphold his conviction of aggravated battery.
Conclusion
K.S.A. 2011 Supp. 21-5413(b)(l)(A) requires proof that an aggravated battery defendant acted while knowing that some type of great bodily harm or disfigurement of another person was reasonably certain to result from the defendant’s action. In this case, the State presented sufficient evidence to convict defendant Brenton Lee Hobbs of aggravated battery. We therefore affirm the judgment of the district court and the decision of the Court of Appeals.
Michael J. Malone, Senior Judge, assigned. | [
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On March 1, 2013, this court suspended the petitioner, Scott C. Stockwell, from the practice of law in Kansas for a period of 1 year. See In re Stockwell, 296 Kan. 860, 295 P.3d 572 (2013). The court further ordered that the petitioner undergo a hearing, pursuant to Supreme Court Rule 219 (2015 Kan. Ct. R. Annot. 403), prior to consideration of a petition for reinstatement.
On March 3, 2014, petitioner filed a petition for reinstatement. On July 2, 2014, petitioner filed an amended petition for reinstatement. On July 21, 2014, the court referred the amended petition to the Disciplinary Administrator for investigation and hearing. On January 14, 2016, a hearing panel of the Kansas Board for Discipline of Attorneys conducted a hearing to consider the petitioner s petition for reinstatement.
On March 16, 2016, the hearing panel filed its report setting out the circumstances leading to the petitioners suspension, a summary of the evidence presented, and its findings and recommendations. The panel unanimously recommended that the petitioners petition for reinstatement of his license to practice law in Kansas be granted, subject to practice supervision as detailed in the petitioners plan of supervision and as amended in the final hearing report.
The court, after carefully considering the record, accepts the findings and recommendations of the hearing panel and grants the petitioner s petition for reinstatement of his license to practice law in Kansas, subject to practice supervision as detailed in the petitioner’s plan of supervision and as amended in the final hearing report.
It Is Therefore Ordered that the petitioner be reinstated to the 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 and subject to his plan of supervision as amended in the final hearing report. Upon proof provided to the Clerk of the Appellate Courts that the 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 the petitioners name upon the roster of attorneys engaged in the practice of law in Kansas.
Effective this 28th day of March, 2016.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs herein be assessed to the petitioner. | [
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McAnany, J.:
Elizabeth A. Mehling appeals from her convictions for three counts of unlawful acts in connection with the offer, sale, or purchase of securities in violation of K.S.A. 2004 Supp. 17-1253. We affirm.
Elizabeth, a financial planner from Scotland, met Michael Mehling while he was stationed in the United States military in Germany. They married in September 1992.
In June 1994, the Mehlings were stationed in El Paso, Texas, where Elizabeth was involved in a multi-level marketing company known as Jewelry International. They were transferred to Leavenworth, Kansas, in January 1995 where Michael served until his retirement from the military in July 1996.
The Mehlings became involved in Investors International, apparently another multi-level marketing operation, where they learned about a program that claimed to give individuals the opportunity to pool their funds with others in order to invest in overseas bank debentures for very high returns in a very short period of time. The Mehlings began selling these overseas investments. They set up a partnership named Dunromin and opened a bank account for the partnership at the Ft. Leavenworth Credit Union. Both of the Mehlings were listed as owners of the account.
In 1995 Elizabeth met and befriended Inge Cochran, a Leavenworth real estate agent. She told Cochran about the Dunromin business and that she was a financial broker. The Mehlings sold Cochran Investor International materials and helped her make some sales. They also explained to her the European investment program. Michael told Cochran that their overseas investments were guaranteed safe and lucrative. The Mehlings told her that she would not lose her money and that they had invested in the program themselves. They provided documents to her that indicated that the investment was risk-free. They told Cochran that if she invested $15,000, she would receive $1,000,000 in 2 months.
Based on these outlandish representations, Cochran withdrew $15,000 from her IRA account on November 19, 1996, and gave Michael a cashier s check made payable to Dunromin. Cochran’s $15,000 investment was deposited into the Dunromin account on November 21, 1996. On the same date, $13,000 was transferred into the Mehlings’ personal account. The remaining $2,000 was withdrawn as cash on November 26, 1996.
Cochran later asked Elizabeth whether the people she was dealing with were honest. Elizabeth assured Cochran that they were.
Abdul Ghafoor also invested with the Mehlings in November 1996. The Mehlings told him he could double a $5,000 investment in 3 or 4 months. He gave the Mehlings $5,000 to invest in the form of money orders paid to tire order of Dunromin. Ghafoor’s $5,000 was deposited in the Dunromin account on November 20, 1996. The funds were immediately transferred to the Mehlings’ personal account that same day and then immediately withdrawn as follows: $1,800 in cash plus three money orders totaling $3,000. Two of the money orders were made payable to Investors International. The other was made to a travel agency. Ghafoor’s entire $5,000 investment was expended on the day it was deposited.
Several months after making his investment, Ghafoor began a series of almost daily telephone calls demanding his money. The Mehlings ultimately returned Ghafoor’s original $5,000 investment in July 1998 by means of a check drawn on their personal account.
By January 20, 1997, 2 months after her investment, Cochran had received neither the return of her $15,000 nor her $1 million. The Mehlings told Cochran that she would eventually receive her money. From 1997 through the early part of 1999 Cochran made numerous phone calls to the Mehlings regarding her investment. Cochran was continually assured that her investment would pay off.
In August 1998, Juli Rhame, a real estate agent in South Carolina, met the Mehlings when they came to South Carolina to look for a house. The Mehlings had been referred to Rhame by Cochran. Michael told Rhame that they sold debentures overseas. The Mehlings told her about the overseas debenture program and made the modest claim that she could invest from $1,000 to $50,000 and would receive from 10% to 1,000% on her investment in approximately 10 international banking days. Both Elizabeth and Michael told her that the investment was risk-free.
In January 1999, Rhame participated in a conference call with tire Mehlings. Michael told her that Cochran had invested $100,000 in the program and done well. Rhame later spoke to Cochran who told her that she had only invested $15,000 and had not received back her original investment, let alone any profit. Rhame decided not to invest with the Mehlings.
Cochran eventually complained to the Kansas Attorney General, and the matter was referred to the Office of the Securities Commissioner, which led to an investigation and charges being filed against the Mehlings in November 2000.
Elizabeth was charged with four counts of unlawful acts in connection with the offer, sale, or purchase of securities in violation of K.S.A. 2004 Supp. 17-1253. Michael negotiated a plea agreement with the State. He pled no contest to one count of conspiracy to commit securities fraud. Elizabeth was identified as his coconspirator. John Runnberg, an investigator with the Kansas Securities Commissioner s office, analyzed the Mehlings’ financial records and tracked the money in both the Dunromin account and the Mehlings’ personal account. He testified that it appeared all of Ghafoor and Cochran’s investments were used to pay the Mehlings’ personal expenses and that none was pooled with other funds for investment as promised. Elizabeth was found guilty of the three counts involving Ghafoor, Cochran, and Rhame. She was sentenced to 60 months’ probation. She now appeals.
Jury Instructions
Elizabeth claims the district court erred in instructing the jury. Our task is to consider the instructions as a whole, and not to focus on any one instruction, in order to determine if they properly and fairly state the law that applies to the facts of the case. We must then determine if the jury could reasonably have been misled by them. If they accurately state the law and could not reasonably have misled the jury, we will not reverse even if they are in some way erroneous. State v. Mays, 277 Kan. 359, 378-79, 85 P.3d 1208 (2004).
Specific Intent
Elizabeth claims the district court erred in instructing the jury that specific intent was not required to prove a violation of the Kansas Securities Act. The district court instructed the jury, over Elizabeth’s objection, “No specific intent is required where one violates the Kansas Securities Act, except the intent to do the act denounced by statute.”
Notwithstanding the holdings in various Kansas cases to the contrary, Elizabeth claims that securities fraud under K.S.A. 2004 Supp. 17-1253 is a specific intent crime. The rule in State v. Hodge, 204 Kan. 98, 107, 460 P.2d 596 (1969), still applies: “No specific intent is necessary to constitute the offense where one violates the securities act except the intent to do the act denounced by the statute. [Citation omitted.]” See State v. Ribadeneira, 15 Kan. App. 2d 734, 750, 817 P.2d 1105, rev. denied 249 Kan. 778 (1991); State v. Kershner, 15 Kan. App. 2d 17, 20, 801 P.2d 68 (1990).
This rule was found in Ribadeneira to apply to the particular statute under which Elizabeth was convicted, K.S.A. 2004 Supp. 17-1253(a). Elizabeth urges us to reconsider Ribadeneira because the court used the reasoning in Hodge. Elizabeth claims Hodge is not applicable because it did not involve a securities fraud violation under K.S.A. 2004 Supp. 17-1253. The defendant in Hodge was convicted of selling unregistered securities and of failing to register as a broker-dealer for their sale. With regard to the issue of intent, this is a distinction without a difference. The Supreme Court couched its language in Hodge to apply to the entire Kansas Securities Act, not just the sale of unregistered securities by an unregistered broker. We are duty bound to follow Hodge absent an indication that the Supreme Court is departing from its position. State v. Jackson, 30 Kan. App. 2d 288, 299, 41 P.3d 871 (2002). We see no such indication. The general-intent principle in Hodge applies to Elizabeth’s crime of securities fraud.
Further, this interpretation is consistent with the opinion of the United States Supreme Court in considering § 17(a) of the Secu rities Act of 1933 in Aaron v. SEC, 446 U.S. 680, 64 L. Ed. 2d 611, 100 S. Ct. 1945 (1980). Our Kansas statute at issue closely follows § 17(a) of the 1933 Act. The Supreme Court found no scienter requirement in the subsections comparable to those under which Elizabeth was tried. We pay particular attention to cases interpreting the Federal Securities Act of 1933, upon which the Uniform Securities Act and the Kansas Securities Act were patterned. Kershner, 15 Kan. App. 2d at 18. Thus, pursuant to the provisions of the statute upon which Elizabeth was convicted, scienter was not required.
Aiding and Abetting
The district court also gave the following instruction on aiding and abetting:
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels, procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of a crime.”
Elizabeth does not claim there was insufficient evidence to support the giving of this instruction. Rather, she claims that even if scienter is not required in order to establish a securities violation, the “no specific intent is required” instruction we discussed earlier should not have been given because it conflicts with the jury instruction on aiding and abetting, which is a specific intent crime.
In State v. Amos, 271 Kan. 565, Syl. ¶ 2, 23 P.3d 883 (2001), the court stated:
“The State need not charge aiding and abetting in the charging document in order to pursue an aiding and abetting theory at trial. If, from the totality of the evidence, a jury reasonably could conclude that the defendant aided and abetted another in the commission of the crime, then it is appropriate to instruct the jury on aiding and abetting.”
Elizabeth was not charged with aiding and abetting. Nevertheless, this instruction on aiding and abetting properly sets forth the law that supported one of the State’s trial theories: that Elizabeth is guilty of illegal conduct in the offer, sale, or purchase of securities in violation of K.S.A. 2004 Supp. 17-1253 because she aided and abetted Michael in the scheme to defraud investors.
If the jurors properly determined from the facts that Elizabeth acted as a principal in the scheme to defraud investors, then the mere doing of the act prohibited by the statute supports a conviction without a showing of specific intent. If, on the other hand, they determined she merely aided and abetted Michael in the fraud, this instruction gave them proper guidance on the specific intent needed to support such a finding. Thus, the instruction properly states the law, was warranted under the facts, and was not the source of potential juror confusion.
Sufficiency of the Evidence Guilt as a Principal
Elizabeth argues that she should have been charged with the crime of aiding in a felony, rather than as a principal. The essence of her argument appears to be a challenge to the sufficiency of the evidence to support her conviction as a principal. In considering this argument, we review the evidence in the light most favorable to tire State to determine if there is substantial competent evidence to support Elizabeth’s conviction. See Mays, 277 Kan. at 377.
As disclosed in the amended information, Elizabeth was charged with securities fraud in connection with transactions involving Nathela Crooks, Abdul Ghafoor, Inge Cochran, and Juli Rhame. She was found guilty of the charges involving Ghafoor, Cochran, and Rhame. With respect to Rhame, the jury found Elizabeth guilty based upon the offer of the securities since no sale was completed.
There was substantial competent evidence that both Ghafoor and Cochran invested their money with the Mehlings based on statements made by Elizabeth. Ghafoor made references to statements “they” made, referring to statements by Michael and Elizabeth. Viewed in a light most favorable to the State, tírese included statements by Elizabeth that Ghafoor would be investing in a good project that the Mehlings had faith in, that they would pool Ghafoor’s money with money from other investors, and that Ghafoor would double his money in 3 or 4 months.
Elizabeth told Cochran that the program to invest overseas was wonderful and would be a good thing for Cochran to invest in. She told Cochran that she and Michael had made investments through the program, and she guaranteed to Cochran that there was no risk of Cochran losing her money. She described to Cochran the details of overseas investing. She assured Cochran that the overseas traders involved in the program were honest, and Cochran did not have to worry about it. Cochran was promised $1 million in a period of 2 months following a $15,000 investment.
Though Juli Rhame did not invest in the program, in an effort to get her to invest Elizabeth and Michael described the overseas investing program to her as an elite, invitation-only program. They told her that if she participated she would receive a return on her investment of 10% to 1,000% within 10 international banking days and that the program was risk-free.
There was substantial competent evidence to support Elizabeth's convictions as a principal on these three counts.
Sufficiency of the Evidence Guilt as an Aider and Abetter
Elizabeth claims there was insufficient evidence to convict her of aiding and abetting securities fraud, which involves specific intent, because the State did not present any specific evidence regarding her intent. Specific intent, however, may be established by inferences reasonably deduced from the facts and circumstances of the case. State v. Pratt, 255 Kan. 767, 769, 876 P.2d 1390 (1994).
Were there facts and circumstances here from which the jury could have reasonably concluded that Elizabeth acted with the requisite intent? Clearly, there were. Elizabeth had experience as a licensed mutual funds sales person and financial planner even before she met and married Michael. She and Michael operated as a team in their overseas investment program. Together they made representations to prospective investors to solicit funds. They were partners in Dunromin, through whose account they funneled investor funds. They transferred investor funds to their personal account. Elizabeth can be found guilty of securities fraud as an aider and abetter if she intentionally assisted Michael in defrauding investors or soliciting investors through fraudulent means. Elizabeth does not question Michael’s guilt. Nor do we. There was sufficient evidence for a reasonable jury to find that Elizabeth had the spe cific intent necessary to aid and abet Michael in the commission of their criminal acts.
Cumulative Errors
There being no errors to accumulate, Elizabeth’s claim of cumulative errors that require reversal fails.
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Caplinger, J.:
This appeal arises from two separate incidents of driving under the influence. Although Jarrell pled guilty to both offenses on the same date, we affirm the trial court’s treatment of Jarrell’s convictions as third and fourth convictions for sentencing purposes.
On September 26, 2002, Jarrell was charged in case No. 02CR2610 with driving under the influence of alcohol (DUI) and driving while suspended. The DUI was charged as a nonperson felony, and the complaint alleged the offense occurred on or about May 9, 2002, and was Jarrell’s third DUI offense. The complaint specifically recited Jarrell’s prior convictions of April 9, 1998, and August 31, 2001.
Nearly 1 year later, on September 4, 2003, Jarrell was charged in case No. 03CR1862 with a subsequent DUI offense, allegedly committed on or about September 19, 2002. This DUI charge also was alleged to be a nonperson felony and recited Jarrell’s prior 1998 and 2001 DUI convictions.
Jarrell entered guilty pleas in both cases on December 8, 2003. The plea agreement disposed of both cases in one hearing; however, the cases were not formally consolidated. The trial judge stated at sentencing that he considered the matters to be “a consolidated proceeding.”
Prior to sentencing, Jarrell filed a “Motion to Impose Sentence Under Penalty Provision of K.S.A. 8-1567(f) (2002 Supp.),” arguing he should be sentenced as a third-time offender on each of the December 8, 2003, DUI convictions. The trial court sustained this motion as to case No. 02CR2610, but overruled the motion in case No. 03CR1862. Thus, Jarrell’s conviction in case No. 02CR2610 was treated as a third conviction for sentencing purposes and his conviction in Case No. 03CR1862 was treated as a fourth conviction. Jarrell was sentenced accordingly.
On appeal, Jarrell contends because the two convictions were simultaneously imposed, he should have been sentenced as though each conviction was a third conviction, rather than one conviction being a third conviction and the other a fourth.
The record reveals otherwise. Jarrell’s two convictions were imposed under two separate complaints and case numbers. And although the trial court stated at sentencing that it considered “the cases — the two new pleas and the two different cases to be a consolidated proceeding,” at the plea hearing, Jarrell entered his guilty pleas separately according to case number and count.
K.S.A. 8-1567(f), which applies to case No. 02CR2610, states in relevant part:
“On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,500 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days’ imprisonment. The court may also require as a condition of parole that such person enter into and complete a treatment program for alcohol and drug abuse . . . .”
K.S.A. 2002 Supp. 8-1567(g), which applies to case No. 03CR1862, states in relevant part:
“On the fourth or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less dian 90 days nor more than one year’s imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days’ imprisonment. . . . After the term of imprisonment imposed by the court, the person shall be placed in the custody of the secretary of corrections for a mandatory one-year period of post-release supervision, which such period of postrelease supervision shall not be reduced. During such postrelease supervision, the person shall be required to participate in an inpatient or outpatient program for alcohol and drug abuse . . . .”
The trial court, in rejecting Jarrell’s argument, noted that K.S.A. 8-1567 does not refer to “prior convictions” for sentence enhancement, but rather uses only numerical counting in determining sentence severity. Further, the trial court recognized the specific intent of the legislature to more severely punish DUI multiple offenders.
Jarrell argues the sentencing court rejected the commonsense notion of what constitutes a prior conviction. He supports this contention by citing the ordinaiy, dictionary meanings of the words “fourth,” “precede,” and “subsequent.”
In interpreting statutes, “[ordinary words are to be given their ordinary meanings . . . [Citation omitted.]” GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
“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. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citation omitted.]” State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).
K.S.A. 8-1567 does not use the phrase “prior convictions” and provides specific guidance regarding calculation of DUI offenses. It states in part:
“(1) for the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:
(3) any convictions occurring during a person’s lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender;
(4) it is irrelevant whether an offense occurred before or after conviction for a previous offense.”
Here, Jarrell first pled guilty to two counts in case 02CR2610. The trial court then stated: “Then in 03 CR 1862, in Count 1 you’re charged with felony driving under the influence of alcohol. How do you plead to that charge?” Jarrell signed an acknowledgment of rights and entry of plea which separately listed the two cases and the charges in each. Additionally, the State’s sentencing recommendation recited that the State recommended concurrent sentencing in each individual case, but consecutive sentencing between the two cases. The recommendation specifically reserved the right to urge consecutive sentencing between 02CR2610 and 03CR1862.
While the trial court noted it considered the cases consolidated, the charges did not arise from a consolidated complaint. See State v. Roderick, 259 Kan. 107, 115, 911 P.2d 159 (1996) (finding that prior convictions include “multiple convictions entered on the same date in different cases for purposes of sentencing for any of those convictions” in the context of sentencing guidelines cases). While DUI is a non-grid offense and the sentencing guidelines do not apply, the standards regarding prior convictions are persuasive when contrasted against the very specific language of the DUI statute and its lifetime conviction provision, numeric classification of convictions, the mandatory nature of the provisions, and the timing provision regarding conviction calculation. Additionally, in the context of guideline cases, only convictions on counts from a consolidated complaint are excluded from calculation as prior convictions. See K.S.A. 2002 Supp. 21-4710(a).
Here, the cases were not formally consolidated, the charges did not arise from a single complaint, and the integrity of the separate complaints was maintained throughout the proceedings. Jarrell pled guilty to the DUI charge in 02CR2610 before he pled guilty to the charge in 03CR1862. Accordingly, we affirm the trial court’s treatment of Jarrell’s convictions in case No. 02CR2610 and No. 03CR1862 as third and fourth convictions for sentencing purposes.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Joan M. Hawkins, of Lawrence, an attorney admitted to the practice of law in Kansas in 1999.
On June 11, 2014, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). After filing a motion for extension of deadlines and/or stay to obtain counsel and a motion to continue, which were granted, the respondent filed an answer on August 8, 2014. A prehearing conference was held on October 2, 2014, and a hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 9 and 10 and November 20, 2014, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.16(d) (2015 Kan. Ct. R. Annot. 572) (termination of representation); 3.2 (2015 Kan. Ct. R. Annot. 595) (expediting litigation); 3.3(a)(1) (2015 Kan. Ct. R. Annot. 601) (candor toward tribunal); 3.4(d) (2015 Kan. Ct. R. An-not. 609) (failure to comply with discovery request); 8.1(b) (2015 Kan. Ct. R. Annot. 661) (knowingly failing to respond to a lawful demand for information from a disciplinary authority); 8.4(c) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct involving misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice).
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
“DA11619
“22. In 2011, the respondent represented B.S. in a post-divorce matter before the District Court of Jefferson County, Kansas. On November 14, 2011, tire respondent filed a motion to modify parenting time and child support. Julia Butler represented A.S., B.S.’s former wife.
“23. On Januaiy 10, 2012, the court held a hearing on the motion. Following the hearing, the court ordered the parties to participate in mediation in an attempt to reach a parenting plan. On March 20, 2012, the parties filed an agreed journal entry for parenting plan and a joint parenting plan.
“24.. On March 26, 2012, Ms. Butler sent the respondent an electronic mail message and attached the agreed journal entry regarding the parenting plan. Ms. Butler reminded the respondent that they still needed to figure out child support and that if they could not agree, the matter should be set for hearing.
.“25. On March 30, 2012, Ms. Butler sent an electronic mail message to tire respondent, attached a completed child support worksheet and alternatively provided two possible hearing dates in the event they were unable to come to an agreement about child support.
“26. On April 5, 2012, Ms. Butler again wrote to the respondent. Ms. Butler indicated that she had not heard back from the respondent and asked whether the hearing dates would work.
“27. On April 9, 2012, Ms. Butler wrote to the respondent again, asking whether the hearing dates worked for the respondent. On April 9, 2012, the respondent responded to Ms. Butler, indicating that her day had not gone according to plan but that she would contact Ms. Butler tire following day.
“28. On April 10, 2012, the respondent indicated that either of the two hearing times would work. Ms. Butler called the court, but, unfortunately, during the intervening 11 days, the court had scheduled other matters during the possible hearing times.
“29. On April 16, 2012, Ms. Butler informed the respondent that those two dates were no longer available and queried whether May 9, 2012, at 3:30 p.m. would work for the respondent and her client. The respondent did not respond to Ms. Butler’s April 16, 2012, email message.
“30. On April 20, 2012, Ms. Butler again asked whether May 9, 2012, at 3:30 p.m. would work for the child support hearing.
“31. On April 24, 2012, Ms. Butler again wrote to the respondent and informed the respondent that because the respondent had not replied to tire April 16, 2012, and April 20, 2012, email messages, Ms. Butler had scheduled the hearing for May 9, 2012, at 3:30 p.m.
“32. On April 27, 2012, the respondent wrote to Ms. Butler and indicated that her client was not available for a hearing on May 4th or May 5th. However, by this time, Ms. Butler had already told the respondent that the court no longer had those dates available and that the hearing was scheduled for May 9,2012.
“33. On May 1,2012, the respondent wrote to Ms. Butler twice. In one email message, the respondent informed Ms. Butler that Ms. Butlers email message from April 16, 2012, had ended up in her junk mail. The respondent did not mention Ms. Butler’s email messages from April 20, 2012, or April 24, 2012. In the other email message, the respondent made an offer to settle the child support matter.
“34. Also on May 1, 2012, the respondent wrote to her client to see if he would be available for a hearing on May 9, 2012, at 3:30 p.m. The respondents client informed the respondent that he was available for a hearing on May 9,2012.
“35. On May 7, 2012, tire respondents client wrote to the respondent and asked for confirmation that the hearing had been scheduled for May 9, 2012, at 3:30 p.m. before he asked for permission to take a day off from work. That same day, the respondent wrote to her client and indicated that she had not previously received a notice of the hearing. (However, Ms. Butler sent the notice of hearing via electronic mail message on April 24, 2012.) On May 7, 2012, the respondent also wrote to Ms. Butler and asked her about the status of scheduling A.S. and B.S. s motion hearing.
“36. On May 9, 2012, at 10:34 a.m., the respondent called the Jefferson County clerks office and spoke with Michelle Olberding. The respondent told Ms. Olberding that neither she nor her client would be appearing at the hearing in the afternoon, as Ms. Butler had 30 days to provide certain financial information and that she had not received proper notice of the hearing. Further, the respondent informed Ms. Olberding that she would contact Ms. Butler about the respondent’s request for a continuance. Ms. Olberding both immediately spoke with the chief clerk and made a note to the file, detailing the conversation.
“37. Sometime that day, Ms. Butler ran into the respondent on the corner of 8th and Vermont in Lawrence and confirmed that they hadaRearing scheduled for drat afternoon at 3:30 p.m. Ms. Buder acknowledged that the respondent had an outstanding offer to settle the child support issue. Ms. Butler agreed to contact her client to determine whedier her client was willing to accept tíre settlement offer. The respondent did not mention that she was interested in continuing the hearing.
“38. On May 9, 2012, at 12:36 p.m., the respondent filed a ‘motion for continuance and order for production’ with the Jefferson County District Court by facsimile.
“39. On May 9, 2012, at 12:57 p.m., Ms. Butler wrote to the respondent and informed her that her client was unwilling to settle the child support issue as the respondent proposed.
“40. At 2:23 p.m., just over an hour before the hearing'Was scheduled to begin in Jefferson County District Court, the respondent sent'Ms. Butler a copy of the ‘motion, for continuance and order for production’ which she had filed by facsimile approximately two hours earlier. Ms. Butler did not see the motion in her electronic mail inbox until later.
“41. At approximately 3:20 p.m., the clerk entered the courtroom where Ms. Butler and her client were waiting for the hearing to begin. Ms. Butler informed the cleric that they were not ready to proceed as the respondent and her client had not yet arrived. The clerk informed Ms. Butler that the respondent had called and informed the clerks office that neither she nor her client would be coming to the heaiing because she did not have proper notice of the hearing.
“42. Judge Nafziger entered tíre courtroom and informed Ms. Butler that the respondent filed a motion to continue shortly before the scheduled hearing time. Ms. Butler informed the judge that she had not received a motion to continue the hearing, that she had seen the respondent earlier in the day, and that the respondent did not mention that she was not coming to the hearing that day. At that time, Ms. Butler checked her electronic mail inbox on her mobile telephone and found that tire respondent had forwarded a motion to continue by electronic mail message.
“43. The court considered and denied the respondent’s motion to continue, as it was filed late and was not agreed to.
“44. After the court concluded the hearing, at 3:35 p.m., the respondent arrived at the Jefferson County Courthouse. Delpha M. Forshee, Deputy Clerk directed the respondent to Judge Nafziger’s courtroom. However, the court had already completed the hearing.
“45. The respondent did not attempt to reach Ms. Butler by telephone on May 9, 2012, until 3:41 p.m., after the respondent left the Jefferson County District Court.
“46. On May 15,2012, Ms. Butler forwarded a proposed journal entry to the respondent and to the court.
“47. On May 23, 2012, the respondent filed a motion to set aside judgment. The respondent based her motion on an allegation that the hearing was scheduled for 3:00 p.m. when it was actually scheduled for 3:30 p.m. The hearing was not scheduled for 3:00 p.m. It was scheduled for 3:30 p.m. Additionally, on June 1, 2012, the respondent filed objections to Ms. Butler’s proposed journal entry.
“48. On June 21, 2012, the court held a hearing on the respondent’s motion to set aside judgment and motion for rehearing. During the proceedings, the respondent denied stating to the clerk that neither she nor her client were going to be appearing at the May 9, 2012, hearing. Specifically, the respondent stated:
‘JUDGE NAFZIGER: I was advised that you had called the clerk’s office and told them you were not going to appear and that you had told your client not to appear, and that you had not had sufficient notice for the hearing, or something. And so, therefore, the presumption was you weren’t going to appear.
‘MS. HAWKINS: Well, actually I did not know [sic] notify the Court of that and, in fact, I’d had a discussion with opposing counsel during the course of the day and shortly before the hearing.
‘MS. HAWKINS: but regardless, I did not, I did not notify the Court and say I would not be here. I did notify the Court and say are there some alternate dates that we could select from if we agree to continue this. And I communicated those dates to Ms. Butler. She said I am not going to agree to continue it. I at no time did I say that I was not going to appear on the matter. I merely said I was filing a motion to continue. That I was fifing a motion to compel and that I did request some alternate dates but at no point did I tell anyone that I was not going to be here on that day.—
‘MS. HAWKINS: I, furthermore, do want to point out for tire record that notice was insufficient. This Court is very clear on die fact that I do not accept email service in any of my cases and it’s explicitly stated on all of my pleadings. The only communication I have ever received in this case from—
‘MS. BUTLEB: Judge, um, I did, and I had tried to, um, get in contact with Ms. Hawkins numerous times to get a hearing date set and did not receive any response from her. So, finally I contacted the clerk’s office, got the healing date of May 9th at 3:30 and from the beginning of this case I have scanned all pleadings and emailed them to Ms. Hawkins to make sure that there is no miscommunication on the dates or times that these matters are supposed to be heard. I did provide her at die initial fifing of this action, copies of my client’s tax returns from 2009 and 2010 and a copy of her D, DRA, and I did it all via, um, email. And, Ms. Hawkins has sent me, um, a pleading via email, as well. So, I don’t think diere’s any problem, with, um, her stated receipt of various documents. She did include in her motion, um a copy of the email that I sent her with the dates and the time and that notice of hearing was attached. Judge, when I arrived on May 9th with my client, um, I was sitting in the courtroom, and I don’t know'the young lady’s name that, that sits here, but she came in and said that we were ready to go, and I said, Ms. Hawkins isn’t here yet. And I had told her that I did see Ms. Hawkins earlier that day and it was my understanding that she was coming.
‘JUDGE NAFZIGER: —Okay—
‘MS. BUTLER: -1 did not know that she was not going to be here. And I did state that to her and I did state that, uh, Your Honor, when you came out onto the bench. So it should be on the record.
‘JUDGE NAFZIGER: I guess the information that I had that she wasn’t coming came from the clerk’s office, because she called.’
“49. Ms. Olberding was in the courtroom and heard the respondent’s statements. Following the hearing, Ms. Olberding made a memorandum regarding what transpired in the courtroom. Ms. Olberding’s statement includes the following:
‘. . . [The respondent] said that she did call the Court on May 9 but claims that she did not tell the Cleric that she nor her client was [sic] not appearing, which is what she told me on the phone. She told the Judge that his Court has miscommunications and didn’t understand why that was said to him. He asked her that if she didn’t tell her client not to show up, why wasn’t he here that day? She said that she told him he wasn’t needed. The Judge said isn’t that the same as telling him not to come? She then hesitated and said yes it was.
‘It was an insult and upsetting to sit there and listen to her lies. I would never malee anything up and I even notated it in Full Court and informed the Clerk of the conversation afterward on May 9 because the whole conversation in general was odd.’
“50. On June 26, 2012, Connie Milner, Cleric of the District Court of Jefferson County, Kansas, memorialized her conversations with Ms. Olberding regarding the respondent’s May 9, 2012, statements. Ms. Milner’s memorandum provides:
T want to respond to the veracity of Michelle Olberding, a deputy clerk in my office, that on die morning of May 9, 2012, she spoke with Joan Hawkins on the phone. After she hung up she immediately turned around and told me that Ms. Hawkins had stated that neither she nor her client would be attending the hearing set for 3:30 that afternoon as she hadn’t received proper notice and was still waiting on financial information. I told Michelle to make a note of the conversation in the case which she did.’
“51. In her initial response to the disciplinary complaint and in her testimony during the formal complaint, the respondent denied stating to Ms. Olberding that neither she nor her client would be appearing at the hearing, as follows:
‘My mind was reeling at that point because (1) the hearing was scheduled at 3:30 p.m. (2) I did not recall telling anyone that I did not intend to attend the hearing; and (3) I appeared.
‘Rather than believe someone called pretending to be me and told the court I would no.t be there, the only conclusion I can draw is that there was an error in communication. Regardless of what actually happened I am confident that I did not provide false or inaccurate information to the court or its personnel. My appearance is proof of my intent.’
And, during questioning by Ms. Knoll, the respondent testified as follows:
‘Q. Okay. Had you called' tire Clerk’s Office prior to 3:30 on May 9th?
‘A. Yes.
‘Q. And what was the purpose of that call?
‘A. Um, I had called earlier in the day to say if we greed [sic] to continue this what would be some possible future dates.
‘Q. And did you have any other discussion?
‘A. I mean;¡that was tire gist of tire call.
‘Q. Did you tell them that you were not planning on attending?
‘A. No.
‘Q. Did you tell them that your client was not planning on being there?
‘A. No, at that point I didn’t know.’
“52. Ms. Olberding also testified at the hearing on the formal complaint. Ms. Olberding clearly testified that tire respondent stated that she was not going to appear at tire hearing that day because she had not received proper notice of tire hearing.
“53. During the hearing, the hearing panel had the opportunity to observe the testimony and demeanor of all of the witnesses .Based upon their personal observations of the witnesses, the hearing panel finds that Ms. Olberding’s testimony was credible with supporting corroboration on her actions and character from the chief clerk, Connie Milner. Likewise, the hearing panel finds that the respondent’s testimony to lack credibility on this issue.
“DA11637
“54. On approximately September 29, 2010, M.S. retained the respondent to represent her in a child in need of care action. In April 2012, M.S. informed the respondent that she wished to retain new counsel.
“55. On April 30, 2012, the case manager in M.S.’s case made written recommendations. M.S. had ten days to file written objections to the case manager’s written recommendations.
“56. On May 2,2012, M.S. left a hand-written note addressed to the respondent at the respondent’s office, requesting the return of her file. That same day, on May 2, 2012, the respondent acknowledged that she received M.S.’s request for the return of her file. Knowing of the deadline to file objections to the case manager’s recommendations, the respondent told M.S. that her file would not be ready to be picked up until May 10,2012. The respondent offered to continue the representation until M.S. picked up her file.
“57. On May 2, 2012, or May 3, 2012, Amy Durkin entered her appearance on behalf of M.S. On May 8, 2012, the respondent acknowledged that she had received Ms. Durian’s entry of appearance.
“58. On May 10,2012, pursuant to the respondent’s instructions, M.S. picked up her file from the respondent’s office. The respondent required M.S. to sign a receipt when she picked up tire file. The receipt provided as follows:
This is to certify that on this date I have received the original documents and exhibits I submitted, along with pleadings, exhibits, and correspondence from the law office of J. Hawk Law Ltd.
T understand there are certain items to which I cannot directly receive, and those items to-wit: psychological evaluation, police reports, will be forwarded directly to my attorney, Amy Durkin.
T have had the opportunity to review tire items returned and it does contain those items listed above, less those items that I cannot directly receive.’
The respondent also signed the receipt. Despite the respondent’s statement in the receipt, the respondent never forwarded the psychological report or police reports to Ms. Durkin and the respondent still had these in her possession on the date of tire hearing, over two and one-half years later.
“59. Ms. Durkin testified that had she timely received the psychological evaluation and police reports, she may have filed objections to the case manager’s report, as M.S. was not satisfied with the recommendations. However, she did know for certain that she would have filed written objections because to date, she has never received the reports from the respondent. (Ms. Durkin also testified that because she did not file objections to the case manager’s report and that because M.S.’s former husband is no longer having contact with the children, obtaining the psychological report and police reports is no longer necessary for the representation of her client.)
“60. After retrieving her file from the respondent, on several occasions, M.S. requested an accounting of the advanced fee paid to the respondent and a refund of unearned fees. Despite what can be found in Disciplinary Administrator’s Exhibits 45 and 46, M.S. only received three itemized bills from the respondent. Eventually, on July 9, 2012, the respondent returned $691.17 to M.S. Then, on August 13, 2012, the respondent returned an additional $215.00 to M.S. as unearned fees.
“61. On July 24,2012, M.S. filed a complaint against the respondent with the disciplinary administrator’s office. Leslie Miller, an attorney practicing in Lawrence and a member of the Douglas County Ethics and Grievance Committee was appointed to investigate M.S.’s complaint against the respondent.
“62. During the investigation, Ms. Miller scheduled an interview of the respondent. Ms. Miller directed the respondent to bring her file regarding her representation of M.S. to the scheduled interview. The respondent did not bring any documents with her to the scheduled interview. When Ms. Miller asked the respondent for her file, the respondent stated that she had provided the original file to M.S. and did not maintain a copy of tire file. Later, however, the respondent acknowledged that she did have some electronic mail messages regarding M.S. The respondent did provide Ms. Miller with a couple of electronic mail messages. Ms. Miller’s impression was that the respondent did not provide all that she had regarding M.S. Additionally, clearly, the respondent also had billing records pertaining to M.S. that she failed to provide to Ms. Miller at tire time of the interview.
“63. At some point, Ms. Miller requested that tire respondent provide trust account records. Ms. Miller provided the respondent with a deadline to provide the records. The deadline came and went and the respondent did not provide the requested records. Later, rather than provide trust account records, the respondent provided Ms. Miller with billing records and a ‘funds transaction listing.’ Ms. Miller clarified that she was seeking trust account records from the bank. Eventually, counsel for the respondent provided Ms. Miller with the trust account records from the bank.
“DA11730
“64. On August 24, 2012, R.G. filed an action in divorce from his then wife, J.G. Suzanne Valdez and Branden Smith represented R.G.
“65. Thereafter, on September 21, 2012, the respondent entered her appearance on behalf of J.G. That same day, the respondent filed a parenting plan which purported to outline the wishes of J.G. as they related to custody and parenting time of the couples four children. In the parenting plan, the respondent sought sole legal custody for J.G., the respondent asserted that R.G. should be allowed limited supervised visitation, and the respondent asserted that custody and parenting time disputes be submitted to a mediator experienced with domestic violence issues. J.G. advised R.G. thereafter that she did not intend to pursue sole legal custody, did not think that his visits needed to be supervised, and did not authorize the respondent to include those statements in the parenting plan.
“66. After the respondent submitted the parenting plan, on September 26, 2012, counsel for R.G. wrote to the respondent and demanded that the respondent withdraw the parenting plan because it contained false and defamatory statements about R.G.
“67. On October 1,2012, counsel for R.G. filed a motion to strike the parenting plan. That same day, the respondent filed a motion to withdraw the temporary parenting plan, a motion to vacate or modify the ex -parte orders, and a new parenting plan.
“68. On October 2, 2012, the court conducted a hearing regarding the temporary orders and parenting plan. Thereafter, counsel attempted to negotiate the language of the journal entry. Counsel were unable to reach agreements as to language to include on all matters.
“69. On October 9, 2012, the respondent forwarded a temporary parenting plan and a temporary order to the court for consideration. Ms. Valdez did not sign the temporary parenting plan nor did she sign the temporary order. The respondent’s cover letter which accompanied the temporary parenting plan and the temporary order provided as follows:
1 submit the enclosed Temporary Orders and Temporary Parenting Plan following the hearing on October 2, 2012.
‘Ms. Valdez and I have exchanged the documents and I submit them with those revisions we have approved, along with our email correspondence reflecting tire same.
‘There is presently some slight confusion over whether or not your order included any adjustments on the child support worksheet so Ms. Valdez is scheduling a time for us to review the recording. As indicated in the temporary order we will submit a separate order with the child support worksheet, or if we cannot reach a consensus [sic] will submit the order pursuant to Rule 170.
‘Because R.G. is arriving for his first visit this evening we believe we can best promote harmony between the parties if we have these orders approved and filed prior to Iris arrival.’
“Based upon the respondent’s statement that Ms. Valdez approved the language contained in the temporary parenting plan and temporary order, Judge Sally Pokomy entered the two orders. However, Ms. Valdez had not approved the revisions to tire temporary parenting plan and the temporary order. Further, additional items in tire respondent’s cover letter were also false. Ms. Valdez was not scheduling a time for counsel to review tire recording of the October 2, 2012, hearing. And, Ms. Valdez did not ‘believe’ it was necessary to have the orders approved and filed prior the R.G.’s arrival to promote harmony. On the temporary parenting plan and tire temporary order which was signed by the respondent and the court, the words ‘see email approval’ appear where Ms. Valdez’ signature should have been.
“70. On February 4, 2013, the court held a pretrial conference in anticipation of trial scheduled for May 9,2013. At that time, tire court ordered the respondent to provide Ms. Valdez with a copy of the respondent’s expert witness report by February 25, 2013. The respondent failed to do so.
“71[a]. On February 15, 2013, Ms. Valdez took J.G.’s deposition. During the deposition, Ms. Valdez asked J.G. a question about wlrat J.G. would like to have to settle the divorce case. The respondent instructed J.G. to not answer drat question posed by Ms. Valdez.
“71[b], On April 1, 2013, the court held a hearing on Ms. Valdez’ motion to compel. At that time, the court ordered the respondent to provide a copy of dre respondent’s expert witness report by April 15, 2013. The respondent failed to do so.
“72. The respondent finally provided the expert witness report on April 17, 2013. At the time the respondent provided Ms. Valdez witir a copy of the expert witness’ report, the respondent also provided a copy of the report to dre court, in violation of K.S.A. 60-226.
“73. Ms. Valdez contacted tire respondent by electronic mail and requested that the respondent withdraw the report from the court, until tire court ordered it to be filed with thé court. The respondent did not withdraw the report.
“74. On April 25, 2013, Ms. Valdez filed a motion to strike J.G.’s expert witness report, to disallow certain testimony, and for sanctions.
“75. On April 29, 2013, the court ordered the respondent to produce all documents requested in R.G.’s second request for production of documents. Additionally, the respondent was to forward a ‘succinct’ settlement proposal to Ms. Valdez or Mr. Smith within 24 hours. The respondent failed to comply with tire court’s order.
“76. On May 3, 2013, Mr. Smith filed a motion for emergency relief and for sanctions against J.G. and the respondent. In the motion, Mr. Smith alleged that the respondent J.G. was deliberately disobeying the court’s order to produce certain documents. The court denied Mr. Smith’s motion.
“77. On May 6, 2013, Mr. Smith filed a motion for an order to appear and show cause. Along with the motion, Mr. Smith provided an affidavit which detailed that the respondent violated the court’s April 29, 2013, order. On May 7, 2013, the court issued an order to the respondent to appear and show cause. On May 23, 2013, the respondent appeared on the order to show cause. During the hearing, the court instructed Mr. Smith to provide an affidavit detailing his attorney fees if he intended to pursue them. On July 10, 2013, Mr. Smith filed an affidavit of attorney’s fee.
“78. On August 14,2013, the court entered a memorandum decision regarding attorney fees. The memorandum decision included the following:
‘Pending in this divorce case is the request for attorney fees by Branden Smith, who represented [R.G.]. [R.G.]’s primary attorney was Suzanne Valdez but Mr. Smith also appeared in court. This case was filed August 4, 2012, [sic] and was set for trial on May 9, 2013. Ms. Hawkins represented [J.G.]
‘A final pre-trial conference was held on April 29, 2013. Although the case was just shy of 9 months old, all requested discovery had not been produced. Previous motions to compel had been filed by both parties. A motion to compel [J.G.] to comply had been filed and was heard on April 1, 2013.
‘One issue at tire pre-trial conference concerned the then-recent deposition of [J.G.]. Ms. Hawkins had canceled the first deposition. Then when the deposition occurred, Ms. Hawkins directed [J.G.] not to answer questions regarding her position and objectives with regard to debts, assets, and tire intended outcome of this case. At the pretrial conference, [R.G.]’s counsel stated drat the deposition was long (almost 8 hours) but nevertheless unproductive in that [R.G.] apparendy still did not know what [J.G.] was seeking in a settlement or resolution of tire case. [J.G.j’s attorney Ms. Hawkins stated that she had directed [J.G.] not to answer deposition questions because settlement discussions are not admissible in court. Ms. Hawkins admitted that she erred in instructing her client not to answer these questions. As far as this Court could discern, it appeared that Ms. Hawkins and her client either did not know what they wanted from tiris litigation or were not in agreement on that subject. At tire time, the Court ordered Ms. Hawkins to provide a settlement statement t% [R.G.]’s lawyer within 24 hours.
‘[R.G.] also expressed objection to the fact that [J.G.] counsel had filed and faxed the expert report to court chambers, when K.S.A. 60-205(d) states that only a certificate of service need be filed for expert disclosures. [R.G.] was concerned that [J.G.] was attempting to bias the Court by supplying premature information, some of which was arguably inadmissible.
‘As part of discovery, [R.G.] requested adoption documents in [J.G.] possession. Allegations of domestic violence first surfaced in these divorce proceedings. These essentially undocumented allegations resulted in a military investigation of [R.G.]. The couple had adopted two children, ages XX and XX at the time of filing. Since adoption proceedings typically entail written applications, home studies, and in-depth interviews with prospective parents, such adoption files were recent and relevant, could be discovered, and could be potentially important.
‘Ms. Hawldns stated that she had not received all the financial documents requested (for the past 10 years), and the Court ordered that tire law [sic] three years of financial documents at issue be produced. At the pretrial conference, the Court ordered [J.G.] to produce the adoption records for die parties’ children and to provide a settlement offer to [R.G.] within 24 hours, and ordered [R.G.] to produce the additional financial records. At no time did Ms. Hawldns object to producing these documents or claim a privilege.
‘The parties agreed to exchange documents at 4:30 p.m. on May 1, 2013. Shortly before 4:30 p.m., Ms. Hawldns emailed that she would not allow Mr. Smith to remove the adoption documents from her office and apparently refused to copy the documents. On May 2, 2013, Ms. Hawldns emailed and said she would produce some documents later that day. On May 3, 2013, Ms. Hawldns delivered the adoption document, which deliv-eiy contained 64 pages of typed information, plus 45 blank pages scattered throughout the document. Upon review, Mr. Smith declared that documents were missing from the adoption files and the files were incomplete. Mr. Smith then filed an ex parte motion for emergency relief and sanctions, which the court denied. In that motion, he requested attorney fees, as well as seeldng [sic] strike [J.G.] s defense of fault in the marriage.
‘Upon the court’s refusal to grant an ex parte hearing for emergency relief, Mr. Smith then filed an affidavit and Motion for an Order to Appear and Show Cause why she should not be found in indirect contempt, which repeated many of tire foregoing issues. The contempt matter was heard in May 23, 2013. In the meantime, the parties announced a settlement agreement in court on May 9, 2013. The agreement was detailed, but the parties had difficulty in drafting a journal entry based upon the settlement agreement they had reached. At the contempt hearing, many requests were moot, because the parties had settled the matter. The Court took the issue of attorney fees nnder advisement. On July 10, 2013, Mr. Smith filed an affidavit and bill further detailing the time he had claimed in previous motions related to discovery issues and motions regarding the same, at a rate of $175/hr.
‘The Court will grant attorney fees in this case, pursuant to K.S.A. [2013 Supp.] 60-237(b)(2)(C). That provision states that if a party or a party’s officer fails to obey an order to provide or permit discovery, “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” The [J.G.] .and her attorney did not offer a substantial justification for this delay.
‘This Court does not expect to hear so many last-minute discoveiy motions in a given case and hear that a lawyer instructed her client not to answer repeated valid questions at a deposition or hear that a lawyer agreed in court to produce a document and was ordered to produce the document but ultimately sent 45 blank pages in a document without lodging any formal objection to producing it. The Court has reviewed Mr. Smith’s affidavit requesting 15.6 billable hours for $2,730.00. The court attributes 9 hours to the failure of Ms. Hawkins to turn over discovery and awards attorney fees to Mr. Smith of $1,575.00, (9 hours @ $175/hr.), to be paid by Ms. Hawkins. The Court assesses the fees against Ms. Hawkins, the attorney, because [J.G.] provided die documents to her attorney, who did not turn them over. Ms. Hawkins is directed to pay these fees in 60 days.’
“79. On August 23, 2013, the respondent appealed the court’s order.
“80. In die divorce decree, the court awarded marital property located in Alabama to R.G. The court ordered J.G. to execute a quit claim deed in favor of R.G. J.G. executed die quit claim deed and provided it to the respondent. During die pendency of die appeal, the respondent refused to turn over the quit claim deed to opposing counsel until a journal entry and other court orders were agreed to. In the spring 2014, after the disciplinary administrators office became involved, the respondent finally turned over die quit claim deed.
“81. On November 18, 2013, Ms. Valdez filed a motion for an involuntary dismissal of the appeal. Thereafter, on December 9, 2013, the Kansas Court of Appeals granted Ms. Valdez’ motion and dismissed the appeal. However, on December 27, 2013, die respondent filed a motion to reinstate die appeal. Ms. Valdez did not respond to die respondent’s motion and the court reinstated the appeal.
“82. To date, the respondent has not paid the sanction of attorney fees ordered by die district court as the issue remains pending on appeal before the Kansas Court of Appeals.
“DA11918
“83. Following a court hearing on October 12, 2012, G.R met witii the respondent seeking representation in a protection from abuse- case filed by T.S. Additionally, G.P. sought to retain the respondent to seek to obtain grandparent visitation rights. On October 15, 2012, the respondent ran a conflict check. The respondent’s check did not reveal a conflict. GR. paid die respondent $1,100 for the representation.
“84. On October 29, 2012, the respondent wrote to GR. detailing the terms of the representation. On October 31, 2012, the respondent entered her appearance on behalf of GR. At that time, a hearing was scheduled for November 13, 2012, in the protection from abuse case.
“85. At some point, GR. told the respondent she needed 10 to 14 days advance notice to arrange for transportation to and from scheduled hearings. GR. did not tell die respondent that she could not attend court hearings because she did not have transportation. She simply told the respondent that she needed advanced notice to make necessary arrangements.
“86. The respondent and Bethany Roberts, opposing counsel, agreed to con tinue the hearing. The respondent prepared and signed an agreed order. The respondent forwarded tire order to Ms. Roberts who also signed the order. Later, the court entered the order and continued the hearing to January 3, 2013. However, the respondent failed to inform G.P. that the case had been continued and on November 13, 2012, G.P. traveled from Eudora, Kansas, to the Shawnee County District Court for the hearing.
“87. On December 29,2012, the respondent sent an electronic mail message to Ms. Roberts. In the message, tire respondent stated:
‘My client informs me that she has difficulty with transportation. Wondering if you would be agreeable to reschedule if she cannot be there on tire 3rd.
T am meeting with her Monday about your proposed agreed order. Honestly don’t think she is going to agree but will see.’
At no time, did G.P. tell the respondent that she could not attend the hearing on January 3, 2013, because of a lack of transportation.
“88. On December 31, 2012, the respondent and G.P. spoke by telephone. The respondent informed G.P. that she was going to visit with Ms. Roberts about the hearing and would be in touch. The respondent did not call G.P. prior to the hearing.
“89. Because tire respondent informed her that G.P. was unable to attend tire hearing because of transportation problems, Ms. Roberts agreed to continue the hearing scheduled for January 3, 2013.
“90. On January 3,2013, G.P. repeatedly called the Shawnee County District Court to ask whether tire hearing remained scheduled to be heard that day. G.P. was repeatedly told that the hearing was proceeding that day, as an order continuing it had not been entered. On January 3, 2013, the court called G.P.’s case. Ms. Roberts informed the court, based upon the respondent’s statements, that G.P. was unable to attend the hearing due to transportation problems and that Ms. Roberts had agreed to present the respondent’s agreed order to continue the case on the respondent’s behalf. At that time, G.P stood up in the courtroom and announced her presence. The court continued the hearing to February 5, 2012.
“91. On January 16, 2013, T.S. informed Ms. Roberts that dre respondent had previously represented her. Thereafter, Ms. Roberts informed the respondent of dre conflict. At that time, the respondent did not inform G.P. of dre conflict.
“92. On February 3, 2013, Ms. Roberts informed the respondent that T.S. declined to waive dre conflict. On February 5, 2012, dre date of the next scheduled hearing, dre respondent filed a motion to witirdraw from tire representation due to the conflict of interest. G.P. first learned of tire conflict on February 5, 2013, when the respondent sought to witirdraw from the representation.
“Conclusions of Law
“93. Based upon the findings of fact, tire hearing panel concludes as a matter of law that in DA11619, the respondent violated KRPC 3.2, KRPC 3.3, KRPC 8.4(c), and KRPC 8.4(d); in DA11637, the respondent violated KRPC 1.16(d) and KRPC 8.1(b); in DA11730, the respondent violated KRPC 3.2, KRPC 3.3, KRPC 3.4, KRPC 8.4(c), and KRPC 8.4(d); and in DA11918, the respondent violated KRPC 3.3, as detailed below. [Footnote; In addition, Ms. Knoll alleged that the respondent also violated KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.9, KRPC 1.15, and KRPC 3.1. The hearing panel concludes as a matter of law that clear and convincing evidence was not presented to establish that the respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.9, KRPC 1.15, and KRPC 3.1. Accordingly, the hearing panel dismisses the allegations that the respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.9, KRPC 1.15, and KRPC 3.1.]
“KRPC 1.16
“94. KRPC 1.16 requires lawyers to take certain steps to protect clients after the representation has been terminated. Specifically, KRPC 1.16(d) provides as follows:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
The respondent violated KRPC 1.16(d) in connection with her termination of representation of M.S. In that case, the respondent failed to timely provide the psychological report and police reports to Ms. Durkin in DA11637. Further, the respondent delayed in providing the file to M.S. when M.S. had only 10 days to determine whether to file written objections to the case manager’s written recommendations. Finally, the respondent failed to timely refund unearned fees to M.S. As such, tire hearing panel concludes that the respondent violated KRPC 1.16(d) in connection to the respondent’s termination of representation of M.S.
“KRPC 3.2
“95. An attorney violates KRPC 3.2 if she fails to make reasonable efforts to expedite litigation consistent with the interests of his client. The respondent failed to expedite litigation in two cases.
“96. First, the respondent engaged in a number of activities that resulted in unnecessary delay in considering the issues pending in B.S.’s case. The respondent failed to timely respond to requests from opposing counsel to negotiate a settlement or schedule a hearing, which caused delay. Further, by informing the court’s clerk that neither she nor her client would not be appearing in court at the May 9, 2012, scheduled hearing caused the court to review unnecessary motions and hold unnecessary hearings and caused an unnecessary delay in resolving the pending issues between B.S. and A.S.
“97. Second, in her representation of J.G., the respondent failed to expedite the litigation consistent with the interests of her client. The respondent filed a temporary parenting plan which did not reflect the interests or the position of J.G. After filing the initial temporaiy parenting plan, the respondent had to file a motion [sic] withdraw that plan which delayed consideration of a parenting plan which did accurately reflect the interests and position of her client. Further, the respondent violated KRPC 3.2 when she withheld the quit claim deed in an attempt to remove the sanctions that the court entered against her personally.
“98. The respondent’s obstructionist approach to the practice of law in B.S.’s case and J.G.’s case caused unnecessary delay. Accordingly, the hearing panel concludes that the respondent violated KRPC 3.2, by failing to expedite litigation.
‘‘KRPC 3.3
“99. ‘A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.’ KRPC 3.3(a)(1). In this case, tire respondent violated KRPC 3.3(a)(1) in three separate cases.
“100. First, the respondent repeatedly made false statements of material fact in the B.S. case. The respondent made false statements in pleadings filed with the court and on the record in B.S.’s case when she denied informing the court clerk that neither she nor her client would be attending the hearing as she had not received proper service. The respondent’s statements were false, material, and made to the court. As such, the hearing panel concludes that the respondent made false statements of material facts to a tribunal in B.S.’s case, in violation of KRPC 3.3(a)(1).
“101. Second, tire respondent made false statements of material fact in her representation of J.G. In that case, when the respondent informed tire court that Ms. Valdez approved the temporary parenting plan and tire temporary order when she had not. Ms. Loveland additionally testified that during her investigation the respondent admitted that there was not an agreement on everything. Thus, the respondent made false statements of material fact, in violation of KRPC 3.3(a)(1).
“102. Finally, in G.P.’s case, respondent informed Ms. Roberts that G.P. could not attend tire hearing because G.P. did not have transportation to dre hearing. That statement was false and the respondent knew the statement was false, as G.P. told tíre respondent that she needed 10 to 14 days’ notice to make transportation arrangement. At the time the respondent informed Ms. Roberts that G.P. could not attend the hearing due to transportation difficulties, the respondent reasonably should have expected that Ms. Roberts would explain tire reason for the continuance to the judge. At no time, did the respondent inform the court (or Ms. Roberts, for that matter) that the statement drat G.P. could not attend the hearing due to transportation difficulties was false.
“103. Accordingly, the hearing panel concludes that the respondent repeatedly made false statements to tribunals and, in addition, caused false statements to be made to a tribunal, in violation of KRPC 3.3(a)(1).
“KRPC 3.4
“104. ‘A lawyer shall not... in pretrial procedure, make a frivolous discovery request or fail to malee a reasonably diligent effort to comply with a legally proper discovery request by an opposing party/ During J.G.’s deposition, the respondent improperly directed J.G. to refuse to answer questions regarding what J.G. sought during tire divorce proceeding. The information sought by opposing counsel was proper discovery - it was sought in an attempt to resolve the pending divorce proceeding. Further, the respondent failed to comply with the court’s order regarding the discovery of the adoption records. By instructing her client to refuse to answer deposition questions and by failing to comply with the court’s order regarding the adoption records, the respondent violated KRPC 3.4(d) in her representation of J.G.
"KRPC 8.1
“105. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) provides 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). The respondent knew that she was required to cooperate in the disciplinary investigation and provide tire documents and records as directed by the attorney investigator. The respondent failed to provide her file and trust account records as directed by Ms. Miller during tire investigation of M.S.’s complaint. Because the respondent knowingly failed to cooperate in the investigation, the hearing panel concludes that the respondent violated KRPC 8.1(b).
“KRPC 8.4(c)
“106. Tt 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 in two cases: B.S.’s case and J.G.’s case.
“107. First, the respondent engaged in dishonest conduct in her representation of B.S. when she falsely stated in pleadings and in open court that she did not tell the court clerk that neither she nor her client would be appearing at a hearing on May 9, 2012, because she had not received proper service. Further, the respondent engaged in dishonest conduct when she made the same statement in her initial response to the complaint filed regarding her representation of B.S.
“108. Also, tire respondent engaged in dishonest conduct in her representation of J.G. when she falsely informed Judge Pokorny that Ms. Valdez had approved the temporary parenting plan and the temporary orders in electronic mail messages.
“109. As such, the hearing panel concludes that the respondent violated KRPC 8.4(c) in her representation of B.S. and J.G.
“KRPC 8.4(d)
“HO. It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice. KRPC 8.4(d). In two cases, B.S.’s case and J.G.’s case, the respondent engaged in conduct that was prejudicial to the administration of justice.
"111. The respondent engaged in conduct that is prejudicial to the administration of justice when she attempted to impugn Ms. Olberding’s reputation by stating that Ms. Olberding miscommunicated what the respondent stated on the telephone. Further, the respondent engaged in conduct that is prejudicial to the administration of justice when she told her client that his appearance was not necessary. Had the respondent refrained from telling the clerk that neither she nor her client would be appearing and had the respondent refrained from telling her client that his appearance was not necessary, the district court could have resolved the outstanding issues remaining in B.S. and A.S.’s case. As it was, the court could not proceed based solely on the respondents misconduct.
“112. Likewise, the respondent engaged in conduct which was prejudicial to the administration of justice when she refused to turn over the quit claim deed executed by J.G. to opposing counsel which would allow R.G. to sell the Alabama property. Further, the respondent engaged in conduct which was prejudicial to the administration of justice when she directed her client to refuse to answer questions in the deposition regarding what J.G. wanted in the divorce proceeding by way of settlement. Finally, the respondent engaged in the conduct which was prejudicial to the administration of justice when she failed to comply with the court’s order regarding discovery relating to the adoption records.
“113. As such, the hearing panel concludes drat the respondent repeatedly violated KRPC 8.4(d) in her representation of B.S. and J.G.
“American Bar Association
Standards for Imposing Lawyer Sanctions
“114. 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.
“115. Duty Violated. The respondent violated her duty to her client to properly terminate representation. The respondent violated her duty to the public to maintain her personal integrity. Finally, the respondent violated her duty to the legal system to expedite litigation consistent with the interests of her client.
“116. Mental State. The respondent knowingly violated her duties.
“117. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to her clients, the legal profession, and the legal system,
a. Ms. Butler testified directly regarding the injuiy suffered both by her client and by the legal system. According to Ms. Butler, her client, B.S., incurred additional legal fees as a result of the respondent’s misconduct and, additionally, B.S. unnecessarily missed a school session to appear in court, when the respondent had informed the cleric’s office that she would not be appearing. Ms. Butler also testified that the legal system was injured by die respondent when the respondent used an impertinent tone widi the court and attacked both Ms. Butler and Ms. Olberding.
b. The respondent’s misconduct in DA11730 resulted in injury to the legal system and to the parties. Specifically, die respondent’s actions frustrated the forward action of the case, increased confusion between the parties, and frustrated die court.
“Aggravating and Mitigating Factors
“118. Aggravating circumstances are any considerations or factors that may justify an increase in die degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“119. Prior Disciplinary Offenses. The respondent has been previously disciplined on one occasion. On June 1,2012, the respondent entered into the attorney diversion program, under Kan. Sup. Ct. R. 203(d), for violations of KRPC 1.3 and KRPC 1.4. Whether the respondent successfully completed the terms and conditions of die diversion agreement is disputed by the parties. However, it is not necessary for the hearing panel to resolve that issue, as the respondent’s participation in die attorney diversion program was offered only as a matter of aggravation.
“120. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct. A common theme that runs tiiroughout the four cases presently before the hearing panel is obstruction. In die hearing panel’s estimation, it appears that the respondent repeatedly engaged in subterfuge in order to either increase her billable fees to her client or to cause unnecessary and unreasonable delay in handling pending matters. Regardless of die respondent’s motivation, the pattern of obstructing justice causes die hearing panel serious concern.
“121. Multiple Offenses. The respondent committed multiple rule violations in four cases. The respondent violated KRPC 1.16, KRPC 3.2, KRPC 3.3, KRPC 3.4, KRPC 8.1, KRPC 8.4(c), and KRPC 8.4(d). Accordingly, the hearing panel concludes that die respondent committed multiple offenses.
“122. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders óf the Disciplinary Process. The respondent failed to comply witii Ms. Miller’s requests in investigating M.S.’s complaint. The respondent’s failure to cooperate is an aggravating factor in this case.
“123. Refusal to Acknowledge Wrongful Nature of Conduct. The respondent has refused to acknowledge that her conduct violated die Kansas Rules of Professional Conduct. The respondent’s refusal to acknowledge any wrongdoing or accept responsibility for her actions further aggravates an already serious case of attorney misconduct.
“124. Indifference to Making Restitution. To date, die respondent has not paid the sanction ordered by the district court.in J.G.’s divorce case. However, die respondent appealed the order to pay Mr. Smith’s attorney fees and the appeal remains pending. Also, in DAI1637, the respondent has not returned materials from the client’s file as requested more than 2½ years ago.
“125. In addition to the factors listed above, the hearing panel also notes that the record was void of any ‘good character evidence. Rather, seven attorneys in her legal community testified and all seven testified to problems or negative experiences in working with the respondent. Specifically, both Ms. Butler and Ms. Durkin testified that because of past difficulties, they employ different methods of correspondence with the respondent than they do with other attorneys. Specifically, Ms. Butler and Ms. Durkin both testified that all correspondence with the respondent is done in writing to preserve a record of communication.
“126. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found no mitigating circumstances present.
“127. In addition to the 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 serious adversely reflects on the lawyers fitness to practice.
‘5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on tire lawyer’s fitness to practice law.
‘6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.
‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.
‘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
“128. [a] The disciplinary administrator recommended that the respondent be indefinitely suspended from the practice of law or disbarred. On the other hand, tire respondent recoihmended that she be allowed to continue to practice law.
“129. [a] The hearing panel considered that there were four separate cases with rale violations, in addition to past discipline. The hearing panel considered that the respondent’s violations injured her clients, opposing parties, attorneys, judges, courthouse staff, and, in general, the legal profession.
“128.[b] The standards which are applicable in this case provide for a wide range of appropriate discipline — from reprimand to disbarment. While the hearing panel is certain that reprimand is not a sufficient discipline to recommend given the serious nature of tire misconduct, the hearing panel is also likewise certain that disbarment is not warranted. The respondent engaged in serious misconduct. And, serious misconduct calls for serious discipline. In this case, the hearing panel unanimously recommends that the respondent be suspended from tire practice of law. The hearing panel is divided, however, as to the length of the suspension.
“129.[b] Based upon the above findings of fact, conclusions of law, aggravating factors, and the lack of mitigating factors, a majority of the hearing panel recommends drat the respondent be suspended for a period of 18 months.
“130. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
The panel’s presiding officer dissented from the recommended suspension period of 18 months, believing that a suspension period of 1 year was more appropriate.
The respondent filed exceptions to the final hearing report, arguing that the Disciplinary Administrator s office failed to establish by clear ánd convincing evidence that she violated any rule. Consequently, she also argued that the recommended discipline of 18 months’ suspension was unwarranted. She raised these issues in her subsequent brief. They will each be addressed in turn.
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); Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350). 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 does not reweigh the evidence or as sess the credibility of witnesses. In re Comfort, 284 Kan. 183, 190, 159 P.3d 1011 (2007). “Rather, this court examines any disputed findings of fact and determines whether clear and convincing evidence supports the panel’s findings. [Citation omitted.] If so, the findings will stand.” In re Trester, 285 Kan. 404, 408-09, 172 P.3d 31 (2007).
Hawkins was given adequate notice of the formal complaint, to which she filed an answer, and adequate notice of the hearing before the panel and the hearing before this court.
A. KRPC 1.16(d)
Hawkins argues that the panel erred in concluding that her conduct in winding up her representation of M.S. in DA11637 constituted a violation of KRPC 1.16(d) (2015 Kan. Ct. R. Annot. 573). The rule states:
“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.”
The panel concluded that Hawkins violated KRPC 1.16(d) by (1) failing to provide the psychological evaluation and police report to Amy Durian, M.S.’s subsequent attorney; (2) taking 8 days to provide M.S. with the file when she only had 10 days to file objections to the case managers recommendations; and (3) failing to timely refund unearned legal fees to M.S.
1. The Case File, the Psychological Evaluation, and the Police Report
Hawkins claims that her delay in providing the case file to M.S. and her failure to provide Durkin with the psychological evaluation and the police report (contained within the case file) can be explained by the fact that M.S. only made one request for her file— on May 2, 2012 — and that prior to picking up her file on May 10, 2012, she informed Hawkins that she would not be fifing an objection to the case manager’s recommendations, apparently indi- eating to Hawkins that a quick transfer of the case file, including the evaluation and police report, was not essential to protecting M.S.s interests. Hawkins further claims that she called Durkin on May 9, 2012, regarding the evaluation and report but that Durkin never returned her call. Hawkins also points out that Durkin testified before the panel that the evaluation and report were no longer needed because she never filed objections to the case managers recommendations and that M.S.’s former husband was no longer having contact with their children.
The record shows that on April 30, 2012, the case manager in M.S.’s case mailed and emailed her written recommendations to the parties and to the judge presiding over the case. It appears that the recommendations were entered into the district court’s fifing system on May 3, 2012. And the recommendations were not approved by the judge until May 21, 2012.
On Wednesday, May 2, 2012, M.S. left a hand-written note at Hawkins’ office, requesting her case file “as soon as possible.” The note did not mention anything about M.S. wishing to terminate Hawkins as her attorney. That same day at 3:08 p.m., Hawkins wrote M.S. an email, acknowledging that she had received M.S.’s request and informing her that the file would be ready for her to pick up on May 10, 2012. In the email, Hawkins also stated:
“In the meantime do you want me to follow through on any of the matters we discussed?
“1. Communicating to Trina [the case manager] a mea culpa
“2. Speaking with the Guardian ad Litem to see if she will agree with the objection re continuing case management
“3. Preparing the objection
“4. Any other matters
“Please advise.” (Emphasis added.)
Hawkins sent the same email later that day at 9:54 p.m.
Though Durkin testified that she entered her appearance as M.S.’s attorney on May 2 or 3, records from the Douglas County District Court indicate that she entered her appearance on May 4.
At 11:46 a.m. on Monday, May 7, Hawkins sent another email to M.S., stating: “I did not receive a response so I assume you do not wish for me to take any further action and will assume my repre sentation has been terminated, unless I hear otherwise from you.” Later that day at 2 p.m., Hawkins forwarded to M.S. the email she had sent her twice on May 2. At tire top of the email, Hawkins noted that the message had “been previously sent three times,” that “at least one of them was returned,” and that she was looking forward to M.S.’s response.
At 6:58 p.m. on May 7, M.S. finally responded to Hawkins’ emails, informing her that she would be at Hawkins’ office on May 10 to pick up the case file. In the email, M.S. specifically told Hawkins that there was “[n]o need to prepare an objection.” M.S. apologized for “the slow reply,” noting that she had “been in KC today, and not home.”
At 2:12 p.m. on May 8, Hawkins sent an email to Durkin, noting that she had received Durkin’s entry of appearance. Hawkins also wrote: “Do you want to pick up the file so I can answer your questions or do you prefer I give it to [M.S.]?” Five minutes later, Dur-kin replied to the email, stating: “It is fine if you give it to [M.S.]. I don’t think that I have any questions right now.” Phone records indicate that Plawkins placed a 2-minute call to Durkin’s office in Eudora on May 9.
On May 10, 2012, M.S. picked up the file from Hawkins’ office. Hawkins required M.S. to sign a receipt when she picked up the file. The receipt stated:
“This is to certify that on this date I have received the original documents and exhibits I submitted along with pleadings, exhibits, and correspondence from the law office of J. Hawk Law Ltd.
“I understand there are certain items to which I cannot directly receive, and those items to-wit: psychological evaluation, police reports, will be forwarded directly to my attorney, Amy Durkin.
“I have had the opportunity to review the items returned and it does contain those items listed above, less those items that I cannot directly receive.”
Ultimately, Hawkins admitted in her testimony before the panel that she never forwarded the psychological evaluation or the police report to Durkin and that both documents were still in her possession. Durkin testified that though M.S. was not completely satisfied with the case manager’s recommendations, objections were never filed due to the short timeframe for doing so. Durkin also testified that she did not become aware of the existence of the psychological evaluation or tire police report until she spoke with the Disciplinary Administrator’s office regarding M.S.’s complaint. Durkin stated that had she timely received the psychological evaluation (presumably a document she has never reviewed), she may have filed objections to the case manager’s recommendations. At the time of her testimony before the hearing panel (October 9, 2014), Durkin noted that having the documents now within her file was unimportant to her current representation of M.S., considering that M.S. had sole legal custody of the children and that her ex-husband was no longer having contact with the children.
Though the parties agree that M.S. had 10 days to file objections to the recommendations, neither party explains when the time period began to run or whether only business days or all days were counted for purposes of determining the 10-day period. Thus, it is unclear when the exact deadline was for M.S. to file her objections. Consequently, this makes it difficult to judge whether Hawkins’ transfer of tire case file to M.S. on May 10, 2012, was reasonable under the circumstances. Regardless, the evidence above indicates that when Hawkins received M.S.’s written request for her case file on May 2, Hawkins responded via email that same day, informing M.S. that she could pick up her case file on May 10 and asking her whether she wanted Hawkins, among other things, to prepare the objections to the case manager’s recommendations. If Hawkins, as her May 2 email indicates, was acting under the assumption that she would be preparing the objections for M.S., then it certainly cannot be said that she acted unreasonably by setting May 10 as the date for M.S. to pick up her case file. Furthermore, when M.S. finally responded to Hawkins’ numerous emails on May 7, M.S. expressed no concern with picking up her case file on May 10 and told Hawkins that there was no need to prepare objections. Under these facts, it cannot be said that Hawkins failed to “take steps to the extent reasonably practicable to protect” M.S.’s interests. See KRPC 1.16(d).
Though Hawkins’ transfer of the case file to M.S. on May 10 does not appear to constitute a violation of KRPC 1.16(d), the same cannot be said of Hawkins’ failure to forward the psycho logical evaluation or the police report to Durkin. Though hindsight shows that M.S. was not harmed by Hawkins’ failure to forward the documents to Durkin, it does not change the fact that under KRPC 1.16(d), Hawkins had a duty to timely forward the documents to Durkin. Hawkins could not provide the hearing panel with a valid reason for why she still retained the documents. Accordingly, we find sufficient evidence in the record to sustain the hearing panel’s conclusion that Hawkins violated KRPC 1.16(d) by failing to forward the documents to Durkin.
2. Returning Unearned Legal Fees to M. S.
In Hawkins’ answer to the complaint, she admitted that M.S., at the time she terminated Hawkins as her attorney, requested a refund of the unearned fees she had advanced to Hawkins. The record shows that between June 11 and July 9, 2012, M.S. called Hawkins’ office numerous times requesting an accounting and a refund of any unearned fees. In her answer to the complaint, Hawkins admitted that on July 9,2012, she sent M.S. a check in the amount of $691.17. On August 13, 2012, Hawkins sent M.S. a billing statement, a letter, and a check for $215. This amount included 1 hour of time ($185) that was withheld from the first refund plus a credit of $30.
In an apparent attempt to explain the delay in refunding the unearned fees to M.S., Hawkins states that “when M.S. requested her refund, Hawkins informed M.S. she was providing a full accounting” and that “[a]fter the full accounting, Ms. Hawkins did return all of her unearned fees to M.S.” Regardless of whether this is true, it does not change the fact that it took Hawkins 3 months after her representation of M.S. had ended to refund M.S. all of her money. Hawkins does not explain in her brief why a “full accounting” would take so long. Accordingly, we find sufficient evidence in the record to sustain the hearing panel’s conclusion that Hawkins violated KRPC 1.16(d) by failing to timely refund unearned legal fees to M.S.
B. KRPC 3.2
KRPC 3.2 (2015 Kan. Ct. R. Annot. 595) states: “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” Hawkins argues that the panel erred in concluding that she violated KRPC 3.2 by taking an “obstructionist approach to the practice of law” in B.S. s case (DA11619) and J.G.’s case (DA11730) which “caused unnecessaiy delay.”
1. Haiokins’ Representation of B. S.
The panel found that in B.S. s case, the respondent caused delay by failing to timely respond to requests from Julia Butler, her opposing counsel, to negotiate a settlement or schedule a hearing, and by informing Michelle Olberding, the deputy court clerk, that neither she nor her client would be appearing at the May 9, 2012, hearing, which in turn “caused the court to review unnecessary motions and hold unnecessary hearings and caused an unnecessaiy delay in resolving the pending issues between B.S. and A.S.”
With regard to the finding that Hawkins failed to timely respond to Butler, Hawkins simply states that tire “Panel’s Report does not support such a finding.” She then proceeds to give a recitation of the evidence without any explanation of why it does not establish her tardiness in responding to opposing counsel’s emails. Despite reciting this evidence, Hawkins also states that “the complaint filed in DAI 1619, alone, does not rise to the level of clear and convincing evidence,” apparently suggesting that the complaint Butler filed with the Disciplinary Administrator was die only evidence presented at the hearing to show that Hawkins was tardy with her responses. The problem with Hawkins’ argument is diat Butler testified before the hearing panel regarding the'trouble she had communicating with Hawkins. Copies of the emails at issue were also introduced into evidence at trial verifying the panel’s findings.
Hawkins, curiously, argues that because there was conflicting evidence (i.e., her testimony versus the testimony of Olberding, the deputy clerk of the Jefferson County District Court), the panel could not have found by clear and convincing evidence that she informed Olberding on the morning of May 9, 2012, that neither she nor her client would be attending the hearing scheduled later that day. Simply stated, the panel made a credibility determination, finding the deputy clerk more credible than Hawkins. On appeal, this court does not reweigh the evidence or assessdhe credibility of witnesses. In re Comfort, 284 Kan. at 190. The panel had sufficient evidence before it to find that it was highly probable that Hawkins told the deputy clerk that neither she nor her client would be appearing for the May 9 hearing.
2. Hawkins' Representation of J. G.
The hearing panel concluded that Hawldns, by fifing a temporary parenting plan which did not reflect the interests or the position of J.G., failed to expedite litigation consistent with the interests of her client. The panel noted that after filing the initial temporary parenüng plan, Hawldns had to file a motion to withdraw that plan which delayed consideration of a parenting plan which did accurately reflect the interests and position of J.G. The panel also concluded that Hawkins violated KRPC 3.2 when she refused to turn over the quitclaim deed to R.G. in an attempt to remove the sanctions that the court entered against her personally.
Hawkins attacks the panel’s findings regarding the temporaiy parenting plan by arguing that the findings were taken solely from the original complaint that Suzanne Valdez (opposing counsel in the underlying matter) filed against her. Hawkins then proceeds to argue that the temporary parenting plan “accurately reflected J.G.’s wishes and concerns” and that Hawldns and J.G. decided to withdraw “the plan for strategic reasons because R.G. threatened and harassed J.G. after the proposed plan was filed.”
Though Hawkins is correct that the hearing panel based its factual findings regarding the temporary parenting plan on information contained Within Valdez’ complaint, she fails to acknowledge that Valdez’ testimony (via deposition) was presented as evidence to the hearing panel and was consistent with the allegations Valdez made within her complaint. She also fails to acknowledge that attached to the complaint was documentary evidence (e.g., portions of an email from J.G. to R.G.) indicating that the initial parenting plan did not reflect J.G.’s wishes. Though Hawldns testified before the hearing panel that the parenting plan did accurately reflect the matters that she had discussed with J.G., Hawldns was unable to confirm that J.G. had reviewed the parenting plan before Hawkins had filed it with the court. Notably, the record indicates Hawkins mailed the parenting plan to J.G. on the same day she filed it with the court. Despite Hawkins’ testimony to tire contrary, the panel had evidence before it showing that it was highly probable that the parenting plan Hawkins filed did not reflect the wishes of her client.
With regard to the quitclaim deed, the hearing panel found that the district court, within its divorce decree,
“awarded marital property located in Alabama to R.G. The court ordered J.G. to execute a quit claim deed in favor of R.G. J.G. executed the quit claim deed and provided it to the respondent. During the pendency of the appeal, the respondent refused to turn over the quit claim deed to opposing counsel until a journal entry and other court orders were agreed to. In the spring, 2014, after the disciplinary administrator’s office became involved, the respondent finally turned over the quit claim deed.”
Based on tins finding, the panel concluded that Hawkins violated KRPC 3.2 when she withheld the quitclaim deed in an attempt to remove the sanctions that the court entered against her personally.
As can be discerned from the hearing panel findings in DA11730, the divorce case between J.G. and R.G. was, to put it mildly, a contentious affair. Highly summarized, the record indicates that the parties eventually entered mediation, reached what they thought was an agreement on how to settle the case, but then could not agree on tire exact language needed to memorialize their agreement. Accordingly, pursuant to Rule 170(d) (2015 Kan. Ct. R. An-not. 264), the parties submitted their competing drafts of their agreement to the district court so it could settle the matter, resulting in the district court fifing the divorce decree mentioned above on July 24, 2013. Though the divorce decree awarded a home located in Alabama to R.G., there is no specific order within it commanding J.G. to execute a quitclaim deed in R.G.’s favor. Valdez indicated that R.G. wanted the quitclaim deed so he could sell the home.
In addition to the divorce decree, the district court filed a memorandum decision on August 14, 2013, ordering Hawkins to pay $1,575 in attorney fees in connection with her supposed failure to comply with a court order to malee available to R.G. s attorneys adoption records of the couple’s children. /•
On August 22, 2013, Hawkins filed a notice of appeal, challenging (1) the divorce decree on the basis that it did not reflect the entirety of the parties’ agreement and (2) the order for her to pay attorney fees. On September 10, 2013, Valdez filed a notice of cross-appeal, challenging “certain judgments entered herein on July 24, 2013; and all previous rulings on all issues decided therein to the Kansas Court of Appeals.”
While this appeal was pending, the parties returned to mediation to work out their remaining differences. It must be pointed out that the issues addressed in mediation were solely those involving R.G. and J.G.; mediation did not address the attorney fee sanction personally levied against Hawkins. Highly summarized, in October 2013, Valdez and Hawkins exchanged numerous emails indicating that R.G. and J.G. had reached a settlement. The attorneys discussed how to memorialize and file the settlement with the district court and what actions each party needed to take in order to implement their agreement (e.g., J.G. executing a quitclaim deed and delivering it to R.G.). The attorneys also discussed what impact the settlement should have on tire appeal pending before the Court of Appeals. Valdez believed that the settlement should result in a voluntary dismissal of the entire appeal. Hawkins disagreed, noting that though R.G. and J.G. s settlement may have rendered as moot any appellate issues concerning tire divorce decree, tire attorney fee sanction was still at issue. Thus, Hawkins refused to dismiss the appeal.
One email in, particular, an email Hawkins wrote to Valdez on October 17, 2013, detailed Hawkins’ understanding of the tasks that needed to be completed by both sides in order to implement the parties’ agreement. The email also demonstrates Hawkins’ understanding of what impact tire parties’ settlement should have on the pending appeal. Because the Disciplinary Administrator relies solely on this email to argue that Hawkins attempted to coerce Valdez into abandoning the attorney fee sanction in exchange for Hawkins agreeing to deliver tire quitclaim deed to Valdez’ client, the email is quoted in its entirety:
“Suzanne,
“I, like you, am pleased that Susan Kraus was able to work with the parties to resolve the majority of the outstanding issues in mediation. I have reviewed the memorandums of understanding with my client and she expresses a desire that once these MOUs are filed that there are no loose ends. The loose ends presently are: (1) The Military Retired Pay Court Order, (2) the agreed Parenting Plan signed by the parties, (3) assurance there will be no modification of maintenance award, (4) quit claim deed, (5) LES statements.
“I am seeking your cooperation to get all of these matters wrapped up and the necessary paperwork on file with District Court and the Court of Appeals by Thursday of next week.
“I propose the journal entry incorporating the Memorandum of Understanding regarding the Supplement to Property Settlement Agreement also incorporate by reference the agreed parenting plan (I have the original signed by both parties), Military Retired Pay Court Order, and a second Supplement to Property Settlement Agreement that incorporates the financial awards contained in the Decree of Divorce and Journal Entry of Final Settlement into the parties mutual agreement. That eliminates the possibility of either party revisiting the property settlement terms and would make the appeal addressing those issues moot toith or without a dismissal.
“The journal entry should contain a space for both of our signatures as well as the judge so that once ordered [sic] becomes incorporated into the Decree of Divorce].] Before the journal entry is filed in District Court along with die aforementioned documents, your client needs to forward the LES statements he promised during mediation. I can approve the remainder of the paperwork once that has been received.
“Upon filing I will provide a signed quitclaim deed for the real estate.
“RE: Voluntary dismissal of Appeal
I received a phone call from the Court of Appeals regarding the fax they received from Branden [Valdez’ co-counsel]. They are not filing the Voluntary Dismissal as it is improperly filed. Both parties are represented by counsel, therefore any dismissal must be signed by their attorneys of record.
“I am willing to sign a stipulated joint dismissal if you file a document in District Court that the attorney fees judgment toill not be pursued. Absent there being an agreement not to pursue the attorney fees judgment I intend to proceed toith that appeal.
“If you intend to enforce the award of attorney fees I am still amenable to dismissing all but the attorneys fees judgment upon the filing of the journal entry and accompanying documents referenced above; however, it cannot be done through a voluntary dismissal. If the appellate case is dismissed as to the issues contained in the Decree of Divorce and Journal Entry of Final Settlement then everything is dismissed. There is no such tiling as a partial dismissal on the issues.
"If the proposal for district court is acceptable to you I will prepare the proposed paperwork for your consideration. Once I know whether or not you intend to pursue collection of attorneys fees I can prepare paperwork to be filed in the Court of Appeals.
“If you prefer to draft the paperwork please let me know so there is not duplication of efforts.
“If any of this requires further discussion please feel free to give me a call.
“Joan.” (Emphasis added.)
The above email indicates that Hawkins made delivery of the quitclaim deed to R.G. contingent upon Valdez and R.G. completing certain tasks which Hawkins believed were essential to implementing the agreement the parties had reached in mediation. This may be an example of a lawyer playing hardball on behalf of a client, but it is certainly not unethical behavior. What would constitute unethical behavior is if Hawkins made delivery of the quitclaim deed to R.G. contingent upon Valdez agreeing not to pursue enforcement of the attorney fee sanction levied specifically against Hawkins. Such an action could certainly be construed as failing to expedite litigation. See KRPC 3.2. But nowhere in Hawkins’ October 17 email or in her subsequent emails to Valdez does she make such a suggestion.
What Valdez wanted is for Hawkins to agree to dismiss the entire appeal pending before the Court of Appeals. But if Hawkins did that, she would have abandoned her right to challenge the attorney fees levied against her. Clearly, that is why Hawkins suggested to Valdez that if she agreed not to enforce the attorney fee sanction, Hawkins would agree to dismiss the appeal. Such an agreement would have rendered as moot the only issue that Hawkins could have properly appealed at that point in time, i.e., the attorney fee sanction. But because Valdez did not agree to Hawkins’ suggestion, Hawkins proceeded with her appeal. Though the parties eventually reached a settlement, causing the issues related to the underlying divorce to be dismissed from the appeal on February 21, 2014, the Court of Appeals retained jurisdiction over whether the attorney fee sanction was appropriate. Notably, the Court of Appeals ultimately reversed the district court’s order for Hawkins to pay attorney fees. See In re Marriage of Gerleman, No. 110,461, 2015 WL 1513967 (Kan. App. 2015) (unpublished opinion).
Though the record indicates that Hawkins did not mail the quitclaim deed to Valdez until April 3, 2014, the hearing panel did not find that this delay constituted a violation of KRPC 3.2. Instead, the hearing panel found a rule violation based on Hawkins allegedly withholding the quitclaim deed in an attempt to have the sanctions against her removed. But as shown above, the record does not support this finding. The panel’s conclusion that Hawkins violated KRPC 3.2 by withholding the quitclaim deed is not supported by clear and convincing evidence.
C. KRPC 3.3(a)(1)
KRPC 3.3(a)(1) (2015 Kan. Ct. R. Annot. 601) states: “A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” The hearing panel concluded that Hawkins violated this rule in three separate cases: (1) In DA11619, the panel found that Hawkins made false statements when she denied telling Olberding, the deputy clerk, that neither she nor her client would be attending a May 9, 2012, hearing; (2) in DAI1730, the panel found that Hawkins submitted a temporary parenting plan and temporary order to the district court which she falsely represented as being approved by opposing counsel; and (3) in DA11918, the panel found that Hawkins made a false statement about her client, G.P., being unable to attend a January 3, 2013, hearing.
1. Statement to Olberding Regarding Attendance at Hearing
Hawkins argues that because her testimony and Olberding’s testimony sharply conflicted regarding what was said during their phone conversation on the morning of May 9, the panel was prevented from finding that Hawkins told Olberding that neither she nor he client would be attending the hearing scheduled for later that day. In support of this argument, Hawkins cites In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993), where this court stated that
“although the report of the disciplinary board ‘is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.’ [Citation omitted.]” (Emphasis added.)
The problem with Hawkins’ reliance on this statement is that it is no longer the standard applied by this court to review factual findings made by a hearing panel in attorney disciplinary cases. As this court stated in In re Barker, 299 Kan. 158, 165, 321 P.3d 767 (2014):
“This court does not reweigh the evidence or assess the credibility of witnesses. [Citation omitted.] ‘Rather, this court examines any disputed findings of fact and determines whether clear and convincing evidence supports the panel’s findings. [Citation omitted.] If so, the findings will stand.’ [Citation omitted.]”
See also In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 (2008) (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, 276 Kan. 633, 637, 78 P.3d 442 (2003) (“When the panels findings relate to matters about which there was conflicting testimony, this court recognizes that the panel, as the trier of fact, had the opportunity to observe the witnesses and evaluate their demeanor. Therefore, we do not reweigh the evidence or pass on credibility of witnesses.”).
The panel found that Olberding s testimony regarding the May 9 phone conversation — specifically, her claim that Hawkins told her that neither she nor her client would be appearing at the hearing later that day — was more credible than Hawkins’ testimony denying the statement. Based on the evidence showing that Olberd-ing, after getting off the phone with Hawkins, memorialized her conversation with Hawkins and immediately told the clerk about the conversation, it is highly probable that her recollection of the conversation was accurate. Thus, clear'and convincing evidence supports the panel’s finding that Hawkins lied to the district court when she denied telling Olberding that she and her client would not be attending the May 9 hearing.
2. Hawkins’ Representation that Opposing Counsel Approved Temporary Order
Hawkins argues that she provided evidence to the panel that she had conferred throughout the day with Valdez, opposing counsel in the underlying matter, before submitting the temporary parenting plan and temporary order to the court. Hawkins states that when she submitted the plan and order to the court for approval, she “believed the parties had agreed to certain issues, while reserving other issues that the parties were not in agreement on.” Notably, Hawkins does not go into detail about what matters the parties had agreed to and whether those matters were consistent with what she filed with the court. Regardless, at Valdez’ deposition, she testified that she approved the parenting plan but did not approve the temporary order prior to Hawkins submitting it to the court. The panel had before it clear and convincing evidence that Hawkins falsely represented in her filing to the district court that the temporaiy order had been approved by Valdez.
3. Hawkins' Statement Regarding G.P.’s Ability to Attend a Hearing
Hawkins argues that evidence before the panel did not establish that she told Bethany Roberts, opposing counsel, that a January 3, 2013, hearing needed to be continued because Hawkins’ client, G.R, did not have transportation to the hearing.
The record shows that G.P. informed Hawkins that she would have difficulty securing transportation to Topeka to attend scheduled hearings. As a result, G.P. asked Hawkins to give her at least 10 days’ notice of any scheduled hearing so she could make necessary arrangements to attend a hearing. G.P.’s testimony indicates that she had notice well in advance of a hearing scheduled for January 3. She also testified that she never told Hawkins that she could not attend the January 3 hearing. In fact, G.P. was in the courtroom when the district court continued the January 3 hearing until February 5, 2013.
On December 29, 2012, Hawkins emailed opposing counsel the following message:
“My client informs me that she has difficulty with transportation. Wondering if you would be agreeable to reschedule if she cannot be there on the 3rd.
“I am meeting with her Monday about your proposed agreed order. Honestly don’t think she is going to agree but will see.” (Emphasis added.)
Roberts testified before the panel regarding the continuance of the January 3 hearing, stating:
“The January docket Ms. Hawkins and I had been negotiating agreed orders, dismissals, what tire orders would look like, that sort of tiring, and then the January docket we had done an agreed order to continue because we thought we had an agreement worked out. So, yes, we had signed an agreed order and I appeared and presented that to the Court.
“Q. [By Deputy Disciplinary Administrator] Was there also any suggestion that the client [G.P.] could not appear at the January 3rd?
“A. Yeah. And I recall — I don’t remember if that was December or — it was the January day, yes. The November one where she [Hawkins] was newly appointed, January her client did appear in tire November date as well. The January one Joan had said, hey, my client’s having transportation problems, this was via e-mail, you know, can we continue it. Um, and it was fine. I was familiar with her client by that point to know that her having transportation problems didn’t surprise me. Um, and so, yeah, we — that was — she had told me that and I appeared at the hearing with the agreed order to continue.
“Q. And did [G.P.] also appear at the [January 3] hearing?
“A. She was. She was there. Um, I approached and said, Your Honor, I’m here on this case, we have an agreed order to continue, the respondent doesn’t have transportation, and presented the agreed order to the judge.” (Emphasis added.)
Roberts stated that after she informed the court that the matter had to be continued due to G.R’s supposed inability to attend the hearing that day, she realized that G.P. was sitting in the courtroom.
Contained within the record is the “Agreed Order for Continuance” that Hawkins prepared and sent to Roberts. Both attorneys signed the order, and it was submitted to the court on January 3. The order states that “the parties stipulate there is good cause to continue the evidentiary hearing in this matter in hopes of resolving this matter without court intervention.” (Emphasis added.)
Based on the evidence contained in tire record, it appears that Hawkins never informed Roberts that the January 3 hearing had to be continued due to G.R s inability to attend the hearing. Hawkins’ email to Roberts — the only communication with Hawkins that Roberts testified about — simply asked whether Roberts would be willing to continue the January 3 hearing if G.R could not attend the hearing due to transportation issues. Based on Roberts’ testi mony and the proposed order that Hawldns prepared, it appears that the ultimate basis for the hearing’s continuance was the parties’ belief that they were close to settling the issue between them and that they needed more time to do so. Thus, if Roberts told the court on January 3 that the hearing had to be continued due to G.P.’s inability to attend, tiren such a statement appears to be a misstatement of what Hawkins actually communicated to Roberts via email and, consequently, should not be attributed to Hawkins.
We conclude that clear and convincing evidence does not support the hearing panel’s finding that Hawkins bed to Roberts about the basis for the continuance which, in turn, caused Roberts to convey this lie to tire district court. The panel’s conclusion that Hawkins violated KRPC 3.3(a)(1) in this regard is not supported by clear and convincing evidence.
D. KRPC 3.4(d)
Next, Hawkins argues that the panel erred in concluding that she violated KRPC 3.4(d) (2015 Kan. Ct. R. Annot. 609) in DA11730 by: (1) instructing J.G. during her deposition not to answer Valdez’ questions about what J.G. would like to have in order to settle her divorce case; and (2) failing to comply with the district court’s order for her to turn over adoption records to R.G.’s attorneys.
KRPC 3.4(d) states: “A lawyer shall not... in pretrial procedure, make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”
Hawldns concedes that she instructed J.G. not to answer Valdez’ questions. But she contends that her action was proper because J.G. had already provided the requested information in her Domestic Relations Pretrial Questionnaire, which Valdez had received prior to taking J.G.’s deposition.
Hawldns’ reason for directing her client not to answer Valdez’ questions is not valid considering that K.S.A. 2015 Supp. 60-230(c) (2) states:
“An objection at the time of the examination, whether to evidence, to a party’s conduct, to Ae officer’s qualifications, to the manner of taking the deposition or to any other aspect of the deposition, must be noted on the record, but the ex amination still proceeds-the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court or to present a motion [for expenses] under subsection (d)(3).” (Emphasis added.)
Hawldns’ instruction to J.G. not to answer Valdez’ questions regarding settlement of the divorce case does not fall under any of the valid reasons outlined above for directing a deponent not to answer a question. At the most, Hawldns should have lodged an objection but still directed her client to answer Valdez’ questions. We find that the hearing panel properly concluded that Hawldns violated KRPC 3.4(d) by improperly directing J.G. not to answer Valdez’ questions regarding settlement of the case.
With regard to Plawkins’ supposed failure to comply with the district court’s order to turn over adoption records to R.G.’s attorneys, the Court of Appeals concluded in In re Marriage of Gerleman, 2015 WL 1513967, at *5, that there was no evidence before it to suggest that Hawldns failed to comply with a specific court order regarding production of adoption records. Consequently, the Court of Appeals reversed the district court’s order that Hawldns pay attorney fees to R.G.’s attorneys. 2015 WL 1513967, at *7-8. It should be noted that the hearing panel’s report and tire Court of Appeals’ opinion were issued on the same day, March 27, 2015.
The Disciplinary Administrator concedes that this opinion is controlling and that the hearing panel’s conclusion that Hawldns violated KRPC 3.4(d) by disobeying a court order to produce the adoption records should be rejected. We agree.
E. KRPC 8.1(b)
Next, Hawkins argues that the panel’s conclusion that she violated KRPC 8.1(b) (2015 Kan. Ct. R. Annot. 661) by failing to provide her case file and trust account records to.Leslie Miller (the attorney assigned to investigate M.S.’s complaint of Hawldns in DA11637) was not supported by clear and convincing evidence. KRPC 8.1(b) (2015 Kan. Ct. R. Annot. 661) states in pertinent part: “[A] lawyer in connection with ... a disciplinary matter, shall not... knowingly fail to respond to a lawful demand for information from ... [a] disciplinary authority . . . .”
Miller testified that she asked Hawkins to bring M.S.’s case file with her to their scheduled interview on October 11, 2012, but that Hawkins failed to do so. According to Hawkins, she gave the original case file to M.S. and did not retain a copy. Miller said that Hawkins explained this to her, but during tire interview, acknowledged that she had kept some correspondence she had with M.S. through email and that these emails were on her computer system. Miller said that Hawkins eventually provided some of the emails to her. Notably, in Hawkins’ Answer to the Formal Complaint, filed on August 8, 2014, she admitted that the “investigator asked for proof of the communications” between Hawkins and M.S. and that she “was unable to provide documentation of calls or emails.” Hawkins noted in her answer that she was “continuing the search for documentation.”
Miller also asked Hawkins to bring “bank records” to the interview and tiren subsequently clarified to Hawkins that she wanted trust account records due to an allegation in M.S.’s complaint regarding fees. Hawkins brought a document which she created entitled “Funds Transaction Listing.” Miller said that she eventually received the trust account records from Hawkins after the original deadline for producing them had passed.
When asked whether she thought Hawldns was honest with her during her investigation, Miller stated:
“I don’t know. I felt frustrated by the process because I felt that there were perhaps more documents that were available that weren’t provided to me. And I felt as to the trust account records she challenged that quite a bit and I didn’t feel like it was an unreasonable request since this was definitely a concern by the client or the complainant about fees. And then the documents that I requested are not what I received. So whether that’s dishonesty, I felt, um, that I didn’t necessarily get all the information that I wanted or requested that was relevant to my investigation and not in a timely manner.”
Hawkins seems to suggest in her brief that though she may not have provided the requested information in a timely fashion, she ultimately complied with the request. Thus, the panel could not have found that she violated KRPC 8.1(b). Hawkins’ argument is without merit. We have concluded that the failure to provide a timely response to an initial disciplinary complaint can constitute a violation of KRPC 8.1(b). See In re Barker, 302 Kan. 156, 159-60, 162-63, 351 P.3d 1256 (2015). We likewise conclude that Hawkins’ failure to timely provide Miller with information she had requested constitutes a violation KRPC 8.1(b).
F. KRPC 8.4(c)
KRPC 8.4(c) (2015 Kan. Ct. R. Annot. 672) states that “[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The panel concluded that Hawkins violated this rule in two instances: (1) in DAI 1619, by denying in pleadings and before the district court that she told Olberding that neither she nor her client would be appearing at a May 9,2012, hearing; and (2) in DA11730, when she represented that the temporaiy orders she had filed with the court had been approved by opposing counsel.
Hawkins argues that there is insufficient evidence to support the above factual findings and, thus, the panels conclusion that she violated KRPC 8.4(c) should be rejected. But, as already noted above, clear and convincing evidence supports each finding. Hawkins also argues that panel could not rely on these findings to conclude that she violated KRPC 8.4(c) because the panel relied on the findings to conclude that she had violated KRPC 3.3(a)(1) (a lawyer shall not knowingly malee a false statement of fact or law to a tribunal). Hawkins’ argument is without merit because we have concluded in prior attorney disciplinary cases that the same conduct can support violations of both KRPC 3.3(a)(1) and KRPC 8.4(c). See, e.g., In re Shriver, 294 Kan. 617, 619, 622, 278 P.3d 964 (2012). We find that the panel properly concluded that Hawkins’ conduct violated KRPC 8.4(c).
G. KRPC 8.4(d)
KRPC 8.4(d) states that “[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” The hearing panel concluded that Hawkins violated this rule in DAI 1619 by: (1) attempting to impugn Olberd-ing’s reputation by stating that Olberding miscommunicated what she, Hawkins, had said on the telephone; and (2) telling B.S. that his presence at the May 9,2012, hearing was not necessary, thereby preventing the court from resolving the issues remaining in B.S. and A.S.’s case. The panel also concluded that Hawldns violated KRPC 8.4(d) in DA11730 by: (1) refusing to turn over the quitclaim deed to opposing counsel which would have allowed R.G. to sell the property; (2) directing J.G. not to answer deposition questions regarding settlement of the divorce case; and (3) failing to comply with the court’s order regarding discovery of the adoption records.
1. Hawkins’ actions in DA11619
Hawldns tabes exception to the panels finding that she engaged in conduct that was prejudicial to administration of justice by questioning in district court the accuracy of Olberdings memory of their May 9, 2012, phone conversation. As noted above, Hawldns’ and Olberdings testimonies regarding their phone conversation conflicted with each other. Olberding claimed that Hawkins told her that neither she nor her client would be appearing at the hearing scheduled for later that day; Hawldns claimed she merely told Olberding that she was filing a motion for a continuance and asked Olberding for possible dates to schedule the hearing. The district court and, subsequently, tire hearing panel found Olberding more credible. There is evidence in the record to support this credibility determination. We conclude that the Hawldns engaged in conduct that was prejudicial to administration of justice when she told the district court that Olberding had miscommunicated what was said during their phone conversation. See In re Tarantino, 286 Kan. 254, 258, 182 P.3d 1241 (2008) (concluding that attorneys misrepresentation that he would seek to set aside his Missouri default disbarment was a violation of KRPC 8.4[d]); In re Hansen, 179 Ariz. 229, 231-33, 877 P.2d 802 (1994) (censuring lawyer under Rules 3.3[a][l], 8.4[a], 8.4[c], and 8.4[d] for lying to court about reason for witness’ absence).
Hawldns also contends that the hearing panel erred in concluding that she violated KRPC 8.4(d) by telling her client it was not necessary to attend the May 9 hearing. The panel concluded that this action was prejudicial to the administration of justice because it prevented the district court from resolving the outstanding is sues remaining in B.S. and A.S.’s case. Hawkins makes the curious argument that because the parties could not agree to the amount of child support that B.S. should pay to A.S., the panel could not have surmised that the district court would have resolved the issue had B.S. attended the May 9 hearing. Hawkins fails to appreciate the fact that the whole purpose of the hearing was to resolve the child support issue which the court, despite the absences of B.S. and Hawkins, determined in A.S.’s favor.
Though the record indicates that the district court resolved the child support issue at the hearing (negating the hearing panel’s finding that Hawkins’ and B.S.’s absences prevented resolution of the matter) we conclude that Hawkins’ actions in connection with the. May 9 hearing were still prejudicial to the administration of justice. Her actions caused the district court to rule on the child support issue without the benefit of hearing testimony from B.S. or arguments from Hawkins. Accordingly, we conclude that Hawkins’ actions in this regard violated KRPC 8.4(d).
2. Hawkins’ actions in DA11730
We have already concluded that the record does not show that Hawkins violated (l) KRPC 3.2 — by allegedly withholding a quitclaim deed in an effort to have opposing counsel forgo enforcement of an attorney fee award; or (2) KRPC 3.4(d) — by allegedly failing to comply with a court order regarding discovery of adoption records. Because the record does not establish that Hawkins committed either act, we do not agree with the panel’s conclusion that Hawkins, based on these alleged actions, violated KRPC 8.4(d).
In contrast, our above analysis shows that Hawkins violated KRPC 3.4(d) by improperly directly J.G. not to answer questions posed to her at a deposition. We agree with the hearing panel that this conduct also violates KRPC 8.4(d) because it was prejudicial to the administration of justice.
In summary, we find that clear and convincing evidence supports the hearing panel’s conclusions that Hawkins violated
• KRPC 1.16(d) by (1) failing to forward the psychological evaluation and police report to M.S.’s subsequent attorney and (2) failing to timely refund unearned fees to M.S.
• KRPC 3.2 by (1) failing to timely respond to requests from Butler to schedule a hearing to resolve the child support issue between B.S. and A.S.; (2) informing Olberding that neither she nor B.S. would be attending the May 9, 2012, hearing; and (3) filing an initial temporary parenting plan that did not reflect the interests or the position of J.G.
• KRPC 3.3(a)(1) by (1) falsely claiming that she did not tell Olberding that neither she nor B.S. would be attending the May 9 hearing; and (2) fifing a temporary order which she falsely claimed was approved by Valdez, her opposing counsel.
• KRPC 3.4(d) by improperly directing J.G. not to answers questions posed to her at a deposition.
• KRPC 8.1(b) by failing to timely provide Miller, the attorney assigned to investigate DAI1637, with the case file and trust account records related to Hawkins’ representation of M.S.
• KRPC 8.4(c) by (1) falsely claiming in pleadings and in open court that she did not tell the deputy clerk that neither she nor her client would be appearing at the May 9 hearing; and (2) by filing a temporary order which she falsely claimed was approved by Valdez.
• KRPC 8.4(d) by (1) causing the district court to rule on the child support issue between B.S. and A.S. without hearing testimony from B.S. or arguments from Hawkins; and (2) improperly directing J.G. not to answer questions posed to her at a deposition.
Appropriate Discipline
Before the hearing panel, Hawkins argued that no discipline was warranted because she did not violate any rule. The Disciplinary Administrator recommended that Hawkins be indefinitely suspended from the practice of law or disbarred. A majority of the hearing panel recommended that Hawkins be suspended for 18 months; one member thought a suspension of 1 year was more appropriate.
This court is not bound by the recommendations of the Disciplinary Administrator or the hearing panel. In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756 (2014). The court bases its disciplinary decision on the facts and circumstances of the violations and the aggravating and mitigating circumstances present. In re Johanning, 292 Kan. 477, 490, 254 P.3d 545 (2011). And although not mandated by our rules, this court and disciplinary panels “[historically” turn to the ABA Standards for Imposing Lawyer Sanctions to guide the discipline discussion. See ABA Compendium of Professional Responsibility Rules and Standards (2012); see also In re Woodring, 289 Kan. 173, 180, 186, 210 P.3d 120 (2009) (discussing and applying ABA Standards); In re Rumsey, 276 Kan. 65, 78-79, 71 P.3d 1150 (2003) (citing and discussing ABA Standards).
Under the ABA Standards, four factors are considered in assessing punishment: (1) the ethical duty violated by the lawyer; (2) the lawyer’s mental state; (3) the actual or potential injury resulting from the misconduct; and (4) the existence of aggravating and mitigating circumstances. See Rumsey, 276 Kan. at 78 (listing the four components of the ABA Standards’ framework); ABA Standard § 3.0.
A. Ethical Duty
The hearing panel concluded that Hawkins violated her duty to M.S., a client, by failing to properly terminate representation. The panel also concluded that Hawkins violated “her duty to the public to maintain her personal integrity” and “her duty to the legal system to expedite litigation consistent with the interests of her client.”
As indicated above, Hawkins violated her duty to a client by failing to (1) forward documents to M.S.’s-subsequent attorney and (2) timely refund unearned legal fees to M.S. Hawkins violated her duty to the public to maintain her personal-integrity by (1) denying that she called Olberding and told her that neither she nor B.S. would be attending the May 9 hearing; and (2) filing a temporary order which she falsely claimed was approved by opposing counsel. Hawkins violated her duty to the legal system to expedite litigation consistent with the interests of her clients by (1) failing to timely respond to requests from Butler to schedule a hearing to resolve the child support issue between B.S. and A.S.; (2) causing the district court to rule on the child support issue without hearing testimony from B.S. or arguments from Hawkins; (3) filing an initial temporary parenting plan that did not reflect the interests or tire position of J.G.; and (4) improperly directing J.G. not to answer questions posed to her at a deposition.
B. Mental State
The panel found the Hawkins “knowingly violated her duties.” The ABA Standards identify three mental states: “intent,” the highest culpable mental state; “knowledge,” the intermediate culpable mental state; and “negligence,” the least culpable mental state. Under the ABA Standards, a lawyer acts intentionally when acting with the “conscious objective or purpose to accomplish a particular result,” while a lawyer acts with knowledge when acting “with conscious awareness of the nature or attendant circumstances of his or her conduct both without the conscious objective or purpose to accomplish a particular result.” Finally, a lawyer acts negligently when failing “to be aware ... that a result will follow....” See ABA Standards, 462; In re Kline, 298 Kan. at 216.
Because Hawkins denied any wrongdoing, there is no direct evidence regarding her mental state when she committed the numerous rule violations noted above. But, it can be inferred from the actions constituting the rule violations that Hawkins, at the very least, acted with a conscious awareness of the nature or attendant circumstances of her conduct.
C. Injury Resulting from the Misconduct
The panel concluded that Hawkins’ conduct resulted in actual injury to her clients, the legal profession, and the legal system. In support of this conclusion, the panel cited Butlers testimony regarding tire additional legal fees her client incurred as a result of Hawkins’ attempt to set aside the courts decision resulting from the May 9, 2012, hearing. The panel, relying on Butler’s testimo ny regarding Iiawkins’ conduct at a June 21, 2012, hearing to set aside the district court’s decision, also found that Hawkins “used an impertinent tone with the court and attacked both Ms. Butler and Ms. Olberding.” Finally, the panel concluded that Hawkins’ actions during her representation of J.G. “resulted in injury to the legal system and to the parties. Specifically, the respondent’s actions frustrated the forward action of the case, increased confusion between the parties, and frustrated the court.” As noted above, clear and convincing evidence shows that Hawkins (1) filed an initial temporary parenting plan that did not reflect the interests or the position of J.G; and (2) improperly directed J.G. not to answer questions posed to her at a deposition. We agree with the hearing panel’s conclusion that Hawkins caused injury to her clients, the legal profession, and the legal system.
D. Aggravated and Mitigating Circumstances
This court’s rules require that a disciplinary panel explain “[m] itigating or aggravating circumstances which affect the nature or degree of discipline.” Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350). The panel must consider the evidence presented as to aggravating and mitigating circumstances and determine the weight to be assigned to each in arriving at an appropriate discipline. In re Walsh, 286 Kan. 235, 248, 182 P.3d 1218 (2008). On appeal, this court determines whether it agrees with the panel’s findings regarding aggravating and mitigating circumstances. See In re Kline, 298 Kan. 96, 221, 311 P.3d 321 (2013).
The hearing panel found that the following aggravating circumstances were present: (1) Prior Disciplinary Offenses; (2) A Pattern of Misconduct; (3) Multiple Offenses; (4) Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rule or Orders of the Disciplinary Process; (5) Refusal to Acknowledge Wrongful Nature of Conduct; and (6) Indifference to Making Restitution. The panel also noted that die “record was void of any ‘good character evidence,’ ” and that
“seven attorneys in [Hawkins’] legal community testified and all seven testified to problems or negative experiences in working with the respondent. Specifically, both Ms. Butler and Ms. Durkin testified that because of past difficulties, they employ different methods of correspondence with the respondent than they do with other attorneys. Specifically, Ms. Butler and Ms. Durldn both testified that all correspondence with [Hawkins] is done in writing to preserve a record of communication.”
Because Hawkins claimed that her actions did not violate a single rule, she did not present any mitigating evidence to the panel. Consequently, the hearing panel found that no mitigating circumstances existed.
Now on appeal, Hawkins challenges four of the aggravating circumstances found by the panel. First, with regard to the Pattern of Misconduct conclusion, the panel found that in its “estimation, it appears that the respondent repeatedly engaged in subterfuge in order to either increase her billable fees to her client or to cause unnecessary and unreasonable delay in handling pending matters.” Hawkins argues that this statement “has little to no evidence supporting it, as it is not the focus of the Panels Report or findings of fact.” Though Hawkins is correct that the panel did not find that she overbilled clients, the record certainly shows that her actions caused unnecessary delay in resolving pending matters and establishes, as tire panel found, a “pattern of obstructing justice.”
Hawkins also contends that there was insufficient evidence to support the panel’s finding that she committed multiple offenses or that she failed to comply with requests during the investigation into her conduct. But as we have already determined, clear and convincing evidence shows that Hawkins committed numerous rule violations in three separate cases. Moreover, Hawkins failed to timely comply with Leslie Miller s requests for her to produce the client file and trust account records in connection with her representation of M.S.
Finally, Hawkins argues the panel’s finding that she was indifferent to making restitution should be reversed because the basis of that finding — the attorney fee sanction levied against her — was reversed by the Court of Appeals in In re Marriage of Gerleman, No. 110,461, 2015 WL 1513967 (Kan. App. 2015) (unpublished opinion). The Disciplinary Administrator concedes that any of the panel’s findings contrary to the Court of Appeals’ decision should be abandoned. As a result, we do not consider Hawkins’ supposed indifference to making restitution as a factor in determining the appropriate level of discipline.
At oral arguments in this case, Hawkins gave an unsympathetic acknowledgment of wrongdoing, stating that she was soriy for any conduct that tire court found to be in violation of the KRPC. When asked what she thought would be an appropriate level of punishment should this court find that her actions violated the KRPC, Hawkins suggested a term of probation similar to that imposed in In re Rumsey, 301 Kan. 438, 343 P.3d 93 (2015). In Rumsey, we decided sua sponte to place the respondent on a 3-year term of probation, believing that form of punishment would ensure the respondents long-term compliance with the KRPC. 301 Kan. at 448. The conduct at issue in Rumsey was the respondent’s act of calling opposing counsel, during the middle of a criminal trial, a derogatory term and submitting an affidavit to the Disciplinary Administrator which falsely claimed that it was signed before a notary public. 301 Kan. at 440-441. The severity of this conduct was lessened by several mitigating factors, including (1) tire respondent’s contemporaneous apology to opposing counsel; (2) evidence showing that the respondent was suffering from health problems during trial; (3) the hearing panels finding that tire affidavit was not offered to mislead or deceive the Disciplinary Administrator or the hearing panel; (4) the respondents cooperation during the disciplinary hearing and his full acknowledgment of wrongdoing; and (5) several witnesses, including two district court judges, who testified to respondent’s excellence as a criminal defense attorney. 301 Kan. at 443-45.
In contrast, tire conduct at issue here, conduct constituting numerous rule violations, arose from three separate disciplinary complaints. Hawkins’ actions included delay in returning unearned legal fees to a former client, fifing false pleadings in district court, improperly calling into question the veracity of a court employee, and engaging in behavior that unreasonably delayed the resolution of two legal matters. Additionally, seven attorneys testified about problems or negative experiences they had in working with Hawkins.
Though we have not accepted some of the hearing panel’s findings, a majority of this court concludes that the hearing panel’s rec ommended discipline of 18 months’ suspension is warranted given the nature and volume of Hawldns’ conduct, the duties she violated, and the aggravating circumstances present coupled with the lack of any mitigating evidence. A minority of the court, however, would impose a shorter term of suspension.
Conclusion and Discipline
It Is Therefore Ordered that Joan M. Hawldns be suspended from the practice of law in the state of Kansas for a period of 18 months, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2015 Kan. Ct. R. Annot. 293).
It Is Further Ordered that Hawkins shall comply with Supreme Court Rule 218 (2015 Kan. Ct. R. Annot. 401), and in the event respondent seeks reinstatement, she shall comply with Supreme Court Rule 219 (2015 Kan. Ct. R. Annot. 403).
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. | [
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Denied.
Unpubhshed | [
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PlERRON, J.:
Lucy Cutler appeals the district court’s order accepting the report of the medical malpractice screening panel (panel).
On June 18, 2003, Cutler filed a petition requesting a medical malpractice screening panel, pursuant to K.S.A. 65-4901. She named Richard Sosinski, M.D., as respondent.
On July 3, 2003, the district court gave notice of the convening of the panel to both parties and the court-appointed attorney who would serve as the nonvoting chairperson of the panel. See K.S.A. 65-4901; K.S.A. 65-4902. This order gave rise to a motion to dismiss from Dr. Sosinsld; however, it was denied. Pursuant to K.S.A. 65-4901, panel members were chosen. The members of the panel, besides the nonvoting chairperson, consisted of three medical doctors: one chosen by Cutler, one chosen by Dr. Sosinsld, and one designated by the district court.
On October 21, 2004, tire panel met “to review the records and documents submitted by the Claimant and Respondent . . . .” The panel then issued its report which, in relevant part, stated:
“The unanimous opinion of the panel is as follows:
1. The standard of care applicable to the Respondent, Richard Sosinsld, M.D., at the time when he provided medical care to Claimant, Lucy Cutler, was based upon the prevailing practice as supported and indicated by general medical texts and literature on the subjects in question to April, 2001; and further, the standard of care is based upon the collective opinions recognized by the cumulative and extensive medical experience of the panel members. Due to the extensive number of medical issues, the panel is not able to reference specific literature or other documents to identify the standard of care.”
The panel concluded that Dr. Sosinsld did not depart from the “standard of care and practice applicable at the time in question.” Additionally, the panel reported that even if Dr. Sosinsld failed to diagnose or failed to treat, it was “reasonably probable that no harm or injury resulted to [Cutler.]” The report was filed November 9, 2004, and mailed to Cutler that day.
In a letter dated November 26, 2004, Cutler expressed her concern to the district court that the screening panel did not fulfill its requirements to cite “corroborating references.” See K.S.A. 65-4904(a). She requested a new panel be convened. On December 14, 2004, the court entered its order, which accepted the panel’s report and recognized its compliance with the pertinent statutes.
Cutler filed an untimely motion to reconsider in a letter to the district court dated December 31, 2004, file-stamped January 6, 2005. The court, in a letter dated January 14, 2005, stated: “There is no procedure in the statutes to review or modify the report[,]” and that Cutler s remedy, given her dissatisfaction with the screening panel’s report, was to file suit pursuant to K.S.A. 65-4905. Cutler did not file suit against Dr. Sosinsld. Her notice of appeal was filed on Februaiy 10, 2005.
Motions to reconsider are generally treated as motions to alter or amend under K.S.A. 60-259(f). Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 900, 89 P.3d 536 (2004). K.S.A. 60-259(f) states such motions are to be filed no later than 10 days after entry of judgment. “The standard of review of the denial of a motion to alter or amend the judgment is an abuse of discretion standard. [Citation omitted.]” Exploration, 277 Kan. at 900.
In this case, Cutler did not file her motion to reconsider until 23 calendar days after the district court’s order. She ultimately appealed the district court’s response letter, stating that if she disagreed with the panel’s report, K.S.A. 65-4905 provided her a remedy, specifically, to file suit in the district court. The court wrote: “There is no procedure in the statutes for the court to review or modify the report.” This court could dispose of Cutler’s appeal on the basis of an untimely motion to reconsider, hence, creating an untimely appeal. However, Cutler’s position on the merits also fails.
Cutler’s argument is based upon the language of K.S.A. 65-4904(a), which provides:
“Within 90 days after the screening panel is commenced, such panel shall make written recommendations on the issue of whether the health care provider departed from the standard of care in a way which caused the plaintiff or claimant damage. A concurring or dissenting member of the screening panel may file a written concurring or dissenting opinion. All written opinions shall be supported by corroborating references to published literature and other relevant documents.”
However, this court held in White v. VinZant, 13 Kan. App. 2d 467, 473-74, 773 P.2d 1169 (1989), that the use of the word “shall” in this statute can be “directory rather than mandatory when it is (1) not accompanied by negative words indicating the specific acts can be done in no other manner; or (2) no consequences of noncompliance are included.” The White court analyzed the part of the statute regarding the panel submitting the report within 90 days and concluded the statute was directory, not mandatory. See Marais des Cygnes Valley Teachers’ Ass’n v. U.S.D. No. 456, 264 Kan. 247, 251, 954 P.2d 1096 (1998) (provides the criteria for determining whether a statute should be deemed mandatory or directory). Likewise, the written corroboration “requirement” at issue in this case appears to be directory.
“The Medical Malpractice Screening Panels Act, K.S.A. 65-4901 et seq., was enacted by the legislature to provide for the early resolution of many medical malpractice claims without the expense, and often inordinate delay, of actual litigation. Strict adherence to the rules of procedure and evidence applicable to a civil trial are not followed. K.S.A. 65-4903.” Lawless v. Cedar Vale Regional Hosp., 252 Kan. 1064, 1070, 850 P.2d 795 (1993).
The panel’s report is not binding on the parties. If one or more parties reject the final determination of the panel, they may proceed with the action in the district court, pursuant to K.S.A. 65-4905. Lawless, 252 Kan. at 1071.
In Lawless, the court concluded the district court had erred in finding the panel had acted properly when only two of the three selected medical members participated. 252 Kan. at 1072-73. However, it should be noted that the claimant/plaintiff s selected medical doctor was the one left out of the process by the chairperson’s dilatory behavior surrounding the panel’s business. This, on its face, would be prejudicial to the claimant. Additionally, the Lawless decision was ultimately affirmed based on the district court’s conclusion that the malpractice suit was barred by the statute of hmitations. 252 Kan. at 1073. “ “Whether language in a statute is mandatory or directory is to be determined on a case-by-case basis and the criterion as to whether a requirement is mandatory or directory is whether compliance with such requirement is essential to preserve the rights of the parties.’ [Citation omitted.]” Marais, 264 Kan. at 251.
Corroborating citations in the panel’s report were not essential to preserve Cutler’s rights to file suit against Dr. Sosinski. Furthermore, the specific language of the statute indicates that, notwithstanding the use of the word “shall” and Supreme Court Rule 142 (2004 Kan. Ct. R. Annot. 203), the statute is directory, not mandatory. The district court did not abuse its discretion in its decision denying Cutler s motion to reconsider.
Affirmed. | [
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Denied.
Unpublished | [
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Green, J.:
L. Wayne Davis and Davis Farms, L.L.C. (collectively referred to as Davis) appeal from the trial court’s ruling in favor of Key Gas Corp. (Key Gas) on the issue of whether Key Gas was paying proper royalties to Davis under two existing oil and gas leases. Additionally, Davis appeals from the denial of its motion for amended findings of fact and conclusions of law. The question on appeal is whether Key Gas was required to pay Davis’ portion of the transportation costs and other expenses deducted under a gas purchase agreement that Key Gas had entered into with ONEOK Midstream Gas Supply, L.L.C. (ONEOK). The oil and gas leases contain a condition precedent requiring Key Gas to charge transportation costs and other expenses to the leases before Key Gas became hable for these expenses. Because the costs in question were not charged to the leases that exist between Key Gas and Davis but rather were deducted by ONEOK from the amount given to Key Gas by ONEOK for gas purchased, the condition precedent which would trigger Key Gas3 liability for these costs was never fulfilled.
Nevertheless, Key Gas, which had control of this condition precedent under the oil and gas leases, had an implied obligation to protect Davis against transportation costs and other expenses that would reduce Davis3 royalty. Key Gas made the completion of the condition impossible when it entered into the gas purchase agreement with ONEOK and allowed ONEOK to deduct transportation costs and other expenses. Key Gas will not be allowed to use its own action which prevented the condition precedent from being fulfilled to escape liability for these costs. Accordingly, we reverse and remand with directions.
In February 2003, L. Wayne Davis and his wife, Betty Davis, granted two oil and gas leases to Thomas Energy, Inc. Under the leases, Thomas Energy, Inc. agreed to pay the Davises (as lessors) a royalty of one-eighth of the proceeds received from “the sale of gas, gas condensate, gas distillate, casinghead gas, gas used for the manufacture of gasoline, or any other product and all other gases, including their constituent parts, produced from the land herein leased.33 Both of these leases contain the same Exhibit A attachment. Paragraph 9 of Exhibit A includes the following language:
“It is agreed that the Lessor shall bear no costs of gas treatment, dehydration, compression, transportation or water hauling charged to this lease by Lessee in its operations thereon. It is further agreed that Lessor shall receive their proportionate royalty share of all monies received by Lessee for oil and/or gas production attributable to this lease[,] including any premiums, rebates and refunds of any land or nature paid to Lessee and any take-or-pay payments, production payments, contract buy outs or contract buy downs, which directly reduce the amount of royalty revenue Lessor would otherwise receive from oil and/or gas production from this lease.”
Thomas Energy, Inc. assigned these leases to Key Gas. Thereafter, Key Gas filed a “Declaration of Pooling and Unitization,33 which consolidated part of the land covered by the two leases into one 160-acre operating unit.
Key Gas later entered into a gas purchase agreement with ONEOK, in which ONEOK contracted to purchase natural gas from Key Gas and for the right to process and extract natural gas liquids from the gas. Exhibit A of the contract sets the amount that ONEOK would pay Key Gas at 98% of the price set forth in a specified industry index. In addition, the contract allows ONEOK to charge Key Gas various fees, including a fee for the volume of gas lost and unaccountable, a compression fee, a compression fuel fee, a gathering fee, a dehydration fee, a treating fee, and a conditioning service fee. ONEOK deducted the applicable fees from the amount owed to Key Gas under the contract and then remitted a check for the net amount to Key Gas. Key Gas or one of its related companies would then send Davis a check for the one-eighth royalty share less the proportionate deductions made by ONEOK.
In July 2004, Davis filed suit against Key Gas and United Energy, Inc. United Energy, Inc. owned a working interest in the oil and gas leases. In its petition, Davis raised numerous issues, including that Key Gas was deducting from Davis’ royalty checks charges for transportation of gas which were expressly prohibited under the oil and gas leases. In January 2005, the parties stipulated that the only remaining issue before the trial court was “whether the Defendant, Key Gas Corp., is required to pay to the Lessor its proportionate share of deductions from gas proceeds charged by ONEOK as to 100% of the proceeds.” The parties entered into a settlement agreement as to all other issues raised in Davis’ petition, including any claims raised against United Energy, Inc.
The trial court decided the remaining issue based on the briefs and documentation submitted by the parties. In its brief, Davis argued that the unambiguous language contained in paragraph 9 of Exhibit A of the leases prohibited deductions from Davis’ royalties. Davis pointed out, however, that the contract between Key Gas and ONEOK allowed a deduction of 7.5% of gross royalty for transportation charges. Davis argued that Key Gas could not contract the authorization to make deductions and then disclaim responsibility. Davis contended that Key Gas was fulfilling its marketing responsibilities, which was part of its operations on the lease, when it contracted for the sale of gas to ONEOK. Davis maintained that by authorizing the deductions against Davis’ royalty share, Key Gas breached the terms of the oil and gas leases.
On the other hand, Key Gas argued that it was paying appropriate royalties to Davis. Key Gas maintained that the deductions were made under the ONEOK contract and were not charges made by Key Gas under its leases with Davis. Key Gas contended that it made no other deductions from the ONEOK payment and that it was paying Davis the proportionate share of the actual proceeds received. It appears that Key Gas never disputed that the types of costs and expenses deducted by ONEOK were those listed in paragraph 9 of Exhibit A of the oil and gas leases.
In its memorandum decision issued in February 2005, the trial court entered judgment in favor of Key Gas. In doing so, the trial court referenced a particular case originally decided by it, see Sternberger v. Marathon Oil Co., 257 Kan. 315, 324-32, 894 P.2d 788 (1995), and indicated its concern in that case had been about “the opportunity for an unscrupulous operator to self-deal through a controlled entity or arbitrarily make charges for services beyond their real economic value.” The trial court further stated:
“In this instance, the exhibit to the lease form prohibits charging the lessors share for costs of this nature incurred by the lessee.
“The difficulty is that the industry has changed as noted in the Stemberger opinion that instead of gas pipeline companies building line to the wellhead with the purchase price reflective of the cost of bringing the pipeline to the well, the present market involves taking the gas from the wellhead to a point off the leased premises before the first sale takes place.
“In this instance, the price is determined by a published standard for gas delivered to a major cross-country pipeline. The first purchaser assumes the cost of getting the gas from the point of first purchase to its point of second purchase whether it is a major interstate pipeline or an end user of a local or regional nature. The contract between ONEOK and Key Gas starts with a distant, premium floating market as the price and then malees certain deductions based on a percentage basis of sales price or a flat rate per MMBTU to compute the proceeds payable to Key. Key apparently then pays one-eighth of its proceeds to the plaintiffs.
“The Court would conclude there is absolutely no suggestion of collusion between ONEOK and Key Gas. This self-dealing which troubled the trial court in the Stemberger [decision] is not present here.
“The defendants are apparently paying all of the costs of getting the gas to the point of first purchase. If the deductions from the distant premium market value made by ONEOK are for expenses incurred prior to delivery to ONEOK, the record before the court fails to so indicate.”
The trial court further noted that there had not been a trial with evidence presented that Key Gas paid the expense of dehvering the gas to the first purchase point. The trial court stated that if it was wrong in its assumption that Key Gas was paying these expenses, then the attorney for Davis should move for reconsideration and to reopen the record to present testimony. The trial court then concluded:
“If the Court is in fact correct that the pricing system actually reflects a distant floating price with deductions negotiated in good faith by unrelated entities that compensates ONEOK for maintaining its transportation and administrative network from point of first purchase to a point of second purchase, then judgment is entered in favor of the defendants.”
After the trial court’s decision was entered, Davis moved for amended findings of fact and conclusions of law. Davis argued that tire issue was not whether there had been collusion between Key Gas and ONEOK. Davis maintained that the Sternberger decision was only relevant to demonstrate why Davis wanted paragraph 9 of Exhibit A incorporated into the leases, which was to protect Davis from losing substantial royalty revenues for charges and fees over which Davis had no control. The trial court denied Davis’ motion for amended findings of fact and conclusions of law.
The question in this case is whether under the oil and gas leases Key Gas was required to calculate Davis’ royalties based on an amount that did not include the transportation costs and other expenses charged by ONEOK. Stated another way, was Key Gas required to assume liability for Davis’ portion of the deductions made by ONEOK?
Generally, when reviewing a trial court’s factual findings and legal conclusions, an appellate court must determine whether the findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). An appellate court’s review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004).
In this case, however, the trial court made its determination based on the briefs and accompanying documents submitted by the parties. Therefore, this court’s standard of appellate review is de novo. “Where the controlling facts are based solely on written or documentary evidence, an appellate court may determine de novo what the facts establish. [Citation omitted.]” Telegram Publishing Co. v. Kansas Dept. of Transportation, 275 Kan. 779, 784, 69 P.3d 578 (2003).
Moreover, in addressing the issue on appeal, this court is required to interpret the oil and gas leases that existed between Key Gas and Davis. “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. [Citation omitted.]” Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001).
The rules governing the construction of oil and gas leases are well established and follow the rules for construction of contracts generally:
“The intent of the parties is the primary question; the meaning should be ascertained by examining the document from all four comers and by considexing all of the pertinent provisions, rather than by critical analysis of a single or isolated provision; reasonable rather than unreasonable interpretations are favored; a practical and equitable construction must be given to ambiguous terms; and any ambiguities in a lease should be construed in favor of the lessor and against the lessee, since it is the lessee who usually provides the lease form or dictates the terms thereof.” Hall v. JFW, Inc., 20 Kan. App. 2d 845, Syl. ¶ 2, 893 P.2d 837, rev. denied 257 Kan. 1092 (1995).
Neither Davis nor Key Gas alleges that the leases are ambiguous. As a result, in determining tire intent of the parties, we look solely to the four corners of the leases and harmonize the language therein if possible. Unambiguous contracts are enforced according to their plain, general, and common meaning in order to ensure that the parties’ intentions are enforced. Bunnell Farms Co. v. Sam uel Gary, Jr. & Assocs., 30 Kan. App. 2d 739, Syl. ¶ 2, 47 P.3d 804 (2002).
Davis argues that the royalties paid to it by Key Gas are contrary to the express terms of paragraph 9 of Exhibit A. The critical provision in this case is contained in paragraph 9 of Exhibit A and states: “It is agreed that the Lessor shall bear no costs of gas treatment, dehydration, compression, transportation or water hauling charged to this lease by Lessee in its operations thereon.” Under this provision, Key Gas, not Davis, became responsible for the costs that were charged to the leases by Key Gas “in its operations thereon.” Thus, in order for Key Gas to assume the liability for these charges, Key Gas needed to charge these expenses to the leases. The requirement that Key Gas charge the expenses to the leases appears to be an express condition precedent to Key Gas’ liability for the charges. A “condition precedent” is “[a]n act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised occurs.” Black’s Law Dictionary 312 (8th ed. 2004). Because the condition that Key Gas charge the expenses to the leases was never fulfilled, Key Gas never became hable upon its contractual promise. Therefore, it appears that the lease provision contained in paragraph 9 of exhibit A does not require Key Gas to assume liability for Davis’ portion of the deductions charged by ONEOK.
The provision of the oil and gas leases which pertains to the payment of royalties is paragraph 4 of the main lease. This provision states in pertinent part that “[t]he lessee shall pay to the lessor, as a royalty, one-eighth (Vsth) of the proceeds received by the lessee from the sale of gas, gas condensate, gas distillate, casinghead gas, gas used for the manufacture of gasoline or any other product, and all other gases, including their constituent parts, produced from the land herein leased.” The express terms of this provision indicate that Davis was entitled to a one-eighth royalty of the proceeds received by Key Gas from the sale of gas.
Davis concedes that if this provision was unchanged by Exhibit A of the oil and gas leases, it would have the same effect as the decision in Sternberger, 257 Kan. at 324, where our Supreme Court stated: “[W]here royalties are based on market price ‘at the well,’ or where the lessor receives his or her share of the oil or gas ‘at the well,’ the lessor must bear a proportionate share of the expenses in transporting the gas or oil to a distant market.” Moreover, our Supreme Court has stated that “[w]here a lease calls for royalties based on the ‘proceeds’ from the sale of gas, the term ‘proceeds’ means the money obtained from an actual sale and lawfully retained by the seller.” Lightcap v. Mobil Oil Corporation, 221 Kan. 448, Syl. ¶ 5, 562 P.2d 1, cert. denied 434 U.S. 876 (1977).
Here, Key Gas paid to Davis a one-eighth royalty based on the proceeds it actually received from ONEOK for the sale of gas. The proceeds received from ONEOK was net of the deductions charged for transportation costs and other expenses under the contract between ONEOK and Key Gas. Under paragraph 4 of the oil and gas leases, these royalty payments to Davis appear to be proper.
Nevertheless, Davis argues that Key Gas may not escape liability by contracting with a third party to deduct charges which are prohibited by the oil and gas leases. To support its position that Key Gas cannot charge the deductions against Davis’ royalty share, Davis attempts to analogize the instant situation to the construction of a new home. Citing Ekstrom United Supply Co. v. Ash Grove Lime & Portland Cement Co., 194 Kan. 634, 400 P.2d 707 (1965), Davis asserts that a contractor is hable to a homeowner for a subcontractor’s use of materials not allowed under the contract. Nevertheless, Ekstrom provides no support for Davis’ statements. The Ekstrom case involved whether a corporate claimant had properly verified a mechanics’ hen statement under the applicable statute.
Davis further argues that prohibited acts may not be assigned to avoid liability and points to paragraph 16 of the oil and gas leases which states that “[t]his lease and all its terms, conditions, and stipulations shall extend to and be binding on all successors of said lessor and lessee.” Here, however, Key Gas did not assign the oil and gas leases to ONEOK. The gas purchase contract between ONEOK and Key Gas was an agreement independent from the oil and gas leases between Davis and Key Gas. There is nothing in the record to indicate that ONEOK took over the working interest under the oü and gas leases between Key Gas and Davis.
Nevertheless, this does not mean that Davis is left without a remedy. Where the other party to a contract prevents or hinders fulfillment of a condition, that party cannot be heard to complain of its nonperformance since it is due to its own fault. See Restatement (First) of Contracts § 295 (1932); Baker Farms v. LDS Corp., 136 Idaho 922, 42 P.3d 715 (Ct. App. 2002). This court should then consider the question: Did Key Gas frustrate the performance of its condition for liability (that it charge the costs of transporting the gas to the lease) in a way not contemplated or authorized by the leases? Because the intent of the parties governs, this court should consider the parties’ intent.
Importantly, it appears that the trial court never ascertained the parties’ intent under the oil and gas leases. Rather, the trial court seemed to focus on the fact that there was no evidence of collusion between Key Gas and ONEOK and that the deductions made by ONEOK were incurred after Key Gas delivered the gas to ONEOK. The trial court discussed the current state of the market and the practice of taking gas from the wellhead to the point of first sale. This discussion seemed to relate to trade usage and custom, which can be used for certain purposes in contract interpretation:
“The proper office of trade usage or custom is to explain technical terms in contracts to which peculiar meanings attach; to make certain that which is indefinite, ambiguous or obscure; to supply necessary matters upon which the contract itself is silent; and generally to elucidate the intention of the parties when the meaning of the contract cannot be clearly ascertained from the language employed. [Citations omitted.]” Branner v. Crooks, 6 Kan. App. 2d 813, 815, 635 P.2d 1265 (1981).
Nevertheless, our Supreme Court has made clear that when one party seeks to establish trade custom and usage, it must be shown tlrat the other party knew of the custom or that the knowledge among those in the business or industry was so notorious as to provide a presumption that the other party knew of-it. Wendling v. Puls, 227 Kan. 780, Syl. ¶ 4, 610 P.2d 580 (1980). Furthermore, trade custom and usage must be established with clear and convincing evidence. 227 Kan. 780, Syl. ¶ 4. Here, there is no evidence in the record supporting the trial court’s statements relating to the trade customs and usage in the oil and gas industry. There is nothing in the record indicating that either party came forward with this type of evidence. Moreover, the record fails to establish that Davis had knowledge of the particular trade custom and usage discussed by the trial court or that the knowledge among those involved in the oil and gas industry was so notorious as to create a presumption that Davis had knowledge of this trade custom and usage. Based on this lack of evidence in the record, we determine that trade custom and usage should not be used to establish the parties’ intent under the leases.
Intent
As discussed above, we ascertain the parties’ intent from the four comers of an unambiguous instrument, harmonizing the language therein if possible. Moreover, we enforce an unambiguous instrument according to its plain, general, and common meaning in order to ensure that the parties’ intentions are enforced. See Bunnell Farms Co., 30 Kan. App. 2d 739, Syl. ¶ 2.
There can be little doubt that under the first sentence contained in paragraph 9 of Exhibit A of the oil and gas leases, it was the intention of the parties that Davis would “bear no costs” for transportation of gas and the other listed expenses charged to the leases by Key Gas. Moreover, under the second sentence of paragraph 9 of Exhibit A, it was the intention of the parties that Key Gas would base Davis’ royalties on the payments received for oil and gas production under the leases, which included any payments that were disguised as something other than oil and gas production payments. The second sentence of paragraph 9 of Exhibit A states:
“It is further agreed that Lessor shall receive their proportionate royalty share of all monies received by Lessee for oil and/or gas production attributable to this leasef,] including any premiums, rebates and refunds of any kind or nature paid to Lessee and any take-or-pay payments, production payments, contract buy outs or contract buy downs, which directly reduce the amount of royalty revenue Lessor would otherwise receive from oil and/or gas production from this lease.”
When harmonizing the language contained in paragraph 9 of Exhibit A, it appears that the parties intended for Key Gas to refrain from reducing the amount of any royalty revenues that Davis was entitled to receive contraiy to the provisions of the leases. This included Key Gas protecting Davis from the costs of gas treatment, dehydration, compression, transportation, and water hauling. Such being the case, the question arises whether Key Gas became obligated to pay Davis its share of the costs charged by ONEOK.
Key Gas argues that the condition qualifying its liability for the costs required, according to the lease provisions, that Key Gas charge these costs to the leases. Key Gas further argues that because it never deducted these costs under the leases, it did not breach the lease provisions. Nevertheless, Key Gas, by its voluntary act of signing the contract with ONEOK, surrendered control of the transportation costs and other expenses. Its execution of the contract with ONEOK made it impossible for Key Gas to charge the costs to the leases.
It is well settled that a party cannot avoid liability for the nonperformance of an obligation by placing such performance beyond its control by its own voluntary act. It is stated in 8 Corbin on Contracts § 40.17, pp. 580-81 (1999):
“One who unjustly prevents the performance or the happening of a condition of promissory duty thereby ehminates it as a condition. Thus that party cannot escape liability by preventing the happening of the condition on which it was promised.”
■ The same rule is stated in 13 Williston on Contracts § 39:6, pp. 528-29 (4th ed. 2000): “It is a principle of fundamental justice that if a promisor is personally the cause of the failure of performance, either of an obligation due him or of a condition upon which his own liability depends, the promisor cannot take advantage of the failure.” This rule applies to all types of conditions, i.e., express or implied, precedent or subsequent. See Restatement (First) of Contracts § 315 (1932).
In Gulf Oil Corporation v. American Louisiana Pipe Line Co., 282 F.2d 401, 404 (6th Cir. 1960), the court stated: “Where liability under a contract depends upon a condition precedent one cannot avoid his liability by making the performance of the condition precedent impossible, or by preventing it. [Citations omitted.]” Accord Foster v. Colorado Radio Corporation, 381 F.2d 222, 224 (10th Cir. 1967); Spanos v. Skouras Theatres Corporation, 364 F.2d 161, 169 (2nd Cir.), cert. denied 385 U.S. 987 (1966); Omaha Public Power District v. Employers Fire Insurance Co., 327 F.2d 912, 916 (8th Cir. 1964); Amies v. Wesnofske, 255 N.Y. 156, 162-63, 174 N.E. 436 (1931); Bradford Dyeing v. J. Stog Tech GMBH, 765 A.2d 1226, 1237-38 (R. I. 2001). Therefore, prevention or hindrance will excuse fulfillment of a condition precedent.
Here, Key Gas made the performance of its condition qualifying its liability (that Key Gas charge the costs of transporting the gas to the lease) impossible when it executed the contract with ONEOK. “When the occurrence of a condition is largely or exclusively within the control of one party, so that the party is largely or totally dependent on the party within whose control the conditioning event lies, the express language of the condition often gives rise to an implied promised (Emphasis added.) Baker Farms, 136 Idaho at 926. Moreover, “[a] party to a contract will not be permitted to derive any benefit, or escape any liability, by his own failure to perform a necessary condition which prevents the completion of the transaction.” Talbott v. Nibert, 167 Kan. 138, Syl. ¶ 4, 206 P.2d 131 (1949).
Our Supreme Court in Talbott was faced with the argument drat a party to a contract should be excused from compliance with the contract when a condition has not been satisfied. There, Talbott brought an equitable action to compel Nibert to comply with an option contract for the sale of Nibert’s stock to Talbott. Nibert argued that he was not required to comply with the contract because a condition under the corporate charter requiring that a notice of the sale of stock to Talbott be given to the other stockholders of the corporation had not been fulfilled. Nibert had failed to give such a notice. The trial court entered judgment in favor of Talbott, enforcing the option contract. On appeal, our Supreme Court stated that the only duty remaining for Talbott to complete the option contract if Nibert had given notice to stockholders would have been to pay for the shares of stock. Nevertheless, Nibert had made it impossible for Talbott to complete the option contract according to the corporate charter, which required notice to stockholders. Recognizing that Nibert had control of the condition, our Supreme Court determined that Nibert could not be allowed to use his own default which had prevented the transaction from being completed as a defense. 167 Kan. at 145-46.
Here, Key Gas was in control of the condition requiring the transportation costs and other expenses to be charged to the leases. Key Gas’ conduct of entering into the contract allowing ONEOK to deduct costs prevented the completion of the condition. Moreover, at the time Key Gas entered into the contract with ONEOK, Key Gas had received Davis’ performance. Their leases had become unilateral in effect because Davis had fully performed its part of the leases. Having received Davis’ performance, Key Gas had an implied obligation to perform the act upon which its liability was conditioned. A simple case will illustrate this point.
In Brackett v. Knowlton, 109 Me. 43, 82 A. 436 (1912), the plaintiff, James W. Brackett, signed an advertising contract with Jeremiah B. Knowlton to place an ad in Brackett’s newspaper for the sale of Knowlton’s soda and sulphur springs. Knowlton promised to pay for the ad when he “sold the springs.” Knowlton prevented the condition by making a gift of the springs to his grandchildren. In determining that Knowlton’s prevention was improper and excusing the condition, the court stated: “By the conveyance to his grandchildren by way of gift, the testator made impossible the occurrence of either of the contingencies, and his liability at once accrued. [Citations omitted.]” 109 Me. at 45.
Here, prevention excuses the condition qualifying Key Gas’ liability, and Key Gas’ implied promise becomes absolute. Having prevented the performance of its condition precedent by entering into a contract whereby ONEOK could make the deductions for gas transportation costs and other expenses before tendering the proceeds from tire sale of gas to Key Gas, Key Gas will not be permitted to deny liability under paragraph 9 of Exhibit A of the leases.
The case of Foster, 381 F.2d 222, illustrates that a party to a contract who has control over a condition precedent must exercise reasonable diligence in causing such condition to occur. There, Colorado Radio Corporation sued Foster for damages resulting from an alleged breach of her promise to purchase certain assets of a New Mexico radio station. A provision to the contract between Foster and Colorado Radio Corporation required Foster to make satisfactory arrangements for the payment of two notes that she was supposed to assume. The lower court ruled in favor of Colorado Radio Corporation, finding in part that the contract provision in question created a condition precedent to Foster s duty to purchase. Fosters argument was that there could be no breach because satisfactory arrangements had not been made. In rejecting Foster s argument, the Tenth Circuit Court of Appeals stated: “We think it sufficient to say that the responsibility for making arrangements was placed by the contract on Mrs. Foster, and that with respect to one of the notes the evidence falls far short of showing a reasonably diligent effort on her part to make arrangements.” 381 F.2d at 224. See also Dengler v. Hazel Blessinger Family Trust, 141 Idaho 123, 128, 106 P.3d 449, 454 (2005) (“Where a party has control over the happening of a condition precedent he must make a reasonable effort to cause the condition to happen.”).
Here, Key Gas had control over its condition precedent requiring it to charge transportation costs and other listed expenses to the oil and gas leases before it became liable for Davis’ portion of these costs. When Key Gas entered into the gas purchase agreement with ONEOK, it had the responsibility under the oil and gas leases to protect Davis against transportation costs and expenses that would reduce Davis’ royalties. There is no evidence in this case that Key Gas used reasonable diligence to retain control of these costs and charge them to the oil and gas leases, thereby protecting Davis from these costs. A party may not raise nonperformance of a condition as a bar to liability where its own action is the cause of the nonperformance. See Gibbs v. Whelan, 56 N.M. 38, 41-42, 239 P.2d 727 (1952). Key Gas will not be allowed to use its own action which prevented its condition precedent from being fulfilled to escape liability for the costs.
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Wahl, J.:
Rachael and Blain Nelson were married on May 8, 1993. A daughter, C.N.N., was bom in 1995, and a son, N.R.N., was bom in 2002. Rachael and Blain separated frequently during the marriage, and on December 23,2003, Rachael filed for divorce. The parties, each represented by counsel, entered into agreed temporary orders which provided in relevant part that the parties would share equal time with the children and that Rachael would not allow the children to have contact with her boyfriend, Doug Marsh. Doug was charged in 1986 with engaging in sexually inappropriate contact with a 4-year-old boy and apparently entered into a diversion agreement as a result of the incident.
On March 9, 2004, Blain filed a motion for temporary custody, alleging that Rachael had violated the agreed temporary orders by refusing to allow him parenting time and by allowing the children to have contact with Doug. On March 30, 2004, a hearing was held wherein the parties signed custody orders agreeing that third-party placement with Blain’s sister, Melissa McMullen, was in the best interests of the children. The agreed custody orders also provided that the children were to have no contact with Doug. The agreed custody orders provided:
“The parties agree that the third party placement is in the best interest of the minor children and shall continue until such time as there is a material change in circumstance, as defined by Kansas Statute, the cases decided by the Court of Appeals and Kansas Supreme Court, and each waive the claim of parental preference as to this placement during the minority of the children. Each party acknowledges that they have been advised by their counsel of the Kansas Constitutional provisions concerning parental preference towards their children and they each acknowledge that the facts and circumstances warrant the third party placement and that the third party placement is in the best interest of the minor children.”
The agreed custody orders were approved by the district court and were signed by counsel and by Rachael and Blain.
On May 10, 2004, the divorce decree was filed. At this time, the parties also entered into a property settlement agreement and a permanent parenting plan which were approved by the district court and signed by both parties, further memorializing the parties’ agreement to place custody of the children with Melissa.
Soon thereafter, Rachael and Doug married. On September 15, 2004, Rachael filed a motion for change of custody which included a request to terminate the condition that the children not be around Doug. In the motion, Rachael argued that she was able to provide a stable environment for the children and that placement with her was in their best interests. Rachael also alleged that since the agreed custody orders had been entered into, she had completed a favorable parenting evaluation and that Doug had also completed an evaluation which indicated that there was no evidence of sexual deviance. Blain did not support Rachael’s motion for a change in custody.
Melissa moved to intervene in the matter and also moved to have the action dismissed, contending that Rachael had failed to state facts which, if true, would demonstrate a material change of circumstances such that it was in the best interests of the children to change custody. The district court granted Melissa’s motion to intervene but denied the motion to dismiss, as the court wished to further examine the parties’ waiver of the parental preference doctrine. The court reserved the right to reconsider the motion at trial after receipt of all or a portion of the evidence.
On January 7, 2005, a pretrial hearing was held regarding the parties’ waiver of the parental preference doctrine. At die hearing, Rachael testified that she entered into the custody agreement and waived the parental preference doctrine only because she thought that SRS was going to taire the children and place them in foster care. Rachael claimed that she did not think that waiving the pa rental preference doctrine was a “big deal” at the time because she believed the arrangement to be temporary.
Following testimony, the district court concluded that the parental preference doctrine as set out in Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), did not apply to this case because Rachael and Blain waived the doctrine when they agreed to grant custody to Melissa. The court held that Rachael had not been under duress and that she had knowingly and voluntarily waived her parental rights. The court noted that under the “parental presumption” doctrine, which stands for the notion “that parents act in the best interests of their children; as long as a parent is fit, there ‘will normally be no reason for the state to inject itself into the private realm of the family.’ ” The court held that because there had been no showing of unfitness in the present case, it would be presumptuous, absent a material change in the circumstances, for the court “to inject itself into the private realm of the family and question the ability of Rachael Nelson Marsh and Blain Nelson to make a decision that was in the best interest of their minor children.”
Melissa renewed her motion to dismiss Rachael’s motion for change of custody, alleging that there had been no prima facie showing of a material change in circumstances. The court denied the motion in an attempt to allow the parties to fully address all issues in the case.
On February 22-24,2005, a final hearing on the matter was held to determine whether there had been a material change in circumstances sufficient to justify a change in custody. Following testimony, Melissa moved for a directed judgment. The district court granted the motion, finding that Rachael had failed to demonstrate a material change of circumstances such that it was in the best interests of the minor children to change custody. The court ordered that the cmrent parenting plan was to remain in effect and denied Rachael’s request to vacate its previous order prohibiting the children from having any contact with Doug.
Rachael appeals, contending the district court erred in denying her motion to change custody. She alleges that the parental preference doctrine as set forth in In re Guardianship of Williams, 254 Kan. 814, 869 P.2d 661 (1994), requires the district court to award custody of the children to her.
Whether a child custody order is to be changed or modified rests with the sound judicial discretion of the trial court. In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002). In a custody modification proceeding, a trial court has the advantage of seeing the witnesses and parties, and its judgment may not be disturbed in the absence of an abuse of discretion. Talbot v. Pearson, 32 Kan. App. 2d 336, 342-43, 82 P.3d 854 (2004). “Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. [Citations omitted.]” Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).
Basic rights of a parent to the care, custody, and control of his or her children are fundamental rights protected by the Fourteenth Amendment Due Process Clause. The United States Supreme Court had long recognized that parents have a constitutionally protected right to raise their children as they choose without excessive interference from the State. See, e.g., Troxel, 530 U.S. at 65-66. The parental preference doctrine
“is a firmly established rule in this state that a parent who is able to care for his or her children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his or her children as against grandparents or others who have no permanent or legal right to the children’s custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them.” Williams, 254 Kan. 814, Syl. ¶ 2.
Rachael contends that, as a fit parent, she is entitled to custody over Melissa, a nonparent, based on the holding oí Williams. Her argument ignores two important points. First, Blain supports the district court’s ruling and prefers that custody remain with Melissa. Under K.S.A. 2004 Supp. 60-1610(a)(3)(B), “[n]either parent shall be considered to have a vested interest in the custody or residency of any child as against the other parent . . . .” Rachael is not automatically entitled to custody based on the holding in Williams. Most importantly, the Williams court did not consider a factual situation in which both parents had waived the parental preference doctrine. Here, the district court held that Rachael had expressly waived her parental preference rights.
Clearly, a parent may waive the parental preference doctrine. “It is beyond argument that ‘all constitutional rights may be freely and voluntarily waived.’ ” In re Habeas Corpus Application of Tolle, 18 Kan. App. 2d 491, 496, 856 P.2d 944 (1993). The district court did not err in determining that the parental preference doctrine could be waived.
Rachael argues she did not knowingly waive her constitutional parental preference rights, claiming that she was under duress when she waived the rights. She contends she approved the agreed custody order only because she believed that SRS was going to remove the children from her and Blain’s care and custody if the children remained with either one of them.
When determining whether rights are knowingly waived, this court determines whether there is substantial competent evidence to support the district court’s ruling. State v. Donesay, 265 Kan. 60, 68, 959 P.2d 862 (1998). The waiver of a statutory right involving the protected interests of parental rights should appear distinctly on the record. In re H.D.W., No. 90,193, unpublished opinion filed February 13, 2004.
The record reflects that Rachael knowingly and voluntarily waived the parental preference doctrine. The decision to place custody of the children with Melissa was made in March 2004 when the parties signed the agreed custody orders. Those orders stated that the parties waived the parental preference doctrine and acknowledged that they had been advised by counsel “of the Kansas Constitutional provisions concerning parental preference” and “that tire facts and circumstances warrant the third party placement and that the third party placement is in the best interest of the minor children.” The signed permanent parenting plan was presented to the court on May 10, 2004. A transcript of the hearing on that date contains Rachael’s testimony in response to questions by her attorney as to her understanding and agreement. It contains an in-depth questioning by the court as to her understanding and approval of the custody agreement. It contains testimony by Blain while Rachael was in the courtroom. Rachael testified that she understood it all and agreed to all the provisions. The parties’ property settlement agreement referred to the parenting plan and custody order “that provides for third party custody of the minor children.”
The decision to place custody of the children with Melissa was originally made in March 2004 when the parties entered into the agreed custody orders, and the permanent parenting plan was not adopted by the court until 2 months later. During this time, Rachael had the benefit of counsel, was questioned by her attorney and the court on the record, and was present in the courtroom while Blain was questioned by his attorney. Clearly, Rachael expressly waived her constitutional parental preference rights.
Also, the record does not support Rachael’s argument that she was wrongly informed that SRS was going to remove the children from the home if they remained with her or Blain. The permanent parenting plan provided that “SRS has begun an investigation into each parent and to avoid any further issues, the parties are agreeing to custody with Melissa McMullen until the court finds a material change in circumstances warranting a change thereto.”
There is substantial competent evidence to support the district court’s finding that Rachael knowingly and voluntarily waived the parental preference doctrine.
Rachael also contends that her waiver of the parental preference doctrine without notice to and consent of her minor children is contrary to public policy and a violation of the children’s rights under the Fourteenth Amendment to the United States Constitution. Specifically, she contends that the waiver was not valid because a guardian ad litem was not appointed to approve the custody orders on behalf of the children.
Rachael never raised this issue before the district court, nor did she request a guardian ad litem be appointed for her children. While the district court did raise the possibility of appointing a guardian ad litem during the January 7, 2005, hearing, one was never appointed and there is no indication in the record that Rachael ever objected to the district court’s failure to do so. As such, any error could be considered invited by Rachael. “A party may not invite error and then complain of that error on appeal. [Citation omitted.]” Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003).
In order for this issue to be laid to rest, we shall briefly consider its merits, but Rachael still is not entitled to relief. She cites Ferguson v. Winston, 27 Kan. App. 2d 34, 996 P.2d 841 (2000), for the proposition that the rights and interests of a child in his or her own parentage are due process rights which cannot be terminated or affected without notice and an opportunity to be heard. Rachael’s reliance on Ferguson is misplaced. There, the plaintiff brought an action to determine the parentage of an adult child, and the adult child was not made a party to the action. The trial court ordered a blood test without holding a Ross hearing and determined on tire basis of the blood test alone that the plaintiff was not the child’s father. This court reversed the ruling, questioning “the advocacy of determining the parent of a child who becomes an adult during the course of the litigation, who is not a party of the action and who is not represented by a guardian ad litem.” 27 Kan. App. 2d at 35-36. The Ferguson court limited its ruling:
“We do not, by this order, mean to infer that a child must always have an independent attorney and must always be independently made a party to a parentage action. We do hold, however, that when a child is an adult, he or she must be made a party to the action and must be represented by counsel before his or her parentage is determined.” 27 Kan. App. 2d at 40.
In the present case, the children were not adults and the issue did not involve determining either child’s parentage.
Rachael also improperly relies on In re Marriage of Schoby, 269 Kan. 114, 4 P.3d 604 (2000), for the proposition that when a right belongs to a child, it cannot be terminated even by parental agreement. Schoby involved a dispute over child support, which is a right of the child. 269 Kan. 114, Syl. ¶ 1. Child custody is not a right which belongs to a child. Further, the appointment of a guardian ad litem is not addressed in Schoby.
There is no case law or statutory mandate which compels the appointment of a guardian ad litem for minor children under the circumstances present here.
Lastly, we must determine whether the district court erred in finding that Rachael failed to show a material change in circumstances sufficient to justify changing the custody of the children.
K.S.A. 2004 Supp. 60-1610 controls child custody and residency. The court may change a prior custody order upon a showing of “a material change in circumstances.” K.S.A. 2004 Supp. 60-1610(a)(2)(A). “A material change of circumstances” has no precise definition, but it requires consideration of a variety of facts and circumstances. Johnson v. Stephenson, 28 Kan. App. 2d 275, 280, 15 P.3d 359 (2000), rev. denied 271 Kan. 1036 (2001). A material change in circumstances must be of such a substantial and continuing nature as to make die terms of the initial decree unreasonable. 28 Kan. App. 2d at 280.
In child custody cases, a court’s paramount consideration is always the welfare and best interests of the child. K.S.A. 2004 Supp. 60-1610(a)(3); In re Marriage of Whipp, 265 Kan. 500, 506, 962 P.2d 1058 (1998). Additionally, K.S.A. 2004 Supp. 60-1610(a)(3)(A) provides:
“If the parties have entered into a parenting plan, it shall be presumed that the agreement is in the best interests of the child. This presumption maybe overcome and the court may make a different order if tire court malees specific findings of fact stating why the agreed parenting plan is not in the best interests of the child.”
Rachael argues the district court erred in failing to find that a material change in circumstances had occurred which warrants a change in custody. Rachael points to several factors which she alleges constitute a material change in circumstances, including the fact that since she entered into the agreed custody orders, she has improved her living situation, she has a stable job, and she and Doug have both completed parenting evaluations. Rachael also contends that C.N.N. wants to live with her and is afraid of Melissa.
Essentially, Rachael asks this court to reweigh the evidence presented to the district court. However, this court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 775, 69 P.3d 1087 (2003).
This court looks to evidence which supports the district court’s findings and determines whether there is substantial competent evidence to support those findings. “Substantial evidence is that which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.]” U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003).
Emotional abuse of the children by both parents was substantiated in February 2004, and there was also evidence that spousal abuse had occurred. There was testimony in the record from workers at the High Plains Mental Health Center which suggested that Rachael was falsely reporting that C.N.N. was suffering from certain mental health issues. Additionally, one of the conditions of the agreed custody order was that the children were to have no contact with Doug Marsh. At the May 10, 2004, hearing, the district court stressed the seriousness of this condition with Rachael and she stated that she understood. Despite the seriousness of this obligation, Rachael subsequently married Doug.
Blain testified that the children were doing well in Melissa’s care and he felt it was in their best interests to remain with her. There was also considerable testimony presented which indicated that since living with Melissa, C.N.N. is more social and her schoolwork has improved.
There is substantial competent evidence to support the district court’s finding that there had been no material change in circumstances sufficient to warrant a change in the children’s custody.
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Caplinger, J.:
Gwendlyn Moody appeals her sentence as a fourth-time offender for driving under the influence (DUI). Moody argues that because the complaint recited only two or more prior DUPs, the district court was without jurisdiction to sentence her as a fourth-time DUI offender. We conclude that because proof of prior convictions is not an element of DUI, the district court did not lack jurisdiction to sentence Moody as a fourth-time offender. We further note that defendant’s due process rights were not violated, because the complaint properly charged the defendant with a nonperson felony, and the defendant received notice at the plea stage of the possible penalties to be imposed for a fourth offense.
Moody also challenges the validity of the trial court’s order requiring her to reimburse the Board of Indigents’ Defense Services (BIDS) system for attorney and administrative fees. Moody argues that because the trial court failed to consider her financial condition and ability to pay, the order violated K.S.A. 2002 Supp. 22-4513(a). We affirm the trial court’s order and find the consideration of a defendant’s financial resources at the time the assessment is enforced, rather than at the time of assessment, provides an outcome consistent with the legislature’s intent in enacting K.S.A. 2002 Supp. 22-4513.
Background
On July 29, 2002, the State filed a two-count complaint against Moody. Count 1 charged Moody with felony DUI, while count 2 charged her with failure to provide proof of liability insurance. In support of the DUI charge, count 1 alleged:
“Moody did operate or attempt to operate a motor vehicle, to-wit: 1988 Pontiac at Kellogg and Main, Wichita, Sedgwick County, Kansas, while under the influence of alcohol to the extent that he [sic] was incapable of safely operating said vehicle after having been previously convicted of DUI two or more times, to-wit: on the 4th day of April, 1989, in Wichita Municipal Court in Case No. TB92126, and on the 3rd day of February, 1998, in Wichita Municipal Court in Case No. 97TM13602.”
Moody subsequently entered into a plea agreement whereby the State agreed to recommend as to count 1 that the defendant receive a controlling sentence of 1 year in the county jail and a fine of $1,500, to be served by 48 hours in the county jail, less credit for time served, immediately followed by 88 days on house arrest as a condition of probation. As to count 2, the State agreed to recommend a fine of $300 and that the two counts be run concurrently.
During the plea hearing, the district court observed that the complaint alleged two prior DUI convictions; Moody concurred with the accuracy of that information. The district court further noted that the court was not bound by the plea agreement and could impose the maximum fine and penalty on each count. The court tiren specified tire maximum fine and penalty as follows:
“[CJount I, is one year in the County jail and a fine of $2,500, and count II, is up to 6 months in the county jail and a fine of $1,000 and [the court] could in fact order that those two sentences be served consecutively, or one after the other, and also that both fines be paid in the maximum amounts so the total penalty — • the maximum penalty that you face is 18 months in the county jail and a fine of $3,500.”
Moody pled guilty, and at sentencing the district court observed that Moody’s criminal history included three, rather than two, prior DUI convictions. Moody concurred that she did in fact have three prior DUI convictions. Consequently, the court sentenced Moody as a fourth-time offender to a term of 180 days in the Sedgwick County jail (3 days incarceration, followed by 177 days in a work release program), and assessed a fine of $2,500. Moody now appeals.
Jurisdiction to sentence defendant as a fourth-time DUI offender
Citing State v. Dyke, 33 Kan. App. 2d 167, 100 P.3d 972 (2003), Moody argues the trial court lacked jurisdiction to sentence her as a fourth-time DUI offender.
Whether jurisdiction exists is a question of law over which this court has unlimited review. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002). A complaint which omits an essential element of a crime is fatally defective, and die trial court lacks jurisdiction to convict the defendant. State v. Hooker, 271 Kan. 52, 61, 21 P.3d 964 (2001).
In Dyke, the defendant was charged with one count of DUI. The complaint referenced neither K.S.A. 8-1567(f) nor (g), but instead charged Dyke with DUI “ ‘after having been convicted of this same offense at least two times previously.’ ” 33 Kan. App. 2d at 169. Pursuant to a plea agreement, Dyke was sentenced to 90 days in jail, after which she would be placed on probation and enter alcohol counseling. The sentencing court originally imposed a fine of $1,500. However, at that point, the State noted that while Dylce was convicted of a third DUI, he actually had four prior DUI convictions which, pursuant to K.S.A. 8-1567(g), would make the fine $2,500. The district court agreed and imposed a fine of $2,500. 33 Kan. App. 2d at 168.
On appeal, this court held that the trial court lacked jurisdiction to sentence Dyke as a fourth-time DUI offender, citing State v. Horn, 20 Kan. App. 2d 689, 692, 892 P.2d 513, rev. denied 257 Kan. 1094 (1995), for the rule that “if a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the trial court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented.” 33 Kan. App. 2d at 169-70.
Recently, another panel of this court disagreed with Dyke, holding “that while Dyke reached the correct result, it did so for the wrong reason when it based its decision on lack of jurisdiction as opposed to lack of due process.” State v. Wheeler, No. 92,428, unpublished opinion filed June 22, 2005; see also State v. Gardner, No. 92, 649, unpublished opinion filed September 9, 2005 (agreeing with Wheelers rationale and concluding defendant received due process where the complaint charged the defendant with a nonperson felony and defendant received notice at plea stage of maximum penalties for fourth DUI offense). In reaching its conclusion, the Wheeler court relied on State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996).
In Masterson, the State’s amended complaint charged Master-son as a first-time DUI offender. After a bench trial, Masterson was convicted of a first-offense DUI. At sentencing, the State requested that Masterson be sentenced as a second offender, arguing that when the complaint was filed, the State was unaware of a prior DUI diversion entered into by Masterson. The district court denied the State’s request and sentenced Masterson as a first offender. 261 Kan. at 160.
The State appealed, contending that K.S.A. 22-3201 (setting out the requirements for a complaint, information, or indictment) does not require that the State give a defendant notice of the severity level of the DUI offense being charged. The Kansas Supreme Court disagreed, holding that although prior DUI convictions are not elements of the offense of DUI, “a defendant is entitled under due process to notice in the information or complaint of the severity level of the DUI offense being charged . . . .” (Emphasis added.) 261 Kan. at 163. Consequently, the Masterson court held that the trial court was correct in sentencing Masterson as a first-time offender. 261 Kan. at 164.
We agree with the Wheeler court that pursuant to Masterson, the issue is one of due process rather than jurisdiction. Thus, this court must determine whether due process was met here. The complaint charging Moody expressly references only two prior DUI convictions. Moody pled guilty to, and was convicted of, a third-offense DUI. The fact that Moody actually had three prior DUI convictions was not brought to light until sentencing. At first blush, this appears to constitute an impermissible “upping the ante” after conviction, akin to the one attempted by the State in Masterson.
.Nevertheless, we do not believe Moody’s sentence violated due process. A careful review of the basis upon which Masterson was decided is instructive on the issue. Notably, Masterson overruled State v. Helgeson, 235 Kan. 534, 680 P.2d 910 (1984). 261 Kan. 158, Syl.¶ 2.
In Helgeson, the pertinent version of the DUI statute, K.S.A. 8-1567 (Ensley), contained penalty provisions within three statutory subsections. Subsection (c) set forth the penalty for a first conviction; subsection (d) set forth the penalty for a second conviction; and subsection (e) set forth the penalty for a third or subsequent conviction. K.S.A. 8-1567 (Ensley).
Helgeson was not charged with violating any of the specific subsections of the DUI statute; rather, he was charged generally with violating K.S.A. 8-1567 (Ensley). 235 Kan. at 534. Following his conviction for DUI, Helgeson was sentenced as a second offender. Helgeson appealed, arguing that the complaint was deficient for failing to include any allegation of a prior DUI conviction. 235 Kan. at 535.
Our Supreme Court held: “A prior D.U.I. conviction is not a statutory element of the crime under K.S.A. 8-1567, and merely bears on the penalty imposed. There was no error in the complaint not charging the prior offense.” 235 Kan. at 536.
In overruling Helgeson, the Masterson court noted that the version of the DUI statute at issue in Helgeson provided no crime classifications, but merely prescribed the penalties for first, second, and third offenses. On the other hand, the court discerned, the statute at issue in Masterson not only prescribed penalties for first, second, and third or subsequent offenses, but it also differentiated the various offenses by the crime classifications of class B misdemeanor, class A misdemeanor, and nonperson felony. 261 Kan. at 163.
Consequently, the Masterson court concluded,
“because different crime classifications are now specified in the statute, a defendant is entitled under due process to notice in the information or complaint of the severity level of the DUI offense being charged, i.e., class A or B misdemeanor or nonperson felony.
“K.S.A. 22-3201(c) (effective in 1993) provides: “When relevant, the complaint, information or indictment shall also allege facts sufficient to constitute a crime or specific crime subcategoiyin the crime seriousness scale.’
“. . . Masterson should have the right to know before trial the severity level of the crime being charged.” (Emphasis added.) 261 Kan. at 163-64.
Thus, in construing the language now contained in K.S.A. 2004 Supp. 22-3201(c), the Masterson court equated the phrase “specific crime subcategoiy in the crime seriousness scale” with crime classification (e.g., class A or B misdemeanor or nonperson felony).
Since Masterson, the DUI statute has been further revised. In the version applicable here, although third and fourth DUI convictions are both classified identically as nonperson felonies, the penalties for third and fourth or subsequent convictions are distinct. See K.S.A. 8-1567(f) and (g).
The complaint charging Moody with DUI correctly classified the charge as a nonperson felony. However, the complaint failed to expressly mention that Moody was being charged with a fourth-offense DUI. Instead, the complaint alleged that Moody had committed a DUI “after having been previously convicted of DUI two or more times, to-wit: on the 4th day of April, 1989, in Wichita Municipal Court in Case No. TB92126, and on the 3rd day of February, 1998, in Wichita Municipal Court in Case No. 97TM13602.”
While the precise degree of notice necessary to comport with due process remains uncertain, Masterson tends to indicate that the crime classification of nonperson felony is all that due process requires in this instance. Because the complaint properly alleged the proper crime classification, due process was met here. Morever, even if Masterson required that the defendant receive notice of the penalties for three prior DUI offenses, rather than the two with which he was specifically charged, we believe Moody received that notice here.
At the plea hearing, the district court specifically noted the maximum penalties for the defendant’s DUI charge were “one year in the county jail and a fine of $2,500.” The maximum penalties for a fourth DUI offense are exactly those stated by the district court— i.e., 1 year’s imprisonment and a fine of $2,500. K.S.A. 8-1567(g). The maximum imprisonment for a third DUI offense, on the other hand, is also 1 year’s imprisonment, while the fine is “not less than $1,500 nor more than $2,500.” K.S.A. 8-1567(f). Because Moody received notice of the severity level with which she was charged, as well as the maximum penalty for a fourth offense, we affirm the defendant’s sentence.
BIDS Reimbursement
At sentencing, the trial court ordered Moody to reimburse the Board of Indigents’ Defense Services (BIDS) attorney fees in the amount of $385, plus an administration fee in the amount of $50. A review of the record indicates that Moody’s financial resources were not taken into account prior to the imposition of fees. Moody now contends the trial court erred by not considering her financial resources before imposing these fees.
This issue involves statutory interpretation and is therefore subject to unlimited review by this court. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). K.S.A. 2004 Supp. 22-4513 provides, in pertinent part:
“(a) If the defendant is convicted, all expenditures made by the state board of indigents’ defense services to provide counsel and other defense services to such defendant or the amount allowed by the board of indigents’ defense reimbursement tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is less, shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases.
“(b) In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or die defendant’s immediate family, the court may waive payment of all or part of the amount due or modify die method of payment.”
Previous panels of this court have split in their interpretations of K.S.A. 2004 Supp. 22-4513. In State v. Robinson, 33 Kan. App. 2d 773, 109 P.3d 185 (2005), the majority held that the sentencing court did not err by failing to consider the defendant’s financial resources before assessing attorney fees. In reaching its conclusion, the Robinson majority reasoned:
“[W]e believe that the sentencing court must first tax, as costs, the amount requested by BIDS and then decide what, if any, amount can be collected. Of course, if at any time (even at the tíme it is being taxed) the defendant asks, the court must follow the statute and waive all or a portion of the amount taxed as the facts warrant. The inclusion of the waiver language in this statute precludes the trial court from having to make findings before taxation, unlike K.S.A. 21-4607, which has no such waiver provision. This interpretation of the statute gives full and harmonious effect to botii subsections (a) and (b).” Robinson, 33 Kan. App. 2d at 782.
Judge Greene dissented from the Robinson majority on the attorney fee issue, concluding that the sentencing court is under both statutory and constitutional obligations to consider a defendant’s financial status when ordering payment of attorney fees. Robinson, 33 Kan. App. 2d at 784-86.
Recently, in State v. Barr, No. 92,366, unpublished opinion filed July 1, 2005, another panel of this court declined to follow Robinson, holding that the plain language of K.S.A. 2004 Supp. 22-4513(b) requires the trial court to consider the defendant’s financial resources on the record at sentencing.
We agree with the rationale of the Robinson majority and find the consideration of a defendant’s financial resources at the time the assessment is enforced, rather than at the time of assessment, provided an outcome consistent with the legislature’s intent in-enacting K.S.A. 2002 Supp. 22-4513.
Accordingly, we affirm the district court’s order requiring Moody to reimburse the BIDS system for attorney and administrative fees.
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Denied.
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The opinion of the court was delivered by
LuCKERT, J.:
A jury convicted Adam J. Longoria of capital murder, vehicle burglary, and theft. In this direct appeal, Longoria challenges his convictions, raising eight issues: (1) The trial court erred when it denied his motion for change of venue; (2) the trial court erred in failing to instruct on the lesser included offense of felony murder; (3) the trial court erred in failing to instruct on the lesser included offense of reckless second-degree murder; (4) the trial court erred in admitting a before-death photograph of the victim; (5) the trial court erred in admitting a video of Longoria’s arrest; (6) the prosecutor committed misconduct during closing arguments that denied Longoria a fair trial; (7) the trial court erred in failing to declare a mistrial due to juror misconduct; and (8) the State failed to present sufficient evidence to convict him of capital murder.
We hold that Longoria fails to establish reversible trial error and that sufficient evidence supports his convictions of capital murder. Therefore, we affirm Longoria’s convictions and sentences.
Facts and Procedural Background
In the afternoon of August 24, 2010, Venture Corporation employees discovered the burnt remains of 14-year-old A.D.’s body near Great Bend at an asphalt plant operated by their employer. A.D. had been missing for nearly 3 days, since late night Saturday, August 21, 2010. Forensic evidence suggested A.D.’s body had been at the site for several days. Investigators observed the remnants of unbuttoned shorts, a shirt and bra, and a red ponytail holder on A.D.’s body. These clothes and the soil that surrounded her body tested positive for gasoline. Though fire had charred most of A.D.’s body, it completely consumed her genital and anal area. Yet residue from duct tape remained, leaving a pattern indicating that duct tape had bound A.D.’s legs and covered her mouth and nose. An investigation into A.D.’s murder led to Longoria.
Longoria moved from Texas to Great Bend in May 2010 to live with his internet girlfriend, Eva Brown. Not long after his arrival in Kansas, Longoria threw a birthday party for Brown. The party began around 1 p.m. on July 17, 2010. Around 7 or 8 p.m., a group of younger individuals arrived. The group included A.D. and several of her friends.
Late into tire party, 36-year-old Longoria approached A.D., who was sitting next to one of her friends. The friend heard Longoria ask A.D. if she had a boyfriend. A.D. indicated she did but explained that they were broken up at the time. Longoria asked if she would go out with him—he said that if she dated him he would buy her new clothes, a fake ID, and take her out to eat. A.D. appeared disinterested. This did not dissuade Longoria from asking A.D. for her cell phone number, which she gave him.
The party ended between 3:30 and 4 a.m. The record does not disclose whether Longoria and A.D. had other contact during the party. Another of A.D.’s friends testified that sometime after the party, Longoria told him that he had sex with A.D. in his car; the testimony does not pinpoint when the conversation occurred or if Longoria suggested the sex occurred during the party or at some later date.
After the party broke up, Brown’s phone—which she allowed Longoria to use because he did not have his own—received a text message: “Hey, this is [A.D.]!!(:” Longoria told Brown that A.D was a 16-year-old girl from the party and that he gave her Brown’s cell phone number to make sure she got home safely. Longoria’s relationship with A.D. continued through numerous text messages over the month that preceded her murder. At trial, the State pointed to these text messages as evidence of Longoria’s sexual intent. The prosecutor also urged the jurors to consider what the messages did not say, pointing out the lack of bravado or other references about having had sex or wanting to repeat sexual acts. Instead, according to the State’s argument, the tone of the flirtatious messages conveyed a desire to develop a sexual relationship.
Hours after A.D.’s initial message, Longoria wrote, “Good morning beautifyl and i got ur text.” Eight minutes later he texted, “Wake up sleeping beauty.” After receiving no response for fourteen minutes, he texted, “Tell me if u get this text.” A.D. then replied, “Yealih.”
Longoria thanked her for coming to his party, and he asked if he could take her to a movie. “Okayy,” A.D. responded. Longoria proceeded to tell A.D. that she was great and had everything going for her, receiving a “[tjhank you,” from A.D. Then Longoria said, “Ur veiy welcome miss shy.” This provoked an “I’m not shy” from A.D., to which Longoria replied, “In sum ways u r and i like that.” After a few more messages, Longoria asked for a picture. A.D. sent one. And Longoria responded, “Damn I like.” Then he told her that he looked forward to spending some time with her. “Yealih,” A.D. replied.
Four hours later Longoria asked, “What u doing hot stuff?” When he got no reply he sent the same message 6 minutes later. A.D. said, “Nothing you.” Longoria said he was just thinking of her. “Ohh,” she messaged. He asked if that was good or bad. “Good,” A.D. responded. Then he asked A.D. what she thought of him. She said she did not know him but he seemed nice. Lon-goria said he tried to be and that he hoped she wanted to get to know him. “I do,” A.D. replied. Longoria texted, “Damn that is kool. Wouldn’t think a girl like u would want 2 have anything with me.” When asked why, he explained, “Cause ur hot and awesome and don’t see myself ur type or in ur league.” Longoria got no response, and he sent the same message again 7 minutes later.
Still getting no response, Longoria asked, “R u ok cause u never repled 2 my text and I dont want 2 b a pest either?” A.D. said that her sister had her phone, and she asked Longoria’s age. He replied, “Does it matter?”; and he asked for another picture. A.D. did not send one. Longoria then told A.D. that he was 25, and he asked if he was too old for her. She said that she did not know him and asked when they would party again. Longoria replied, ‘When do u want 2 and r u going 2 b my date?” Nine minutes later he asked, “U going 2 give me a reply?” and A.D. responded, “We are just friends.”
A.D. then messaged “[H]ow about tonight?” and Longoria asked what she wanted to do. A.D. told him, “Party.” Longoria asked her to call him, twice; she did not call. Then he asked if he had to pick her up and, “[D]o those guys have 2 go?” presumably referring to her friends who had been with her at Brown’s party. A.D. replied with, “What?” Longoria asked again if he had to pick her up and if “them guys got to gn.” When A.D. did not respond for 11 minutes, Longoria asked, “R u going 2 reply?” She said yes, and he asked, “Then whats going 2 take place?” A.D. did not respond. About an hour later, Longoria asked, “R we doing anxthing?” Thirteen minutes later, still receiving no response, Longoria texted A.D., “K that’s kool and have a god nite.” A.D. replied, “K?”
“R u mad at me hot stuff?” was the next message Longoria sent A.D. a couple of days later, on July 20, 2010. He told A.D. that he missed her; he thought that he was not in her league; he thought that it would be best if he left her alone. She replied that he did not have to do that. So he asked to take her out to eat—he would even buy her a drink. A.D. did not respond. Later that evening, Longoria got his own cell phone, and he sent a text to A.D. giving her the new number.
Around this time, A.D. mentioned Longoria to her mother and her sister. She told them that she met him at a party in July, that he was 25 years old, and that he seemed like a nice guy. Her mother and sister reminded her to be careful.
On July 21, 2010, A.D. received a text message from Brown (from the phone that Longoria had been using), asking who she was and if she was related to Longoria. Apparently, Longoria had described A.D. to Brown as his cousin. When A.D. corrected Brown, describing herself as Longoria’s friend, Brown told her “well he aint ur friend no more got that, dnt what 2 here u talk 2 him again.” A.D. then messaged Longoria, asking who was using his old phone. He said a friend had it. Brown, however, told A.D. that she was Longoria’s wife. When confronted in a text, Longoria assured A.D. that Brown was not his wife and that A.D. had nothing to worry about. Then he asked her for another picture. A.D. did not reply.
The next day, Longoria texted A.D., asking if she was mad. When A.D. replied “No,” Longoria said, “So then u still love me! Lol send me that pic.” A.D. asked why, and Longoria told her that he had a new phone “but that is kool never mind and have a good day,” to which A.D. responded “you too.” Longoria texted, “Dont know why u trippin on me I havent done anything 2 u but that is kool and ill see u around.” A.D. said, “I’m not.”
The following evening, around 5:30 p.m. on July 23, 2010, Lon-goria asked A.D. if she wanted to party—he was thinking about renting a limo. A.D. did not respond, but she received a text from Brown around 10 p.m. asking, “U bn talkn 2 my hubby?” A.D. did not reply. And she received the same message again from Brown at 2:06 a.m. on July 24.
A.D. told her sister about the strange text messages she was receiving from Brown and Longoria: “I don’t know who this beep is. She’s texting me, telling me to leave her husband alone. I don’t even know who she is.” A.D.’s sister took the cell phone from A.D. and sent a message to Brown at 2:09 a.m.—“Okayy listen her[e] chick I don’t know who the hell you are but leave [A.D.] alone she don’t want anything to do with you and she has man who she very much loves so erase this god Damn number!!!” A.D. told her family, “[Longoria is] the one that keeps texting me. I don’t know why she’s so mad at me, because I’m not doing nothing.”
Longoria again initiated contact with A.D., texting her on July 26. He asked her what she was doing and if she was mad at him. A.D. did not reply.
At around 9 p.m. on July 31, however, A.D. sent Longoria a text asking if he could give her a ride to a birthday party for her stepsister. Longoria immediately said that he would; he said he would pick her up in 15 minutes, and he asked about her plans for after the party. When she replied that she did not know, Longoria told her that he planned to party. A.D. then told Longoria that she was already at the party and no longer needed a ride. But when asked, she said that Longoria could come there and see her. Longoria again asked her numerous times for a picture; she refused. When Longoria messaged that he would be at the party in 10 minutes, A.D. replied that she had left. Longoria then tried to meet A.D. at a store, but A.D. left the store before he arrived. A little after midnight, Longoria told A.D. to meet him at a park. A.D. never showed. And just before 1 a.m., Brown texted A.D. again, “U better quit txtn & caln my hubby u cn go fnd ur own ride fm ur boyfriend tht u so cald love.”
In the afternoon of August 1, 2010, Longoria sent A.D. a message asking what had happened the night before. A.D. told Lon- goria that his wife had texted her again and that he needed to tell her to stop. Longoria falsely told her that he moved from Brown’s house and that A.D. should ignore Brown. On August 4, 2010, Longoria texted A.D. from another new number asking what she was doing and if she wanted to go out for a drink and a cruise. A.D. asked who the message was coming from. When Longoria told her, A.D. texted “ohh.” Longoria asked, “Is that an ohh that u dont want 2 talk 2 me?” A.D. replied, “ya.” Longoria then asked, “[W]hat did I do 2 u?” A.D. never responded.
Around the time of these messages, A.D. told a friend that she was “freaking out because Longoria kept texting her.” The friend told her to ignore the messages.
On August 21, 2010, about a week after A.D. told Longoria she did not want to talk to him, A.D. went school shopping in Wichita with her mother and other family members. They stayed in Wichita until 8 or 8:30 p.m. before heading home. At 9:46 p.m. Longoria sent A.D. a text asking why she was mad at him. She replied, “I’m not.” So Longoria asked her if she wanted to party, and he mentioned by name some of her friends who would be there. A.D. said that she was not in town yet but that she would let him know when to pick her up.
On the drive back to Great Bend, A.D. called a friend. In the car with her family, A.D. mentioned a party that she wanted to go to if they got back to town in time. She listed two male friends who would pick her up and give her a ride to the party. She made no mention of Longoria.
A.D. returned home from Wichita around 10:15 that night. She changed into a pair of jean shorts, white t-shirt, gray sweatshirt, socks, and tennis shoes. A.D. put a new pink and white giraffe print phone case that she had purchased earlier in the day on her phone. Just before 11 p.m., she texted Longoria her address and told him that she was ready. At 11:01 p.m., A.D. received a text from Lon-goria—“I’m here.”
Before leaving, A.D. went into her mother’s bedroom and said, “Bye, love you; see you at 12.” Around 11 p.m., neighbors testified that they saw A.D. leaving her house while talking on her phone. She entered a black SUV driven by a male. Phone records show that A.D. had been on the phone with a girlfriend, and the girlfriend testified that A.D. said she was going to a party with the same two young men she had mentioned to her mother. Again, she did not mention Longoria. A.D. also told her girlfriend they were on their way to the girlfriend’s house to pick her up, but A.D. never arrived. At 11:33 p.m., the girlfriend sent A.D. a text asking, “[W]here u at?”; A.D. never responded. A.D. did not come home at her curfew. And she never responded to any subsequent texts.
Earlier that same day, August 21, 2010, Longoria went to work at Venture Corporation, which operated tire asphalt plant outside of Great Bend. The foreman saw Longoria arrive around 7:30 a.m. in a black Ford Escape, as usual. Longoria went home from work around 10 a.m. after Brown called Venture, at Longoria’s request, and falsely reported a family emergency.
That evening, Longoria and Brown dropped her children off with her brother and went bowling around 7 p.m. They bowled and drank beer for a couple of hours before going to a restaurant for dinner. Longoria’s texting throughout the meal upset Brown, and they left for home around 10:30 p.m. After arriving back at home, Longoria left the house again around 11 p.m.—near the same time that he texted “I’m here” to A.D. He told Brown, however, that he was going to a friend’s to look at some pictures.
The investigation revealed no eyewitnesses who saw Longoria or A.D. from 11 p.m. to midnight. Signals from Longoria’s phone ended after he sent the text, “I’m here,” to A.D., suggesting that he turned off his cell phone. A.D.’s cell phone signal, however, sent signals from west of Great Bend in an area that would be consistent with her heading toward the Venture asphalt plant. Thirty minutes later, around 11:33 p.m., the signal relaying the text from A.D.’s friend’s phone to A.D.’s phone (asking where A.D. was) was consistent with the phone heading back into Great Bend from the Venture plant. A.D.’s friend never received a response to that message. The last signal from A.D.’s phone came at 11:40 p.m., when someone either shut off A.D.’s phone or removed its batteiy. Longoria’s phone began receiving signals again at 12:01 a.m.
At 12:07 a.m., video surveillance showed Longoria drive the black Ford Escape up to a gas pump at a convenience store. He was alone. He went into the store and asked the clerk if she had a container for gas. She could not find anything. So Longoria went back to the Escape, found a container in the trash, and purchased $1.37 worth of fuel. He left the store at 12:13 a.m.
Brown testified that when Longoria returned home, he was dirty, smelled like gas, and reported working on a friend’s car (the friend later denied this). Longoria changed clothes and then left again; but before he did, Longoria washed the clothes that he had changed out of, which was unusual. Brown sent him a message around 12:30 a.m. saying that she had gotten sick. Shortly thereafter, Longoria called saying that he was on his way home. He returned home around 1 a.m. And around that time he sent a text to A.D.’s phone—“There isn’t going 2 b a party never mind.” Lon-goria took a shower and went to bed.
When Brown used the Ford Escape to pick up her children the next morning, it smelled like gasoline. In the afternoon of August 22, 2010, Brown received a text that A.D. was missing with a picture. Brown recognized the missing person as the person she had been texting, so she showed Longoria the message. Longoria said “[h]e didn’t know who [A.D.] was.”
When Brown finished the laundiy that Longoria had started the night before, she noticed some unusual stains on the clothes. She told Longoria that the stains did not come out; he said he would just throw the clothes away. Then Longoria washed the shoes he had worn tire night before, and he put the shoelaces into a cup of bleach.
That same day, Longoria called some of A.D.’s male friends, including those that A.D.’s mother and girlfriend thought were going to be at the Saturday night party with A.D. Longoria asked the young men where they had been on Saturday night. When they reported they had been at a party and then at a bar known as Willy J’s, Longoria requested that they tell law enforcement officers that he had been with them at Willy J’s. Subsequently, he told Brown he had been at Willy J’s after he left her at home around 11 p.m.
At work on Monday, August 23, 2010, unprompted, Longoria started talking about A.D.’s disappearance vrith two different employees, saying that A.D. had shown up to a party at his house one night. Later, when confronted at his house by A.D.’s sister—who had tracked Longoria down by the description of the black SUV that neighbors saw A.D. entering—he said that he never saw A.D. Saturday night. He told A.D.’s sister that he had been at Willy J’s on Saturday night. Then—after washing the Escape—Longoria went to A.D.’s house, unannounced, telling tire family that he would help them find A.D.
Meanwhile, an investigator arrived at A.D.’s residence. Longoria told him that he had come to tire house to help; he had heard that his vehicle was involved, and he wanted to clear drat up. He admitted that he had texted A.D. Saturday night, but he said that he had just texted what another man wanted to say because the man did not have his phone. Longoria told the investigator that he did not know A.D.
At some point that same day, Longoria ripped the shirt he had worn Saturday night into several pieces. He told Brown if she loved him enough she would get rid of the pieces. She threw the pieces out of the window as she drove the Escape to pick up cigarettes. And later that day, Longoria again brought up A.D.’s disappearance, unprompted, to a store clerk—a complete stranger. He told the clerk that his friends had used his phone to text A.D., that his wife was friends with A.D., and that he spent Saturday night at Willy J’s with his wife for 5 hours.
Longoria went to Oklahoma for work on Tuesday, August 24, 2010, and he texted Brown numerous times asking if police had found A.D.’s body (they had that afternoon, but it is not clear if Brown knew). That night, law enforcement seized the Ford Escape Longoria had been driving.
The next day, Longoria asked a neighbor to give him a ride to Venture. When the neighbor dropped Longoria off, Longoria asked for his check at die payroll department. Shortly after he left the office, a Venture employee discovered that a white Ford Explorer belonging to Venture and a company cell phone were missing. Longoria had been seen looking into various vehicles.
The Kansas Highway Patrol received an attempt-to-locate request that described Venture’s Ford Explorer and Longoria; the vehicle was being tracked by the Venture cell phone that Longoria had taken. A highway patrol officer saw a white Explorer in the expected area of travel. The officer followed Longoria, who pulled over even before the officer activated his lights. Consistent with standard procedure for a stolen vehicle, the officer asked Longoria to exit the vehicle at gunpoint. Moments later, other officers arrived and assisted in taking Longoria into custody. Over the defense’s objection, the State showed a redacted video of Longoria’s arrest to the jury.
The investigation led to several additional pieces of physical evidence that the State used to link Longoria to the crime. First and significantly, a forensic examination of the Escape revealed a stain on the driver’s side floor mat, just in front of the seat. The stain contained a mixture of A.D.’s and Longoria’s DNA. Testing revealed that Longoria’s DNA came from semen and A.D.’s from body fluids—not from touch. Second, after executing a search warrant at Longoria’s residence, investigators found gasoline on Lon-goria’s shoes, which were still missing their laces. Third, investigators discovered an AutoZone jug that tested positive for gasoline in a cemetery near the location where A.D.’s body had been found; the jug’s proximity to A.D.’s body suggested it easily could have been tossed away after the gasoline in the container had been poured on her body. Fourth, a coordinated search of the roadside ditches between the Venture asphalt plant and Great Bend revealed—in different places—A.D.’s pink and white giraffe print cell phone case, the batteiy cover, her cell phone, and lastly, the cell phone batteiy.
Longoria’s jury trial began on March 26, 2012. After the State presented evidence, a witness called by Longoria testified that before 1 a.m. on August 22, 2010, she noticed smoke coming from the Venture asphalt plant as she passed it and a dark-colored car leaving the road that led to the plant. Another witness testified that around 2 a.m., he saw three vehicles leaving the road that led to the asphalt plant. And a maintenance worker for the cemetery next to the asphalt plant testified that he did not see the plastic AutoZone jug when he mowed the lawn during the time between A.D.’s disappearance and the discovery of her body. Before the defense rested, A.D.’s girlfriend, who had waited for A.D. to pick her up to go to the party, testified that A.D. did not mention that she was with Longoria when she called and said she was on her way.
Also, through cross-examination and argument, Longoria stressed that a trace amount of unknown male DNA, which was not consistent with Longoria’s, was located on one of four swabs from A.D.’s mouth. A forensic expert could not say where the unknown DNA came from. He testified that it was consistent with contamination, manufacturing error of the swab, or even from A.D. sharing a straw with a male earlier in the day. Longoria’s defense emphasized that A.D. had mentioned two other men and not Lon-goria, she had a deteriorating relationship with her boyfriend, and the forensic testing could not pinpoint when the DNA stain had been deposited on the floorboard.
After closing arguments and instructions, the jury found Lon-goria guilty of capital murder based on criminal sodomy, guilty of capital murder based on aggravated criminal sodomy, and guilty of capital murder based on attempted rape-—all in violation of K.S.A. 21-3439(a)(4); vehicle burglary in violation of K.S.A. 21-3715(c); and theft in violation of K.S.A. 21-3701(a){l). Longoria waived his right to be present at his sentencing. The State elected to have Longoria sentenced for capital murder based on aggravated criminal sodomy, and the trial court imposed consecutive sentences of life in prison without the possibility of parole solely for capital murder based on aggravated criminal sodomy, 17 months in prison for vehicular burglary, and 7 months in prison for theft.
Additional facts will be discussed as relevant to the specific issues raised on appeal.
Analysis
Issue 1: Did the trial court’s refusal to change venue deny Lon-goria’s constitutional right to an impartial jury?
Longoria argues that pervasive and prejudicial pretrial publicity in Barton County, where Great Bend is located, denied him a trial by a fair and impartial jury, violating his right to an impartial jury as guaranteed by the Sixth and Fourteenth Amendments to tire United States Constitution and Section 10 of die Kansas Consti tution Bill of Rights. Likewise, he contends that the trial court abused its discretion by refusing to transfer his case to another county under K.S.A. 22-2616(1), which allows for a change of venue.
1.1. Additional Factual and Procedural Background
Longoria first moved for a change of venue in January 2012, just a few months before trial and approximately 16 months after A.D.’s murder. At a motion hearing, Longoria presented witnesses and a venue study to demonstrate the extensive publicity of his case in Barton County and the impact of that coverage on potential jurors.
The telephone survey conducted at the end of 2011 and the beginning of 2012 of 401 Barton County residents revealed that 97 percent could identify the case with no cueing. Further, 100 percent of the respondents recognized the case after some cueing. Part of the survey included specific perceived knowledge of the case. For example, 69.1 percent of the respondents rated as accurate the statement that “[pjolice have evidence that the defendant previously communicated with the victim by text messages.” Moreover, the survey reflected that “over 75 percent of the residents of Barton County believe that the defendant is guilty of the crime he is charged with.”
Longoria also provided the court with numerous news stories covering A.D.’s murder and his potential involvement. The articles began with Longoria’s arrest for vehicular burglary and continued with reports of the case as it progressed through the trial court. He points out that some of the stories mentioned his criminal history, including charges against him in North Carolina for allegedly calling in bomb threats to an elementary school. In addition, Lon-goria contended that the media picked up and distributed the prosecution’s slant on the evidence because the prosecution did not file its motions under seal; this, he claimed, further prejudiced the community against him.
The trial court denied his motion. Longoria did not renew his motion during tire jury selection process or other trial proceedings.
1.2 Presumed Prejudice
A constitutional claim that pretrial publicity requires a change of venue can arise in two contexts: presumed prejudice and actual prejudice. Courts should presume prejudice, even before voir dire, when “ pretrial publicity is so pervasive and prejudicial that [a court] cannot expect to find an unbiased jury pool in the community.’ ” State v. Carr, 300 Kan. 1, 57, 331 P.3d 544 (2014).
In evaluating a claim of presumed prejudice, a court reviews the seven factors enunciated in Skilling v. United States, 561 U.S. 358, 381-85, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010):
“(1) media interference with courtroom proceedings; (2) the magnitude and tone of the coverage; (3) the size and characteristics of the community in which the crime occurred; (4) the amount of time that elapsed between the crime and the trial; (5) the jury's verdict; (6) tire impact of the crime on the community; and (7) the effect, if any, of a codefendant’s publicized decision to plead guilty.” Carr, 300 Kan. at 62.
Defendants face a high burden under the Skilling test—generally a defendant can obtain a change of venue only upon showing that publicity has displaced the judicial process entirely or that the courtroom proceedings more resemble a circus or a lynch mob. 300 Kan. at 62.
In our appellate review of the trial court’s decision, we apply a mixed standard of review, examining the trial court’s findings of fact for substantial competent evidence and the ultimate legal conclusion drawn from the facts—whether to presume prejudice—de novo. 300 Kan. at 63-64.
In this case, though the parties argued the factors in a hearing on the motion, the trial court denied the motion without providing any explanation. Because Longoria did not object to the adequacy of the trial court’s factual findings, we assume that the trial court made the findings necessaiy to deny the change of venue. See 300 Kan. at 65. Further, in large part, the facts were not disputed, and the dispute centered on the weighing of the Skilling factors. Thus, we move to the second step of the analysis and review diose factors de novo to determine whether the trial court correctly rejected Longoria’s presumptive prejudice arguments.
Turning to the first of the Skilling factors for presumed prejudice, Longoria makes no claim that the media interfered with courtroom proceedings. And the record does not reflect any interference. Consequently, this factor weighs against the presumption of prejudice.
As to the second Skilling factor—the magnitude and tone of coverage—Longoria argues the media slanted its extensive coverage in the prosecution’s favor and reported facts that were inadmissible at trial. But “the Sixth Amendment does not demand juror ignorance”; simply proving extensive media coverage does not establish prejudice, especially where the coverage is factual. 300 Kan. at 65. And the media covered Longoria’s case factually—as opposed to inflammatorily—even if its coverage revealed some inadmissible evidence (i.e., Longoria’s criminal history). Thus, this factor weighs against the presumption of prejudice. See 300 Kan. at 66 (recognizing that factual coverage, even of inadmissible facts, undermines a presumption of prejudice).
The third Skilling factor—the size and characteristics of the community—weighs in favor of presuming prejudice. The jury pool for Longoria’s case consisted of 20,546 residents, which is a relatively small population. As the survey indicated, most of the community knew at least something about A.D.’s death, and the population of Barton County was not large enough to diminish the potential that an impartial jury would be impossible to find. Compare Skilling, 561 U.S. at 382 (recognizing that communities with millions of residents mitigate the risk that an impartial jury cannot be found), with Rideau v. Louisiana, 373 U.S. 723, 724-26, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (recognizing greater potential for prejudice in parish with 150,000 residents, where confession broadcast to audience of nearly 100,000 over 3-day period).
The fourth Skilling factor relates to the time that elapsed between the crime and the trial. Here, the crime occurred on August 21, 2010, and the trial court ruled on the motion to change venue on March 20, 2012. Generally, public interest wanes over time. Carr, 300 Kan. at 68. In this case, the passage of time did not wipe out the survey respondents’ memory that the crime had occurred— approximately 97 percent of residents still remembered the case. But that percentage decreased when the surveyors asked about specific details in the case. Given the lack of memory regarding the specifics that might reflect adversely on Longoria, the passage of time results in this factor weighing against presuming prejudice, albeit marginally.
The fifth Skilling factor focuses on the verdict; but the trial court did .not know the verdict at the time it denied Longoria’s motion. As such, this factor carries no weight in our review. See 300 Kan. at 68.
The impact of the crime on the community, the sixth Skilling factor, weighs in favor of presuming prejudice. See 300 Kan. at 68-69. Hundreds of individuals attended a vigil held for A.D. a week after her death, and Longoria points to comments and social media posts showing strong public sentiment. Moreover, the managing editor of the Great Bend Tribune testified that the Tribune chose to cover the case because of its high public interest.
The seventh and last Skilling factor—publicity given to a confession or other “smoking-gun type of information”—does not apply here because Longoria did not confess and no direct evidence exists of Longoria’s guilt. See 300 Kan. at 69-70.
In sum, Longoria established extensive media coverage and a high level of community familiarity. But he must show more to give rise to a presumption that he would not receive a fair trial. He must present evidence of a lynch-mob mentality, and he failed to do so. 300 Kan. at 72. Based on our de novo review, we conclude that the Skilling factors, given appropriate weight, did not compel the trial court to presume prejudice.
1.3 Actual Prejudice
Longoria briefly raises an actual prejudice argument. Actual prejudice occurs when “ The effect of pretrial publicity manifested at juiy selection is so substantial as to taint the entire jury pool.’ ” Carr, 300 Kan. at 57 (citing Goss v. Nelson, 439 F.3d 621, 628 [10th Cir. 2006]). When faced with a claim of actual prejudice, a trial court must “review the media coverage and the substance of the jurors’ statements at voir dire to determine whether a community-wide sentiment exists against the defendant. Negative me dia coverage by itself is insufficient to establish actual prejudice.” Carr, 300 Kan. 1, Syl. ¶ 6.
But here, Longoria never renewed his motion to change venue after voir dire to claim that voir dire revealed actual prejudice. Consequently, the trial court did not render a decision that this court can review. See State v. Johnson, 293 Kan. 959, 963-64, 270 P.3d 1135 (2012) (“We generally refuse to consider an issue on appeal if it has not been raised in the district court.”). Moreover, Longoria fails to explain why this court should consider this issue for the first time on appeal. See Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 41) (“there must be an explanation why the issue is properly before the court” if it was not raised below).
Simply put, Longoria failed to preserve this issue for appellate review.
1.4 Statutory Prejudice
Longoria preserved an alternative argument, however, and on appeal asserts that the trial court erred in applying K.S.A. 22-2616(1) and refusing to transfer his case to another venue for trial. K.S.A. 22-2616(1) provides that a trial court should transfer venue when the defendant shows “so great a prejudice against the defendant that he [or she] cannot obtain a fair and impartial trial in that county.” The defendant has the burden to show prejudice in the community significant enough that there is a reasonable certainty he or she cannot obtain a fair trial without a venue change. See State v. McBroom, 299 Kan. 731, 746, 325 P.3d 1174 (2014).
This court reviews the trial court’s decision on a motion to change venue pursuant to K.S.A. 22-2616(1) for an abuse of discretion. Carr, 300 Kan. at 80-81. An abuse of discretion can occur in one of three ways—when the trial court makes an error of law; bases its decision on facts not supported by the evidence; or makes an arbitrary, fanciful, or unreasonable decision. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Here, Longoria does not dispute the legal standard applied by the trial court or argue that the evidence did not support any of the court’s findings. Rather, Longoria argues the unreasonableness of the trial court’s determination.
Indeed, the trial court applied the correct legal standard—a nine-factor test this court recently reiterated:
“Factors to be considered on whether a venue change is necessaiy under the Kansas statute include: (1) the particular degree to which the publicity circulated throughout the community; (2) the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; (3) the length of time which elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the ease encountered in the selection of the jury; (5) the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; (6) the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; (7) tire connection of government officials with the release of the publicity; (8) the severity of die offense charged; and (9) dre particular size of tire area from which die venire is drawn.” Carr, 300 Kan. 81, Syl. ¶ 10.
Here, four factors weigh in favor of changing venue. As noted previously, Longoria’s case received significant publicity; thus, factor one weighs in his favor. Likewise, considering factor five, a significant portion of the public reported an awareness of the case: 97 percent of those polled recognized the case without cueing, and a few prospective jurors revealed strong opinions of guilt. Applying factor eight, the severity of the offense, Kansas does not recognize a higher severity level than capital murder, which is potentially punishable by death. See K.S.A. 21-3439; K.S.A. 21-4624(a). And, considering factor nine relating to the size of the community, a population of 20,546 eligible jurors provided a relatively small pool from which to draw the venire panel.
At least one factor—factor two relating to the degree of media coverage outside Barton County—could be assessed as neutral. While local media covered the case extensively, media outside the community also reported on the crime and the court proceedings. Although other communities probably did not feel the same impact, the defense did not conduct a survey of other venues to determine the effect of pretrial publicity. Hence, the trial court lacked evidence on which to fully assess this factor.
Factors three, four, and six weigh against a transfer of venue. Regarding factor three and lapse of time, as established, 19 months had passed between the crime and the trial, and voir dire suggested that public interest decreased with time (during voir dire, defense counsel wondered if streaming coverage of prior hearings was worth the media’s time considering that no potential juror had even seen it). As to factor four, the care used in selecting a juiy and the ease of selecting the juiy, the trial court utilized juror questionnaires and individual voir dire, both of which encouraged candor. The record does not reflect difficulty in finding an unbiased juiy. The State and the defense passed 44 potential jurors after voir dire, ultimately selecting 14 jurors from the panel. Each of the jurors, even those that had heard about die case, expressed their ability to impartially view the case in light of the evidence at trial. Only in extreme cases does this court second-guess jurors’ assurances of impartiality. Carr, 300 Kan. at 76-77 (citing Irvin v. Dowd, 366 U.S. 717, 727-28, 81 S. Ct. 1639, 6 L. Ed. 2d 751 [1961]) (recognizing extreme case where 268 of430 potential jurors were excused after expressing immovable opinions on the defendant’s guilt). The record does not reveal anything extreme about Longoria’s case. And, as to the utilization of juror challenges and factor six, Longoria points to nothing in the record reflecting that a later sworn juror harbored any bias towards him or maintained a strongly held pretrial opinion of the case. Ultimately, Longoria received a 14-mem-ber jury that had neither expressed, nor appears to have harbored, bias against him.
Longoria focuses most of his appellate arguments on factor seven—the connection of government officials with the release of publicity. He attempts to hold the prosecution responsible for the publicity he deems inappropriate because it did not file all of its motions under seal; thus, according to Longoria, the prosecution enabled the media to disclose information that would not be admitted at trial. He cites no authority that required the prosecution to file its motions under seal. To the contrary, “members of the public have a right of access to criminal proceedings secured by the First Amendment.” Tennessee v. Lane, 541 U.S. 509, 523, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004). The trial court did not order a seal on any documents or issue any other order restricting public filings. Further, the trial court did not find any violations of its orders or determine there had been prosecutorial misconduct. Thus, we find no basis in the record for determining that the pros ecution filed motions or supporting memoranda for tire purpose of causing prejudice.
After considering the factors together—some weighing in favor of transferring venue and some against—we conclude other reasonable judges might have denied Longoria’s motion to change venue under the statute. Significantly, the record does not reveal any difficulties in selecting a jury in this case. See McBroom, 299 Kan. 731, Syl. ¶ 4 (recognizing precedent finding no abuse of discretion when hindsight revealed no undue difficulty selecting a juiy). Thus, the trial court did not abuse its discretion when it denied Longoria’s motion to change venue.
Issue 2: Did the trial court err in failing to instruct the jury on felony murder as a lesser included offense of capital mur-derP
Longoria argues that the trial court erred in failing to sua sponte instruct the jury on felony murder as a lesser included offense of capital murder.
When, as here, a party fails to object to or request a juiy instruction at trial, K.S.A. 22-3414(3) limits appellate review to a determination of whether the instruction was clearly erroneous. The application of this standard consists of two parts. First, “the reviewing court must. . . 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.” State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). Second, if the trial court erred, the reviewing court must conduct a reversibility inquiry. For the error to be reversible, the reviewing court must be “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” 295 Kan. 506, Syl. ¶ 5.
Regarding whether there was error, at the time Longoria filed his appellate brief in this case a felony-murder instruction would have been legally appropriate. See State v. Mireles, 297 Kan. 339, 363-65, 301 P.3d 677 (2013) (finding a felony-murder instruction as a lesser included offense of capital murder was legally and factually appropriate); State v. Cheever, 295 Kan. 229, 259, 284 P.3d 1007 (2012) (“felony murder is a lesser included crime of capital murder” under K.S.A. 2011 Supp. 21-5109[b][l] because felony murder is a lesser degree of homicide than capital murder), vacated on other grounds and remanded 571 U.S. _, 134 S. Ct. 596, 187 L. Ed. 2d 519 (2013).
But before the State filed its brief, the Kansas Legislature in amendments made in K.S.A. 2013 Supp. 21-5402(d) provided that felony murder is not a lesser included offense of capital murder. Further, the legislature declared that the 2013 amendments made in K.S.A. 2013 Supp. 21-5402 “establish a procedural rule for the conduct of criminal prosecutions and shall be construed and applied retroactively to all cases currently pending.” K.S.A. 2013 Supp. 21-5402(e).
In his reply brief, Longoria argues that the retroactive application of the amended statute violates tire constitutional prohibition against ex post facto laws. See United States Constitution, art. 1, § 9 (“No Bill of Attainder or ex post facto Law shall be passed.”); United States Constitution, art. I, § 10 (“No State shall . . . pass any ... ex post facto Law.”). Longoria does not challenge the amended statute’s constitutionality under his right to due process.
Subsequently, in State v. Gleason, 299 Kan. 1127, Syl. ¶ 10, 329 P.3d 1102 (2014), this court held that the provision of K.S.A. 2013 Supp. 21-5402 that excludes felony murder as a lesser included offense of capital murder applies retroactively and does not violate the Ex Post Facto Clause. Thus, even if the trial court erred in this case by not giving a felony-murder instruction, and we reversed Longoria’s conviction and remanded the case for a new trial, Lon-goria would not be entitled on remand to the felony-murder instruction. Accordingly, while Longoria may be correct in his assertion that the trial court erred, he is not entitled to the relief he requests—a new trial during which the jury would receive a felony-murder instruction.
Issue 3: Did the trial court err in failing to instruct the jury on unintentional but reckless second-degree murder as a lesser included offense of capital murderP
Next, Longoria argues that it was clear error not to instruct on a lesser included offense of unintentional but reckless second-degree murder. The trial court instructed the jury on capital murder and its lesser included offenses of premeditated first-degree murder and one of two types of second-degree murder. One type of second-degree murder—the one instructed upon in this case— occurs if the murder is committed intentionally. The second—the one not instructed upon nor requested by Longoria—occurs if the murder is committed “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” (Emphasis added.) K.S.A. 21-3402(b). This court has explained that unintentional but reckless second-degree murder is a killing that is not purposeful, willful, or knowing but rather results from an act performed with knowledge that the victim is in imminent danger, although death is not foreseen. State v. Deal, 293 Kan. 872, 884, 269 P.3d 1282 (2012).
The parties do not dispute tire legal appropriateness of an unintentional but reckless second-degree murder instruction. They focus on whether the instruction would have been factually appropriate and on whether, if appropriate, it was clear error to not give the instruction. We need not burden this opinion with the various points each party makes about whether the instruction was factually appropriate because Longoria fails to firmly convince us the jury would have found that Longoria acted unintentionally with mere recklessness. See Williams, 295 Kan. 506, Syl. ¶ 5 (stating reversibility standard). Several considerations weigh against Lon-goria’s position.
First, substantial circumstantial evidence supports the jury’s conclusion that Longoria acted intentionally. See State v. Cheffen, 297 Kan. 689, 704, 303 P.3d 1261 (2013) (“intent to Mil can be inferred from acts, circumstances, and inferences reasonably deducible therefrom”), superseded by statute on other grounds by K.S.A. 2013 Supp. 21-5109(b)(l) (no lesser offenses to felony murder). The circumstantial evidence strongly suggested that Longoria drove A.D. to a remote location and disabled her cell phone. Most significantly, the coroner and other investigators viewing the duct tape residue concluded that Longoria taped A.D/s mouth and nose, with the taping pattern suggesting he left no hole—no airway. He then took steps to conceal his crime—burning her body; washing his clothes; and attempting to plant alibi evidence with many people, including strangers, before fleeing.
Second, not only does this circumstantial evidence strongly support a conclusion that Longoria intended to kill A.D., it also suggests that he premeditated the murder. See State v. Kettler, 299 Kan. 448, 467, 325 P.3d 1075 (2014) (factors that give rise to an inference of premeditation include “[1] the nature of the weapon used; [2] 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] the dealing of lethal blows after the deceased was felled and rendered helpless”). Indeed, the jury’s guilty verdict indicates that the jurors were unanimously convinced beyond a reasonable doubt that Longoria not only intended to kill A.D. but that he premeditated her murder. Although Longoria attacks the sufficiency of the evidence relating to some elements of capital murder (see issue 8 below), he does not assert that the evidence of premeditation was insufficient. The jury’s verdict necessarily establishes two factual elements—premeditation and an intent to cause death—that would be legally inconsistent with unintentional but reckless second-degree murder. See State v. Scaife, 286 Kan. 614, Syl. ¶ 1, 186 P.3d 755 (2008) (“Premeditation means to have thought over the matter beforehand, in other words, to have formed tire design or intent to kill before the act.”).
The logical inconsistency of the jury’s verdict with unintentional second-degree murder brings the so-called “skip rule” into play. The skip rule “ ‘is not really a rule at all in tire sense that it must be invariably or even routinely applied .... It is, rather, simply a logical deduction that may be drawn from jury verdicts in certain cases.’ ” State v. Plummer, 295 Kan. 156, 169, 283 P.3d 202 (2012) (quoting and affirming State v. Plummer, 45 Kan. App. 2d 700, 711, 251 P.3d 102 [2011]). Those certain cases are ones in which “the elements of the crime of conviction, as compared to a rejected lesser included offense, necessarily show that tire jury would have rejected or eliminated an even lesser offense.” 295 Kan. at 169. When these circumstances exist, the skip rule provides “a route to harmlessness.” 295 Kan. at 169.
That route can be followed here. The jury verdict reflects that the juiy was convinced beyond a reasonable doubt that Longoria premeditated the killing of A.D. Had it not been convinced of that element, it could have convicted him of the lesser included crime of intentional second-degree murder. But it was convinced beyond a reasonable doubt that the murder was premeditated, a conclusion that is inconsistent with a conclusion that the murder resulted from recklessness. See State v. Engelhardt, 280 Kan. 113, 136, 119 P.3d 1148 (2005) (skip rule applied to hold no clear error in failing to instruct on unintentional second-degree murder where jury had been instructed on lesser included offense of intentional second-degree murder but convicted defendant of greater offense of first-degree murder).
Longoria fails to firmly convince us that the verdict would have been different had the trial court given an instruction on unintentional but reckless second-degree murder as a lesser included offense of capital murder.
Issue 4: Did the trial court err in admitting a before-death photograph of A.D.P
Over Longoria’s objection, the trial court admitted a before-death photograph of A.D. On appeal, Longoria claims the court abused its discretion in admitting the photograph because it lacked relevancy and merely allowed the State to show the jury a “lovely photograph of a young girl, and thereby generate sympathy and prejudice in the minds of the jurors.” Longoria discounts the State’s articulated purpose of admitting the photograph—A.D.’s identification—because after tire first trial witness, A.D.’s mother, testified that the exhibit was a fair and accurate depiction of A.D., the State did not ask other witnesses to identify A.D. by referencing the photograph.
Thus, Longoria presents a two-prong attack, arguing the trial court erred in ruling that (1) the photograph was relevant and (2) its probative value outweighed its prejudicial nature.
4.1 Relevance of A. D.’s Photograph
When considering relevance, courts must assess both the evidence’s materiality and its probative nature. K.S.A. 60-401(b); State v. Stafford, 296 Kan. 25, 43, 290 P.3d 562 (2012). This court reviews materiality de novo and the probative nature of evidence for an abuse of discretion. State v. Ultreras, 296 Kan. 828, 857, 295 P.3d 1020 (2013).
As to the photograph’s probative nature, in Kansas, “photographs may be admitted for purposes of identifying the victim.” State v. Crum, 286 Kan. 145, 159-60, 184 P.3d 222 (2008); see State v. Riojas, 288 Kan. 379, 387, 204 P.3d 578 (2009). For example, in State v. Ackward, 281 Kan. 2, 26-27, 128 P.3d 382 (2006), the defendant argued that the trial court abused its discretion in admitting a photograph of the victim taken the night before his death because it was irrelevant and unduly prejudicial. Relying on State v. Hebert, 277 Kan. 61, 100-03, 82 P.3d 470 (2004), this court concluded that tire State had to prove beyond a reasonable doubt die victim’s identity, and the photograph was probative because it assisted in doing so. 281 Kan. at 27; see, e.g., State v. Cordray, 277 Kan. 43, 59, 82 P.3d 503 (2004) (holding trial court did not abuse its discretion in admitting the before-death photograph of the victim; photograph relevant to identify die victim and show the extent of his wounds); State v. Walker, 252 Kan. 279, 287, 845 P.2d 1 (1993) (finding trial court did not abuse its discretion when “[t]he studio photograph taken in life shows how. die victim appeared before the attack rendered her virtually unrecognizable”). Contrary to Longoria’s argument, the photograph’s probative value did not depend on its repeated display to various witnesses. A.D.’s mother provided testimony laying a foundation for the photograph’s admission, and tiiat testimony combined with forensic evidence established identity.
Longoria principally argues about the photograph’s materiality, however. In doing so he focuses on the oft-repeated statement tiiat evidence is material when “the fact at issue has a legitimate and effective bearing on the decision of the case and is in dispute.” Stafford, 296 Kan. at 43. In particular, Longoria emphasizes the phrase “in dispute” and argues the photograph lacked materiality because the parties stipulated that the “body found at the Venture Asphalt Plant in Barton County, Kansas, on August 24, 2010, was [A.D.].”
His argument fails because “[w]ith few exceptions, ‘[i]t is an established rule of law that an admission by a defendant does not prevent die state from presenting separate and independent proof of the fact admitted.’ ” Hebert, 277 Kan. at 101 (quoting State v. Johnson, 216 Kan. 445, 448, 532 P.2d 1325 [1975]). “The State has the burden of proving all elements of the crime charged, and photographs used to prove the elements of the crime . . . are relevant and admissible.” Riojas, 288 Kan. at 387; State v. Gholston, 272 Kan. 601, 613, 35 P.3d 868 (2001). In essence, given that Longoria did not plead guilty, all elements of the charged crimes remained “in dispute”; his stipulation merely means he did not intend to contest the State’s evidence on that particular point of dispute— i.e., that particular aspect of the State’s burden.
Therefore, the before-death photograph was material and probative'—it was relevant.
4.2 Photograph Not Unduly Prejudicial
Longoria also argues, however, that the trial court abused its discretion in finding that the photograph was not unduly prejudicial. If a party objects to evidence on the grounds it is repetitious, gruesome, or inflammatoiy—unduly prejudicial—an appellate court applies an abuse of discretion standard of review. State v. Soto, 299 Kan. 102, 112, 322 P.3d 334 (2014); see Crum, 286 Kan. at 159-60 (“The trial court has broad discretion regarding the admission of demonstrative photographs.”). Of tire three forms for an abuse of discretion, Longoria’s arguments appear to be that the trial court’s decision was arbitrary, fanciful, or unreasonable. Ward, 292 Kan. at 550 (explaining that abuse of discretion can occur in one of three ways—when the trial court malees an error of law; bases its decision on facts not supported by substantial competent evidence; or makes an arbitraiy, fanciful, or unreasonable decision).
In arguing the unreasonableness of the trial court’s decision, Longoria suggests the photograph undoubtedly generated sympathy in the minds of the jurors. Beyond making this suggestion, Longoria fails to specify die basis for his claim of prejudice. Regardless, this court has recognized that a before-death photograph results in minimal prejudice when, as in this case, the photograph is shown only once and not accompanied by any inflammatory personal details about the victim. Minimal prejudice is not undue prejudice. See Ackward, 281 Kan. at 27; Hebert, 277 Kan. at 103.
Considering the relevance to A.D.’s identity and the minimal prejudice from the photograph, we hold the trial court did not abuse its discretion in admitting the photograph into evidence.
Issue 5: Did the trial court err in admitting the video of Longoria being taken into custody at gunpointP
Next, Longoria argues the trial court erred in admitting the dash-cam video of his arrest. First, he asserts the video lacks relevance. Second, he contends that it violated the presumption of innocence guaranteed by the Due Process Clause of the United States Constitution.
In the redacted arrest video, Longoria pulled tire Venture vehicle over, and the highway patrol officer ordered him to throw the keys out of the window and exit the vehicle. The officer then ordered Longoria to walk backwards to him, get on his knees, and put his hands behind his head. Two officers then approached; one had a weapon drawn but not pointed while another handcuffed Longoria, who was then escorted back to tire highway patrol car.
Longoria claims the video of his arrest was not material or probative—i.e., not relevant—because other eyewitnesses established that he took tire Venture vehicle. Properly characterized, Longoria argues that the evidence was cumulative. Evidence is cumulative when it is of the same kind and on the same point, and it is within the trial court’s discretion to admit or exclude it. State v. Rodriguez, 295 Kan. 1146, 1157-58, 289 P.3d 85 (2012); State v. Hickles, 261 Kan. 74, 88, 929 P.2d 141 (1996) (“Cumulative evidence in itself is not objectionable.”)- But Longoria never argued that the video was cumulative before the trial court; he only objected to the video as being unduly prejudicial. And a party cannot object at trial on one ground and Sien argue a different ground on appeal. State v. Breedlove, 295 Kan. 481, 490, 286 P.3d 1123 (2012). Consequently, Longoria failed to preserve his threshold relevance argument.
As to undue prejudice, Longoria argues that similar to a defendant showing up to trial in handcuffs, the video depicting his arrest violated his presumption of innocence. As support for his request for reversal, Longoria cites a case from West Virginia, State v. Carey, 210 W. Va. 651, 657-59, 558 S.E.2d 650 (2001), in which the court cautioned “trial courts in the strongest possible terms to avoid allowing jurors to see a defendant in shackles—whether in the flesh, in photographs, or by any other method.” In Carey, the defendant left his shoes at the scene of a homicide. A photograph of the defendant taken after his arrest depicted him without shoes but in shackles. Despite its best-practices advice to trial courts, the court in Carey found no basis to reverse the verdict, relying on a prior West Virginia case that had rejected automatic reversal in similar circumstances. 210 W. Va. at 658 (citing State v. Brewster, 164 W. Va. 173, 261 S.E.2d 77 [1979]).
This court has also rejected automatic reversal in situations similar to this case and has instead examined whether the trial court abused its discretion when weighing the probative value of evidence against its prejudice. In doing so, this court has distinguished cases requiring automatic reversal because of a due process violation. For example, State v. Dixon, 289 Kan. 46, 209 P.3d 675 (2009), stated the rule for automatic reversal, holding that routine restraint of a defendant before the jury—absent specific justification—establishes a presumed due process violation without any showing of actual prejudice. 289 Kan. at 58-59 (quoting Deck v. Missouri, 544 U.S. 622, 635, 125 S. Ct. 2007, 161 L. Ed. 2d 953 [2005]). But the Dixon court distinguished courtroom situations from those where jurors observed a handcuffed or shackled defendant outside die courtroom, noting that the “[s]hackling of a defendant while in transit through a public hallway is entirely different from shackling at the defense table during a jury trial. We think it highly unlikely that any juror in a double homicide case would be shocked or, for that matter, improperly influenced merely because the accused is transported securely.” 289 Kan. at 61.
This case presents us with a similar out-of-courtroom situation. Moreover, immediately prior to the arrest video being played to the juiy, the highway patrolman explained the video would show him following the standard procedure used when an officer “know[s] that . . . there’s felony charges that could be brought.” (Emphasis added.) These procedures include “ordering] the occupants out of the vehicle at gunpoint, and . . . securing[ing] them ... in order to eliminate any harm to the public.” Thus, the jurors understood that officers deemed Longoria a suspect facing potential charges—a concept consistent with the Due Process Clause’s presumption of innocence. Hence, we conclude the presumptive prejudice rule—the rule that would lead to an automatic reversal— does not apply. Longoria must therefore establish that the trial court abused its discretion in determining that the probative value of the video outweighed its prejudicial impact.
As to this weighing, although largely cumulative of the officer’s testimony to which Longoria did not object, the video had probative value. First, it confirmed that Longoria drove the Venture vehicle—indeed, that he was the sole occupant. Second, because Longoria pulled over even before the officer activated the emergency lights, the jurors could infer a guilty conscience. While the video shows Longoria being arrested and handcuffed, this information had already been relayed through testimony. Furthermore, the video of Longoria’s arrest was neither so shocking nor so improperly prejudicial that it unduly influenced tire jury. We, therefore, conclude the trial court did not rule unreasonably in admitting tire video.
Longoria fails to establish error.
Issue 6: Did the prosecutor commit misconduct during rebuttal arguments that prejudiced the jury against Longoria and denied him a fair trial?
Longoria next contends that the prosecutor committed reversible misconduct during rebuttal argument. He complains of several passages, but he makes one general challenge: “The prosecutor s sarcasm converted the argument from one that was based on facts adduced at trial into argument based on the prosecutor s personal belief and opinion.”
6.1 The Prosecutors Arguments
All the statements that Longoria challenges occurred during the prosecutor’s rebuttal argument. While that does not excuse misconduct, the defense counsel’s closing arguments provide context for tire State’s rebuttal statements. See State v. Marshall, 294 Kan. 850, 860-61, 281 P.3d 1112 (2012) (defendants do not open the door to prosecutorial misconduct, but rebuttal nature of prosecutor’s arguments is a factor to be considered by appellate court). Throughout the defense counsel’s closing, he attempted to shift the jury’s focus from Longoria to A.D.’s friends. He directed the jury’s attention to the two young men that A.D. identified as giving her a ride to the Saturday night party, tire party that never happened. Defense counsel questioned why law enforcement officers had not investigated the two further, emphasizing that one of tire men hung his head and said that something “probably” happened to A.D. when initially confronted by A.D.’s sister. He also focused on A.D.’s deteriorating relationship with her boyfriend, as revealed by text messages between them. At one point, the defense counsel questioned why the State had highlighted Longoria’s text messages through demonstrative exhibits but had not displayed those of others with whom she had conflicts.
In response to defense counsel’s comments, the prosecutor pointed out that tire trial court had admitted all of A.D.’s text messages, including those between A.D. and her boyfriend and her other friends. The prosecutor invited the jurors to read the text messages if they wanted to better understand all the problems a 14-year-old girl had with her friends. After summarizing some of the inconsequential messages contained in the exhibit, the prosecutor added: “Maybe one of her teenage girlfriends killed her because they were mad about what she did at cheerleading practice. Maybe that happened too. Maybe she was abducted by a UFO and taped up.” The prosecutor then suggested that the juror s common sense would tell them that A.D. had lied to her mother “because if she would have told her she was leaving with [Longoria], she wouldn’t have got to go.”
The prosecutor added: “And [her friend] lulled her because he hung his head? He was a friend. Come on with the [friend]. Seriously.” (Emphasis indicating challenged statements.) The prosecutor next reviewed the timeline, noting that it was Longoria who told A.D. he would “[b]e [t]here in three minutes, asking for her address, driving what car. Did he loan that car to [A.D.’s friend] in that short little time period, and why is he saying Tm here’ if it was [A.D.’s friend] or a mystery man or an alien or whatever it might be. It’s Adam Longoria saying Tm here.’ ” (Emphasis indicating challenged statements.)
Defense had also questioned why witnesses who reported seeing vehicles in the area of the Venture plant in the early morning hours after A.D.’s disappearance did not mention a black Ford Escape. In response, the prosecutor stated in part:
“And this discussion of driving down the road at 65 miles per hour and seeing people leaving the county road, folks. Which carload was it? Was it the Cavalier that left at 12:30, or was it the Ford that left at 2:30, or maybe it’s the heat waves at 8:00 the next day? What is it? Or no, you know whose fault it is? It’s the Great Bend Police Department’s fault. That’s what it is. It’s his fault. And the evidence establishes that. It is his fault, and they can talk and have you look in different directions, but you need not look anywhere else but at tire feet as you sit in the car because that’s where that stain is. His semen and the 14-year-old’s DNA.” (Emphasis indicating challenged statements.)
Finally, Longoria points to sarcastic statements made by the prosecutor in response to defense counsel’s arguments that the State had failed to establish that duct tape taken from Longoria’s home was related to the crime. In response, the prosecutor argued:
“Then we hear about duct tape too. Why didn’t you hear from the State? Why was it collected? It toas collected because it ivas thorough. It’s a thorough inves tigation because it maybe could have been the duct tape. Could he have thrown the duct tape he used away in that [convenience store’s] trash can? Maybe. Maybe he threw it into that little pond or lake or whatever it is. Maybe he threw it in one of the Venture’s plants out at the plant. I don’t know, but there’s duct tape on that 14-year-old, and it got there somehow. Did he use the tape from his home? Maybe. He may not be that smart, and nobody’s saying that he is, but maybe he was smart enough not to use the tape from his own house.
“And let’s talk about the [convenience store’s] video. They give us that, that, yeah, that is him. Thank you very much. We know it’s him. You don’t have to concede it, and we know it’s him buying less than a half a gallon of gasoline. Was he filling up the car? Are you kidding me? Seriously? They’re asking you to dump your common sense.” (Emphasis indicating challenged statements.)
6.2 The Prosecutor Did Not Commit Misconduct
In analyzing Longoria’s argument, we must first determine whether the prosecutor made statements that fall outside the wide latitude allowed in discussing the evidence. Upon finding misconduct, we next assess whether the improper comments prejudiced tire jury and denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2012); State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004).
A prosecutor has wide latitude in crafting arguments and drawing “reasonable inferences from the evidence but may not comment on facts outside the evidence.” State v. Novotny, 297 Kan. 1174, Syl. ¶ 7, 307 P.3d 1278 (2013); State v. Ly, 277 Kan. 386, 392, Syl. ¶ 4, 85 P.3d 1200, cert. denied 541 U.S. 1090 (2004). Any argument “must accurately reflect the evidence, accurately state, the law, and cannot be ‘intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law.’ ” State v. Raskie, 293 Kan. 906, 917, 269 P.3d 1268 (2012) (quoting Tosh, 278 Kan. at 90); State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321 (2000).
Generally, a prosecutor may use rhetorical devices—“analogies, similes, allusions (be they historic, poetic, literaiy, or scientific)”-—■ as a tool for putting the facts of a case into a meaningful context. State v. Hilt, 299 Kan. 176, 198, 322 P.3d 367 (2014) (quoting State v. Henderson, 32 Kan. App. 2d 1202, 1210, 96 P.3d 680 [2004]). The prosecutor must restrict the use of any rhetorical device to “sensible limits set by similarity and dissimilarity to the facts of a case.” 299 Kan. at 198. Additionally, a prosecutor must not state or argue his or her personal opinion regarding the guilt or innocence of the defendant or tire credibility of any witnesses. State v. Peppers, 294 Kan. 377, 396, 276 P.3d 148 (2012); Kansas Rules of Professional Conduct 3.4(e) (2014 Kan. Ct. R. Annot. 619).
In this case, Longoria asserts that a prosecutor s use of sarcasm crosses the line of appropriate rhetoric and amounts to misconduct. To support his claim, he relies on State v. Salamon, 287 Conn. 509, 564, 569, 949 A.2d 1092 (2008) (holding that the prosecutor’s line of questioning of the sole defense witness was sarcastic, repetitive, and intended to convey to the jury the prosecutor’s own belief as to the credibility of the witness, while improper not sufficiently harmful to warrant reversal), and State v. Rizzo, 266 Conn. 171, 261-64, 273, 833 A.2d 363 (2003) (prosecutor’s repeated sarcastic use of “please” in response to defendant’s arguments inappropriately “called upon the jurors’ feelings of disdain” and required reversal of penalty phase). In arguing that this case falls in line with these cases, Longoria asserts the prosecutor did not properly discuss the facts but rather sarcastically ridiculed the defense by using the term “seriously” and likening defense theories to UFO’s and aliens.
In response, the State concedes that it used some sarcasm as a rhetorical device and cites to three cases that support its claim that sarcasm is not altogether prohibited. The State argues these cases bear more similarity to the comments at issue than do the statements in tire cases cited by Longoria. Specifically, the State notes that its statements addressed defense counsel’s argument and raised proper inferences from the evidence. See United States v. Rivera, 971 F.2d 876, 883 (2d Cir. 1992) (holding tire prosecutor’s reference to defense counsel as a “know-it-all” and “Mr. Thorough” were permissible inferences based on evidence and arguments presented and not misconduct); People v. Ranks, 237 Ill. 2d 154, 182-83, 934 N.E.2d 435 (Ill. 2010) (The prosecutor’s rebuttal remarks stating “Bravo. Bravo for Mr. Wonderful over here. Bravo that he didn’t fight with [law enforcement]” was in response to defense counsel’s closing argument and not improper as the “wide latitude extended to prosecutors during their closing remarks has been held to include some degree of both sarcasm and invective to express their points.”); People v. Overlee, 236 A.D.2d 133, 142, 666 N.Y.S.2d 572 (1997) (holding the defendant’s challenge that the prosecutor used snide remarks to portray him as a liar was not prejudicial because “[t]he use of sarcasm is, of course, a well recognized device to illustrate the inherent implausibility of a witness’s testimony”).
These two lines of cases suggest that prosecutors may use sarcasm as an occasional rhetorical device. But we caution that it cannot be used in ways that distract the jury from its charge, demean the adversarial trial process, or become unprofessional to the point of jeopardizing a verdict. Sarcasm has the potential to alienate the jury or unfairly influence it into abandoning its role as a factfinder.
Because the line between appropriate and inappropriate use of sarcasm is thin, making it easy to cross, prosecutors should avoid repeated use of the technique in most cases. And its occasional use can be “no more than sarcastic hyperbole identifying what the prosecutor believe[s] to be weakness in the defense explanation of events.” People v. Cummings, 4 Cal. 4th 1233, 1303 n.48, 850 P.2d 1 (1993). As we have recognized, “prosecutors [have] considerable latitude to address the weaknesses of the defense.” State v. Duong, 292 Kan. 824, 832, 257 P.3d 309 (2011). Sarcasm, when appropriate, should be thoughtfully tailored to specific arguments and evidence; sarcasm should not set the tone of tire prosecutor’s entire argument or rebuttal.
In this case, the prosecutor came dangerously close to crossing the line, and he stepped directly on—but not over—the line several times. Significantly, tire prosecutor did not rely only on sarcasm to establish weaknesses in the defense. Instead, after using sarcasm to highlight a weakness in the defense’s argument, tire prosecutor consistently returned to discussions of specific evidence in the case that pointed to circumstances giving rise to a strong inference that Longoria murdered A.D.
Further, the prosecutor did not comment on facts not in evidence in conveying, with some sarcasm, the weaknesses of tire defense theories. While the prosecutor’s sarcasm came dangerously close to asserting a personal opinion, his effort to tie any statements back to the evidence ameliorated the suggestion that the statements were his personal view. Indeed, the prosecutor repeatedly stressed to the jurors the importance of deciding the case based on the facts and repeatedly reminded the jurors that the attorneys’ arguments were not evidence.
We, therefore, conclude the prosecutor remained within the wide latitude allowed in discussing evidence. Because there was no misconduct, we need not discuss the second step—the prejudice step—of the prosecutorial misconduct analysis. See Bridges, 297 Kan. at 1012; Tosh, 278 Kan. at 85.
Issue 7: Did the trial court err in failing to declare a mistrial based on juror misconduct?
Next, Longoria argues the trial court erred in failing to declare a mistrial after a juror was overheard talking about the case at a restaurant. The State responds that the trial court appropriately conducted an investigation into the allegation, received evidence, weighed the evidence, and did not abuse its discretion in believing the juror when the juror stated that he did not discuss the facts of the case with a third party. Alternatively, the State argues Longoria cannot show that his rights were substantially prejudiced by the alleged juror misconduct so as to constitute a ground for mistrial.
7.1 Additional Factual and Procedural Background
Several days into Longoria’s jury trial, a Barton County sheriff s officer contacted the trial court regarding information the officer had received from a person not involved in the trial; the individual had reported overhearing bits of conversation between Juror M and an employee of a restaurant where Juror M and the reporting individual had dined. Reportedly, Juror M and the restaurant employee had discussed blood spatter evidence, lesser included offenses, and the length of the trial. The sheriff s officer interviewed the restaurant employee, who indicated she knew Juror M and admitted to having a conversation with him about the trial. She reported that the conversation lasted less than 2 minutes and that she only learned that he was on the jury and that he hoped the trial would not interfere with a planned trip. The employee disclosed that Juror M also had a conversation with a local attorney.
As a result of the report, the trial court inquired of Juror M regarding tire conversations. Juror M admitted to going to dinner at the restaurant and acknowledged that the subject of tire trial came up in conversations with some acquaintances. He said he tried not to talk at length about anything. A local attorney asked him if he was on the jury, and Juror M replied “yeah, you know,” but “[djidn’t let it go any further.” The attorney asked if another individual was on the jury panel, but Juror M refused to give an affirmative response. When asked if he talked about the evidence, Juror M responded “absolutely not.” When asked again if he talked to anyone about evidence, Juror M responded: “[Hjonestly, no. I wouldn’t do that.” The court asked Juror M if he could still be fair to the defendant and the State of Kansas; Juror M responded that he was confident he would be fair.
At the court’s request, the sheriff s officer contacted the attorney and questioned him about his conversation widr Juror M. The attorney admitted to talking to Juror M—“It was just an incidental meeting.” The attorney said that he assumed Juror M did not get impaneled on die juiy, so he asked. When Juror M refused to answer, the attorney realized that Juror M had made it onto die jury, and they left it at that. The attorney told the sheriff s officer that they discussed the court process in general, and Juror M only said diat “he hoped that he could make the right decision and that he had an open mind and he was going into tiiis to do his best.” The attorney adamantly denied discussing anything inappropriate or observing juror misconduct.
Longoria’s defense counsel requested Juror M’s removal from die jury. Counsel pointed to the fact that Juror M did not mention speaking to die restaurant employee until he was prompted and that the reporting party indicated Juror M had said more than the simple fact that he was a juror, including matters such as blood spatter and lesser included offenses. In denying the request, the court found Juror M credible and believed that the conversations he'had did not extend further than Juror M acknowledging that he was a juror. The trial court further stated: “[A]t this point, there is no indication that... there would be substantial prejudice to either party because of this.”
Longoria did not move for mistrial. Nor did he use Juror M’s conduct as a basis for mistrial at any point before the jury verdict, even though he moved for mistrial for other reasons.
Posttrial, Longoria timely moved for a new trial on various grounds, including the trial court’s failure to dismiss Juror M. The trial judge heard and denied the motion at Longoria’s sentencing hearing. In discussing the juror misconduct issue, the court incorporated its previous ruling after indicating nothing new had been presented.
7.2 Preservation
Longoria couches this issue in the context of a motion for mistrial, and the State responds in land. But, as noted, Longoria never moved for mistrial based on juror misconduct under the mistrial statute, K.S.A. 22-3423. Rather, he presented the issue to the trial court by (1) asking for Juror M’s removal and (2) filing a motion for new trial under K.S.A. 2011 Supp. 22-3501. Thus, he preserved the juror misconduct issue but not through a motion for mistrial.
The State has not suggested that Longoria failed to preserve this issue by arguing an error in failing to grant a motion for mistrial rather than a motion for new trial. Longoria’s labeling of his alleged error is more a matter of editing than of substance. He relies on Bell v. State, 46 Kan. App. 2d 488, 491, 263 P.3d 840 (2011), rev. denied 249 Kan. 1129 (2012), which concerns a motion for a new trial based on juror misconduct.
Further, when assessing juror misconduct based on a motion made during trial or on one filed posttrial, courts essentially apply the same standard to determine whether a new trial should be granted. The motion for mistrial statute, K.S.A. 22-3423(l)(c), permits a trial court to declare a mistrial because of “[prejudicial conduct, in or outside the courtroom, [which] makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” (Emphasis added.) Similarly, a new trial can be granted under K.S.A. 2011 Supp. 22-3501(1) “if required in the interests of justice.” (Emphasis added.) Both of these inquiries es sentially ask whether the juror misconduct deprived the parties of a fair trial. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012); see also State v. Whitesell, 270 Kan. 259, 286-87, 13 P.3d 887 (2000) (using terms “new trial” and “mistrial” interchangeably when discussing standard of review). Plus, appellate courts apply an abuse of discretion standard when reviewing either the denial of a motion for mistrial or a motion for new trial. See State v. Armstrong, 299 Kan. 405, 442, 324 P.3d 1052 (2014) (standard of review of a trial court’s decision on a motion for mistrial is an abuse of discretion); State v. Holt, 298 Kan. 469, 473, 313 P.3d 826 (2013) (abuse of discretion standard of review applies to appeals regarding trial court’s motion for new trial ruling).
We, therefore, will treat the issue as preserved but address the arguments as presented to the trial court—via a motion for new trial-—and will examine whether the trial court abused its discretion in denying Longoria’s motion because of Juror M’s misconduct.
7.3 Denying the Motion for New Trial Was Not an Abuse of Discretion
Allegations of juror misconduct trigger a progressive two-step inquiry to determine if either a mistrial or new trial is warranted: (1) whether juror misconduct occurred, and (2) if so, whether the misconduct substantially prejudiced the right to a fair trial, meaning whether the State can show beyond a reasonable doubt that the misconduct did not affect the trial’s outcome. As we have noted, an appellate court reviews the trial court’s determination of these two issues under an abuse of discretion standard. Ward, 292 Kan. at 550, 569-70 (discussing standard in mistrial context); State v. Mathis, 281 Kan. 99, Syl. ¶ 2, 130 P.3d 14 (2006) (new trial context).
As to the first step, Longoria contends that Juror M improperly discussed evidence outside the courtroom. Faced with an allegation that a juror held an inappropriate conversation outside of trial, “[i]t is the usual practice to question the juror involved in complaints alleging misconduct.” State v. Macomber, 244 Kan. 396, 407, 769 P.2d 621, cert. denied 493 U.S. 842 (1989), overruled on other grounds by State v. Rinck, 260 Kan. 634, 923 P.2d 67 (1996). After an inquiry has been made, which the trial court did in this case, an appellate court gives a high degree of deference to the trial court’s findings concerning the credibility of witnesses and the perceived impact of tire allegedly prejudicial event. Armstrong, 299 Kan. at 444; State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013) (“An appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.”). We simply review those findings to determine whether substantial, competent evidence supports them. Ward, 292 Kan. at 550 (abuse of discretion can occur if trial court bases its decision on unsupported facts); see also State v. Bird, 298 Kan. 393, 399, 312 P.3d 1265 (2013) (“Substantial competent evidence is legal and relevant evidence a reasonable person could accept to support a conclusion.”).
Here, substantial competent evidence suggests that Juror M discussed the case, at least in general terms. Nevertheless, simply establishing an external communication—that is, a communication between a juror and a third person or a witness—does not invalidate a verdict unless the communication “disturb [s] die exercise of deliberate and unbiased judgment.” Mattox v. United States, 146 U.S. 140, 149-50, 13 S. Ct. 50, 53, 36 L. Ed. 917 (1892); Ward, 292 Kan. at 550, 569 (misconduct must substantially prejudice the right to a fair trial). The trial court determined nothing about Juror M’s conversations suggested a basis for finding prejudice to either party. Substantial competent evidence supports this conclusion. Juror M, the attorney, and the restaurant employee stated that their conversations with each other did not concern Longoria’s guilt or the evidence presented at trial. According to each of them, they limited their conversations to the fact that Juror M was a juror, the length of die trial, and the court process in general. Statements from the restaurant patron who initially reported overhearing some discussion potentially weighed against the credibility of these statements. But the patron mentioned discussion of blood spatter—and the State’s evidence in Longoria’s case did not include blood spatter. Thus, the trial court could reasonably conclude that the patron overheard an unrelated conversation and that there had not been a discussion by Juror M regarding blood spatter evidence relating to Longoria’s case.
In other words, substantial competent evidence supports tire trial court’s finding that nothing prejudicial was discussed, and a reasonable person could accept the trial court’s conclusion that nothing occurred that would prejudice the right of either party to a fair trial.
Issue 8: Was there sufficient evidence of an underlying sex crime to support Longoria’s convictions of capital murder?
Longoria asserts insufficient evidence supported his capital murder convictions.
For his three alternative capital murder charges, the State had to prove beyond a reasonable doubt that (I) Longoria intentionally and with premeditation tolled A.D. in the commission of, or subsequent to, the crime of attempted rape; or (2) Longoria intentionally and with premeditation tolled A.D. in die commission of, or subsequent to, the crime of criminal sodomy; or (3) Longoria intentionally and with premeditation tolled A.D. in the commission of, or subsequent to, the crime of aggravated criminal sodomy. See K.S.A. 21-3439(a)(4). The juxy returned a guilty verdict on all three alternatives. At the sentencing hearing, the State asked the sentencing court to sentence Longoria for capital murder based on aggravated criminal sodomy, and die court did so.
In this appeal, Longoria does not challenge the sufficiency of the evidence insofar as it supports the elements that Longoria murdered A.D. or, as we noted earlier, that he did so with premeditation. Nor does he focus on the element that distinguished criminal sodomy from aggravated criminal sodomy under the jury instructions in his case—i.e., that an act of sodomy occurred witii-out A.D.’s consent under circumstances when she was overcome by force or fear. Rather, he argues the State failed to present sufficient evidence of either rape or sodomy—aggravated or not.
Because the court sentenced Longoria based on a killing in the commission of, or subsequent to the commission of, aggravated sodomy, we begin our analysis with the question of whether there was sufficient evidence of aggravated sodomy. To provide an an swer, we must review all the evidence in the light most favorable to the prosecution and determine whether we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Importantly, an appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. Ward, 292 Kan. at 581.
Longoria correctly observes that the State did not present direct evidence of a lolling in the commission of, or subsequent to, aggravated criminal sodomy. Nevertheless, circumstantial evidence supports his conviction, and a conviction for even the gravest offense may be sustained by circumstantial evidence. Lowrance, 298 Kan. at 296; Ward, 292 Kan. 541, Syl. ¶ 13.
In arguing that the circumstantial evidence established the crime of aggravated sodomy, the State emphasizes the evidence of Lon-goria’s sexual intent. His text messages to A.D. are strong evidence of that intent. He clearly expressed his attraction to A.D., who he called beautiful, hot, and awesome; he repeatedly asked for pictures; he asked to “date” her; and he lured and pursued her for over a month despite her frequent cold shoulder.
As to the nature of any sex act, the State, as it did at trial, argues that die DNA stain found on the floor mat of the Escape creates a logical inference that an act of sodomy occurred. The stain contained a mixture of Longoria’s semen and a fluid from A.D.’s body—not DNA from her merely touching the mat. Through questioning and argument, the State presented the theory that Longoria touched or penetrated A.D.’s mouth with his penis and then either he or A.D. deposited a mixture of the semen and saliva on the floor mat; the State stressed its theory that A.D. spit the mixture onto the floor mat. During the State’s closing argument, it argued this scenario was the most logical explanation for the mixture found on the floor mat of the Escape. “How else did it get there? Do you really believe that he masturbated and left it there and she sneezed on top of it later?” The prosecutor also pointed out that “the DNA expert said there’s a lot of DNA, not a little tiny amount. There’s a lot of DNA on that floorboard. It’s consistent with the sodomy.”
Forensic testing and the resulting expert opinions neither established that this scenario had occurred nor eliminated the scenario as a possibility. Certainly, the testing could not pinpoint when the sample was deposited. But the forensic analyst opined that tire stain occurred in close proximity to the discovery of A.D.’s body because it had not degraded much despite the summer heat and its location in an area of the vehicle that would often come into contact with feet. As well, the forensic expert could not establish with any degree of certainly that A.D.’s DNA came from saliva. True, a presumptive saliva test came back negative, but that only meant that forensics could not verify that the bodily fluid from A.D. was saliva. In other words, the scientific evidence supported the State’s theory and nothing negated tire inference the State asked the juiy to draw.
In arguing the insufficiency of this evidence, Longoria asks us to reweigh the evidence on appeal. He points to the expert’s testimony that it was possible that the mixture of DNA found its way to the floor mat weeks—perhaps even months—before tire sample was preserved. Moreover, he notes that one of A.D.’s friends testified Longoria had told him that Longoria and A.D. had sex in tire Escape, which would support the possibility the semen was deposited sometime before tire night of A.D.’s murder. He also points to evidence of a trace amount of unknown male DNA found on one of four forensic swabs from A.D.’s mouth, suggesting this proves someone else committed the crime or, at a minimum, proves that he had not committed oral sodomy on A.D. just before her murder because his DNA was not found on any swab.
While these various points could have created a reasonable doubt in the minds of jurors, the points are not compellingly exculpatory. Indeed, there are reasons to discount each point. Regarding the statement about a prior sexual encounter, Longoria made a number of self-serving statements to friends and even strangers in an attempt to create an alibi and provide an innocent explanation for otherwise incriminating evidence; the statement to A.D.’s friend about a prior sexual encounter could be just one more example. And nothing in the text messages between Longoria and A.D. suggests there had been any sexual contact between them. Also, as to the timing of the semen stain, the expert testified that degradation would be expected because of heat in the Escape and shoes contacting the stain; he testified “[t]he further back you go there’s less of a chance.” Regarding the small amount of unknown DNA on the swabs, the expert testified his first assumption was contamination and that it might be attributed to something like A.D. sharing a straw.
The jury was free to determine how much credit to give to tire conflicting evidence. See State v. Kettler, 299 Kan. 448, 470-72, 325 P.3d 1075 (2014). The evidence on tírese points, taken in tire light most favorable to the State, made it reasonable for a juror to reject Longoria’s arguments and accept the State’s theory as the most logical explanation for the DNA stain. Likewise, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Longoria committed the crime of sodomy or aggravated sodomy on the night of A.D.’s murder. And, as we have noted, our role is not to reweigh the evidence.
The parties also discuss the sufficiency of the evidence supporting the juiy’s alternative verdict that Longoria intentionally and with premeditation killed A.D. in the commission of, or subsequent to, the crime of attempted rape. In doing so, they do not explore whether such an analysis is necessary—or even appropriate—in light of the State’s election to have Longoria sentenced for a premeditated killing committed in the commission of, or subsequent to, the crime of aggravated sodomy. We, therefore, will not delve into the necessity or appropriateness of a discussion of the sufficiency the evidence supporting a verdict based on attempted rape. Instead, we will briefly summarize the evidence that, when viewed in die light most favorable to the State, is sufficient to support the juiy’s verdict on the alternative ground of attempted rape.
In asserting tire insufficiency of the evidence, Longoria notes that A.D.’s body was found fully clothed. And while he concedes that A.D.’s shorts were unbuttoned, he argues no other evidence suggests he took any action toward the completion of the crime of rape. In response, the State emphasizes the presence of duct tape residue on A.D.’s mouth and legs that provides evidence of force and, thus, of an overt act toward the commission of rape. Further, the sexual overtone of Longoria’s text messages suggests he acted with a sexual intent when he drove A.D. to a remote location and bound her mouth, nose, and legs. This suggestion is reinforced by the desecration of A.D.’s genital and anal area. Although all of A.D.’s body was badly burned, her genital and anal area and the organs therein were completely burned away. This desecration also suggests Longoria intended to destroy evidence by assuring that vaginal and anal swabs for biological evidence could not be obtained. The destruction and concealment of evidence leads to an inference of a plan or premeditation. See State v. Scott, 271 Kan. 103, 110, 21 P.3d 516 (2001). In combination, this evidence is sufficient to convince us that a rational factfinder could have found Longoria guilty of the crime of attempted rape.
Consequently, we affirm Longoria’s capital murder convictions.
Affirmed.
Michael J. Malone, Senior Judge, assigned.
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Leben, J.:
Curtis Brown appeals the district court’s decision to revoke his probation after he admitted committing a new felony while on probation. He argues that his admission to the offense wasn’t voluntary and that die district court abused its discretion when it revoked his probation.
But the district court had told him that he had a right to an evidentiary hearing at which the State would have to prove any violations, and the defendant acknowledged that he had discussed admitting to the violation with his attorney before the hearing. We find no error in the district court’s conclusion that the defendant’s admission was voluntary, and we find no abuse of discretion in revoking his probation for committing a new felony while on probation. We therefore affirm the district court’s judgment.
Factual and Procedural Background
Brown was convicted in 2013 of one count each of aggravated indecent solicitation, aggravated indecent liberties with a child, and criminal sodomy. Under Kansas sentencing guidelines, Brown’s presumptive sentence for each offense was prison, not probation. But he pled guilty under a plea agreement in which the State agreed to join Brown in recommending a dispositional departure to probation, with both sides recommending the maximum sentences under the guidelines for each offense for someone with Brown’s criminal-history score; the parties also recommended, though, that the three sentences be made concurrent to one another for a total sentence of 71 months.
Between the time of Brown’s plea in May and his July sentencing, he violated the terms under which he had been released by testing positive for methamphetamine. Based on this, the court concluded for sentencing purposes that the State was no longer bound by the plea agreement and could recommend any lawful sentence. The State still recommended that the court follow the plea agreement, citing Brown’s youth, his lack of criminal history, his plea (which spared the victim from testifying), and the circumstances of the offenses.
The court granted Brown’s requested dispositional departure to probation rather than prison but made Brown’s sentences consecutive, which resulted in a total sentence of 122 months in prison if Brown didn’t successfully complete his probation. The court placed Brown on probation for 36 months with a number of conditions, which included drug-and-alcohol treatment, sex-offender treatment, and obeying the law.
Less than 6 months later, in November, the State alleged that Brown had violated his probation in six ways: failing to provide proof of payment of court costs, using methamphetamine, failing to obtain employment, failing to report to his probation officer, failing to enter and complete drug-and-alcohol treatment, and failing to enter and complete a sex-offender-treatment program. Brown appeared in court with his attorney in December on these charges. The court advised Brown he had a right to an evidentiaiy hearing in which the State would have to prove each allegation; Brown’s attorney asked for an evidentiaiy hearing.
The parties appeared for that hearing in January 2014. At the start of the hearing, Brown’s attorney told the court that a new case had been filed against Brown alleging felony theft, with a preliminary hearing set for the following week. The attorney then said that Brown was prepared to admit to the six violations previously made but wanted to set a later date for disposition (a date that would be coordinated based on developments in tire newly filed case), at which tire court would decide whether to revoke Brown’s probation or give him another opportunity to complete it. The court then asked Brown whether he wanted, as his attorney suggested, to admit to tire six violations already alleged by the State and to continue the probation-violation hearing “to see if . . . you can cut a deal on this [case] and your new case?” Brown said he did. The court found that Brown had violated his probation in the six ways already alleged. The court also set the matter over for disposition on Februaiy 7.
The day after tire Januaiy hearing, the State formally filed an allegation in this case that Brown had violated his probation by committing a felony theft in December 2013. When our case came back before tire court in February 2014 for disposition, Brown’s attorney told the court that he had “spoke[n] at length” with Brown and that Brown “would admit” to the theft charge for the purposes of tire probation-violation hearing but not for purposes of the underlying criminal case for felony theft. The court then found that Brown had violated the probation based on the theft and confirmed that Brown understood that he was waiving his hearing right:
“THE COURT: Well, I’ll find the defendant’s in violation of all seven counts and that he’s knowingly and voluntarily waived his hearing. That is what you want to do. Correct?
“THE DEFENDANT: Yes, Your Honor.”
Later in the hearing, the defendant asked to address the court personally. Brown said that he “would just like to say on behalf of myself that I’m taking full responsibility of everything I’ve done here.”
Brown’s attorney asked that the court continue Brown on probation with whatever sanction tire court deemed appropriate, such as sending Brown to jail for some period of time as a condition of probation. The State asked that the court require that Brown serve his underlying prison sentence and not reinstate the probation.
The district court found that Brown had demonstrated that he was “not amenable to further probation” based on his failure to comply and ordered that he serve the underlying prison sentence. Brown’s attorney asked for the court to modify the sentence downward from 122 months to the 71 months the parties had initially recommended, but the court denied that request.
Brown has now appealed to this court.
Analysis
Traditionally, once a defendant on probation violated that probation, the district court had the discretion to revoke the probation and order that the defendant serve the underlying prison or jail sentence. State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d 1231 (2008); State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). In this situation, where the district court’s decision is a discretionary one, we may reverse only when the district court has based its decision on a factual or legal error or when no reasonable person would agree with its decision. State v. McCullough, 293 Kan. 970, 980-81, 270 P.3d 1142 (2012); State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006).
The district court’s discretion was limited by a 2013 statutory change. The new statute, found now at K.S.A. 2014 Supp. 22-3716(b) and (c), requires, with certain exceptions, that the district court impose intermediate sanctions before ordering the defendant to serve the underlying sentence. See State v. Huckey, 51 Kan. App. 2d 451, Syl. ¶¶ 3-4, 348 P.3d 997 (2015). One of these exceptions ties in to a longstanding distinction that pi'obation officers, lawyers, and judges have made between technical and substantive probation violations: An act that violates probation conditions but isn’t otherwise unlawful is a technical violation, while an act that violates probation conditions but is otherwise unlawful is a substantive violation. See State v. Meeks, 789 So. 2d 982, 985 (Fla. 2001); Cook, Mediation as an Alternative to Probation Revocation Proceedings, Fed. Probation 48 (Dec. 1995).
Our statute now tracks this distinction through K.S.A. 2014 Supp. 22-3716(c)(8), which provides that the district court need not first impose an intermediate sanction when the offender commits a new felony or misdemeanor while on probation. In that circumstance, the substantive probation violation is serious enough standing alone to give the court discretion to revoke the probation and send the defendant to serve his or her underlying prison sentence.
We should note that just because a probation violation is labeled as only a “technical” one does not mean it is unimportant. Some can be quite significant—such as when a person convicted for indecent liberties with a minor violates a probation requirement not to be alone with minors, In such a case, another exception to the intermediate-sanction requirement might apply, i.e., that public .safety or the defendant’s own welfare would not be served by an intermediate sanction. See K.S.A. 2014 Supp. 22-3716(c)(9). But the traditional distinction between technical and substantive probation violations is now reflected in the exception applicable when an offender on probation commits a new felony or misdemeanor offense, and that’s the exception at issue here.
The district court in Brown’s case noted that the original six violations were “technical” ones but that the new felony theft allowed the court to require that Brown serve his sentence without first serving an intermediate sanction. (Brown’s admission to “using” methamphetamine, one of the original six violations, was a technical violation; Kansas law criminalizes methamphetamine possession, not its use. See K.S.A. 2014 Supp. 21-5706[a].) On appeal, Brown seeks to set aside the finding that he had committed the new felony theft. If successful on that argument, then only the technical violations would remain, and the district court would have been required to give Brown an intermediate sanction before sending him to serve fhe prison sentence.
Brown’s argument rests on a claim that his admission to the new theft should be thrown out because the admission wasn’t truly voluntary. Citing caselaw related to the voluntariness of confessions in criminal cases generally, Brown argues that his admission to the felony theft as a probation violation and his waiver of an evidentiary hearing weren’t voluntary; he says that he admitted the violation only after the court had already indicated it was going to find Brown had violated probation, so Brown’s statements were simply “to appease the court” while seeking leniency. Based on that, he argues that the court deprived him of due process. The State responds that Brown got all the process he was due and that his statements were knowing and voluntaiy.
Brown is right that a probationer is entitled to due process; the Due Process Clause of the Fourteenth Amendment to the United States Constitution applies whenever the State deprives someone of liberty, such as by revoking probation and sending the person to prison. Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008). But a probation-revocation proceeding comes after a defendant has already been convicted of an offense; the probation is part of the sentence. So the defendant is not entitled to “the full panoply of rights due” in a criminal prosecution. See Morrisey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) (parole revocation); State v. Yura, 250 Kan. 198, 201-02, 825 P.2d 523 (1992) (probation revocation). For a probation revocation, what the Supreme Court has called “minimum due process” applies, requiring written notice of the claimed violation, disclosure of the evidence, an opportunity to be heard and present witnesses and evidence, the right to confront witnesses (if any are called), a neutral hearing officer, and a written statement by tire factfinder about what evidence was persuasive and the reasons for revoking probation. See Gagnon, 411 U.S. at 782, 786; State v. Marquis, 292 Kan. 925, 928-30, 257 P.3d 775 (2011).
In Kansas, a statute, K.S.A. 2014 Supp. 22-3716(b), governs the procedure for probation-revocation hearings, and it satisfies these minimum due-process requirements. State v. Grossman, 45 Kan. App. 2d 420, 424, 248 P.3d 776 (2011). We review independently, without any required deference to the district court, whether a person’s due-process rights have been violated. Hall, 287 Kan. at 143; State v. Alexander, 43 Kan. App. 2d 339, 342, 225 P.3d 1195, rev. denied 290 Kan. 1095 (2010).
Bi'own’s specific claim on appeal—that his admission to a probation violation wasn’t voluntary—does not relate directly to one of the recognized requirements for minimum due process. But implicit in the right to be heard is a requirement that a defendant who gives up that right do so voluntarily and that any admissions that form the basis for probation revocation also have been made voluntarily. See People v. Harris, 392 Ill. App. 3d 503, 508, 912 N.E.2d 696 (2009). If a person could be coerced into admitting the violation and foregoing an evidentiary hearing, the right to a hearing would be meaningless.
But even though an admission to a probation violation must be voluntary, a court’s review to assure voluntariness is not as stringent as it would be in an initial criminal case.
Several strong protections for the defendant come into play in a criminal case that are not present in the probation context, where the defendant has already been convicted of an offense for which the probation is part of the sentence. For example, in criminal investigations, Miranda warnings are given as a procedural way to help assure that statements to police are voluntary. But a proba tioner has no right to receive Miranda warnings from a probation officer, and the probationer has no Fifth Amendment privilege not to answer incriminating questions if the information is used solely for the probation revocation. See Minnesota v. Murphy, 465 U.S. 420, 435 n.7, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984); State v. D’Armond, No. 110,030,2014 WL 2590053, at *4 (Kan. App. 2014) (unpublished opinion), rev. denied 301 Kan. 1048 (2015); State v. Johansen, 2014 ME 132, ¶¶ 17-18, 105 A.3d 433 (2014). Similarly, in a criminal case, the Due Process Clause requires that judges explain various rights to a defendant before accepting a plea. See Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 23 L. Ed 2d 274 (1969); State v. Valladarez, 288 Kan. 671, 681-82, 206 P.3d 879 (2009); State v. Rucker, 49 Kan. App. 2d 414, 416-17, 310 P.3d 422 (2013). But those same advisories are not constitutionally required in probation-revocation proceedings. See United States v. Segal, 549 F.2d 1293, 1298-1300 (9th Cir.), cert. denied 431 U.S. 919 (1977); United States v. Williams, 321 Fed. Appx. 486, 489-90 (6th Cir. 2009); Finney v. People, 2014 CO 38, ¶¶ 26-28, 325 P.3d 1044 (2014); Meadows v. Settles, 274 Ga. 858, 858-60, 561 S.E.2d 105 (2002). Accordingly, unless otherwise required by statute, courts need not use the same extensive procedures used to take guilty pleas in a criminal case, including detailed questioning of the defendant, when receiving a defendant’s admission to a probation violation. See People v. Garcia, 67 Cal. App. 3d 134, 137-38, 136 Cal. Rptr. 398 (1977); Meadows, 274 Ga. at 859-60; Grossman, 45 Kan. App. 2d at 424 (finding admission by attorney sufficient, even absent discussion directly with defendant, when defendant did not object).
So we now look to see whether Brown’s admission was sufficiently voluntary under the circumstances of his case to meet due-process requirements. See Williams, 321 Fed. Appx. at 489-90. The statute that provides the procedural framework for hearings on probation violations explicitly requires notifying the defendant “of the right to a hearing” and that “if the defendant is financially unable to obtain counsel, an attorney will be appointed to represent the defendant.” K.S.A. 2014 Supp. 22-3716(b)(2). Brown does not contend that the court failed to inform him of these things. Neither party has cited any Kansas caselaw suggesting that any further advisories are constitutionally required before a court may accept a defendant’s probation-violation admission. See State v. Billings, 30 Kan. App. 2d 236, 239, 39 P.3d 682 (2002) (concluding that due process does not require that trial judge advise defendant of right to present evidence and to cross-examine witnesses before accepting probation-violation admission); State v. Walker, No. 93,296, 2005 WL 2001748, at *1 (Kan. App. 2005) (unpublished opinion) (same). But we need not answer the general question of whether any other advisories might be required in some circumstance to decide this case: In the context of Brown’s several hearings before the district court, his admission to tire new felony theft was sufficiently voluntary and informed for purposes of a probation-violation hearing.
Here, the judge had advised Brown of the right to an evidentiary hearing at tire initial hearing on the six technical violations. The resolution of those violations was held over—at Brown’s request— to give further time to explore resolution of die new felony-theft charge. When the parties came back for the final hearing, Brown’s attorney said that Brown wanted to admit to the felony theft for the purpose of the probation-revocation hearing; the court confirmed that Brown wanted to waive the hearing and admit to that violation.
Brown complains that his personal admission came only after the district court had already said that it found him in violation of the probation. But the court’s statement came after Brown’s attorney told the court that Brown “would admit” the theft charge for the purpose of the probation-violation hearing. In addition, Brown told the court later in the hearing that he was “taking full responsibility of everything I’ve done here.” In the context of a probation-revocation hearing, Brown has not shown that his admission was involuntarily made in violation of his due-process rights. See Gross-man, 300 Kan. at 1060, 1063 (finding that defendant was not entitled to evidentiary hearing on habeas claim that his probation-revocation counsel was ineffective; court concluded that defendant’s claim of involuntary admission was rebutted by his re peated and express admissions at the probation-revocation hearing)-
Since the district court’s finding that Brown had violated his probation by committing a new felony theft remains intact, the district court was not required to enter an intermediate sanction and thus had discretion to decide whether to reinstate the probation or send Brown to serve his prison sentence. The court’s conclusion that Brown was “not amenable to further probation” is factually supported. Brown was convicted of crimes for which the presumed sentence is prison, and he faced a veiy severe sentence if he failed on his probation. Yet he failed to take basic, required steps, including reporting to his probation officer, enrolling in a drug-treatment program, and enrolling in a sex-offender-treatment program. In addition, he committed a new felony while on probation. A reasonable person could agree with the district court that sending Brown to serve his sentence was the proper course.
The district court’s judgment is affirmed. | [
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Arnold-Burger, J.:
If an officer lawfully requests that a driver submit to a breath test and the driver fails the test, the Kansas Department of Revenue (KDR) is authorized to suspend the persons drivers license if “[t]here existed reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs.” K.S.A. 2015 Supp. 8-1002(a)(2)(A), (f). Clay Dean Cul-lison s drivers Acense was suspended in accordance with this provision. Claiming he was not operating the vehicle, Cullison ultimately appealed the suspension to the Seward County District Court, which upheld it; Because we find that the suspension of Cullisons driving privileges was based on a finding that he attempted to operate a vehicle rather than a finding that he operated a vehicle, we must reverse the district courts order affirming the suspension of his driving privileges.
Factual and Procedural History
In the early morning hours of May 4, 2014, Officer Mark West observed a large group of people standing outside in a parking lot. At least two of the individuals were sitting atop running motorcycles. One man began loudly revving his engine. As the sound of tire engine died down, West heard another motorcyclist, later identified as Cullison, rev his engine. As West approached the men, he watched Cullison manually reverse his motorcycle then begin to move forward with the motor running, headlight on, and clutch engaged.
When West made contact with the men, he noticed the smell of alcohol coming from both of the men on the motorcycles and observed that Cullisons speech was slurred and his eyes were glassy. West then conducted field sobriety tests on Cullison. Cul-lison failed both the walk-and-turn test and the one-leg-stand test. West next administered a preliminary breath test, which indicated that Cullisons breath-alcohol content was over the legal limit to drive. After Cullison failed the preliminary breath test, he was arrested and taken to jail where he was given a breath test. The test registered a breath-alcohol content of .169-—more tiran double the legal limit of .08.
The KDR suspended Cullisons drivers license as a result of the incident. Cullison appealed the suspension. After a hearing on the matter, the KDR affirmed. Cullison then appealed to the Seward County District Court. At trial, Cullison argued that he was not operating his motorcycle at the time he was stopped by West. Cul-lison alleged that while the motor ran, headlight worked, and the motorcycle could be manually propelled, the motorcycle was missing several bolts that made driving it impossible.
The district court affirmed die suspension, finding that “[pjlain-tiff failed to meet his burden to prove the certifying officer lacked reasonable grounds to believe Cullison was attempting to operate his vehicle under the influence of alcohol. The court finds Officer West had reasonable grounds to believe that Cullison was operating or attempting to operate his motorcycle.” Cullison now appeals.
Analysis
Cullison argues that since this was a test failure, pursuant to K.S.A. 2015 Supp. 8-1020(h)(2), the court was limited to determining whether the officer had a reasonable ground to believe Cullison was operating the motorcycle. Because the court found that he was merely attempting to operate the motorcycle, he asserts it erred when it affirmed the suspension of his driver s license.
To reach a decision in this case, we are required to interpret the meaning of the applicable drivers license suspension statutes. Accordingly, our standard of review is unlimited. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).
K.S.A. 2015 Supp. 8-1001(b)(l) authorizes an officer to request that a person operating or attempting to operate a vehicle submit to a breath test to check the person’s breath-alcohol content “[ijf at the time of the request, the officer ha[d] reasonable grounds to believe” that the person was under the influence of alcohol or drugs. But separate statutory provisions govern the prerequisites to suspension of driving privileges.
Once the request to submit to a breath test is made, KDR is authorized to suspend a drivers license if the person fails the breath test as long as the officer certifies that “[tjhere existed reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs.” K.S.A. 2015 Supp. 8-1002(a) (2)(A), (f). If the person refuses tire breath test, the officer must certify that “[tjhere existed reasonable grounds to believe the person was operating or attempting to operate a vehicle” while under the influence of alcohol or drugs. (Emphasis added.) K.S.A. 2015 Supp. 8-1002(a)(l)(A). So to reiterate, the legislature has made a distinction regarding the officers certification based on whether the driver failed the test or refused the test. If the driver failed the test, the officer must certify that the driver was operating the vehicle. If the driver refuses the test, the officer must certify that the driver was either operating or attempting to operate the vehicle before the KDR can suspend a person’s drivers license. If the certification meets the requirements of the statute, the KDR is required to suspend the persons driving privileges. K.S.A. 2015 Supp. 8-1002(f). In his case, West certified that Cullison was operating the vehicle. He did not check the box “attempting to operate.”
A driver whose license is suspended may appeal the suspension first to the KDR, then on through the court system beginning with the district court. See K.S.A. 2015 Supp. 8-1020. Cullison properly appealed to the district court.
Cullison focuses his appeal on K.S.A. 2015 Supp. 8-1020(h)(2) (H). Broadly, K.S.A. 2015 Supp. 8-1020 outlines the procedures that the KDR and courts should follow when reviewing a challenge to the suspension of an individual’s driver’s license for refusing or failing a breath test. K.S.A. 2015 Supp. 8~1020(h) limits the scope of evidence that the KDR and courts may consider at such hearings. Evidence related to whether the driver was “operating or attempting to operate a vehicle” at the time he or she was asked to take the breath test is included among tire types of evidence that may be considered in cases of breath test refusal. (Emphasis added.) K.S.A. 2015 Supp. 8-1020(h)(l)(A). In contrast, in the case of breath test failure, the scope of the hearing is limited to whether the law enforcement officer had reasonable grounds to believe that the person was operating a vehicle under the influence of alcohol or, if the person is under the age of 21, whether the driver was operating or attempting to operate the vehicle while alcohol was in the person’s system. K.S.A. 2015 Supp. 8-1020(h)(2)(A). So the distinctions outlined in K.S.A. 2015 Supp. 8-1002(a) between test refusals and test failures are continued in K.S.A. 2015 Supp. 8-1020(h).
Even though the officer must certify that the person operated the vehicle, whether the person was operating or attempting to operate the vehicle is also within the scope of the hearing for failure of a breath test. K.S.A. 2015 Supp. 8-1020(h)(2)(H). Presumably, evidence of whether a driver was operating or simply attempting to operate his or her vehicle at the time of the stop is permitted so that a driver can rebut testimony of an officer that he or she had reasonable grounds to believe the driver was operating a vehicle at the time of the stop. See K.S.A. 2015 Supp. 8-1020(h)(2)(H). If a driver who fails a requested breath test establishes by a preponderance of the evidence that he or she was not operating a vehicle at the time he or she was stopped but merely attempting to operate it, the driver would fall outside the reach of K.S.A. 2015 Supp. 8-1002(a)(2)(A) and the KDR would be statutorily prohibited from suspending the persons driver’s license. See K.S.A. 2015 Supp. 8-1020(k) (licensee has burden of proof by a preponderance of the evidence to show facts in officer’s certification are false or insufficient). That is exactly what CuIIison claims here, and the district court decision supports his position.
The district court found that West had reasonable grounds to believe that CuIIison was operating or attempting to operate his motorcycle at the time he was stopped for DUI. The district court also found that CuIIison failed to meet his burden of proof to establish that West “lacked reasonable grounds to believe CuIIison was attempting to operate the vehicle while under the influence of alcohol.” (Emphasis added.) Although clearly CuIIison had the burden to establish that the officer did not have reasonable grounds to believe he was operating die vehicle—as the officer alleged in his certification—CuIIison had no burden to show that the officer lacked reasonable grounds to believe he was attempting to operate the vehicle. In fact, if the officer had a reasonable belief that CuI-Iison was merely attempting to operate the vehicle, as the district court ruling suggests, the KDR would not be justified in suspending bis license based on the clear language of K.S.A. 2015 Supp. 8-1002(a)(2)(A) and (f).
We also pause to note that because the language of K.S.A. 2015 Supp. 8-1002(a)(2) distinguishes between attempt and operation, cases involving DUI convictions and breath test refusals—where such a distinction is not made—are inapplicable here. Thus, as CuIIison points out, the district court’s reliance in its journal entry on Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 888 P.2d 832 (1995), a case involving a breath test refusal, was misplaced.
Finally, the State does not allege on appeal that there was sufficient evidence that CuIIison operated the vehicle. To the contrary, it argues that “[t]he trial court finding that he was attempting to operate [tire motorcycle] is supported by substantial evidence.” Although attempted operation of the motorcycle may be sufficient to convict Cullison of a criminal DUI charge, under the plain language of the administrative suspension statutes, it is not sufficient to suspend Cullisons drivers license. As a result, we find that the district court’s finding that Cullison attempted to operate the motorcycle does not support the suspension of Cullison s driving privileges. Accordingly, we reverse the district courts order affirming the suspension of Cullisons driving privileges.
Reversed. | [
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Denied.
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The opinion of tlie court was delivered by
Biles, J.:
It is well established that anyone wishing to bring a lawsuit against a municipality under the Kansas Tort Claims, K.S.A. 75-6101 et seq., must give that municipality prior written notice of the claim. K.S.A. 2013 Supp. 12-105b(d); Sleeth v. Sedan City Hos pital, 298 Kan. 853, 317 P.3d 783 (2014); Continental Western Ins. Co. v. Shultz, 297 Kan. 769, 304 P.3d 1239 (2013). This case questions whether that statutory notice is required when the lawsuit is filed only against a municipal employee. We hold notice is not required. We reverse the Court of Appeals majority, which held to the contrary. Whaley v. Sharp, No. 107,776, 2013 WL 1149750, at *1 (Kan. App. 2013) (unpublished opinion). The case is remanded to the district court for further proceedings.
Factual and Procedural Background
On May 15, 2008, Ann Krier sought treatment in the emergency department of Ashland Health Center (Ashland). Dr. Chad Sharp, M.D., and Jonathan Bigler, a physician’s assistant, cared for her. Ashland is a municipal hospital that employed both Sharp and Big-ler. The day after being admitted, Krier died in transit to Wichita for further treatment.
Janet Whaley, Krier’s adult daughter, was appointed coexecutor for the estate. On May 6, 2010, Whaley’s attorneys submitted a notice of claim to Ashland, referencing K.S.A. 12-105b(d), asserting claims against tire hospital for the alleged negligence of its employees, including nursing staff, Sharp, and Bigler. This notice alleged negligence by these hospital employees and claimed the hospital was negligent in hiring, credentialing, supervising, and retaining Sharp. Whaley demanded combined damages of $1,250,000.
On May 10,2010, just 4 days after submitting the notice of claim to the hospital, Whaley commenced two lawsuits, each naming Sharp and Bigler as defendants. The first was a wrongful death action filed in Whaley’s capacity as coexecutor. The second was a survivor action filed in her individual capacity. Both claims have a 2-year statute of limitations, which were about to expire. See K.S.A. 60-513(a)(5),(a)(7). The lawsuits alleged Sharp negligently misdiagnosed Krier’s condition and that Sharp and Bigler negligently managed and treated her. The hospital was not named as a defendant. The suits against Bigler were later dismissed with prejudice for reasons not appearing in the record.
Sharp moved for summary judgment, arguing Whaley failed to comply with the notice requirements in K.S.A. 2013 Supp. 12-105b by not waiting to file the lawsuits until the statutorily required time had elapsed after submitting tire written notice to the hospital. See K.S.A. 2013 Supp. 12-105b(d) (“Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first.”); Sleeth, 298 Kan. at 870-71 (statute gives municipality 120 days after notice to investigate and review claims before a lawsuit may be filed against it, unless the municipality denies the claim earlier. A court lacks subject matter jurisdiction over a prematurely filed lawsuit.).
Whaley responded that compliance with the 120-day rule was not necessaiy because the statute’s plain language did not require notice prior to suing a municipal employee—as distinguished from a municipality. She further noted Ashland could not be liable for Sharp’s alleged negligence under K.S.A. 40-3403, which eliminates vicarious liability among health care providers as part of the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq. The parties stipulated that both Sharp and the hospital were health care providers under the applicable law.
The district court granted summary judgment to Sharp in both suits, ruling that Whaley was required to comply with the statutory notice requirements and the waiting period mandated by K.S.A. 2013 Supp. 12-105b(d). In doing so, the court relied on King v. Pimentel, 20 Kan. App. 2d 579, 890 P.2d 1217 (1995). In that case, a Court of Appeals panel held that compliance with the statutory requirements was a prerequisite to filing suit against a municipal employee for acts within the scope of employment. King, 20 Kan. App. 2d at 590. Whaley appealed.
A divided Court of Appeals panel affirmed the district court. The panel majority agreed King resolved the case. It also rejected Whaley’s bid to overrule King, reasoning that the legislature had not acted in response to King and because numerous subsequent cases in state and federal courts had relied on King in suits against municipal employees. In addition, the panel majority believed King’s statutory interpretation served all litigants well because it gave claimants the benefit of the statute of limitations tolling provisions, as well as allowing municipalities an opportunity to review and investigate claims against their employees before being entangled in litigation. See K.S.A. 2013 Supp. 12-105b(d). Finally, the panel majority argued reversing King could require some plaintiffs to bring separate tort claims actions—one against the municipal employee and the other against the municipality. Whaley, 2013 WL 1149750, at *4-5.
The panel majority also rejected Whaley’s alternative argument that the notice requirement did not apply because Ashland was not vicariously liable for Sharp’s acts under state law. Whaley, 2013 WL 1149750, at *6.
Chief Judge Thomas E. Malone dissented. He argued K.S.A. 2013 Supp. 12-105b’s plain language does not require notice before filing suit against a municipal employee. He relied on Bradford v. Mahon, 219 Kan. 450, 548 P.2d 1223 (1976), a case decided before the Kansas Tort Claims Act was enacted, which held that a previous, but similar, statute did not require notice before suing municipal employees. He further argued this outcome was justified in this case because Ashland could not be vicariously liable for Sharp’s acts. Whaley, 2013 WL 1149750, at *7.
Whaley timely petitioned this court for review, which we granted. Jurisdiction is appropriate under K.S.A. 60-2101(b) (jurisdiction over appeal in which party has petitioned for review of Court of Appeals decision). We reverse the panel majority and remand to the district court for further proceedings.
K.S.A. 2013 Supp. 12-105b(d) Does Not Apply
Whaley argues K.S.A. 2013 Supp. 12-105b(d)’s notice requirement plainly does not apply to suits against municipal employees because the statute is silent in that regard. Sharp argues the statute may be extended to any lawsuit against a municipal employee for acts within the employee’s scope of employment-—even if the municipality is not named a defendant.
The relevant facts are undisputed. The question is whether, as a matter of law, Whaley was obligated to satisfy K.S.A. 2013 Supp. 12-105b(d) before commencing these lawsuits against Sharp. See K.S.A. 2013 Supp. 60-256(c)(2) (summary judgment appropriate when no disputed material facts and movant entitled to judgment as a matter of law). Resolving this issue requires the court to interpret K.S.A. 2013 Supp. 12-105b.
Standard of Review
Statutory interpretation is a question of law subject to de novo review. In re A.M.M.-H., 300 Kan. 532, 535, 331 P.3d 775 (2014). When interpreting a statute, the court first attempts to discern the legislature’s intent through the language enacted, giving common words their ordinary meanings. When statutory language is plain and unambiguous, the court does not speculate as to legislative intent, and does not read into the statute words not readily found there. It is only when the language is unclear or ambiguous that the court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain the statute’s meaning. 300 Kan. at 535.
Analysis
A person bringing a claim against a municipality under tire Kansas Tort Claims Act (KTCA) must provide that municipality with prior written notice of the claim. Sleeth, 298 Kan. at 863; Dodge City Implement, Inc., v. Board of Barber County Comm’rs, 288 Kan. 619, 639, 205 P.3d 1265 (2009). Notice is a prerequisite to filing an action against a municipality. Sleeth, 298 Kan. at 863. The statute provides:
“(a) All claims against a municipality must be presented in writing with a full account of the items, and no claim shall be allowed except in accordance with the provisions of this section. A claim may be the usual statement of account of the vendor or party rendering a service or other written statement showing the required information.
“(d) Any person having a claim against a municipaliiy which could give rise to an action brought under the Kansas Tort Claims act shall file a written notice as provided in diis subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant’s attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim. The contents of such notice shall not be admissible in any subsequent action arising out of the claim. Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve tire claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, a claimant shall have no less than 90 days from tire date the claim is denied or deemed denied in which to commence an action.” K.S.A. 2013 Supp. 12-105b.
And as used in the statute;
“(a) ‘Municipality’ means and includes . . . city, county or district hospital. . . and including their boards, bureaus, commissions, committees, and other agencies, such as, but not limited to . . . hospital board of trustees having power to create indebtedness and malee payment of the same independently of the parent unit.
“(c) ‘Claim’ means the document relating to and stating an amount owing to tire claimant by a municipality for material or service furnished to the municipality, or some action taken by or for the municipality and for which the municipality may or may not be responsible in a liquidated or an unliquidated amount. A claim is liquidated when the amount due or to become due is made certain by agreement of the parties or is fixed by law.” K.S.A. 2013 Supp. 12-105a.
Compliance with K.S.A. 2013 Supp. 12-105b(d) is required before a court has subject matter jurisdiction over a tort claim against a municipality. Sleeth, 298 Kan. at 871 (holding 120-day review period after receiving notice of claim could not be waived by municipality’s failure to raise noncompliance with the statute as an affirmative defense); see Dodge City Implement, 288 Kan. at 639 (stating notice is a prerequisite to jurisdiction over municipality). Two cases, Bradford and King, are relevant.
Bradford was decided by this court before the KTCA was enacted. In that case, plaintiff sued a police officer for libel allegedly contained in a written police report. 219 Kan. 451. The officer argued plaintiff failed to plead in his petition compliance with the now-repealed K.S.A. 12-105, which provided:
“ ‘No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within six (6) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the, time and place of the happening of the accident or injury received, the circumstances relating thereto and a demand for settlement and payment of damages: . . ” 219 Kan. at 453.
The Bradford court rejected the officer’s argument, holding the notice requirement applied only to tort claims against municipalities, and was “not a condition precedent to bringing an action against a police officer, even though said officer was engaged in the performance of a governmental function.” 219 Kan. at 453. Failure to comply with the statute did not bar the suit because plaintiff s cause of action was against the officer, not tire municipality. 219 Kan. at 453.
In King, a contractor sued the City of Topeka, a building inspector, and the inspector’s supervisors after being prosecuted in municipal court for building code violations. Prior to filing suit, the contractor filed a claim against the city pursuant to K.S.A. 12-105b(d); but by the time the city denied the claim, the statute of limitations for the claims against the individual defendants had run, so the defendants moved for summary judgment on drat basis. King argued the statute of limitations tolled under K.S.A. 12-105b(d) while the city considered his notice of claim. 20 Kan. App. 2d 580-87.
Relying on Bradford, the district court ruled the statute only applied to claims against municipalities, so the tolling provision did not extend the time to file suit against the individual defendants. The contractor appealed, and the Court of Appeals reversed, holding K.S.A. 12-105b(d) applied to claims against both municipalities and municipal employees acting within the scope of dieir employment. It distinguished Bradford, citing subsequent changes to the law governing municipal liability under the KTCA and the fact that the notice statute at issue in Bradford was repealed and replaced by K.S.A. 12-105b(d). 20 Kan. App. 2d at 588-89.
But the King panel conceded that “a strict interpretation of K.S.A. 12-105b(d) supported] the trial court’s conclusion the notice of claim requirement applies only to claims against a municipality and not municipal employees.” 20 Kan. App. 2d at 589. Nevertheless, it determined “the statutory language also permitted] a broader interpretation.” 20 Kan. App. 2d at 589. The King court then observed that the KTCA generally imposes liability on governmental entities for employees’ tortious conduct and generally obligates governmental entities to defend and indemnify their employees against damages for which the governmental entity is liable under the act. It also noted the statute allows municipalities to review and investigate claims before having to litigate them. 20 Kan. App. 2d at 589-90.
Based on this, the King court held the legislature intended the notice requirement apply to suits against employees in addition to suits against municipalities themselves. And to bolster this conclusion, it observed that its statutory interpretation “eliminate[d] the necessity of bringing two separate KTCA actions, one against the municipality and one against individual municipal employees when, as here, the statute of limitations period expires before the municipality has responded to the notice of claim.” 20 Kan. App. 2d at 590.
What is obvious about King is that it started out on the right path, following the rules of statutoiy interpretation. The panel admitted tire statute’s literal language exempts municipal employees from the notice requirement. It then went astray by adopting a “broader interpretation” of the statute based on the panel’s perceived public policy considerations. 20 Kan. App. 2d at 589. But the plain language chosen by the legislature governs unless there is an ambiguity, and we leave policy determinations to the legislature. Appellate courts do “not decide nor weigh the beneficial results flowing from any particular legislative policy.” Manzanares v. Bell, 214 Kan. 589, 603, 522 P.2d 1291 (1974).
Whaley’s argument that the plain language of K.S.A. 2013 Supp. 12-105b does not encompass tire lawsuits against Sharp is sup ported by the statute and the definitions associated with that language. Notably, the legislature limits K.S.A. 2013 Supp. 12-105b(a)’s notice requirements to “claims against a municipality.” (Emphasis added.) Similarly, K.S.A. 2013 Supp. 12-105b(d) prefaces its requirements by stating: “Any person having a claim against a municipality which could give rise to an action brought under the [KTCA].” (Emphasis added.) And the jurisdictional bar in that same subsection prohibits only “an action against a municipality unless the claim has been denied in whole or part.” (Emphasis added.) K.S.A. 2013 Supp. 12-105b(d). Also, the statutorily defined term “municipality” does not include municipal employees. See K.S.A. 2013 Supp. 12-105a(a). And K.S.A. 2013 Supp. 12-105a(c) defines “claim” as monetary demands for an “amount owing to the claimant by a municipality for . . . some action taken by or for the municipality and for which the municipality may or may not be responsible in a liquidated or an unliquidated amount.”
Sharp’s contention is that broad language in K.S.A. 2013 Supp. 12-105b(d) renders it ambiguous. For this, he relies principally on the statute’s command in the subsection that reads: “Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following die filing of the notice of claim, whichever occurs first.” (Emphasis added.) The panel majority seemed to agree, determining that the “no action” language permits the statutory construction imputing the notice requirement in K.S.A. 2013 Supp. 12-105b(d) to suits against municipal employees. The panel majority stated:
“ ‘no action’ means just that—no action. Accordingly, the statute mandated that Whaley commence ‘no action until [Ashland] denied her notice of claim or until 120 days had expired. This would include no action against [Ashland], Dr. Sharp, Bigler, or any other employee that Whaley identified in the notice of claim as being involved in the incident giving rise to the claim.” 2013 WL 1149750, at “6.
But the panel majority’s construction is not a natural reading of the statute because the panel majority must add language not found in the statute to reach its outcome. In particular, it arbitrarily defines “no action” to encompass any action against any municipal employee identified in a notice of claim.
K.S.A. 2013 Supp. 12-105b(d) is replete with references to “claims against the municipality” as being the sole subject of its requirements, including this sentence which is found just after the “no action” term relied on by the panel majority that states: “No person may initiate an action against a municipality unless the claim has been denied in whole or in part.” (Emphasis added). The term “no action” cannot be expanded to include lawsuits against municipal employees when that term is found within a statutoiy subsection so plainly applicable only to lawsuits against municipalities. Any broader reading removes the term’s meaning from the context in which it is used. Nothing in the statute indicates its requirements were meant to apply to anything other than lawsuits against municipalities themselves.
Sharp also finds support in the term “any action” used in K.S.A. 2013 Supp. 12-105b(d) as follows: “Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, a claimant shall have no less than 90 days from die date the claim is denied or deemed denied in which to commence an action.” But this phrase in the statute’s tolling provisions creates no ambiguity about application of the statute’s notice requirement because it does not purport to address what lawsuits are subject to that requirement.
We hold the jurisdictional bar in K.S.A. 2013 Supp. 12-105b(d) unambiguously applies only to lawsuits against municipalities. Failure to comply with die statute does not deprive a district court of jurisdiction over a lawsuit against a municipal employee.
Our decision necessarily overrules King, which based its conclusion as to the legislature’s intended meaning of K.S.A. 12-105b on: (1) the statute’s purpose of affording municipalities opportunity to review and investigate claims before having to litigate them; (2) the liability municipalities face for employees’ torts, including municipalities’ statutoiy duty to defend and indemnify employees for damages for which the municipality is liable under the act; and (3) the panel’s belief that its construction eliminated the need to bring two separate KTCA actions, one against the employee and one against the municipality. 20 Kan. App. 2d at 589-90. The King panel’s exercise in statutoiy interpretation was inappropriate given the lack of ambiguity in tire statutoiy provisions.
The panel majority in this case erred by continuing to follow King’s public policy-driven path. Our result makes it unnecessaiy to consider Whaley’s alternative argument that was based on the lack of vicarious liability under the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq.
The Court of Appeals decision affirming the district court’s judgment is reversed. The case is remanded to the district court for further proceedings.
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Schroeder, J.:
Jordan Mullen appeals his conviction for possession with intent to distribute marijuana. Mullen claims the district court erred in that it lacked probable cause to issue the anticipatory search warrant and the trigger event allowing the anticipatoiy search warrant to be executed never occurred. We disagree. We affirm the denial of Mullen’s motion to suppress. The record is silent involving the district court’s explanation to Mullen of his right to a juiy trial and his waiver of that right. Thus, we reverse Mullen’s conviction for possession with intent to distribute marijuana and remand with directions.
Facts
On November 8, 2011, Justin Lewis, a United States Postal Inspector in Kansas City, Missouri, noticed a suspicious package. Lewis contacted the Shawnee Police Department. He informed the police he had a suspected drug package addressed to a house on Meadowsweet Lane, Shawnee, Kansas, for delivery that a police K-9 unit had hit on. Based on Lewis’ information, Detective Steve Hahne of the Shawnee Police Department requested and obtained an anticipatoiy search warrant for the house on Meadowsweet Lane from a magistrate judge. The anticipatoiy search warrant required a controlled delivery of the suspected drug package to the house before it granted authority to enter the house.
Upon receipt of the anticipatoiy search warrant, Shawnee police officers began surveillance of the house on Meadowsweet Lane. Officers observed Lewis, dressed in a postal carrier uniform, drive a postal vehicle to the house at 1:03 p.m. Lewis exited his vehicle, knocked,on the door, and yelled, “Post Office.” When no one answered the door, he left the suspected drug package on the porch by the front door of the house, returned to the postal vehicle, and left. At 1:06 p.m., an unknown individual opened the front door, picked up the package, and took the package inside the house. Officers then executed the search warrant at 1:17 p.m. by entering the house.
Officers encountered the unknown male, later identified as Mullen, alone in the house. The house did not belong to Mullen, but Mullen was living at the house. Officers did not see anyone enter or leave the house between the time the package was left on the porch and when the search warrant was executed. The unopened package was found on the kitchen counter.
After giving Mullen his Miranda warnings, Hahne asked Mullen what was in the package. Mullen initially claimed he did not know what was in the package; however, upon additional questioning, Mullen admitted he knew it contained marijuana. Mullen eventually admitted he had agreed to retrieve the package from the front porch for a friend. Mullen revealed to Hahne that his friend told him a package would be delivered to the house between 11 a.m. and 2 p.m., and Mullen needed to be at the house to retrieve die package from the front steps. Additionally, Mullen was instructed to not open die package and that someone would stop by to pick it up. Officers opened the package and found about 2 pounds of marijuana inside.
Mullen was charged with one count of possession with intent to distribute marijuana. Prior to trial, Mullen filed a motion to suppress arguing the triggering event for the anticipatory warrant—a controlled delivery of the package to the house—did not occur, and therefore, the anticipatory search warrant was not validly executed. Mullen argued a controlled delivery required a hand-to-hand delivery between Lewis and Mullen, and not Lewis leaving the package on the steps for someone to retrieve it later. The State argued a controlled delivery did occur and all that was needed was for the suspected package of drugs to enter the house under law enforcement supervision. The evidence at the preliminary hearing reflected the package was mailed with a waiver of signature so it could be left at the delivery address.
The district court denied Mullen’s motion to suppress. The district court reasoned the magistrate judge intended for the warrant to become valid once the package was brought inside the house, regardless of whether there was a hand-to-hand delivery. Therefore, because Mullen took the package into the house, tire anticipatory search warrant was properly executed.
Mullen agreed to a bench trial on stipulated facts and was found guilty of possession of marijuana with intent to distribute. The written stipulation contained Mullen’s waiver of his right to a jury trial. At die bench trial, defense counsel discussed Mullen’s waiver with die district court. The record is silent about the district court explaining to Mullen his right to a juiy trial or obtaining his verbal waiver of his right to a jury trial.
Mullen now appeals all adverse rulings involving his motion to suppress and the district court’s failure to explain his right to a juiy trial or obtain his personal waiver of his right to a juiy trial before proceeding with the bench trial.
Analysis
Mullen raises three issues for us to resolve. First, we will consider how the anticipatory search warrant was obtained. Next, we will discuss the anticipatory search warrant and its execution. Finally, we will address the district court’s failure to explain to Mullen his right to a jury trial and obtain his verbal waiver of that right on the record before proceeding with the bench trial.
Did the affidavit provide probable cause to issue the anticipatory search warrant?
Mullen argues the affidavit submitted to obtain the anticipatory search warrant was insufficient to support probable cause to issue the search warrant “because receiving a package that contains drugs without knowing it contains drugs is not evidence of a crime.” In response, the State argues the search warrant affidavit provided probable cause to issue the search warrant, and “Mullen cites no cases that hold an anticipatory search warrant must be supported by evidence of knowledge of receipt of contraband.”
In reviewing whether an affidavit in support of a search warrant supplies probable cause, a district judge must consider the totality of the circumstances presented and make “ ‘a practical, commonsense decision whether a crime has been or is being committed and whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ [Citation omitted.]” State v. Powell, 299 Kan. 690, 695, 325 P.3d 1162 (2014).
When a search warrant affidavit is challenged, the reviewing court applies a deferential standard. The standard is whether
“ ‘the affidavit provided a substantial basis for the magistrate’s determination that there is a fair probability that evidence will be found in the place to be searched. Because the reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as tire issuing magistrate, the reviewing court may perform its own evaluation of the affidavit’s sufficiency under this deferential standard.’ [Citation omitted.]” State v. Hensley, 298 Kan. 422, 428, 313 P.3d 814 (2013).
Here, the affidavit reflected:
• The package had been flagged as suspicious by a postal inspector at the Kansas City, Missouri, processing and distribution center;
• The package had been mailed from a known narcotics source;
• The package was addressed to a name that was unreadable at a bouse on Meadowsweet Lane, Shawnee; and
• A Kansas City, Missouri, Police Department K-9 unit alerted that the package contained narcotics.
Mullen argues:
“[D]elivery of a suspicious package alone does not satisfy probable cause. . . . Without evidence showing some element of knowledge on behalf of the person accepting a package delivered to one’s house prior to the warrant being issued, simply having the misfortune of being connected to an address to which a suspicious package is delivered, is not probable cause to support a search warrant.”
In United States v. Grubbs, 547 U.S. 90, 97, 126 S. Ct. 1494, 1498, 164 L. Ed. 2d 195 (2006), the United States Supreme Court, when discussing a controlled deliveiy of an illegal videotape, held:
“In this case, the occurrence of tire triggering condition—successful deliveiy of the videotape to Grubbs’ residence—would plainly establish probable cause for the search. In addition, the affidavit established probable cause to believe the triggering condition would be satisfied. Although it is possible that Grubbs could have refused delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore ‘had a “substantial basis for . . . concluding]” that probable cause existed.’ [Citations omitted.]”
The Tenth Circuit addressed this issue in United States v. Hugoboom, 112 F.3d 1081, 1086 (10th Cir. 1997). In Hugoboom, the defense counsel argued “there was not probable cause to support the anticipatory search warrant because the affidavit for the warrant only related to the proposed controlled delivery and that there was no Independent evidence’ of drug activities being carried on at [the address].” The Tenth Circuit disagreed and found a controlled delivery of a package likely containing drugs was sufficient to establish probable cause. 112 F.3d at 1086-87; see United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998) (controlled delivery to a designated place in the search warrant creates the nexus requirement to support probable cause); United States v. Leidner, 99 F.3d 1423, 1426-27 (7th Cir. 1996).
The affidavit reflects the package being delivered was flagged as being suspicious and a police drug K-9 unit had alerted to the possibility of narcotics. The affidavit provided probable cause to believe the triggering event would be satisfied. A crime was about to occur—taking possession of the package and moving it into the house—supporting the issuance of the search warrant. The district court did not err in finding the affidavit provided sufficient probable cause to issue the anticipatory search warrant.
The anticipatory warrant was properly executed.
Mullen argues on appeal the search of the house conducted by Shawnee police officers violated his Fourth Amendment constitutional rights because the warrant lacked probable cause. Mullen contends “[t]he triggering event in the warrant did not supply probable cause because receiving a package that contains drugs without knowing it contains drugs is not evidence of a crime.” Mullen did not raise this issue in his motion to suppress at the district court level; however, it was raised and extensively discussed by the district court on its own initiative. The district court asked both parties to research the issue of whether unknowingly taking a pack age containing drugs into a house was sufficient grounds to grant officers probable cause for a search.
The State submitted a supplemental brief on the issue of whether the officers had probable cause to enter the house based on a suspected drug package entering the house. The district court held, “So I guess I am leaving it—insofar as the warrant allowed the police to go retrieve this package, talk to the person that had them—had the package, I think it was legal. ... So the motion to suppress this evidence and those statements is denied.”
While both parties state in their briefs Mullen did not raise this issue in his motion to suppress at the district court level, the issue was thoroughly discussed and ruled on by die district court. It is not being raised for the first time on appeal, and this court has jurisdiction to address the issue.
When reviewing a district court’s decision on a motion to suppress, the appellate court applies a bifurcated standard. The appellate court reviews the district court’s factual findings to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion is reviewed using a de novo standard. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). 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). When the material facts are not in dispute, the question of whether to suppress evidence is a question of law over which an appellate court has unlimited review. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014). The State bears the burden of proof for a suppression motion. It must prove to the trial court the lawfulness of the search and seizure. Reiss, 299 Kan. at 296.
When the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. State v. McCaslin, 291 Kan. 697, 726, 245 P.3d 1030 (2011). However, in a bench trial consisting solely of stipulated facts, the lack of contemporaneous objection does not prevent review of the sup pression issue. State v. Bogguess, 293 Kan. 743, 746-47, 268 P.3d 481 (2012). In this case, both parties agreed in the stipulation of facts that Mullen was preserving for appeal all issues raised in his motion to suppress.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights assure each person’s right to be secure in his or her person and property against unreasonable searches and seizures.
Anticipatory warrants are not categorically unconstitutional under the United States Constitution’s Fourth Amendment provision that “ 'no Warrants shall issue, but upon probable cause.’ ” Grubbs, 547 U.S. at 94-95; U.S. Const. Amend. IV.
“An anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.’ [Citation omitted.] Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time—a so-called ‘triggering condition.’... If the government were to execute an anticipatory warrant before the triggering condition occurred, there would be no reason to believe the item described in the warrant could be found at the searched location; by definition, the triggering condition which establishes probable cause has not yet been satisfied when the warrant is issued.” Grubbs, 547 U.S. at 94.
Mullen claims the search warrant was not validly executed because the triggering event—a successful controlled delivery to a resident—did not occur. At issue here is what is considered a successful controlled delivery. Mullen argues on appeal that while “Kansas courts have not constructed a firm definition of a ‘controlled delivery,’ case law strongly indicates a controlled delivery occurs when a postal carrier, or police posing as postal carriers, deliver and make contact with the person taking delivery of the subject package.” The State contends that while Kansas courts have not “explicitly defmfed] what a controlled delivery is, Kansas courts have implicitly recognized a controlled delivery can be accom-plishéd through a hand-to-hand delivery or through a drop-off delivery.”
Here, both parties are correct as Kansas courts have not explicitly defined the term “controlled delivery.” Caselaw reflects con trolled deliveries presenting different delivery processes have been approved by Kansas courts and federal courts. The United States Supreme Court defined its view of controlled deliveries in Illinois v. Andreas, 463 U.S. 765, 769-73, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983). While Mullen’s issue on appeal differs from Andreas, the Supreme Court’s discussion about controlled deliveries provides guidance.
“The lawful discovery by common carriers or customs officers of contraband in transit presents law enforcement authorities with an opportunity to identify and prosecute the person or persons responsible for the movement of the contraband. To accomplish this, the police, rather than simply seizing the contraband and destroying it, make a so-called controlled delivery of the container to its consignee, allowing the container to continue its journey to the destination contemplated by the parties. The person dealing in the contraband can then be identified upon taking possession of and asserting dominion over the container.” 463 U.S. at 769.
In Andreas, the Illinois Supreme Court had defined a controlled delivery as “requiring] that the police maintain ‘dominion and control’ over the container at all times.” 463 U.S. at 768. However, the United States Supreme Court found:
“[T]he rigors and contingencies inescapable in an investigation into illicit drug traffic often makes perfect’ controlled deliveries and the ‘absolute certainty’ demanded by the Illinois court impossible to attain. Conducting such a surveillance undetected is likely to render it virtually impossible for police so perfectly to time their movements as to avoid detection and also be able to arrest the owner and reseize the container the instant he takes possession. Not infrequently, police may lose sight of the container they are trailing, as is the risk in the pursuit of a car or vessel.” 463 U.S. at 772.
While this does not directly answer Mullen’s argument that a controlled delivery requires hand-to-hand delivery, it does point to the fact that what makes the delivery a controlled delivery is that it was performed under the control and supervision of law enforcement officers. This interpretation is supported by numerous cases discussing a controlled delivery where hand-to-hand contact was not required. For example, in State v. Bierer, 49 Kan. App. 2d 403, 405-06, 308 P.3d 10, rev. denied 298 Kan. 1204 (2013), a'postal inspector contacted the police about a suspicious package he believed contained drugs. After a K-9 unit alerted to the package for narcotics, a controlled delivery of the package was arranged. The postal inspector knocked on the door of the house; however, when no one responded, he left the package at the front door. Later, Bierer arrived and took the package from the front door and placed it in his vehicle. The panel referred to this as a controlled delivery. Bierer, 49 Kan. App. 2d at 413; see Rowland, 145 F.3d at 1204 (delivery to a post office box was a controlled delivery); United States v. Fadipe, 43 F.3d 993, 994 (5th Cir. 1995) (delivery to the mail box at an apartment complex was a controlled delivery).
The dominant feature in the cases discussing controlled deliveries is that the delivery is supervised by police officers, meaning police exercise control over when and how the delivery occurs. Delivery of a controlled substance is defined in K.S.A. 2011 Supp. 65-4101(g) as “the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” This appears to be what occurred in this case. Inspector Lewis, while under the watchful eye of the Shawnee police officers, approached the house to deliver the package. He knocked on the door and yelled, “Post Office.” Lewis waited at the door for a minute, but, when no one answered the door, he left the package at the front door of the house as the package sender had authorized. While the package was still under surveillance by the Shawnee police officers, Mullen opened the front door, picked up the package, and took it inside the house. Thus, by taking the package inside the house, Mullen exercised dominion and control over the package. After Mullen took the package into the house, the officers executed the search warrant.
To support his argument a controlled delivery requires hand-to-hand delivery, Mullen directs us to two Kansas cases: State v. Windes, 13 Kan. App. 2d 577, 776 P.2d 477 (1989), and State v. Duhon, 33 Kan. App. 2d 859, 109 P.3d 1282 (2005). While both cases describe a controlled deliveiy occurring when the package was directly handed to the defendant, the State correctly responds that “neither case addressed whether a hand-to-hand delivery was the onlij method through which a controlled delivery could be completed.”
Here, the triggering condition in the anticipatory warrant—taking possession of the suspected drug package on the porch and moving it into the house while under die supervision of the Shawnee Police—was met and the distiict court correctly denied Mullen’s motion to suppress.
Must Mullen verbally waive his right to a jury trial before the district court?
Next, we address the district court’s failure to verbally explain to Mullen his right to a jury trial and to obtain his verbal waiver of his right to a jury trial on the record. Mullen failed to raise the improper waiver of his right to a jury trial before the district court and raises it for the first time on appeal. While Mullen acknowledges he failed to raise this issue at the district court level, he argues “this Court may reach the issue for the first time on appeal because considering the issue would prevent the denial of his fundamental right to a jury trial.”
Issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
Waiver
The effectiveness of a waiver may be addressed for the first time on appeal to prevent the denial of a fundamental right. See State v. Beaman, 295 Kan. 853, Syl. ¶ 1, 286 P.3d 876 (2012).
“A criminal defendant may waive the fundamental right to a jury trial if the court and State agree to the waiver. [Citations omitted.] But we have said these waivers should be strictly construed to ensure tire defendant has every opportunity to receive a fair and impartial trial by jury. [Citation omitted.]” Beaman, 295 Kan. at 858.
“The test for determining the validity of a waiver of the right to a jury trial is whether the waiver was voluntarily made by a defendant who knew and understood what he [or she] was doing.” State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). In Irving, our Supreme Court adopted the American Bar Association Standards and held “ ‘[t]he court should not accept a waiver unless the defendant, after being advised by the court of his [or her] right to trial by jury, personally waives his [or her] right to trial by jury, either in writing or in open court for the record/ [Citation omitted.]” 216 Kan. at 590.
“Whether a defendant waived the right to a jury trial is a factual question, subject to analysis under a substantial competent evidence standard of review. But when the facts of the district court’s determination to accept a jury trial waiver are not disputed, the question whether the defendant voluntarily and knowingly waived the juiy trial right is a legal inquiry subject to unlimited appellate review. [Citation omitted.]” Beaman, 295 Kan. at 858.
“A waiver ... will not be presumed from a silent record.” Irving, 216 Kan. at 589. In State v. Frye, our Supreme Court emphasized the ability to waive his or her right to a jury trial rests solely on the defendant and the responsibility to inform the defendant of his or her right to a jury trial rests squarely on the district court. 294 Kan. 364, 370-71, 277 P.3d 1091 (2012). Here, Mullen argues his written waiver was not effective because the district court failed to inform him of the rights he would be giving up in waiving his right to a jury trial and failed to have him verbally waive his right to a jury trial on the record.
Prior panels of this court have held that in the absence of an effective waiver, the correct remedy is reversal for a new trial. State v. Johnson, 46 Kan. App. 2d 387, 264 P.3d 1018 (2011), rev. denied 293 Kan. 1111 (2012). In Johnson, the panel found the defendant, through a written stipulation, had waived his right to a jury trial, but the record failed to reflect the district court advised Johnson of his right to a jury trial on the record and reversed his conviction. 46 Kan. App. 2d at 400.
In State v. Sykes, 35 Kan. App. 2d 517, 524, 132 P.3d 485, rev. denied 282 Kan. 795 (2006), the panel relied on the Irving court’s conclusion:
“ ‘In accord with this position we hold that in order for a criminal defendant to effectively waive his right to a trial by jury, the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for die record.’ [Irving,] 216 Kan. at 590.”
Our review of tire record reflects the district court failed to personally advise Mullen of his right to a jury trial, and Mullen did not personally waive his right to a jury trial on the record. Since the record is silent on both points, we must reverse his conviction for possession of marijuana with intent to distribute and remand the case for further proceedings for the district court to explain on the record to Mullen his right to a jury trial. The district court may then ask whether he wants to personally waive his right to a jury trial on the record or proceed with a jury trial.
Conclusion
We find the affidavit submitted to obtain the anticipatory search warrant provided probable cause to justify tire issuance of the search warrant for the house on Meadowsweet Lane by the issuing judge. Once control of the package was exercised by Mullen by removing it from the front porch and taking it into the house, he created the triggering event for the search warrant to be served. The Shawnee police officers had probable cause to execute tire anticipatory search warrant. We affirm the district court’s denial of Mullen’s motion to suppress. The district court failed to personally explain to Mullen, on the record, his right to a jury trial. When the record is silent about the district court’s explanation of one’s right to a jury trial and the defendant’s personal waiver of the right to a jury trial, we must reverse and remand for a new trial.
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Powell, J.:
Portfolio Recoveiy Associates, LLC (PRA) filed a lawsuit against Danette R. Dixon for the recovery of unpaid credit card debt. Dixon filed an initial answer pro se denying any knowledge of the debt but subsequently hired counsel and filed an amended answer which included a class-action counterclaim. After more than 2 years, PRA eventually moved to compel arbitration of Dixon s counterclaim pursuant to the arbitration provision contained in the credit card agreement. The district court denied the motion, finding PRA had waived its right to arbitration by engaging in litigation. Simultaneously, the district court issued an order striking the appearances of two of PRA’s attorneys, finding they had made a material misrepresentation of the law by erroneously citing a United States Supreme Court decision for quoted language that should have been attributed to a United States District Court opinion.
PRA appeals both rulings, contending the district court erred as a matter of law by not referring Dixons counterclaim to arbitration and by dismissing two of its attorneys. Because we find that binding United States Supreme Court precedent requires arbitration of the question.of whether PRA waived its light to arbitrate Dixon’s counterclaim, assuming the arbitration provision in the credit card agreement is binding on the parties, and because we find that counsel for PRA did not make a material misrepresentation of the law to the district court, we reverse and remand.
Factual and Procedural Background
Dixon opened a Capital One credit card on February 10, 2006. Her credit card agreement with Capital One contained an arbitration provision that provided in part:
“You and we agree that either you or we may, at either party’s sole election, require that any Claim (as defined below) be resolved by binding arbitration.
“‘Claim’ means any claim, controversy or dispute of any kind or nature between you and us.
“A. This definition includes, without limitation, any Claim that in any way arises from, or relates to:
• the Agreement and any of its terms (including any prior agreements between you and us or between you and any other entity from which we acquired your account)
• this Arbitration Provision (including whether any Claim is subject to arbitration)
“B. This definition also includes, without limitation, any Claim:
• regardless of how or when it is brought (for example, as an initial claim, counterclaim, cross-claim, interpleading or third-party claim)
• based on any theory of relief or damages (including money damages and any form of specific performance or injunctive, declaratory or other equitable relief)
• based on any theory of law or equity (including contract, tort, fraud, constitution, statute, regulation, ordinance or wrongful acts or omissions of any type, whether negligent, reckless or intentional)
• made by you or by anyone connected with you or claiming through or for you (including a co-applicant or authorized user of your account, your agent, your representative, your heirs or a trustee in bankruptcy)
• for which we may be directly or indirectly liable under any theory, including respondeat superior or agency (even if we are not properly named at the time the Claim is made)
• now in existence or that may arise in the future, regardless of when the facts and circumstances that give rise to the Claim occurred or when the Claim accrued
• made as part of a class action, private attorney general action, or other representative or collective action which Claim shall proceed on an individual basis as set forth more fully in this Arbitration Provision.
“Election and Initiation of Arbitration. You or we may elect arbitration under this Arbitration Provision with respect to any Claim, even if the Claim is part of a lawsuit brought in court.”
With specific regard to class action lawsuits, the arbitration provision stated:
“No Consolidation or Joinder of Parties. The arbitration of any Claim must proceed on an individual basis, even if the Claim has been asserted in a court as a class action, private attorney general action or other representative or collective action. Unless all partes consent, neither you nor we may join, consolidate or otherwise bring Claims related to two or more accounts, individuals or account-holders in the same alteration. Also, unless all parties consent, neither you nor we may pursue a class action, private attorney general action or other representative or collective action in arbitration, nor may you or we pursue such actions in Court if any party has elected arbitration. You will not have the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim as to which arbitration has been elected.”
Finally, die arbitration provision included a clause precluding waiver: “If you or we do not elect arbitration or otherwise enforce this Arbitration Provision in connection with any particular Claim, you or we will not waive any rights to require arbitration in connection with that or any other Claim.”
Dixon made purchases with her Capital One credit card, allegedly did not pay for them, and eventually defaulted. Her account was apparently charged off, and Capital One subsequently sold Dixon s account to PRA.
On June 21, 2010, PRA fijqd a petition under Chapter 61 in the Rice County District Court seeking to recover credit card debt in the amount of $1,087.46. Dixons original pro se answer asserted: “Debt unknown.”
Dixon subsequently retained counsel and, on November 12, 2010, filed an amended answer and class-action counterclaim, seeking declaratory judgment, injunctive relief, damages, statutory damages, and attorney fees on the rationale that PRA was attempting to collect debts in Kansas without a proper license. On December 30, 2010, PRA answered the counterclaim and listed arbitration as one of its affirmative defenses but did not move to compel arbitration. Roughly a year later, on Dixons motion, the case was redesignated as a Chapter 60 case.
On November 26, 2012, more than 2 years after Dixon filed her countersuit and following multiple rounds of contentious discovery, PRA filed a motion to compel arbitration and stay proceedings pending completion of arbitration. Dixon opposed the motion on the grounds that PRA had waived any alleged right to invoke arbitration by proceeding in court for years. At an initial hearing on PRAs motion to compel arbitration, the district court requested additional briefing on whether PRAs conduct effectively waived any alleged right to compel arbitration.
A second hearing was held on September 23, 2014, in which the district court found that PRA had waived its right to arbitrate and denied PRAs motion to compel arbitration. Contemporaneously, the district court entered a second order striking the appearance of two lawyers for PRA on the grounds that they had made a material misrepresentation of the law in PRAs supplemental brief. The district court based its finding on the fact that counsel for PRA incorrectly attributed a quote from a United States District Court for the District of Kansas case to a United States Supreme Court case twice in its supplemental brief and once in its response to Dixons supplemental brief.
PRA appeals the district courts denial of its motion to compel arbitration and the dismissal of its two attorneys.
Did PRA Waive Its Right to Arbitrate Dixon’s Counterclaims ?
Whether a party has waived its right to arbitration is a legal conclusion subject to “plenary”’ review. D.M. Ward Constr. Co. v. Electric Corp. of Kansas City, 15 Kan. App. 2d 114, 119, 803 P.2d 593 (1990), rev. denied 248 Kan. 994 (1991). However, any factual findings upon which such a conclusion is based are subject to the clearly erroneous standard of review. 15 Kan. App. 2d at 119.
It is well established that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which [that party] has not agreed so to submit.” Steelworkers v. Warrior v. Gulf Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). The Federal Arbitration Act (FAA) is the expression of the federal government’s policy favoring arbitration agreements, and it places arbitration agreements “‘upon the same footing as other contracts [in order] to overturn the judiciary’s longstanding refusal to enforce agreements to arbitrate.’ ” Hill v. Ricoh Americas Corp., 603 F.3d 766, 771 (10th Cir. 2010) (quoting Glass v. Kidder Peabody & Co., Inc., 114 F.3d 446, 451 [4th Cir. 1997]). In fact, this court has recognized that the FAA preempts state law concerning the enforcement of arbitration agreements involving interstate commerce. See Biomat, Inc. v. Sampson, 28 Kan. App. 2d 242, 244-45, 15 P.3d 846 (2000). As explained in Hague v. Hallmark Cards, Inc., 48 Kan. App. 2d 118, 120-21, 284 P.3d 369 (2012), the FAA
"applies when a case involves a written agreement and interstate commerce. See 9 U.S.C. § 2 (2006). The United States Supreme Court has held that the Act was intended to have the broadest possible reach under tire Commerce Clause. See Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56-57, 123 S. Ct. 2037, 156 L. Ed. 2d 46 (2003).
“The [FAA] establishes a strong federal policy in favor of arbitrating disputes. KPMQ LLP v. Cocchi, 565 U.S. _, 132 S. Ct. 23, 25, 181 L. Ed. 2d 323 (2011). Thus, as our court noted in Packard[ v. Credit Solutions of America, Inc.], all doubts about the scope of what issues are subject to arbitration ‘should be resolved in favor of arbitration.’ [Packard,] 42 Kan. App. 2d 382, Syl. ¶ 4[, 213 P.3d 437 (2009)].”
However, where the “contract is silent on the matter of who primarily is to decide ‘threshold’ questions about arbitration, courts determine the parties’ intent with the help of presumptions.” BG Group, PLC v. Republic of Argentina, 572 U.S. _, 134 S. Ct. 1198, 1206, 188 L. Ed. 2d 220 (2014). As to procedural preconditions to arbitration such as waiver, the United States Supreme Court has stated:
“[C]ourts presume drat the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration. See Howsam [v. Dean Witter Reynolds, Inc., 537 U.S. 79,] 86, 123 S. Ct. 588[, 154 L. Ed. 2d 491 (2002)] (courts assume parties ‘normally expect a forum-based decisionmaker to decide forum-specific procedural gateway matters’ (emphasis added)). These procedural matters include claims of ‘waiver, delay, or a like defense to arbitrability.’ Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983).” 134 S. Ct. at 1207.
The thrust of PRAs argument is that the district court erred in ruling that PRA had waived its right to arbitrate Dixon’s counterclaim by its litigation conduct. PRA insists this question must be arbitrated because of the presumption favoring arbitration and because the arbitration provision in the credit card agreement says nothing to refute this presumption.
In response, and as a threshold issue, Dixon argues the district court never found that the arbitration provision in the credit card agreement was binding on Dixon and PRA as Capital Ones successor-in-interest. Dixon aslcs us to remand the case in order to allow the district court to malee this factual determination in the event we disagree with the district courts waiver-of-arbitration determination. PRA counters that Dixon never objected to the district courts factual findings, meaning a remand is not appropriate and that we may assume a binding arbitration agreement. For support, PRA cites Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006), in which our Supreme Court held that “a litigant must object to inadequate findings of fact and conclusions of law [or such] omissions in findings will not be considered on appeal.”
While it is true that Dixon did not object to the district courts findings or lack thereof, we consider the point immaterial for the purposes of deciding the narrow question before us of whether the court or an arbitrator should decide whether a party’s conduct in litigation may constitute a waiver of its right to arbitrate a claim. As such, we can presume the district court made the assumption of the existence of a binding arbitration agreement between the parties to make its finding that PRA had waived its right to arbitrate Dixon’s claims. Accordingly, we may consider the merits of PRA’s appeal.
As we’ve stated, PRA argues the district court erred in analyzing and ultimately determining that PRA waived its right to arbitrate because under federal law such questions of waiver are presumed to be decided through arbitration. PRA contends that in light of this presumption, and paired with the FAA’s strong presumption favoring arbitration, the district court should have abstained from analyzing whether PRA waived its right to arbitration and instead granted its motion to compel arbitration in order for an arbitrator to determine the issue of waiver.
Dixon counters by citing a number of federal circuit court cases that stand for the proposition that courts generally decide whether a party has waived its right to arbitrate through its litigation conduct. See Grigsby & Associates, Inc. v. M. Securities Inv., 664 F.3d 1350, 1353-54 (11th Cir. 2011); JPD, Inc. v. Chronimed Holdings, Inc., 539 F.3d 388, 394 (6th Cir. 2008); Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 217 (3d Cir. 2007); Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 11-12 (1st Cir. 2005). However, as PRA notes, Dixons cited authorities predate BG Group. In an effort to overcome this deficiency, Dixon cites to us the very recent Tenth Circuit Court of Appeals case, In re Cox Enterprises, Inc. Set-Top Cable, 790 F.3d 1112, 1120-21 (10th Cir. 2015), where the court held that the cable company had waived its right to compel arbitration by failing to assert such a right in a timely fashion after engaging in extensive litigation.
We consider In re Cox to be unhelpful to Dixon because nowhere in that case was it argued that the issue of waiver through litigation conduct be decided by an arbitrator. In contrast, in BG Group, 134 S. Ct. at 1207, as already discussed, the United States Supreme Court reiterated, without carving out an exception for questions related to litigation conduct, that courts presume procedural issues related to waiver-of-arbitration are to be decided through arbitration. Given that the United States Supreme Court has reaffirmed the more general rule without specifically following the circuits cited by Dixon, we are compelled to follow BG Group. Working under die assumption that the arbitration agreement is both binding on the parties and intended for waiver-of-arbitration issues to be decided through arbitration, we find that the issue of whether PRAs litigation conduct constitutes a waiver of its right to arbitrate Dixons counterclaims must be decided by an arbitrator. See First Weber Grp., Inc. v. Synergy Real Est. Grp., LLC, 361 Wis. 2d 496, 526-27, 860 N.W.2d 498 (2015) (issues of whether party timely sought arbitration and whether party is estopped from compelling arbitration are both to be determined in arbitration, not by a court); James v. Client Services, Inc., No. 14-2480-JAR, 2015 WL 3649473, at *6 (D. Kan. 2015) (unpublished opinion) (issue of whether party waived right to arbitrate is subject to arbitration).
However, instead of remanding the case with instructions for the district court to refer the matter to arbitration as PRA requests, we are compelled to agree with Dixon on its threshold issue at this point because without any findings by the district court as to die binding nature of the arbitration provision on die parties, a referral to arbitration is premature. See Dragon, 282 Kan. at 356 (court may still consider a remand if the lack of specific findings precludes meaningful review). Unlike the district courts ruling on waiver, where it could presume a valid and binding arbitration agreement to decide the question, to refer the matter to arbitration the parties must actually have a binding arbitration agreement in order to arbitrate their dispute.
“[Bjefore the [FAA’s] heavy hand in favor of arbitration swings into play, the parties tiiemselves must agree to have their disputes arbitrated. . . . [I]t remains a ‘fundamental principle’ that ‘arbitration is a matter of contract,’ not something to be foisted on the parties at all costs.” Howard v. Ferrellgas Partners, L.P., 748 F.3d 975, 977 (10th Cir. 2014). A court “may only compel arbitration of arbitrability if die parties agreed to arbitrate arbitrability.” James, 2015 WL 3649473, at e3. Because a lack of any findings by the district court as to whether the arbitration provision of the credit card agreement was binding on the parties precludes our meaningful review of whether referral to arbitration in this particular case is required, we direct the district court, upon remand, to instead make findings as to whether the arbitration provision of the credit card agreement is binding on the parties and, if so, then to refer to arbitration the question of whether PRA waived its right to arbitrate Dixon’s claims by its litigation conduct. See Howard, 748 F.3d at 979 (“FAA doesn’t compel arbitration until it’s proven the parties agreed to arbitrate”).
Did the District Court Err in Disqualifying PRA’s Counsel?
PRA also appeals the district court’s decision to disqualify two of its counsel, arguing that no material misrepresentation of the law occurred tlrat would justify their removal. We review a disqualification of an attorney based upon disciplinary or ethical rules de novo. Venters v. Sellers, 293 Kan. 87, 92, 261 P.3d 538 (2011).
At the same hearing in which the district court denied PRAs motion to compel arbitration, it also turned its attention to the parties’ briefs. The district judge and counsel for PRA engaged in the following exchange:
“THE COURT: [The quote] claims to have come from a case called BG Group, PLC versus Republic of Argentina. And it claims that that quote is on Page 1207-09.1 have searched that case and cannot find that quote. Can you find it for me?
“MR. STELTER: Sure, your Honor. Can I explain how the quote came to be and why it is there?
“THE COURT: No. You tell me where the quote is.
“MR. STELTER: The quote comes from a case called Housh . . . versus Dinovo Investments, Inc., which is cited there in [the] 2003 District Court of Kansas case, and the quote from that case is identical to the citation Your Honor has referred to. It says that tire arbitrator, comma, not a court, comma—(interrupted)
“THE COURT: Well, you tell me where the quote is in the [United States] Supreme Court case.
“MR. STELTER: It is in—Your Honor, I’m trying to explain to you how it got in there, and the citation in BG Group is not identical to that. The citation in BG Group states that, ‘on the other hand, courts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of a particular procedural issue.’
“THE COURT: But that’s not the same language, is it?
“MR. STELTER: Your Honor, I did not intend to—that exact quote was in Housh. It’s—the judge in Ploush attributed to Howsam. It is the identical—(interrupted)
“THE COURT: You’ve cited this case though. You cited tire [United States] Supreme Court case.
“MR. STELTER: I cited tire four cases for tlrat... prospect.
“THE COURT: No. You cited the [United States] Supreme Court case BG Group, PLC versus Republic of Argentina. You cited three pages for a one-sentence quote, didn’t you?
“MR. STELTER: I respectfully—(interrupted)
“THE COURT: That’s a yes or no. That’s what you did.
“MR. STELTER: Your Honor,... I apologize if there’s a citation confusion[].
"THE COURT: This is not a citation confusion. This is a citation to a quotation tlrat decides the issue before the court. That’s not a matter of confusion.
“MR. STELTER: The quote came—(interrupted)
“THE COURT: That’s a matter of misleading, sir.
“MR. STELTER: I apologize, Your Honor.
“THE COURT: It’s not a matter of apology.
“MR. STELTER: I did not mean to mislead the court.
“THE COURT:... The defense in their brief points out that quote’s not there. You have not done anything to correct that prior to today. Nothing. You had fair warning that something was wrong with your presentation, and this is a quote that actually decides the issue. Because if that quote is accurate from the [United States] Supreme Court, I’m out of the case right now until the arbitrator says maybe I can come back in. Do you agree? Yeah, because that’s what—that’s what you said.
“MR. STELTER: I will concede to remove the quotations. I believe that the substance of that quote is correct and that is—(interrupted)
“THE COURT: No. Sir—sir, you quoted—you quoted a statement. A first year law student would not do that.
“MR. STELTER: Judge, may I explain how the quote arise [sic]?
"THE COURT: No.
“MR. STELTER: Okay. My apologies then.
“THE COURT: I consider this a deliberate attempt to mislead the court. I don’t know who would do something like that.”
Thus, contemporaneously with its order denying PRAs motion to compel arbitration, the district court entered a second order striking the appearance of two lawyers for PRA for making a material misrepresentation of the law in PRAs supplemental brief.
A review of the record shows PRA incorrectly attributed the following quote from a District of Kansas case, Housh v. Dinovo Investments, Inc., No. 02-2562-KHV, 2003 WL 1119526, at *9 (D. Kan. 2003) (unpublished opinion), to BG Group, a United States Supreme Court case, twice in its supplemental brief:
“The United States Supreme Court has recently re-affirmed that ‘the arbitrator. not a court, should decide allegations of waiver, delay or like defenses to arbitrability.’”
with the following string cite after the quoted line:
“See BG Group, PLC v. Republic of Argentina, 134 S. Ct. 1198, 1207-09 (2014) citing Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002). See also National American Ins. Co. v. Transamerica Occidental Life Ins. Co., 328 F.3d 462, 466 (8th Cir. 2003); Housh v. Dinovo Investments, Inc., 2003 WL 1119526, *9 (D. Kan. 2003).”
A functionally similar proposition and citation was also included in PRAs response to Dixon s supplemental briefing:
“If this Court applies the correct federal precedent regarding waiver, it should follow the plainly stated instruction from the United States Supreme Court that ‘the arbitrator, not a court, should decide allegations of waiver, delay or like defenses to arbitrability/ See BG Group, PLC v. Republic of Argentina, 134 S. Ct. 1198, 1207-09 (2014); Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002); National American Ins. Co. v. Transamerica Occidental Life Ins. Co., 328 F.3d 462, 466 (8th Cir. 2003); Roush v. Dinovo Investments, Inc., 2003 WL 1119526, *9 (D. Kan. 2003).”
PRA readily admits the incorrect citation but claims the mistake was inadvertent. The quoted material in question does not appear in BG Group. Rather, it is found in Housh, 2003 WL 1119526, at *9 (“The Supreme Court further noted that the presumption is that the arbitrator, not a court, should decide allegations of waiver. delay or like defenses to arbitrability.”), the final case cited in PR As string cites.
Disqualification of an attorney destroys an attorney-client relationship and deprives a party of representation of its own choosing and, therefore, should be reviewed “with extreme caution.” Zimmerman v. Mahaska Bottling Co., 270 Kan. 810, 814, 19 P.3d 784 (2001); see also LeaseAmenca Corp. v. Stewart, 19 Kan. App. 2d 740, 750, 876 P.2d 184 (1994) (“The right to be represented by counsel of choice is an important one, subject to override only upon a showing of compelling circumstances/ [Citation omitted.]”).
“The decision to disqualify an attorney chosen by a party to represent him in a lawsuit is of serious concern and the [court’s] inherent power to do so should only be exercised where the integrity of the adversary process is threatened. Even then, the court should not act unless ‘the offending attorney’s conduct threatens to “taint the underlying trial” with a serious ethical violation.’ Field v. Freedman, 527 F. Supp. 935, 940 (D. Kan. 1981).” Beck v. Bd. of Regents of State of Kan., 568 F. Supp. 1107, 1110 (D. Kan. 1983).
See Chrispens v. Coastal Refining & Mktg., Inc., 257 Kan. 745, 772-73, 897 P.2d 104 (1995) (recognizing Beck’s applicability in state court).
We must answer the question of whether this misattribution threatened the integrity of the adversary process, allowing the district court to properly disqualify PRA’s counsel. See Beck, 568 F. Supp. at 1110. PRA argues that its mistake could not have misled the district court and, therefore, could not have threatened the adversarial process because each case in its string cite, including Housh and BG Group, stood for the proposition contained in the quoted language. BG Group, 134 S. Ct. at 1207, states:
“[C]ourts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration. . .. These procedural matters include claims of ‘waiver, delay, or a like defense to arbitrability.’ [Citation omitted.]”
This language is functionally identical to that quoted in Housh, with both quoted portions standing for the proposition that courts presume the parties intend for waiver-of-arbitraüon issues to be decided in arbitration. Moreover, both Housh and BG Group derive this proposition from Howsam, 537 U.S. at 86, further supporting both cases’ uniformity. Thus, the district court could not have been misled by the misattribution of the quote. With this circumstance precluding foe possibility that the district court could have reached an incorrect decision through PRA’s incorrect citation, we conclude that striking foe appearance of PRA’s two attorneys was inappropriate because their error did not constitute a material misrepresentation of the law.
The judgment of the district court is reversed, and the case is remanded with directions for foe district court: (1) to make findings as to whether the arbitration provision of the credit card agreement is binding on the parties and, if so, to refer to arbitration foe question of whether PRA’s litigation conduct constituted a waiver of its right to arbitrate Dixon’s claims, and (2) to reinstate PRA’s counsel.
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Rulon, C.J.:
Defendant George Moore appeals his convictions for possession of marijuana with the intent to deliver and for failure to affix drug tax stamps, arguing the district court erred in refusing to suppress evidence illegally obtained and to grant a defense continuance in light of new evidence. We affirm.
On October 16, 2002, Kansas Highway Patrol Trooper Richard Jimerson and Junction City Police Officer James Oehm were parked in the median between eastbound and westbound lanes of 1-70 near Junction City. Trooper Jimerson observed the defendant’s vehicle, which he believed to be following another vehicle too closely. Jimerson pulled onto the highway and approached the vehicles, timing the distance between the two vehicles at less than 1 second. The trooper then executed a traffic stop.
For safety reasons, Trooper Jimerson approached the stopped vehicle on the passenger side. He informed the driver, who was eventually identified as the defendant, of the reason for the stop. According to Trooper Jimerson, the defendant acknowledged he had been following too closely and apologized. The defendant denied making an apology.
The trooper asked the defendant for his driver’s license and vehicle registration, which the defendant was able to produce. The vehicle the defendant was driving was registered to James Ward. Trooper Jimerson noted the defendant exhibited a higher degree of nervousness than typically displayed in a routine traffic stop and testified he noted a faint odor of fabric softener, which Trooper Jimerson knew to be commonly used to conceal the odor of drugs.
During this exchange, Officer Oehm arrived as back-up. When Trooper Jimerson returned to his vehicle to run a driver’s license check, dispatch originally reported the defendant’s license had been suspended. The trooper requested Officer Oehm to question the defendant about this reported suspension. Officer Oehm approached the passenger side window and asked the defendant about having his license suspended. The defendant reacted with confusion and surprise. Officer Oehm then questioned the defendant about his travel plans, and the defendant revealed that he was traveling from Las Vegas and a friend had loaned him the car.
In tire meantime, Trooper Jimerson was writing a citation for driving with a suspended license and a warning for following too closely. However, as Trooper Jimerson was doing so, the dispatcher called back to rescind the prior report that the defendant’s license had been suspended. Consequently, Trooper Jimerson returned to the defendant’s vehicle with the warning citation, the defendant’s driver’s license, and tire vehicle registration. As Trooper Jimerson handed the documents to the defendant, he advised the defendant that he had nothing further for him.
Before stepping away from the vehicle, Trooper Jimerson asked the defendant to answer a few more questions. According to Trooper Jimerson, the defendant had placed his hand on the gearshift before Trooper Jimerson engaged the defendant in further questioning, but the defendant claimed he made no move to leave because Trooper Jimerson remained leaning against the frame of the passenger side window. In any event, the defendant agreed to answer further questions. Trooper Jimerson then inquired whether the defendant had illegal contraband, such as weapons or drugs. The defendant replied that he did not.
Trooper Jimerson testified he next requested permission to search the vehicle and that the defendant replied the trooper could look wherever he wanted. In contrast, the defendant testified Trooper Jimerson merely inquired about the contents of his duffle bag, which tire defendant said contained laundry. The defendant contended his consent to search was limited to this bag. Both the defendant and Trooper Jimerson agreed that the trooper asked the defendant to open the trunk and the defendant complied.
After looking in the trunk, Trooper Jimerson conducted a thorough search of the interior of the vehicle, beginning with the passenger side of the vehicle, moving to the driver side, then returning to the passenger side. The evidence is disputed whether Trooper Jimerson removed the ashtray in order to look inside the cavity provided for the ashtray or if the ashtray had been removed prior to the search, but when Trooper Jimerson looked inside the space for the ashtray, he noticed a hinge on the interior passenger door quarter panel and á felt covering which was not factoiy installed. Further investigation within the quarter panel revealed a package wrapped with fabric softener sheets. The package contained a leafy substance, which the trooper believed to be marijuana.
The defendant was arrested, and a later search of the vehicle revealed a total of 55 pounds of marijuana concealed throughout the vehicle. The State charged the defendant with possession of marijuana with the intent to distribute, in violation of K.S.A. 65-4163(a)(3), and failure to affix Kansas drug tax stamps, in violation of K.S.A. 79-5204(a).
The defendant filed a motion to suppress, and, on joint motion, the district court held a hearing covering the motion to suppress and the bench trial. On the day of the hearing, defense counsel moved for a continuance to investigate a claim by the defendant that the person who had loaned the defendant the vehicle had been indicted on federal drug charges in Maryland. The district court denied the motion. After hearing the evidence, the district court found the search of the vehicle and the seizure of the marijuana was not accomplished in violation of the defendants Fourth Amendment rights and convicted the defendant of both charged offenses.
The defendant moved for a judgment of acquittal or a new trial based upon the district court’s refusal to grant a continuance to investigate the newly.discovered evidence before trial. The district court denied the motion and sentenced the defendant to 15 months for the possession with intent to distribute conviction and 6 months for the drug tax stamp conviction. Both sentences were ordered concurrent., The defendant’s sentences were .suspended, and the defendant was placed on probation for a term of 18 months.
Fourth Amendment Issue
The defendant contends the seized marijuana introduced in evidence against him was illegally obtained and, therefore, the district court should have suppressed the evidence. Appellate review of a suppression ruling is a mixed question of fact and law. This court reviews a district court’s factual findings for substantial competent evidence, but the ultimate determination concerning the suppression of evidence is a question of law over which this court has unlimited review. See State v. Green, 32 Kan. App. 2d 789, 792, 89 P.3d 940, rev. denied 278 Kan. 849 (2004).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit the government from conducting unreasonable searches and seizures. The reasonableness of a search or seizure is defined by balancing the governmental interest against the individual’s interest to be secure from government intrusion. See Terry v. Ohio, 392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
K.S.A. 22-2402 is a codification of Terry. See State v. Field, 252 Kan. 657, 659, 847 P.2d 1280 (1993). K.S.A. 22-2402(1) provides:
“Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.”
Here, the initial stop was premised upon Trooper Jimerson’s observation of the defendant’s vehicle following too closely behind another vehicle on the highway in violation of K.S.A. 8-1523. The pertinent provision of that statute reads: “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” K.S.A. 8-1523(a). After clocking the vehicles speeds, the trooper opined the defendant was following too closely by determining the defendant’s vehicle was less than 2 seconds behind the other vehicle and by estimating the number of car lengths between the vehicles in relation to the speeds at which the vehicles were traveling.
While our research has revealed no Kansas appellate court decisions concerning the standard of reasonable and prudent driving within the meaning of this statute, the Tenth Circuit Court of Appeals has previously determined that either of these standards may properly direct an officer in the determination of a reasonable and prudent following distance. See United States v. Nichols, 374 F.3d 959, 965 (10th Cir. 2004), vacated on other grounds 543 U.S. 1113 (2005), conviction reinstated 410 F.3d 1186 (2005) (2-second rule); United States v. Vercher, 358 F.3d 1257, 1261-62 (10th Cir. 2004) (car-length standard).
The Vercher court noted the Kansas statute takes into consideration four variables: speed, following distance, road conditions, and traffic conditions. However, even though the officer did not testily about the traffic conditions, the Vercher court upheld the officer’s objective determination the defendant had been following too closely when the distance between the vehicles was approximately 2 car lengths and the recommended distance under normal conditions was 8 to 10 car lengths. 358 F.3d at 1259, 1261-62.
The Nichols court concluded that an officer had a reasonable basis to stop the defendant for believing the driver might be a traffic hazard. 374 F.3d at 965. The officer testified he had timed the defendant’s vehicle three times and each time had demonstrated the defendant’s vehicle was less than the recommended traveling rate of 2 seconds behind a preceding vehicle. The court reasoned: “We believe Weigel’s use of a two-second rule of thumb together with his calculation of the interval three separate times provided the "minimal level of objective justification’ required for reasonable suspicion justifying a traffic stop. [Citation omitted. 1” 374 F.3d at 965.
In the present case, Trooper Jimerson testified he initially observed the defendant traveling less than the recommended distance of six to seven car lengths behind the preceding vehicle based upon a standard of one car length for every 10 miles per hour in speed. After Trooper Jimerson had caught up to the defendant’s vehicle, the trooper timed the defendant’s following rate at .72 seconds. The independent corroboration using two separate tests provided a sufficient basis for a traffic stop of the defendant’s vehicle.
Although the defendant’s version of the events surrounding the stop conflict with the officer’s testimony, this court does not weigh evidence or judge the credibility of the witnesses. See Green, 32 Kan. App. 2d at 792. As Trooper Jimerson’s testimony provides a basis from which to opine the defendant committed a violation of K.S.A. 8-1523(a), which the district court adopted, the initial stop of the defendant was valid. Even if the officer’s subjective motive for stopping the defendant was improper, the traffic violation provided an objectively valid reason to effectuate a traffic stop. See State v. DeMarco, 263 Kan. 727, 733, 952 P.2d 1276 (1998).
The defendant next contends that, even if the initial stop had been justified, the detention exceeded the purpose of the stop. “The scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper.” DeMarco, 263 Kan. at 733 (citing Terry). When a stop is effectuated due to some minor traffic infraction, a detention for the purpose of checking the driver’s license and registration is permissible, but “once the check confirms a proper license and entitlement to operate the car, the driver must be allowed to proceed without further delay or questioning.” DeMarco, 263 Kan. at 734.
Nevertheless, DeMarco acknowledged two bases for properly detaining a driver further after a driving record check is completed: (1) the encounter ceases to be a detention and becomes consensual or (2) the officer possesses a reasonable and articulable suspicion that the driver is involved in a criminal enterprise which warrants further investigation. 263 Kan. at 734 (citing United States v. Mendez, 118 F.3d 1426, 1429-30 [10th Cir. 1997]).
Although a slight detention caused by a consensual encounter with a law enforcement officer cannot be deemed a seizure of a person within the meaning of the Fourth Amendment, an encounter is not consensual where a reasonable person in the defendant’s position would not feel free to leave. See State v. Reason, 263 Kan. 405, 410, 951 P.2d 538 (1997). The central inquiry into the State’s claim that the further detention was justified by a consensual en counter is whether the driver possessed an objective reason to believe he was not free to terminate his conversation with the officer and proceed on his way. See United States v. Sandoval, 29 F.3d 537, 540 (10th Cir. 1994) (citing Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 111 S. Ct. 2382 [1991]).
A court must consider the totality of the circumstances in determining whether a reasonable person would feel free to terminate the encounter and depart. Some objective factors which may indicate a coercive show of authority include the presence of more than one officer, the display of a weapon, physical contact by the officer, or use of a commanding tone of voice. See United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997). Whether the officer informed the person subject to a traffic stop of the freedom to depart is also a factor, although there is no rule requiring a law enforcement officer to inform an individual of his or her right to terminate the encounter. Reason, 263 Kan. at 413 (citing Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 [1996]).
The district court relied on evidence the defendant placed his hand on the gearshift level in determining the defendant felt free to go. This evidence, apparently, is the only evidence upon which the court based its decision the defendant felt unrestrained by the officer. We further note that, according to Trooper Jimerson, the defendant was told the officer was finished with him at the time the license and registration were returned.
In contrast, the record undisputably demonstrates that Trooper Jimerson activated his emergency lights to stop the defendant’s vehicle. After returning the defendant’s license and registration, the trooper did not move away from the car but immediately asked if the defendant would answer some questions. During this time, Officer Oehm was standing near the defendant’s vehicle. When two officers are standing next to a stopped vehicle, presumably with the emergency lights in the patrol vehicles still activated, no reasonable person would feel free to drive away. See State v. Morris, 276 Kan. 11, 22-23, 72 P.3d 570 (2003) (discussing a string of cases dealing with the use of emergency lights as á show of authority). Under the circumstances presented in this record, the further detention of the defendant cannot be deemed consensual.
The defendant further contends that Trooper Jimerson did not possess reasonable articulable suspicion to justify any further detention. Because the challenged detention was not consensual, the trooper had to be able to articulate a reasonable suspicion that the defendant was engaged in a criminal venture to justify the detention. See DeMarco, 263 Kan. at 734.
“ ‘[W]e judge the officer’s conduct in fight of common sense and ordinary human experience. [Citation omitted.] “Our task ... is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious,” [citation omitted], but to determine whether the totality of the circumstances justify the detention. [Citation omitted.] We make our determination with deference to a trained law enforcement officer’s ability to distinguish between innocent and suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a “minimum level of objective justification” which is “considerably less than proof of wrongdoing by a preponderance of the evidence.” ’ ” DeMarco, 263 Kan. at 735 (quoting Mendez, 118 F.3d at 1431; citing United States v. Sokolow, 490 U.S. 1, 7, [104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989)]).
In DeMarco, the investigating officer testified that eight factors had contributed to his suspicion that DeMarco and Bennici were transporting drugs: (1) DeMarco was nervous when the trooper first approached and continued to grow more nervous; (2) the men were traveling across the country from a known source city for narcotics; (3) the route traveled was not a direct route to their destination; (4) the men were driving a rented vehicle; (5) they were traveling on 1-70, a known drug corridor; (6) the rental agreement required the car to be returned in 3 days; (7) the two men provided inconsistent stories about how one of them had reached California; and (8) the trooper was aware that one or both of the men possessed a criminal histoiy.
In affirming the district court’s suppression of the drugs, the DeMarco court examined a series of cases involving nervousness during a traffic stop as a factor an officer may use to establish a reasonable suspicion of illegal activity. Quoting United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997), the court stated:
“ ‘It is certainly not uncommon for most citizens — whether innocent or guilty— to exhibit signs’ of nervousness when confronted by a law enforcement officer [Citations omitted.] Trooper Jimerson had no prior acquaintance with Mr. Wood which enabled the trooper to contrast Mr. Wood’s behavior during the traffic stop with his usual demeanor. [Citations omitted.] . . . Mr. Wood’s demeanor during the detention must be discounted given the generic claim of nervousness.’ 106 F.3d at 948.” DeMarco, 263 Kan. at 736.
While acknowledging that nervousness in conjunction with other factors may supply a basis for reasonable suspicion, the DeMarco court concluded that none of the other factors cited by the trooper during the suppression hearing were particularly probative of criminal activity under the facts presented. 263 Kan. at 739-41.
Many of the factors upon which Trooper Jimerson relied upon in DeMarco are similar to the factors cited by Trooper Jimerson in this case. The defendant appeared more nervous than typical drivers during a routine traffic stop. However, as indicated in DeMarco, Trooper Jimerson had no prior interactions with this particular defendant to base his opinion that the defendant’s symptoms of nervousness were indicative of criminal activity. As a result, while this factor can be considered, it is not alone indicative of criminal activity.
Here, prior to the termination of the traffic stop, the investigating officers learned that the defendant was traveling across the country from Las Vegas to Baltimore. Unlike in DeMarco, the route used was a reasonably direct route between those destinations. However, the vehicle driven by the defendant was not registered to him. These are factors a court may consider in determining whether an officer possessed reasonable suspicion to justify a longer detention than required to effect the traffic stop, albeit very weak factors. See 263 Kan. at 740-41.
Finally, Trooper jimerson noted a scent of fabric softener dryer sheets, which he testified are commonly used to mask the odor of illegal drugs. While the smell of dryer sheets alone would not support a reasonable articulable suspicion of drug activity, this factor represents a significant departure from the facts of DeMarco, as this factor relates specifically to a known technique related to drug trafficking.
Several jurisdictions which have considered the probative value of the odor of dryer sheets in a vehicle have concluded that such a factor, even when combined with nervousness, does not constitute reasonable suspicion justifying detention of a driver. See, e.g., State v. Thompson, 256 Ga. App. 188, 190, 569 S.E.2d 254 (2002) (detention not justified by reasonable suspicion when based solely upon nervousness and the odor of laundry detergent or dryer sheets); Rios v. State, 762 N.E.2d 153, 157 (Ind. App. 2002) (seizure and search of package was not justified by reasonable suspicion based entirely upon a sender’s mailing address in California, a next-day air package mailing, and a scent of dryer sheets); Commonwealth v. Phinn, 761 A.2d 176, 186 (Pa. Super. 2000) (although a “close case,” the driver’s furtive behavior as officer approached vehicle and the odor of diyer sheets was insufficient to support reasonable suspicion).
However, the Eighth Circuit Court of Appeals has concluded that a strong odor of a known masking agent, such as laundry detergent, is highly probative of illegal drug activity. See United States v. Pollington, 98 F.3d 341, 343 (8th Cir. 1996) (detention was justified by the driver’s nervousness, the strong smell of a masking agent, and the use of a motor home to drive from Michigan to Las Vegas); United States v. Bloomfield, 40 F.3d 910, 918-19 (8th Cir. 1994), cert. denied 514 U.S. 1113 (1995) (detention was justified by the strong smell of a masking agent, the driver’s possession of a pager, and the driver’s nervousness).
Furthermore, in United States v. Carrate, 122 F.3d 666, 669 (8th Cir. 1997), the Eighth Circuit Court of Appeals concluded that a detention following a valid traffic stop was justified by the following factors: (1) The driver was not the registered owner of the vehicle; (2) the driver was traveling from California to Illinois; (3) California is a known source state for illegal narcotics; (4) Chicago is a known destination for illegal narcotics; (5) the driver carried little clothing; (6) the 6-year-old vehicle had high mileage; and (7) the driver possessed a criminal record in California.
In the present case, Trooper Jimerson articulated the following suspicious factors justifying the further detention: The defendant was driving a vehicle which was not registered to him; the driver was traveling from Las Vegas to Maryland; the driver carried little clothing; the interior of the vehicle smelled of dryer sheets, a known masking agent for illegal drugs; and the driver demonstrated severe nervousness.
While it may be a close case, we believe that under these circumstances a reasonably prudent law enforcement officer would have possessed a suspicion the vehicle was being used for drug trafficldng. It was reasonable, therefore, for Trooper Jimerson to ask further questions of the defendant. Thereafter, the defendant’s consent to the search of the vehicle justified the continued detention and search of his property.
The defendant contends his consent to the search was coerced and that Trooper Jimerson exceeded the limited scope of the consent that was given. In determining whether consent to search was voluntary, a district court should consider whether there was evidence of threats or coercion, whether the person subject to the search was informed of his or her right to deny consent, and the mental capacity of the person subject to the search. Nevertheless, knowledge of the right to refuse consent is not a prerequisite to a finding of voluntariness. See State v. Holmes, 278 Kan. 603, 611, 102 P.3d 406 (2004).
Here, the evidence is merely that the trooper requested permission to search while standing at the passenger side window. Neither officer drew their service weapon, and no threats were made to detain the defendant to obtain a drug dog if he did not submit to a search of his vehicle. The record does not demonstrate the defendant failed to understand what the trooper was requesting. Under the totality of the circumstances, the defendant’s consent was not coerced but constituted the product of his free will.
The defendant further contends the search exceeded the scope of the defendant’s consent, which was limited to the duffle bag containing laundry. This argument relies upon the defendant’s testimony in which he claimed that he authorized Trooper Jimerson to search only his bag. The trooper’s testimony differed substantially. Trooper Jimerson claimed he requested permission to search in general and the defendant stated words to the effect that the trooper could look anywhere he wanted. The district court adopted the trooper’s testimony, and this court does not evaluate the credibility of witnesses or weigh the evidence presented at the district court. See State v. Green, 32 Kan. App. 2d 789, 792, 89 P.3d 940, rev. denied 278 Kan. 849 (2004). Consequently, this court must adopt the district court’s finding that the scope of the search was not limited by the defendant’s consent.
Finally, the defendant argues that even if the court adopted Trooper Jimerson’s testimony and believed the defendant had given general consent to search the vehicle, such consent did not extend to dismantling the vehicle on the roadside. As persuasive precedent in support of his position, the defendant cites People v. Gomez, 5 N.Y.3d 416 (2005).
In Gomez, an officer obtained general consent to search the defendant’s vehicle. In conducting the search, the officer unlatched and pulled foiward the rear passenger seat, revealing the carpeted floorboard beneath the seat. Over an area of the vehicle in which the gas tank was normally housed, the carpet had been replaced. Having previously observed fresh undercoating in the same relative area during an examination of the undercarriage, the officer pulled up the carpet and pried open a sheet metal covering over an opening in the floorboard. The opening led to a compartment portion of the gas tank which contained cocaine.
The New York Court of Appeals determined the officer’s conduct exceeded the objectively reasonable scope of the search authorized or extended by the defendant’s general consent. Recognizing that a consent to search generally includes readily opened containers within tire vehicle, the court distinguished the officer’s conduct, which “impair[ed] the structural integrity of [the] vehicle or . . . resulted] in the vehicle being returned in a materially different manner than it was found.” 5 N.Y.3d at 420. The New York Court of Appeals likened the officer’s conduct in Gomez to the breaking open of a locked briefcase found within a trunk during a consensual search, as discussed in Florida v. Jimeno, 500 U.S. 248, 251-52, 114 L. Ed. 2d 297, 111 S. Ct. 1801 (1991). Gomez, 5 N.Y.3d at 419-20.
While the facts of this case are distinguishable from the Gomez case to the extent the record reveals no evidence that Trooper Jimerson employed excessive force to pry open tire quarter panel concealing the marijuana in this case, the reasoning of the New York Court of Appeals is persuasive, especially in light of the dicta from Jimeno, 500 U.S. at 251-52. The defendant’s consent did not extend to pulling plastic molding away from the quarter panel of the interior of the defendant’s vehicle, even if the molding was hinged to form a compartment.
Nevertheless, as the New York Court of Appeals suggested, an officer’s actions in dismantling a vehicle along the roadway might be justified if tire officer obtained specified consent to the more intrusive search or if tire limited general search provided the officer with probable cause to conduct the more intrusive search. 5 N.Y.3d at 420.
Probable cause does not require evidence of the crime sufficient to prove guilt beyond a reasonable doubt but merely requires sufficient evidence to lead a reasonable person to believe that a specific crime has been committed by a specific person or persons. See State v. Mayberry, 248 Kan. 369, 377, 807 P.2d 86 (1991). In the context of a search, probable cause means such information as would lead a reasonably prudent person to believe that a crime has been committed and that evidence of the crime may be found on a particular person, in a specific place, or within a specific means of conveyance. See Mayberry, 248 Kan. at 377 (quoting State v. Marks, 231 Kan. 645, 647 P.2d 1292 [1982]).
The defendant’s general consent to search enabled Trooper Jimerson to search all readily opened containers and compartments within the vehicle, including the ashtray. See Jimeno, 500 U.S. at 251. Once Trooper Jimerson removed the ashtray, the hinge to the compartment made in the quarter panel of the vehicle was revealed, suggesting a secret compartment covered by “non-factory” felt. The most obvious purpose of creating a secret compartment is to conceal contraband. While the existence of a secret compartment alone is insufficient to lead a reasonably prudent person to believe that contraband is actually contained in the vehicle, the secret compartment in conjunction with the smell of fabric softener sheets, associated with masking the odor of drugs, creates probable cause to believe the secret compartment contained drugs.
Although probable cause was not the basis upon which the district court upheld the seizure of the marijuana, the ultimate legality of a search is a question of law over which this court has unlimited review. See Green, 32 Kan. App. 2d at 792. Even though Trooper Jimerson erroneously relied upon the defendant’s consent, it is clear that the officer reasonably believed tire secret compartment concealed drugs. Because the facts support an objective finding of probable cause, the district court’s finding that the seizure of the marijuana from the defendant’s vehicle was not accomplished in violation of the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights is affirmed.
Motion for Continuance
The defendant next claims the district court failed to grant his motion for continuance based upon new evidence. The resolution of a motion for continuance rests within tire broad discretion of tire district court, and an appellate court will not disturb the district court’s ruling unless the party alleging an abuse of that discretion demonstrates that no reasonable person would have taken the view adopted by the district court. State v. Meeks, 277 Kan. 609, 616, 88 P.3d 789 (2004).
As the defendant asserts in this appeal, the defense theory relied upon the defendant’s ignorance of the drugs. According to the defendant, he merely borrowed the vehicle to drive to a reunion of some military buddies. He borrowed the vehicle from the brother of a friend from work. The name of the person given by the defendant was not the name of the person to whom the vehicle was registered. This person who allegedly allowed the defendant to borrow the vehicle was indicted on federal drug charges approximately 3 weeks before the defendant’s trial.
The day of trial, defense counsel moved for a continuance to obtain certified copies of court documents pertaining to the federal drug charges, claiming the defendant had not notified defense counsel until the day of the defendant’s trial. The district court failed to see the relevance of the evidence sought by the defendant. The court further found the motion was not timely and the facts contained in the proffered evidence would not assist the defendant’s defense. Consequently, the court denied the motion.
The district court committed no abuse of discretion. By the defendant’s own admission, he had been aware of the arrest of Douglas Brooks 3 weeks prior to his trial. While the defendant claims to have been afraid for his family until he was certain that Brooks posed no threat, there was no explanation why revealing this information to his defense attorney would have jeopardized the life of the defendant’s family. The defendant’s attorney was capable of making discreet inquiries to the federal district court in Baltimore. Consequently, the district court properly determined the motion for a continuance was not sought in a timely manner.
Moreover, the record clearly indicates the district court allowed the defendant to testify about Brooks’ incarceration on federal drug charges. The defendant’s testimony went unrefuted by the prosecution. Nevertheless, the defendant failed to draw any logical connection between Brooks’ drug activities and the drugs seized from the defendant’s vehicle. Even assuming the drugs belonged to Brooks, the evidence supported a finding the defendant was transporting the drugs across the country for Brooks. Thus, the defendant could have been convicted of possession of marijuana with the intent to deliver or distribute, regardless of Brooks’ role in the ultimate drug transaction. The district court clearly considered the testimony and rejected the defendant’s claim that he unknowingly transported the drugs.
The evidence sought through a continuance would have had no impact on the course of the trial. The district court did not abuse its discretion in refusing to grant defense counsel’s request for a continuance.
For similar reasons, the defendant’s claim that the district court improperly denied his motion for a judgment of acquittal or a new trial must fail. Again, this court reviews the claim for an abuse of the district court’s discretion. See State v. Harris, 279 Kan. 163, 176, 105 P.3d 1258 (2005).
In doing so, the court applies a two-part test to determine whether a new trial was warranted. First, the defendant must establish that the proffered evidence could not have been produced at trial with reasonable diligence. See 279 Kan. at 176. Clearly, the evidence proffered at the beginning of the trial was known to the defendant 3 weeks earlier. The proffered evidence was not newly discovered. Second, the defendant must demonstrate that the evidence was so material that its production would create a reason able probability of a different result upon retrial. See 279 Kan. at 176. As discussed, the proffered evidence would not have added credibility to the defendant’s testimony. The evidence would not have demonstrated that the defendant had no knowledge of the drugs within the car. Consequently, the proffered evidence possessed no materiality to the ultimate issues in this case. The district court did not abuse its discretion in denying the motion for a new trial.
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Marquardt, J.;
Russell A. Potts appeals his convictions for one count of rape, one count of aggravated criminal sodomy, one count of criminal threat, and two counts of domestic batteiy. We affirm in part and reverse in part.
In December 2000, Potts and V.H. started living together in V.H.’s home. Potts and V.H. had complicated romantic histories; Potts was still friendly with the mother of his children, and V.H. had two ex-husbands who cycled in and out of her life.
December 17, 2001
On December 17, 2001, V.H. described the atmosphere in the home as unhappy, with a “whole lot of fighting” and concerns about money. According to V.H., she and Potts got into an argument wherein Potts grabbed her purse strap and pulled her into a wall to stop her from leaving. V.H. testified that her shoulder and back were injured and her arms were bruised. V.H. also claimed that Potts pushed her into the bedroom and held her down on the bed. V.H. later reported the incident to the police. Potts denied that there was an argument or physical altercation.
December 30, 2001
V.H. spoke to a police officer on December 29, 2001, about the violence in her home. V.H. learned about how she could obtain a protection from abuse (PFA) order. However, before that could happen, another incident occurred.
On December 28, 2001, Potts’ birthday, he took V.H.’s car and celebrated with his son. Potts had not returned by the following afternoon, so V.H. had someone drive her to Potts’ ex-wife’s home, where she found her car. V.H. returned home, changed the locks, and put Potts’ clothing outside in another vehicle. V.H. testified that early the next morning, Potts came home, lacked in the back door, and yelled about being locked out of his house. According to V.H., Potts removed a gun from a closet and waved it around while he yelled at V.H. V.H.’s friend called the police; however, no charges were filed.
Potts admitted that he took V.H.’s car and spent the night at his ex-wife’s home. When Potts found the car missing the next morning, he assumed it had been stolen. Potts eventually returned to V.H.’s house and found that his key would not work. Potts admitted that he kicked in the door and handled a gun but denied that any of his actions were done with malicious intent.
May 2002 Incident
V.H. broke up with Potts and moved out of her home in January 2002. By the end of Januaiy 2002, V.H. and Potts rekindled their relationship, and Potts frequently stayed at V.H.’s home. In mid-May, Potts accused V.H. of being with another man. V.H. testified that he pushed her against the wall and hurt her shoulder. V.H. also claimed that when Potts pushed her on the floor and forcibly tried to remove her underwear, he injured her knee.
A few weeks later, V.H. went to Potts’ place of business and asked for her house key. V.H. testified that the next morning, Potts tried to lack in her front door. When he was unsuccessful, he pulled out the phone wires while V.H. was calling 911. Potts then pushed in her air conditioning unit and climbed in through the bedroom window. On the advice of law enforcement authorities, V.H. filed for a PFA order but never followed through with it. Potts called and apologized, so V.H. thought that things would get better.
Potts denied the mid-May fight, explaining that V.H. hurt her leg when she tripped over a bed frame. Potts denied pushing in V.H.’s air conditioner. He said that the unit was not bolted and fell through the window due to the pressure of his weight. Potts also claimed that he accidentally disabled the phone line when he stood on it.
June 2003 Incident
By March 2003, V.H.’s relationship with Potts was quite bad. V.H. claimed that Potts refused to leave and continued to want sex even if she initially refused. On June 21, 2003, V.H. was awakened by Potts shortly after midnight when he was attempting to initiate sex. She refused.
V.H. testified that Potts hit her twice in the face with a pair of jeans and injured her eye. Potts then grabbed V.H. by her arms, pulled her off the bed, and tore her shirt. V.H. testified that Potts yelled at her and pounded on the walls. Potts had said, “I could shoot you now, and I wouldn’t give a shit . . . I’m over the edge; I just don’t give a fuck; I could kill you right now and not give a fuck.”
V.H. testified that Potts grabbed her hair, forced her to the floor, and picked her up in an attempt to throw her out of the house. When that failed, Potts moved V.H. back to the bedroom, where he put her on the bed and again asked her if she wanted to die. V.H. testified that Potts demanded oral sex, grabbed her head, and forced it towards his penis. V.H. was crying and coughing. She went to the bathroom and vomited. When V.H. returned to the bedroom, Potts again forced her to perform oral sex against her will. After a couple of minutes, Potts told V.H. to stop, and he initiated intercourse. V.H. testified that she did not fight back because Potts was too strong and she was scared.
Potts denied all of V.H.’s allegations. According to Potts, V.H. woke when he entered the bedroom. Potts claimed that V.H. went into the bathroom and then came back with allergy medication and anti-inflammatory drugs. Potts testified that he attempted to grab the medication out of her hands, bruising her arms because he thought she was trying to commit suicide. Potts testified that V.H. initiated both oral and vaginal sex, wanting to show Potts that she could please him.
V.H. went to the police, and Potts was arrested. Potts was charged with one count of domestic battery, one count of criminal threat, one count of aggravated criminal sodomy, and one count of rape for the events of June 21,2003; one count of domestic battery for the May 2002 incident; and one count of domestic battery for the December 2001 incident. A jury convicted Potts on all charges except for the domestic battery charge involving the December 2001 incident. Potts received a controlling sentence of 331 months’ imprisonment. He timely appeals his convictions and sentence.
Admissibility of Evidence
V.H. was formerly married to Steve Morton, whom she described as an addict, and testified that after they divorced, he became abusive. Morton allegedly broke into V.H.’s home and stole things from her; one such burglary resulted in him serving jail time. Morton was angry about the conviction, and he was physically violent toward V.H. V.H. also suspected that Morton was stalking her.
In addition to what V.H. admitted at trial, Potts claimed that V.H. was raped by Morton. Potts wanted to inform the jury about Morton’s rape on the theory that V.H.’s state of mind was relevant to her relationship with Potts. Potts argued that this rape was not “sexual conduct” as contemplated by the rape shield statute; therefore, the rape shield statute did not apply.
The trial court ruled that evidence of a rape of the victim by someone other than the defendant is protected sexual conduct under the rape shield statute. Potts was trying to prove V.H.’s “pro clivity for sex.” The trial court noted that Potts never formally filed a rape shield motion pursuant to K.S.A. 21-3525(b), or an affidavit as to why the evidence should be admitted. That statute requires a written motion before the trial court can consider such evidence of a rape.
On appeal, Potts continues to argue that “sexual conduct” is not covered under the rape shield statute. We hold that evidence of a rape by someone other than the defendant is covered by the phrase “sexual conduct” in the rape shield statute. See Com. v. Johnson, 389 Pa. Super. 184, 191, 566 A.2d 1197 (1989).
Potts claims that the trial court abused its discretion by failing to admit the prior rape evidence. The admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002).
Potts was allowed to introduce evidence of V.H.’s mental state during the time leading up to Potts’ arrest. During cross-examination, V.H. admitted that Morton was abusive.
We do not see any abuse of discretion in the trial court’s decision to disallow testimony about the alleged rape of V.H. by another individual.
Jury Instruction
The State charged Potts with one count of criminal threat. At the end of the trial, the jury was instructed: “Under this instruction, a statement that defendant has already committed violence is the same as a threat to commit violence.” Potts did not object to the wording of the instruction.
On appeal, Potts argues that the language of the instruction removed from the jury a factual determination and created a mandatory presumption that any and all statements made by Potts were threats. Potts maintains that this conclusive mandatory presumption was reversible error because it relieved the State of its burden of proof.
When a party does not challenge an instruction prior to its delivery to the jury, this court reviews an instruction by a clearly erroneous standard. State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002). Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).
The instruction was the optional language of PIK Crim. 3d 56.23 and is to be used when the defendant communicated a statement of past conduct rather than a threat of future conduct. The element portions of the instruction informed the juiy that it must find Potts threatened to commit violence and he communicated it with intent or reckless disregard of V.H.
Potts is correct when he asserts that a trial court errs when it instructs the jury that as a matter of law, an element of the offense charged has been established by the evidence. Such instructions invade the province of the jury as the factfinder and violate the defendant’s Fifth and Sixth Amendment rights to have the juiy determine guilt or innocence. State v. Brice, 276 Kan. 758, Syl. ¶ 2, 80 P.3d 1113 (2003).
In the instant case, the jury was not told that an element of the offense had been established. Nothing in the language of the instruction usurped the jury’s right to make factual findings or weigh the credibility of the witnesses. The disputed language in the jury instruction was merely a definitional statement meant to inform the juiy on the exact scope of the word “threat” and was not clearly erroneous.
Multiplicity
The majority of Potts’ charges resulted from the June 2003 incident at V.H.’s home which included domestic battery, criminal threat, rape, and aggravated criminal sodomy. On appeal, Potts argues that these charges were multiplicitious and violated the Double Jeopardy Clauses of the Kansas and United States Constitutions. Potts contends that since V.H. never overtly objected to either the vaginal or oral sex, the “force” element of the sex crimes must have come from Potts’ movement of V.H. through her home, which was also the basis of the domestic battery complaint. He also maintains that the “fear” element was proved by V.H.’s reaction to Potts’ threats, which was the basis of the criminal threat charge. Potts believes that his actions were part of a single chain of violence and cannot be separated to produce separate crimes.
Multiplicity is the charging of a single offense in several counts of a complaint or information. The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. Our standard of review on questions of multiplicity is plenary. See State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998).
Under Kansas law, crimes are multiphcitious if: (1) the crimes merge, that is, they constitute a single wrongful act, or the same evidence is required to prove both crimes, but if each offense requires proof of a fact not required in proving the other, the offenses do not merge; and (2) one offense is an included offense of the other as provided in K.S.A. 2004 Supp. 21-3107(2). State v. Garcia, 272 Kan. 140, 145, 32 P.3d 188 (2001).
K.S.A. 2004 Supp. 21-3107(2) reads:
“Upon prosecution for a crime, tire defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
“(a) A lesser degree of the same crime;
“(b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;
“(c) an attempt to commit tire crime charged; or
“(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).”
The crimes of rape and aggravated criminal sodomy contain elements where the victim was overcome by “force or fear.” See K.S.A. 2004 Supp. 21-3502(a)(1)(A) and K.S.A. 21-3506(a)(3)(A). In the complaint, Potts was accused of committing his acts while V.H. “was overcome by force or fear.” During closing argument, the prosecutor told the jury that V.H.’s “will was overcome by force or by fear because of what [Potts] did to her . . . [t]his was sex, both oral and vaginal, without consent while overcome by force or by fear.” Rape and criminal sodomy are not multiplicitous.
The State advanced an alternative means theory for conviction. In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. State v. Morton, 277 Kan. 575, 580, 86 P.3d 535 (2004). Thus, in this case, Potts could be convicted if the State proved that V.H. was overcome by either force or fear. Violent assaults and life-threatening actions are not necessary to sustain a “force or fear” rape conviction. In . order to determine whether a rational factfinder could have found beyond a reasonable doubt that a victim of rape has been overcome by force or fear, we consider the record as a whole. State v. Borthwick, 255 Kan. 899, 910-11, 880 P.2d 1261 (1994).
The question we must answer is whether the evidence that the State used to prove force or fear was also used to sustain independent convictions for domestic battery and criminal threat. The record on appeal shows that on the night in question, Potts grabbed V.H. by the arm and attempted to throw her out of the house. Potts acknowledges that this behavior could be used to show force. V.H. testified that Potts made a number of threatening comments. Potts acknowledges that this evidence could be used to prove the fear element.
The problem with this is that Potts contends this force and fear evidence was also used to provide the factual basis for Potts’ domestic battery and criminal threat convictions. The State seemed to acknowledge this during closing argument, as the prosecutor referenced Potts’ threats when presenting its case for force or fear. We must then examine the record on appeal to determine if there is any independent evidence of either force or fear.
Domestic battery is defined by K.S.A. 2004 Supp. 21-3412a. Domestic battery occurs when one intentionally causes bodily harm against a family or household member. K.S.A. 2004 Supp. 21-3412a(a)(1). The bodily harm which can sustain a conviction for simple battery may be slight, trivial, minor, moderate, or mere bruising. State v. Moore, 271 Kan. 416, 419, 23 P.3d 815 (2001). V.H. testified that at the start of this incident, Potts hit her twice in the face with a pair of pants and injured her eye. The act of hitting V.H. seems to be pure battery, without any element of force. Therefore, we believe there was independent evidence, apart from Potts’ movement of V.H. through the house, to sustain Potts’ conviction for domestic battery.
We next turn to the question of Potts’ conviction for criminal threat. At trial, tine prosecutor asked V.H. if she consented to oral sex with Potts. V.H. said that she did not consent, but she did it anyway because she had learned that it was “better to let him have what he wants than to tell him no.” V.H. also said that she did not consent to sexual intercourse with Potts, but she did not resist him because he “was too strong, and I was too scared to fight against him.”
V.H. admitted that she did not stop Potts from removing her underwear and she never told him “no.” V.H. also admitted that at the time of the rape, Potts was not hitting her. Most importantly for our inquiry here, V.H. testified that she submitted to the rape because Potts threatened to kill her.
After thoroughly reviewing the record on appeal, we believe that Potts is correct. There can be no doubt there was plenty of evidence that V.H. was put in fear; her life was threatened. However, this appears to be exactly the same evidence that was used to sustain Potts’ conviction for criminal threat; the State admitted it during closing argument. Potts’ conviction for criminal threat is multiplicitious with his convictions for either rape or aggravated criminal sodomy. Therefore, the conviction for criminal threat is reversed. Neither Potts’ sentence, nor his criminal history score, is affected by this reversal of the conviction.
At sentencing, Potts challenged his criminal history, claiming that he had only one prior conviction. The State presented a journal entry of judgment showing that Potts was convicted of an additional count of forgery. The trial court relied on the journal entry when finding that Potts had two prior convictions for forgery.
On appeal, Potts argues that the State may not use evidentiary presumptions that have the effect of relieving the State of its burden of proving every element of a crime beyond a reasonable doubt. Potts acknowledges that this issue was adversely decided in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), but argues that Ivory was wrongly decided.
As Ivory noted, it has already been determined that prior convictions need not be treated as essential elements of a crime to be presented in an indictment and decided by a jury. 273 Kan. at 47. This Supreme Court precedent still stands today. This court is duty bound to follow Kansas Supreme Court precedent, unless there is some indication that the court is departing from its previous position. State v. Jackson, 30 Kan. App. 2d 288, 299, 41 P.3d 871 (2002). Seeing no departure, we must reject Potts’ argument.
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Standridge, J.:
In 2011, Robert K. Miller was terminated pursuant to K.S.A. 19-431(a) by the Board of County Commissioners of Wabaunsee County (Board) from his position as the county appraiser following several performance-related issues. Miller filed an administrative appeal with tire Property Valuation Division of the Kansas Department of Revenue (PVD), which overturned his termination on grounds that the Board had breached its written employment agreement with Miller. On review, the district court concluded that the PVD lacked authority to consider or decide a breach of contract claim because its sole authority was to review die Board’s action under K.S.A. 19-431(a). As a result, the court vacated the PVD Is order and remanded the case for the PVD to review the propriety of Miller’s termination under the criteria set forth in the statute. On remand, the PVD upheld Miller’s termination as proper under K.S.A. 19-431(a). The district court affirmed this decision. On appeal, Miller requests reversal of the district court’s remand order and reinstatement of the PVD’s original order overturning his termination. Finding no error, we affirm the district court’s order affirming the decision of the PVD holding Miller’s termination was proper under the applicable statute.
Facts
In 1999, the Board appointed Miller to the position of Wabaun-see County Appraiser. The Board subsequently reappointed Miller to a 4-year term in 2001, 2005, and 2009. Miller signed a written employment agreement with the Board upon each appointment. The most recent agreement provided that Miller would serve as tire Wabaunsee County Appraiser for a 4-year term from July 1, 2009, through June 20, 2013, or until a successor was appointed. The agreement also provided that the Board could remove Miller as county appraiser prior to the expiration of this term according to the procedures and standards set forth in K.S.A. 19-431(a).
Ervan Stuewe is a member of the Board and has held that elected office since 2003. James Súber and Rodney Allen are the other two members of the Board. On March 14, 2011, the Board met with Miller in executive session and provided him with the following written statement:
“We have had concerns about your office for some time and it seems that things never get settled down. You have a high employee turnover, employees have not been trained and tasks have not been completed on time or just barely on time. When issues are brought to your attention it appears that your employees are made to suffer for speaking out. There have been issues about use of leave time, clocking out for lunch and on duty over use of a cell phone. At this point, our consensus is that it would be in the best interest of Wabaunsee County for you and the County to part ways. Before taking any employment action, we will give you the option to resign. We are open to negotiating a mutually agreeable separation agreement including a reasonable severance pay package. After this closed session, it is our intention to go back into the open meeting and vote whether or not to place you on paid suspension status until next Monday when we expect you to give us your decision. Should you wish to avoid that, you can choose to take voluntary leave until next Monday.”
After providing the written statement to Miller, Commissioner Súber read the contents of the document out loud. Miller was given an opportunity to respond to the performance issues raised in the letter but chose not to, except to say that he would not resign.
Miller brought his attorney with him to the executive session that was held prior to the Monday meeting held on March 21,2011. Although the executive session was planned to last 30 minutes, the session ended after 10 minutes. The Board then opened the meeting up to the public. In this open meeting, the Board voted 3-0 to adopt Order #1 concerning the employment of Miller and, pursuant to the provisions of K.S.A. 19-431(a), terminated Millers employment. The reasons for termination set forth in Order #1 were:
“1. The appraiser has failed or neglected to perform the duties of his office by not providing adequate training and supervision to his employees.
i. Several of the offices!’] recent employees charged with taking care of personal property have left the office or been fired. They expressed concerns about proper training.
ii. The current personal property employee was provided no direct training by the appraiser, was instructed to call other counties to figure out her duties, and missed a deadline to switching property over between two years due to lack of training.
iii. The County Clerk has for several years had to assist the appraiser's] office to obtain annual certified values and she has had to train employees of the appraiser.
iv. The appraiser has failed to review and audit the work of his employees.
v. Compared to other offices of Wabaunsee County tire appraiser’s office has a high rate of turn over [sic].
“2. The appraiser has failed or neglected to perform the duties of his office by spending work time taking or making excessive personal phone calls for . long periods during the day. Most of these calls were made in an open office [within] hearing distance of his employees that has also lowered their productivity.
“3. The appraiser violated Wabaunsee County work policies by taking more personal leave than he was allocated.
“4. The appraiser violated Wabaunsee County work policies by not clocking in and out as directed.”
Miller appealed the Board’s decision to the PVD pursuant to K.S.A. 19~431(a). Following a 3-day administrative evidentiary hearing, the PVD’s hearing officer concluded that Miller’s termination was not proper because the Board had breached its written employment agreement with Miller by failing to follow the procedure set forth in Wabaunsee County’s guidelines for discipline of county employees. Given this breach, the PVD’s hearing officer declined to consider whether Miller’s termination was proper under K.S.A. 19-431(a) and ordered that Miller be reinstated as county appraiser and paid “all salary and benefits” since the date of his termination.
After the Board’s motion for reconsideration was denied, it sought judicial review by the district court. The district court concluded that the PVD lacked statutory authority to hear or decide a breach of contract claim because its sole authority was to review the Board’s action under K.S.A. 19-431(a). As a result, the court vacated the PVD’s order and remanded the case in order for the PVD to review Miller’s termination under K.S.A. 19-431(a).
While the administrative appeal was pending, Miller filed an action in district court against the Board, the individual Board members, Wabaunsee County, and the Wabaunsee County Clerk (collectively defendants), claiming breach of contract and various torts relating to his termination. In response, the defendants- filed a motion for judgment on the pleadings requesting the court to dismiss all tort claims. The district court granted the motion and dismissed those claims. Miller later stipulated to a dismissal without prejudice with regard to his breach of contract claim.
Following remand of the administrative appeal, the PVD found sufficient evidence in the record to support tire Board’s finding that it was satisfied Miller had failed or neglected to properly perform the duties of the office. Accordingly, the PVD issued an order holding that Miller’s termination was proper under K.S.A. 19-431(a). On review, the district court ultimately affirmed the decision rendered by tire PVD.
Analysis
As he did with the district court, Miller seeks relief from the PVD’s October 9', 2013, order deeming Miller’s termination proper under K.S.A. 19’-431(a). In order to help clarify the nature and scope of the PVD actions challenged by Miller, we find it helpful to differentiate between the scope of the Board’s authority to terminate a county appraiser and the scope of the PVD’s authority to review the Board’s decision as set forth in K.S.A. 19-431(a), which governs the administrative process to be used when the Board makes a decision to terminate a county appraiser.
The board of county commissioners has statutory authority to appoint a county appraiser to a 4-year term. K.S.A. 2014 Supp. 19-430(a). The board of county commissioners also has statutory authority to remove a county appraiser prior to the expiration of the 4-year term. Such removal must be accomplished according to the procedures and standards set forth in K.S.A. 2014 Supp. 19-431(a). More specifically, the board of county commissioners may enter an order terminating the county appraiser from office only when it appears “by evidence satisfactory to such board that the appraiser of such county or district has failed or neglected to properly perform the duties of office.” K.S.A. 2014 Supp. 19-431(a). The order of termination must state the reasons for such termination and must be served upon the appraiser. Upon service, the county appraiser is immediately divested of all powers associated with the office and the board of county commissioners must appoint a tern- porary appraiser to discharge the duties of the office until the vacancy is permitted to be filled. K.S.A. 2014 Supp. 19-431(a).
If timely requested, an order from the board of county commissioners that terminates a county appraiser from office is subject to review by the PVD. Upon such a request, the PVD is required to conduct a hearing in accordance with the provisions of the Kansas Administrative Procedure Act (KAPA). K.S.A. 2014 Supp. 19-431(a). The KAPA authorizes the office of administrative hearings to assign an officer to preside over the hearing. K.S.A. 2014 Supp. 77-514(a). At this hearing, tire assigned presiding officer shall make inquiry as to all facts connected with the termination. The presiding officer is not “bound by technical rules of evidence” and “shall give the parties reasonable opportunity to be heard and to present evidence.” K.S.A. 77-524(a). If, after the hearing, the presiding officer determines that the appraiser should be terminated, then the presiding officer shall issue an order removing such appraiser. A copy of such order shall be sent to the board of county commissioners, which is then required to be recorded in full upon the journal of the board. The appraiser office shall become vacant immediately upon service of this order, and it is at this point that tire board of county commissioners becomes authorized to appoint an eligible Kansas appraiser to fill the vacancy. K.S.A. 2014 Supp. 19-431(a).
A. The Board’s authority to terminate the employment of a county appraiser
Relying on this statutory framework, Miller first argues that K.S.A. 2014 Supp. 19-431(a) does not provide the Board with the necessary legal authority to terminate him; therefore, the Board’s order of termination had no legal effect on his employment. Specifically, Miller contends the PVD posttermination hearing process described in K.S.A. 2014 Supp. 19-431(a) is the exclusive procedure for terminating the employment of a county appraiser in Kansas. Contrary to Miller’s argument, however, tire plain and unambiguous language in K.S.A. 2014 Supp. 19-431(a) clearly authorizes the Board to enter an order terminating an appraiser upon a finding the appraiser failed or neglected to properly perform the duties of office. The order must state the reasons for the termination and be served on the appraiser.
Here, the Board entered an order on March 21, 2011, terminating Miller based on its finding that he had failed or neglected to properly perform tire duties of office. The Board’s order then specifically set forth the reasons for his termination. Thereafter, Miller timely requested and received a hearing before the PVD, which initially reversed the termination but on remand from the district court ultimately affirmed the Board’s decision. The fact that the PVD is vested with the authority to conduct a posttermination hearing at which it makes “inquiry as to all facts” connected with the termination does not divest the Board of its authority to terminate the county appraiser in the first instance. See K.S.A. 2014 Supp. 19-431(a). Accordingly, Miller’s first argument is without merit.
B. The PVD’s alleged failure to consider the progressive discipline policy
Next, Miller argues that the PVD terminated his employment notwithstanding undisputed evidence that the Board failed to comply with the progressive discipline policy set forth in the Wabaun-see County Personnel Policies and Guidelines. Based on the manner in which Miller has framed this issue on appeal, it is unclear whether Miller is arguing (1) that the PVD erred as a matter of law by deferring to the Board’s decision to bypass the progressive discipline policy or (2) that the PVD’s order removing him from the county appraiser position was not supported by substantial competent evidence presented at the hearing. Given this ambiguity, we will consider both of these issues.
1. Standard of review: deference or de novo?
Miller appears to assert the PVD erroneously interpreted the law by applying the wrong standard of review to make its decision. Miller contends that K.S.A. 19-431 required tire PVD to review tire Board’s order de novo, but the PVD simply considered whether the evidence presented supported the Board’s decision to terminate his employment.
As Miller asserts, the PVD expressly construed K.S.A. 19-431 to preclude it from reviewing the Board’s termination order de novo:
“The language of K.S.A. 19-431(a) does not suggest that the presiding officer should substitute his/her judgment for that of the Board; it does not allow de novo review or any type of heighted scrutiny by the [PVD] of the facts relied upon by the Board. Rather, it dictates deference to the judgment and decision of the Board.”
Determining the proper standard of review to be utilized by the PVD in reviewing the termination of a county appraiser under K.S.A. 2014 Supp. 19-431(a) requires us to interpret that statute. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). The fundamental rule of statutory interpretation is that the intent of the legislature is dispositive if it is possible to ascertain that intent. The language of a statute is the primary consideration in ascertaining the intent of the legislature because the best and only safe rule for determining the intent of the creators of a written law is to abide by the language that they have chosen to use. Courts therefore look to the plain and unambiguous language of a statute as the primary basis for determining legislative intent. See Merryfield v. Sullivan, 301 Kan. 397, Syl. ¶ 2, 399, 343 P.3d 515 (2015).
Given the language of K.S.A. 2014 Supp. 19-431(a), we conclude the legislature clearly intended the PVD to give some degree of deference to the Board’s termination decision. Significantly, the statutory language readily distinguishes between the duties, obligations, and authority conferred upon a board as compared to the PVD:
• The board is authorized to enter an order terminating the county appraiser from office if it appears by evidence satisfactory to the board that the county appraiser failed or neglected to properly perform the duties of office. The county appraiser is divested of all power upon service of this order.
• The board is authorized to appoint a temporary appraiser to discharge the duties of the office until the vacancy is filled.
• The PVD is authorized to conduct a hearing on the termination if timely requested.
• The PVD is authorized to make inquiry as to all facts connected with the county appraiser s termination.
• The PVD is authorized to render an order removing the county appraiser if it determines that the appraiser should be terminated. The office of the county appraiser shall become vacant immediately upon service of the PVD order of removal.
Miller relies on the authority statutorily conferred upon the PVD to support his argument that the legislature intended the PVD to review a board’s termination order de novo. To accept Miller’s argument, however, we are required to disregard the language in drat same subsection of the statute establishing the standard of review against which the legislature clearly intended termination decisions to be measured: “evidence satisfactory to such board that the appraiser of such county or district has failed or neglected to properly perform the duties of office.” (Emphasis added.) K.S.A. 2014 Supp. 19-431(a). The addition of the phrase “satisfactory to such board” compels us to conclude that a county appraiser can be terminated only if the board is satisfied that there is evidence the county appraiser has failed or neglected to properly perform the duties of office. There appears to be no other reason for the legislature to have added the phrase, and we cannot construe the statute in a manner that renders any aspect of the language to be meaningless. See In re Tax Protest of United Ag Services, 37 Kan. App. 2d 902, 908, 159 P.3d 1050, rev. denied 285 Kan. 1174 (2007).
For the reasons stated above, we conclude the legislature did not intend the PVD to substitute its judgment for that of the Board. As such, we hold the PVD’s review was limited to (1) conducting a hearing on the county appraiser’s termination; (2) making inquiry as to all facts connected with such termination; and (3) rendering an order removing the county appraiser if the PVD determined that (a) the facts presented at the hearing support the Board’s finding of evidence satisfactory to the Board that the county appraiser failed or neglected to properly perform the duties of his position;
(b) the Board entered an order stating the reasons for the termination; and (c) the order was served upon Miller.
2. Substantial competent evidence
Judicial review of an order entered by the PVD is governed by the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. An appellate court exercises the same statutorily limited review of the agency’s decision as does the district court, so review of the agency’s decision is the same as if it had been appealed directly to this court. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010). The burden of proving the invalidity of agency action is on tire party asserting invalidity, which in this case is Miller. See K.S.A. 2014 Supp. 77-621(a)(l).
Construing Miller’s request for relief as a claim of insufficient evidence, we review the factual determinations of the PVD in light of the record as a whole to determine whether those findings are supported by substantial competent evidence. See K.S.A. 2014 Supp. 77-621(c)(7).
“ ‘[I]n light of the record as a whole’ means that tire adequacy of the evidence in tire record before the court to support a particular- finding of fact shall be judged in light of all tire relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of tire witness and the agency’s explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of tire record as a whole, the court shall not reweigh the evidence or engage in de novo review.” K.S.A. 2014 Supp. 77-621(d).
Applying this standard of review, we conclude the facts presented at the hearing support the PVD’s finding of evidence sufficient to have satisfied the Board that Miller failed or neglected to properly perform the duties of his position.
At the hearing, the Board commissioners testified at great length about the significant performance problems Miller had throughout his tenure as county appraiser and that it was these problems that formed the basis for their decision to terminate his employment. These included failing to train and supervise employees in the of fice, failing to ensure the quality of the work coming out of the appraiser’s office, disputing the need to clock in or out or otherwise keep track of his working time, claiming time worked when he was out of tire office on personal matters, making excessive and disruptive personal phone calls while working in the office, and taking more personal leave than he was allotted.
In addition to the commissioners, many current and former employees working under Miller’s supervision testified about Miller’s failure to provide them the training they needed to properly perform their jobs. Miller’s employees also testified that he did not review their work. As a result, when the work was submitted to the county clerk, errors were discovered that Miller could have and should have identified and corrected.
Commissioner Stuewe testified that employees in the county appraiser’s office complained about the lack of supervision and direction they received from Miller. Stuewe also received complaints from employees in the county treasurer’s office and the county clerk’s office about the quality of the work product submitted to them by the county appraiser’s office. Stuewe said he received these complaints “on a constant basis from the very beginning [s]o I knew that things were not always getting done as they should have been done.”
There is also a great deal of evidence in the record to establish that Miller was engaged in a “constant battle” with the Board over whether he was required to clock in and out when he worked, as other county employees were required to do. The Board first addressed the issue of clocking in and out with Miller in 2005. Miller told the Board he did not believe he was required to clock in and out when he worked, but the Board disagreed and instructed him that he was required to keep track of his working time. Stuewe testified that the Board repeatedly directed and redirected Miller to clock in and out. Stuewe testified that he also spoke to Miller one-on-one about the need to clock in and out when he was working.
Jennifer Savage is the Wabaunsee County Clerk and has served in that capacity since 2001. Savage has worked in the clerk’s office since 1981. Savage testified that when Miller did keep track of his time, the time sheets were not accurate. She gave several examples of occasions when Miller told Savage he was going home to bale hay or go hunting with friends. When Savage checked Miller s time sheets, Miller had claimed to be working the entire day.
In late 2010, an issue arose regarding Miller taking more personal time off than he had been allocated. Savage testified Miller had used more personal leave than he had earned. Miller admitted that this was so. Stuewe testified that the situation was brought to the Board’s attention and was later discussed with Miller.
On February 1, 2011, Miller was clocked in for 2 hours in the morning. When Miller turned in his time sheet, he made a handwritten note that he worked from home for an additional 6.25 hours that day. Savage checked the activity records for Orion, a computer program used by the appraiser’s office. The records reflect that on February 1, 2011, Miller was using Orion during the 2-hour period he was clocked in, but he- did not access the program at all tire rest of tire .day.
The transcript from the PVD hearing also -reflects that employees in the appraiser’s office and other county offices on the second floor of the courthouse repeatedly complained to Stuewe that Miller spent excessive amounts of time on personal phone calls. One employee, whose desk was next to Miller’s, testified that during the time she worked there, Miller made 12 to. 15 personal phone calls per day on his cell phone and on the office line. Another employee testified that Miller spent more than 2 hours a day in the office on personal calls. Yet another employee said tire phone calls made it difficult to do her job because Miller was unavailable to help her or taxpayers in the office. She also said that “sometimes they weren’t positive calls. Sometimes he was upset over them, so there was a phone slamming or slamming the phone shut or slamming the phone down and just kind of interrupting because I could hear it out from the front.”
Based on all of these performance problems, the Board did not give Miller a merit increase in 2000, 2008, and 2009. Significantly, he was one of only a few county employees who did not receive a merit increase. In January 2010, the Board placed Miller on probation for 4 months. Miller was placed on probation because of an accumulation of performance issues, “plus the fact that that office had sent out personal property notices late.” At the same time, the Board repeated its directive that Miller make sure he clocked in and out and “provide us 40 hours a week in the office.” At this point, the Board also rescinded Miller s 1.5% cost of living increase in salary.
Stuewe testified that by early 2011, the ongoing nature of Miller’s deficient job performance finally caused a complete breakdown in trust between the Board and Miller. This lack of trust permeated throughout the entire courthouse. Stuewe said the other county offices and the appraiser’s office “weren’t working together. People felt like [Miller] was getting away with things that he shouldn’t be. It was not giving other employees a lot of confidence in us, I guess. It just wasn’t a good working relationship.” In early 2011, Commissioner Súber informed Miller that he would not receive a merit raise. When Miller asked why, Súber responded that it was because Miller had used too much leave, had time clock issues, and had disgruntled employees.
Miller then confronted one of tbe two employees working in his office and asked if he had “disgruntled employees.” The employee felt “cornered.” Shortly thereafter, the employee approached Stuewe and told him she was “extremely upset” by this confrontation. Stuewe characterized this employee as an “excellent employee.” Stuewe testified that this conversation “pushed [him] over the edge.” Stuewe explained why his dissatisfaction with Miller finally reached a breaking point:
“Well, I live in a small community. I knew most of the people. In fact, I know all the people in the courthouse very well. I saw people that were hurt because of things that happened, people that were frustrated. I didn’t feel like the taxpayers were being served. There was work that wasn’t being performed. There were people in other offices that weren’t getting work funneled to them as they needed to. They, in turn, looked bad. And I just personally had lack of trust. I did not feel confident in—in what Mr. Miller was doing, and I felt like there’s been damage that—that couldn’t be repaired unless someone else was in that office.”
In his brief, Miller does not dispute any of the veracity of any of the facts in the record. Nevertheless, he claims he is entitled to relief from the PVD’s order of termination because these facts, when viewed in light of the record as a whole, do not amount to substantial competent evidence sufficient to support the PVD’s decision to terminate him. More specifically, Miller argues the PVD failed to consider the Board’s failure to utilize the county employee progressive discipline policy in deciding that tire Board’s decision to terminate his employment was proper. Miller argues the PVD’s failure in this regard is a breach of its statutory duly to make inquiry as to all facts connected with his termination. We are not persuaded by Miller’s argument. As a preliminary matter, the PVD’s initial order finding in favor of Miller makes clear that it did inquire into the Board’s failure to utilize the progressive discipline policy as set forth in the Wabaunsee County Personnel Policies and Guidelines. The statute requires only inquiry into the facts connected with the termination, which the PVD did in this case.
Notably, however, we would not have granted relief in favor of Miller even if the PVD had failed to make inquiry into the progressive discipline policy. As tire district court held, Miller’s claim of wrongful termination based on the Board’s failure to utilize the progressive discipline policy is a breach of contract claim separate and distinct from the statutory process and, as such, falls outside the scope of the PVD’s limited jurisdiction as set forth in K.S.A. 2014 Supp. 19-431.
Finally, even if the progressive discipline policy was relevant to the statutory criteria, was within tire scope of the PVD’s limited jurisdiction, and was not actually considered by the PVD as part of its review, we would deem any failure by the PVD to consider the policy to be harmless error that does not serve to invalidate the PVD’s order removing Miller from office. See K.S.A. 2014 Supp. 77-621(e) (in deciding whether to grant relief on judicial review of a challenge to the validity of agency action, “due account shall be taken by the court of the rule of harmless error”). As noted above, Miller does not dispute the veracity of any of the factual findings made by the PVD in its order. Instead, he appears to argue that the PVD’s alleged failure to consider whether the Board complied with the progressive discipline policy is so significant that it essentially undermines the substantial nature of the evidence supporting the PVD’s decision. We disagree. We have considered the evidence in the record that supports and the evidence that detracts from the PVD’s findings. See K.S.A. 2014 Supp. 77-621(d). In so doing, we find substantial evidence supports the PVD’s finding of evidence satisfactory to the Board that Miller failed or neglected to properly perform the duties of his position as county appraiser.
C. Salary and benefits
Miller argues the district court erroneously held he was not entitled to be fully compensated from March 21, 2011, to June 30, 2013, the date his appointment expired. Relying on language in Kennedy v. Board of Shawnee County Comm’rs, 264 Kan. 776, Syl. ¶ 2, 958 P.2d 637 (1998), Miller claims the Board’s decision to terminate him should have been deemed a suspension with full salary and benefits pending conclusion of the K.S.A. 19-431(a) posttermination administrative proceedings, which did not happen until after his term expired.
There, Kennedy was appointed county appraiser in August 1992 to fill the unexpired term of another. The term was to end June 30, 1993. The board of county commissioners voted on January 4, 1993, to reappoint Kennedy to a 4-year term to begin July 1,1993. Two new county commissioners were sworn in, and the newly configured board voted on January 11, 1993, to rescind the earlier resolution to appoint Kennedy to a 4-year term beginning July 1, 1993. The board had a change of heart and in April 1993 voted to appoint Kennedy to a new 4-year term.
Reversing course once again, the board voted to terminate Kennedy on May 27, 1993. The board stated that the termination was based on “ ‘failure or neglect and for other cause.’ ” 264 Kan. at 778. The board also voted to rescind the April resolution appointing Kennedy to a 4-year term. The PVD upheld the removal.
Kennedy filed a petition for judicial review in the district court. The issues on review were: (1) whether the agency’s findings of fact were supported by substantial evidence; (2) whether Kennedy had an enforceable agreement to serve as county appraiser for a 4-year term beginning July 1, 1993; and (3) whether Kennedy’s termination was impermissibly based on retaliation for exercise of his First Amendment rights. The district court and the Kansas Su preme Court rejected all of Kennedy’s arguments and upheld his termination. 264 Kan. at 802-03.
Miller focuses on the Kansas Supreme Court’s discussion of Kennedy’s second issue. The thrust of Kennedy’s argument was that the board had committed itself to appointing him to a 4-year term beginning July 1, 1993, and could not later rescind that commitment—even though the board voted to rescind the appointment before the term of the appointment began. Kennedy argued that the board, by its actions, created an implied contract for employment for a 4-year term beginning July 1, 1993. The Supreme Court disagreed, adopting the reasoning of the district court that there could be no implied contract for employment because K.S.A. 19-430 and K.S.A. 19-431 dictated “ ‘the exact manner by which the position both may be filled and exited, precluding, therefore, any implied basis to either obtain it or leave it other than by the terms of the statute.’ ” 264 Kan. at 790. In the court’s view, the county appraiser’s statutory term began on July 1, and no implied contract for employment for the 4-year term could arise out of any promises made and rescinded before that date.
Kennedy filed a separate cause of action in the district court, which was consolidated with the administrative appeal, and in it he raised a constitutional challenge to K.S.A. 19-431. Kennedy argued that the statute was unconstitutional because it did not provide for notice of the reasons for termination and a meaningful opportunity to be heard prior to the termination. The court emphasized its duty to construe a statute in such a manner that preserves its constitutionality. 264 Kan. at 797-98. Although the court observed that K.S.A. 19-431 requires that the board supply notice of the reasons for the termination and provides for a hearing before the PVD, the undisputed facts of the case reflected that the board did not provide any factual reasons for the termination when it passed the resolution terminating Kennedy as county appraiser. The board’s “Order of Termination” attached to resolution stated:
“ ‘The reasons for your termination include but are not limited to foe following: You have failed or neglected to properly perform the duties of the office. The general statutory duties are set forth in K.S.A. 79-1412a. Additional duties are set forth in tire position description for Shawnee County Appraiser. This termination is for such failure or neglect and for other cause.’ ” 264 Kan. at 778.
Given the board did not comply with the requirement in K.S.A. 19-431 to supply notice of the reasons for the termination, the Supreme Court followed the district court’s lead and construed the board’s action to have merely suspended Kennedy’s employment; thus, Kennedy was not actually terminated from employment until the PVD entered its order removing him from office. Construing the notice provided by the board as a suspension in conjunction with the opportunity for Kennedy to be heard at the subsequent evidentiary hearing, the court ultimately held the proceedings as a whole complied with due process requirements. 264 Kan. at 798-800. And consistent with its interpretation of the board’s decision as a suspension, the court affirmed the district court’s decision to grant Kennedy an award of back pay from the date the board suspended him (May 27,1993), until the end of his then-current term (June 30, 1993), which amounted to approximately 1 month’s pay. 264 Kan. at 799, 803. In affirming the district court’s decision to award back pay and benefits, the court specifically noted the district court’s reliance on' the United States Supreme Court’s decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
In Loudermill, the Court considered the extent of pretermination process to be accorded a public employee who can be discharged only for cause. Loudermill was comprised of two cases that were consolidated, both of which involved a complete severance of the employment relationship and allegations of the employees’ fault (lying on an employment application) or deficiency (failure of an eye examination). Like the facts in Kennedy, both of the employees were discharged without any 'opportunity to contest the facts on which their discharges were based. Both had plausible arguments to make that might have prevented their discharge. To that end, one of the employees actually was reinstated after a post-termination hearing. Nevertheless, the district court dismissed both cases for failure to. state a claim for which relief could be granted.
On appeal, the Loudermill Court determined that public employees with a property interest in continued employment have a right to pretermination procedural safeguards based on the constitutional right to procedural due process. The pretermination hearing is “an initial check against mistaken decisions” and “need not definitively resolve the propriety of the discharge.” 470 U.S. at 545. The purpose is to determine whether there are reasonable grounds to believe the charges against the employee are true and support termination. The hearing is necessary but need not be formal. The requirements will depend upon the interests involved and the nature of subsequent proceedings. When coupled with posttermination procedures, the Court held that the public employee is entitled to oral or written notice of the charges, an explanation of the employer’s evidence, and an opportunity to present his or her side of the story. To require more, the Court concluded, would intrude too much on the government’s immediate interest in removing the employee. A pretermination opportunity to respond is all the process that is due. But because the Loudermill plaintiffs alleged they had no chance to respond, the Court ultimately held the district court erred in dismissing the cases for failure to state a claim. 470 U.S. at 545-46, 548.
The facts presented in this case are distinguishable from the facts presented in Kennedy and Loudermill, where the employees were not given an explanation of why the employee was being terminated, evidence to support the termination decision, or an opportunity to present the employee’s side of the stoiy for purposes of an initial check against mistaken facts. Here, the Board provided Miller with written documentation on March 14, 2011, advising him that he could resign or would be terminated in 1 week’s time based on a finding of evidence satisfactory to the Board that Miller failed or neglected to properly perform the duties of his position as county appraiser. The written documentation provided the factual basis supporting the Board’s action in this regard and was served on Miller as required by statute. On March 21, 2011, the Board set aside 30 minutes in order to provide Miller an opportunity to be heard on the termination decision, but Miller opted not to take advantage of that opportunity.
Again, the purpose of a pretermination hearing is to determine whether there are reasonable grounds to believe the charges against the employee are true and support termination. Before the Board entered its order of termination, Miller was provided with the charges against him and given two opportunities to be heard in order to dispute any of the allegations of deficient performance. He did not take advantage of either opportunity. In the words of the United States Supreme Court, to require the Board to have done anything more than it did in this matter before entering its order of termination “would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.” 470 U.S. at 546. A pretermination opportunity to respond is all the process that is due.
Given Miller had two opportunities to be heard before the Board entered the termination order, we conclude he was not deprived of his right to procedural due process prior to termination, regardless of the posttermination process available to him. Consistent with the standards governing procedural due process, and based on the plain reading of die statute that confers upon the Board the authority to both suspend and terminate a county appraiser, we conclude the Board’s decision to terminate Miller was a final termination decision and not a suspension. As such, Miller is not entitled to full salary and benefits from the time he was terminated on March 14, 2011, to the date the PVD hearing was held or to the date that the PVD’s decision (or appeal from such decision) is final.
Affirmed.
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Bukaty, J.:
George D. Williams appeals the revocation of his probation. We reverse and remand with directions.
Williams pled guilty to five counts of giving a worthless check. The trial court then sentenced him to an underlying prison term of 24 months and placed him on probation for 12 months. The State subsequently filed a motion to revoke the probation. At the hearing on the motion, the court found Williams to be in violation of the conditions of his probation. The court revoked the probation and ordered Williams to serve his underlying prison sentence.
Williams argues the trial court erred when it ordered him to serve his underlying prison sentence without first considering placement at Labette Correctional Conservation Camp (Labette). He refers us to the record and argues that it fails to reflect that the trial court at any time considered placement at Labette.
The State argues that the record is sufficient to establish that the trial court did consider placing Williams at Labette. Even though the State does not point to any reference in the record where the trial court indicated it had considered such placement, the State contends that the court had before it the affidavit of Ray G. Dreher, the intensive supervision officer for Williams. That affidavit states that Williams does not meet the general eligibility criteria for Labette because of his age and prior incarceration in a penal institution. The State argues that the affidavit was presented to the court and Williams cannot assume the court did not consider this evidence.
This issue involves interpretation of a statute. “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).
K.S.A. 2004 Supp. 21-4603d(g) states in relevant part:
“[Pfrior to revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid or grid blocks 5-H, 5-1 or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H or 3-1 of the sentencing guidelines grid for drug crimes, the court shall consider placement of the defendant in the Labette correctional conservation camp, conservation camps established by the secretary of corrections pursuant to K.S.A. 75-52,127, and amendment thereto or a community intermediate sanction center. Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is available in a conservation camp or a community intermediate sanction center and the defendant meets all of the conservation camp’s or a community intermediate sanction center’s placement criteria unless the court states on the record the reasons for not placing the defendant in a conservation camp or a community intermediate sanction center.” (Emphasis added.)
Ordinary words are to be given their ordinaiy meaning, and a statute should not be read so as to add that which is not readily found therein or to read out what as a matter of ordinary English language is found in it. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
Simply put, K.S.A. 2004 Supp. 21-4603d(g) mandates that atrial court consider Labette in certain situations and note its consideration on the record. State v. Schick, 25 Kan. App. 2d 702, 704, 971 P.2d 346 (1998), rev. denied 266 Kan. 1114 (1999). One of those situations is present in this case.
Williams’ criminal history and crime severity level placed him in a presumptive nonprison block on the sentencing grid. In such a case, K.S.A. 2004 Supp. 21-4603(g) clearly specifies that the trial court shall consider placement in Labette prior to the revocation of the defendant’s nonprison sanction of probation. The record here does not reflect whether the trial court afforded Williams that statutory consideration. We cannot assume that it did absent a clear indication on the record.
Although the trial court may find that Williams does not meet the placement criteria because of his age and prior incarceration in a penal institution as stated in the affidavit offered by the State, we must remand this case for the trial court to note its consideration of Labette on the record in compliance with K.S.A. 2004 Supp. 21-4603d(g).
Reversed and remanded with directions. | [
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Elliott, J.:
Maianh Nugyen appeals from the trial court’s refusal to issue a bench warrant in a civil contempt case. We reverse.
Nugyen obtained a default judgment against Vivian Esplund for a bad check. Esplund was then personally served regarding a hearing in aid of execution. Esplund failed to appear, and the court ordered Esplund cited for contempt.
Esplund was again personally served with notice of the contempt hearing, and Esplund again failed to appear. The court granted Nugyen’s request for a bench warrant for Esplund’s arrest, and Nugyen’s counsel prepared a bench warrant on a standard form and submitted it to the clerk. The clerk returned the warrant with a note indicating an affidavit needed to be attached.
At a subsequent hearing, Nugyen again requested the bench warrant to be issued without an affidavit. Nugyen relied on K.S.A. 2004 Supp. 61-3608. The trial court denied the request, relying on Local Rule 23 for the 16th Judicial District.
We have unlimited review over questions of statutory construction. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). And it is presumed the legislature did not enact useless or meaningless legislation. In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002).
K.S.A. 2004 Supp. 61-3608 states that if “a person fails to comply with the requirements of K.S.A. 2004 Supp. 61-3606, and amendments thereto, . . . the court may issue a bench warrant ... to bring such person before the court to answer for contempt. The bench warrant does not need to be supported by affidavit or other verification.” (Emphasis added.)
The 16th Judicial District Local Rule 23 requires a verified affidavit be attached to any request for a bench warrant even in chapter 61 contempt hearing cases.
Each judicial district is allowed to make its own local rules as it deems necessary. But these local rules are allowed only to the extent “they are not inconsistent with the applicable statutes and rules.” Supreme Court Rule 105 (2004 Kan. Ct. R. Annot. 162).
Local Rule 23 and K.S.A. 2004 Supp. 61-3608 are inconsistent and in conflict with one another. Pursuant to Supreme Court Rule 105, the statute necessarily trumps the local rule. Local Rule 23 is therefore invalid.
To the extent the trial court’s ruling may be implied to hold 61-3608 is unconstitutional, we lack jurisdiction to adjudicate that implied ruling. See K.S.A. 60-2101(b).
We would, however, add the following dicta. As we read State v. Ruden, 245 Kan. 95, 774 P.2d 972 (1989), a probable cause finding is necessary if a warrant is to be used to enter a person’s house. But the Ruden court acknowledged that a bench warrant issued in a civil case, as here, does not require a finding of probable cause. 245 Kan. at 104. K.S.A. 2004 Supp. 61-3608 appears to us to be constitutional. | [
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Elliott, J.:
Universal Premium Acceptance Corporation (UPAC) appeals the trial court’s grant of summary judgment to defendant LCIA Insurance, Inc. UPAC further argues we have jurisdiction to entertain this appeal. We dismiss.
The history of this litigation is not particularly relevant. Suffice it to say, UPAC moved for partial summary judgment in February 2004 and later withdrew that motion; LCIA filed a cross-motion for summary judgment. On July 13, 2004, the trial court granted LCIA’s motion for summary judgment and mailed, a copy of its opinion to counsel for UPAC and LCIA the same day.
On August 6, 2004, UPAC voluntarily dismissed Pat City Livery, Inc., (Pat City) as a party to the proceedings, and on August 19, 2004, UPAC filed its notice of appeal. Obviously, this appeal centers on the question of whether UP AC’s notice of appeal was timely.
LCIA claims UPAC’s notice of appeal was untimely and, therefore, we lack jurisdiction to decide the appeal. Whether jurisdiction exists is a question of law over which we have unlimited review. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003).
UPAC claims its notice of appeal was timely filed, arguing the trial court granted summary judgment in favor of LCIA but made no reference to its claim against Pat City which had not been served. UPAC further claims because it later dismissed Pat City and filed its notice of appeal within 30 days of the dismissal, the appeal is timely under K.S.A. 2004 Supp. 60-2103(a).
LCIA, not surprisingly, claims Pat City was never a party to the suit and, therefore, UPAC’s notice of appeal was not filed within 30 days of the trial court’s final decision.
In Kansas, the right to appeal is entirely statutory. Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limits and in the manner prescribed by statute. Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003).
In the present case, the appeal must have been filed within 30 days from the entry of judgment. See K.S.A. 2004 Supp. 60-2103(a). Judgment is entered when a journal entry or judgment form is filed. K.S.A. 60-258.
We have found no Kansas case addressing the effect of an unserved party on a judgment related to a served party. Federal courts, however, have spoken on the issue of the finality of such a judgment.
Generally, those courts have held the judgments are final as to all parties before the court and are therefore appealable. See, e.g., Fed. Sav. & Loan Ins. v. Tullos-Pierremont, 894 F.2d 1469, 1472-76 (5th Cir. 1990) (judgment rendered to all served defendants is final although unserved parties remain); Cooper v. Pickett, 122 F.3d 1186, 1191-92 (9th Cir. 1997) (if action is dismissed as to all served defendants and only unserved defendants remain, order is final for purposes of perfecting appeal); Nagle v. Lee, 807 F.2d 435, 438 (5th Cir. 1987) (when no service obtained on one defendant, that defendant was never a party to the suit); Insinga v. LaBella, 817 F.2d 1469, 1470 (11th Cir. 1987) (where final judgment entered as to all defendants served and only unserved defendants remain, order considered final for purposes of appeal).
The question then is whether UPAC commenced a lawsuit against Pat City. Pursuant to K.S.A. 60-203, an action is com menced when a petition is filed so long as service is obtained within 90 days. If service is not obtained within 90 days, the action is deemed commenced when service occurs. K.S.A. 60-203(a)(2); Lindenman v. Umscheid, 255 Kan. 610, 632, 875 P.2d 964 (1994).
In the present case, the action was commenced only against LCIA because Pat City was never served. Accordingly, there was only one defendant in the pending suit in that court, not two. The judgment in favor of LCIA resolved all claims as to all parties to the case.
UPAC’s reliance on Crockett v. Medicalodges, Inc., 247 Kan. 433, 799 P.2d 1022 (1990), is misplaced. There, both defendants were present and involved in the case, and thus served.
In the present case, UPAC’s notice of appeal was untimely. See K.S.A. 2004 Supp. 60-206(e); Danes v. St. David’s Episcopal Church, 242 Kan. 822, 825-26, 752 P.2d 653 (1988).
We adopt the federal court cases with respect to unserved parties. Here, UPAC’s notice of appeal was filed 37 days after the judgment.
The appeal is dismissed. See State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001).
Appeal dismissed. | [
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In a letter signed February 14, 2015, addressed to the Clerk of the Appellate Courts, respondent Yehlen D. Brooks, f/k/a Maiy Yehlen Brooks, an attorney admitted to practice law in Kansas, voluntarily surrendered her license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2014 Kan. Ct. R. Annot. 403).
At the time the respondent surrendered her license, a formal hearing was pending regarding five docketed disciplinary complaints filed in connection with her practice of immigration law in California. The complaints alleged that the respondent violated Kansas Rules of Professional Conduct 1.1 (2014 Kan. Ct. R. Annot. 456) (competence); 1.3 (2014 Kan. Ct. R. Annot. 475) (diligence); 1.4 (2014 Kan. Ct. R. Annot. 495) (communication); 1.5 (2014 Kan. Ct. R. Annot. 515) (fees); 1.15 (2014 Kan. Ct. R. Annot. 567) (safekeeping property); 1.16 (2014 Kan. Ct. R. Annot. 583) (termination of representation); 8.1 (2014 Kan. Ct. R. Annot. 670) (bar admission and disciplinary matters); and 8.4 (2014 Kan. Ct. R. Annot. 680) (misconduct).
This court, having examined the files of the office of the Disciplinary Administrator, finds that tire surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It is THEREFORE ordered that Yehlen D. Brooks, f/k/a Mary Yehlen Brooks, be and she is hereby disbarred from the practice of law in Kansas, and her license and privilege to practice law are hereby revoked.
It is further ordered that tire Clerk of the Appellate Courts strike the name of Yehlen D. Brooks, f/k/a Mary Yehlen Brooks from the roll of attorneys licensed to practice law in Kansas.
It is further ORDERED that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2014 Kan. Ct. R. Annot. 414).
Dated this 2nd day of March, 2015. | [
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Schroeder, J.:
ALT-A&M JV LLC (ALT-A&M) appeals the Workers Compensation Boards (the Board) determination Robert G. Rogers suffered a 7.5% permanent partial impairment to his lower left extremity. We find ALT-A&M s challenge to the award is without merit. We affirm the Board’s award. It is supported by substantial evidence that Rogers’ injuiy arose out of and in the course of his employment on September 15, 2008. We also determine Rogers’ request for his appellate attorney fees must be denied since Supreme Court Rule 7.07(b) (2015 Kan. Ct. R. Annot. 72) applies only to district courts and not to decisions of the Board.
Facts
On September 15, 2008, Rogers injured his knee at work when he fell while carrying a 5-gallon bucket of hydraulic fluid down a muddy incline. He filled out an incident/accident form the same day. Rogers was seen by multiple doctors and ultimately had knee surgery in February 2009.
In December 2009, Dr. Edward Prostic evaluated Rogers’ knee. Dr. Prostic determined Rogers had 10% permanent partial impairment of his left lower extremity due to partial synovectomy and recurrent subluxation of the patella.
ALT-A&M deposed Rogers on May 10, 2010. At the deposition, Rogers testified he had no problems with his left knee prior to tire 2008 injuiy. ALT-A&M questioned Rogers about a mid-1980s left knee injury, which Rogers denied. Similarly, Rogers denied ever receiving an impairment rating prior to the rating from Dr. Prostic. Rogers was sent to Dr. Peter Bieri for an independent medical examination. Dr. Bieri determined Rogers had 5% left lower extremity impairment due to patellofenroral pain.
At the regular hearing, Rogers testified he was injured while carrying a 5-gallon bucket of hydraulic fluid down a muddy incline. He also testified he completed an accident report “to get workmen’s [sic] comp.” ALT-A&M again cross-examined Rogers regarding a mid-1980s knee injury, and Rogers testified he did not remember injuring his knee during the 1980 s.
On November 2,2011, the Administrative Law Judge (ALJ) suspended terminal dates pending Dr. Bieri’s review of records of a 1999 left knee injury and receipt of Dr. Bieri s supplemental report. Dr. Bieri provided a supplemental report in January 2013 rating Rogers’ impairment at 3%. After reviewing medical records from the 1999 injury, Dr. Prostic again rated Rogers’ impairment at 10%. The ALJ reinstated the terminal date for October 28, 2013. Then, upon a series of motions by ALT-A&M, the ALJ extended the terminal date to February 5, 2014, so ALT-A&M could obtain additional records of the 1999 injury. With the terminal date extended, ALTA&M continued its discovery process.
On January 31, 2014, ALT-A&M deposed Rogers again. Rogers continued to deny any prior injuries to his left knee. Rogers subsequently testified he had previously sprained his left knee; however, he did not consider it an injury and would not have seen a doctor had his employer not requested it. Despite the records indicating Rogers was unable to walk as a result of tire 1999 injury, he testified he did not recall being unable to walk. Rogers also testified he did not recall loss of motion, trouble bending his left knee, attending physical therapy, or being off work for 6 weeks. Rogers testified the information in the medical records was inaccurate.
In February 2014, ALT-A&M moved to extend the terminal dates and the ALJ granted the motion for the purpose of scheduling a hearing on the motion for extension of terminal dates. At the March 28, 2014, hearing, ALT-A&M indicated its expert was scheduled to examine Rogers on April 14,2014, and a deposition of the expert was scheduled for May 8, 2014. Rogers objected to the extension and argued ALT-A&M had not set the examination until after the prior terminal dates had run. The April 2, 2014, order denying ALT-A&M s motion for extension of terminal dates stated:
"The claimant could have been examined and Dr. Slater’s deposition taken at any time during the suspension of terminal dates or during the periods they were extended. No justification for the delay was proffered by counsel. The Court finds respondent’s request for further extension would unnecessarily delay proceedings that have already taken too long.”
On May 6, 2014, the ALJ issued an award for Rogers finding a 7.5% permanent partial impairment to Rogers’ lower left extremity. ALT-A&M requested the Board review the award. The Board affirmed the ALJs award. ALT-A&M timely appealed the Boards decision. In response to ALT-A&M s appeal, Rogers filed a motion for attorney fees pursuant to K.S.A. 2014 Supp. 44-536(g).
Analysis
Rogers’ loritten claim was timely.
Pursuant to K.S.A. 2014 Supp. 44-556(a), final awards of the Board are subject to review under the Kansas Judicial Review Act, K.S.A. 77-601 et seq., as amended. “Whether an instrument propounded as a written claim for compensation in a workers compensation case or whether a claim for compensation has been filed in time is primarily a question of fact.” Lawrence v. Cobler, 22 Kan. App. 2d 291, 294, 915 P.2d 157, rev. denied 260 Kan. 994 (1996). An appellate court reviews the Board’s factual findings to determine whether the findings are supported by substantial evidence. Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014). Substantial evidence is “'“evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis [of fact] from which the issue raised could be easily resolved.”’” Ward v. Allen County Hospital, 50 Kan. App. 2d 280, 285, 324 P.3d 1122 (2014). Appellate courts do not reweigh evidence or engage in de novo review. Williams, 299 Kan. at 795.
The statute in effect at the time of the claimant’s injury governs the rights and obligations of the parties. See Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 588, 257 P.3d 255 (2011). In 2008, K.S.A. 44-520a(a) (repealed by L. 2011, ch. 55, sec. 29, effective May 15, 2011) read:
“No proceedings for compensation shall be maintainable under the workmen’s compensation act unless a written claim for compensation shall be served upon the employer by delivering such mitten claim to him or his duly authorized agent, or by delivering such written claim to him by registered or certified mail within two hundred (200) days after the date of the accident, or in cases where compensation payments have been suspended within two hundred (200) days after the date of the last payment of compensation; or within one (1) year after the death of the injured employee if death results from the injury within five (5) years after the date of such accident.”
A written claim need not be in any particular form so long as it is a claim. Ours v. Lackey, 213 Kan. 72, 78, 515 P.2d 1071 (1973). The purpose of a written claim is to enable an employer to malee a timely investigation. Lott-Edwards v. Americold Corp., 27 Kan. App. 2d 689, 696, 6 P.3d 947 (2000). To determine whether a document is a claim, the court uses the document and all of the surrounding facts and circumstances to malee a reasonable interpretation of what the parties intended. Fitzwater v. Boeing Airplane Co., 181 Kan. 158, 166, 309 P.2d 681 (1957). “The question is, did the employee have in mind compensation for his injury when the instrument was signed by him or on his behalf, and did he intend by it to ask his employer to pay compensation?” Fitzwater, 181 Kan. at 166.
Without citing to any authority, ALT-A&M argues the incident/ accident form was not a claim. Instead, it argues Rogers was required to fill out the form to document an injury. ALT-A&M further argues there is nothing on the form indicating Rogers intended to make a claim for compensation. ALT-A&M fails to show why its unsupported argument is sound. Failure to support a point with pertinent authority or show why it is sound despite a lack of authority or in the face of contrary authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). Issues not briefed by the appellant are deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). Since ALT-A&M has failed to properly brief whether Rogers timely filed a claim, we determine this issue has been waived and decline to address the merits of ALT-A&Ms claim.
The denial of a motion to extend terminal dates is a discretionary call by the ALJ.
Appellate review of the ALJ s denial of a motion for extension of terminal dates is similar to the denial of a motion for continuance and is reviewed for an abuse of discretion. Tull v. Atchison Leather Products, Inc., 37 Kan. App. 2d 87, 99, 150 P.3d 316 (2007). A judicial action is an abuse of discretion if it is arbitrary, fanciful, or unreasonable; is based on an error of law; or is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013).
Pursuant to K.S.A. 2014 Supp. 44-523(b), the parties are required to submit all evidence supporting their positions by the terminal dates set by the ALJ. An extension of the terminal dates may be granted if all parties agree. In addition, the terminal dates may be extended:
"(1) If the employee is being paid temporary or permanent total disability compensation;
“(2) for medical examination of the claimant if the party requesting the extension explains in writing to the administrative law judge facts showing that the party made a diligent effort but was unable to have a medical examination conducted prior to the submission of the case by the claimant but then only if the examination appointment was set and notice of the appointment sent prior to submission by the claimant; or
“(3) on application for good cause shown.” K.S.A. 2014 Supp. 44-523(b).
Rogers was injured on September 15, 2008, and filed an application for hearing on Januaiy 3, 2011. On November 2, 2011, the ALJ suspended terminal dates pending receipt of Dr. Bieri’s supplemental report. Subsequent terminal dates were reset for October 28, 2013. Upon ALT-A&M’s motion, the ALJ extended the terminal dates multiple times up to and including March 28, 2014, at which time the ALJ considered whether another extension should be granted.
At the March 28, 2014, hearing, ALT-A&M indicated its expert’s—Dr. Slater’s—deposition was scheduled for May 8, 2014, with another examination of Rogers scheduled for April 14, 2014. Rogers argued ALT-A&M was dilatory in setting the new examination date as the date was not set until after the previous terminal dates had run. The record reflects the case had been pending for more than 3 years when the ALJ denied ALT-A&M’s motion for extension of terminal dates. ALT-A&M had already been granted multiple extensions between August 28,2013, and March 28,2014. A reasonable person could reach the same conclusion as the ALJ— Dr. Slater’s examination of Rogers could have been scheduled prior to the March 28, 2014, terminal date. We find the ALJ did not abuse his discretion when he denied ALT-A&M’s motion to extend the terminal date.
The Board’s award is supported by substantial evidence.
Next, ALT-A&M argues Rogers cannot prove his injury arose out of and in the course of his employment “because he repeatedly provided materially inaccurate and false and incomplete information under oath in this matter.” Likewise, ALT-A&M argues the medical opinions establishing the nature and extent of Rogers’ permanent partial impairment to his lower left extremity are based on an incomplete and inaccurate medical history and are not substantial evidence. The record reflects the Board considered ALTA&M’s argument Rogers was untruthful and rejected it as irrelevant under the facts of this case. Here, ALT-A&M is really trying to get us to reexamine the facts and weigh the credibility of the various witnesses. We cannot reweigh the evidence. Williams, 299 Kan. at 795. Additionally, ALT-A&M does not cite any authority supporting these arguments. Failure to support a point with pertinent authority or show why it is sound despite a lack of authority or in the face of contrary authority is akin to failing to brief the issue. Tague, 296 Kan. at 1001. Issues not briefed by the appellant are deemed waived and abandoned. Superior Boiler Works, Inc., 292 Kan. at 889. Since ALT-A&M has failed to properly brief both issues, we determine the issues have been waived and decline to address the merits of ALT-A&M ⅛ claim the record lacks substantial competent evidence to reflect Rogers’ injury arose out of and in the course of his employment or that the medical information was sufficiently incomplete for the experts and the Board to determine the nature and extent of his permanent partial impairment to his lower left extremity. With this determination, we are left with the evidence presented by Rogers which is substantial competent evidence to support the Board’s decision.
Rogers is not entitled to attorney fees.
Rogers moved for attorney fees on appeal pursuant to Kansas Supreme Court Rule 7.07(b) (2015 Kan. Ct. R. Annot. 72) and K.S.A. 2014 Supp. 44-536(g). Kansas Supreme Court Rule 7.07(b) (1) (2015 Kan. Ct. R. Annot. 72) states: “An appellate court may award attorney fees for services on appeal in a case in which the district court had authority to award attorney fees.” Further, “a Kansas court may not award attorney fees unless a statute authorizes the award or there is an agreement between the parties allowing attorney fees.” Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 162, 298 P.3d 1120 (2013). Since K.S.A. 2014 Supp. 44-536(g) authorizes the director of workers compensation to award attorney fees when an attorney renders services subsequent to the ultimate disposition of the claim, Rogers argues appellate courts may award attorney fees for services on appeal.
Kansas Supreme Court Rule 7.07(b) (2015 Kan. Ct. R. Annot. 72) controls an appellate courts award of attorney fees. Interpretation of a Supreme Court rule is a question of law subject to unlimited review. Snider, 297 Kan. at 162. The principles of statutoiy construction also apply to construction of Supreme Court rules. Kansas Judicial Review v. Stout, 287 Kan. 450, 460, 196 P.3d 1162 (2008). If the language of a Supreme Court rule is clear, courts are bound by the rules language. Stout, 287 Kan. at 460. If the rule is subject to more than one reasonable interpretation, the Supreme Court may “authoritatively state which interpretation is most consistent with our intent in adopting the rule in question.” Stout, 287 Kan. at 460-61. Here, the rule s language is clear. Attorney fees are allowed on appeal if the district court could award attorney fees. Workers compensation cases are not heard by the district court. As a result, the district court cannot award attorney fees in workers compensation cases and appellate courts may not award attorney fees for services on appeal.
Supreme Court Rule 7.07(b)(1) (2015 Kan. Ct. R. Annot. 72) could reasonably be interpreted to mean an appellate court could award attorney fees if the lower court could award attorney fees. However, the language of Supreme Court Rule 7.07(b) (2015 Kan. Ct. R. Annot. 72) recently changed. Prior to July 1,2012, Supreme Court Rule 7.07(b) (2011 Kan. Ct. R. Annot. 64) read: “Appellate courts may award attorney fees for services on appeal in any case in which the trial couri had authority to award attorney fees.” (Emphasis added.) This language is broader than the rules current language and could be interpreted to include workers compensation cases. Presumably, when the Kansas Supreme Court revised the rule, it intended to change the rule. See Brennan v. Kansas Insurance Guaranty Assn, 293 Kan. 446, 458, 264 P.3d 102 (2011) (“[C] ourts presume the legislature intends to make a substantive change when it revises an existing law, but this presumption’s strength, weakness, or validity changes according to the circumstances.”). As a result, Supreme Court Rule 7.07(b)(1) (2015 Kan. Ct. R. Annot. 72) requires we interpret the rule only to allow attorney fees in cases where the district court could award attorney fees. The rule must be narrowly applied and limited to cases heard by the district court.
Further, the language of K.S.A. 2014 Supp. 44-536(g) does not explicitly grant an appellate court the ability to award attorney fees on appeal. Instead, it grants the ability to award attorney fees to the director of workers compensation. K.S.A. 2014 Supp. 44-536(g). Since neither Kansas Supreme Court Rule 7.07(b) (2015 Kan. Ct. R. Annot. 72) nor K.S.A. 2014 Supp. 44-536(g) authorize an appellate court to award attorney fees in workers compensation cases, Rogers’ motion is denied.
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The opinion of the court was delivered by
Stegall, J.;
While fleeing from an attempted traffic stop, God-frey struck and killed Jordan Dodgen. Ultimately Godfrey was charged with and pled guilty to first-degree felony murder and aggravated battery. The plea agreement contained a provision stating: “At the time of sentencing the Parties agree to recommend that the defendant serve his sentence at Larned State Hospital, with all sentences to run concurrently without any departures.”
At the first scheduled sentencing, Godfrey requested and received a continuance on the grounds that he intended to file a motion to withdraw his plea. However, no motion to withdraw the plea was ever filed. At the second sentencing hearing, the State asked the district court to recommend to the Department of Corrections that Godfrey receive a sentence placement at Lamed State Hospital.
Godfrey s attorney then explained to the district court that there had been “a little bit of a disagreement” between the parties concerning the plea agreement. Originally, Godfrey believed the agreement called for him to be sent to Larned “in lieu of sentenc ing for a brief evaluation then to come back and be sentenced at a later time.” The State, however, believed it had committed to asking the district court to recommend a Larned placement to the Department of Corrections. This confusion led to the request for a continuance in order for Godfrey to consider and discuss his options with counsel, including the possibility of moving to withdraw his plea. Godfrey s counsel apologized for the inconvenience and described the confusion as “an error more on my part and a miscommunication between myself and [the State].”
Later, when confusion again surfaced regarding the precise nature of the plea agreement on the subject of Godfrey’s placement at Lamed, Godfrey’s counsel again explained to the district court that Godfrey originally understood that the recommendation was for a Larned placement in lieu of sentencing pursuant to K.S.A. 22-3430. Counsel went on to say, “[Godfrey] understands that’s not going to happen and that he wanted to proceed with the sentencing today after we discussed the various options.” And further, “we acknowledge that there was a disagreement among the parties” but that now Godfrey was “willing to go ahead with the plea.”
The district court acknowledged the statements of the parties clarifying the meaning of the plea agreement and pronounced Godfrey’s sentence with the recommendation that “the Secretary of Corrections consider very strongly having [Godfrey] transferred to Larned State Hospital. I believe that would be to [Godfrey’s] benefit at this point and time. But I believe that’s also consistent with the agreement that the parties reached in this case.”
Godfrey’s Claim Is Not Preserved for Review
On appeal, Godfrey’s only claim is that the State violated tire plea agreement and thus violated his constitutional due process rights. Godfrey argues that the agreement was ambiguous and should have been interpreted to impose Godfrey’s original understanding of the terms'—i.e., that the State would ask the court to commit him to Larned in lieu of sentencing pursuant to K.S.A. 22-3430. But we decline to reach the merits of Godfrey’s claim because he has failed to preserve it for appellate review.
Even absent a motion to withdraw a plea, we have considered such claims so long as a contemporaneous objection was lodged. See State v. Urista, 296 Kan. 576, 595, 293 P.3d 738 (2013); State v. Peterson, 296 Kan. 563, 565, 293 P.3d 730 (2013). But here, Godfrey neither filed a motion to withdraw his plea after the initial confusion, nor did he object to the State’s recommendation at sentencing. In fact, Godfrey’s counsel affirmatively accepted the State’s interpretation of the plea agreement.
Without a contemporaneous objection, Godfrey’s claim is being asserted for the first time on appeal and is subject to the general rule that alleged constitutional violations cannot be raised for the first time on appeal. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). While we will not generally review constitutional claims raised for the first time on appeal, we do make exceptions:
“Despite the general rule, appellate courts may consider constitutional issues raised for the first time on appeal if the issue falls within one of three recognized exceptions: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of tlie claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court is right for the wrong reason. State v. Spotts, 288 Kan. 650, 652, 206 P.3d 510 (2009).” State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
But an exception must be invoked by the party asserting the claim for the first time on appeal. Kansas Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 41), describing the required contents of an appellant’s brief, clearly states those briefs must include:
“The arguments and authorities relied on, separated by issue if there is more than one. Each issue must begin with citation to the appropriate standard of appellate review and a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on. If the issue was not raised below, there must be an explanation loluj the issue is properly before the court.” (Emphasis added.)
We have recently reiterated that Rule 6.02(a)(5) means what it says and is ignored at a litigant’s own peril. See State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). As was the case in Williams, Godfrey’s appellate brief makes no reference to preservation of the issue and gives no explanation why his claim is prop erly before this court. Rather, Godfrey simply argues the merits of his allegation that the State breached the plea agreement and violated his due process rights. Further, after the State raised a lack of preservation in its brief, Godfrey failed again to proffer any reason why this court should hear his claim in a reply brief. This complete failure to follow our rules continues to puzzle us, as it did in Williams. 298 Kan. at 1085.
We reached the merits in Williams due in part to tire fact that we had previously allowed the land of claim Williams asserted to be made for the first time on appeal. 298 Kan. at 1085. But we likewise included a warning to future litigants in Williams that Rule 6.02(a)(5) would, in the future, be strictly enforced. 298 Kan. at 1085. We are now sufficiently post -Williams that litigants have no excuse for noncompliance with Rule 6.02(a)(5). The rule, of course, predates Williams and has been previously invoked when a party fails to explain why an unpreserved issue should be reviewed for the first time on appeal. See State v. Johnson, 293 Kan. 959, 963-64, 270 P.3d 1135 (2012). Moreover, there is no precedent-—as there was in Williams—permitting the kind of constitutional claim Godfrey asserts to be raised for the first time on appeal.
In sum, Godfrey makes no effort to explain why our review of this unpreserved constitutional issue is warranted. Therefore, as in Williams, we deem the appellant’s brief woefully insufficient. We decline to reach the merits of Godfrey’s single issue on appeal as he failed to preserve his claim with a contemporaneous objection, and the possible application of an exception permitting review for the first time on appeal has been abandoned by Godfrey s failure to brief it. See Williams, 298 Kan. at. 1083.
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Green, J.:
Jose Delacruz was convicted of direct criminal contempt of court and was sentenced to 9 years’ imprisonment. On appeal, Delacruz raises six issues: (1) that he was exercising his right to remain silent under the Fifth Amendment to the United States Constitution; (2) that a special prosecutor should have tried the case; (3) that his contempt was a single ongoing event rather than three separate events; (4) that the delay in filing and docketing his appeal deprived him of due process; (5) that his 9-year sentence was excessive and the result of bias and prejudice; and (6) that cumulative errors deprived him of due process and a fair trial. Finding no merit in these arguments, we affirm.
On April 15, 2010, Delacruz was charged with first-degree murder and aggravated robbery. Delacruz and codefendant, Anthony Waller, were charged in connection with the death of Joshua Haines. On December 17, 2010, a jury convicted Delacruz of aggravated robbery but acquitted him of the first-degree murder charge. Delacruz was sentenced to 83 months in prison. Delacruz’ conviction and sentence were affirmed on direct appeal in State v. Delacruz, No. 106,082, 2012 WL 1352865 (Kan. App. 2012) (unpublished opinion), rev. denied 299 Kan. 1271 (2014).
Wallers trial began on February 28, 2011, and Delacruz was subpoenaed as a witness. Ten days before Wallers trial began, the trial court held a hearing regarding Delacruz’ request to plead his Fifth Amendment right to remain silent. Delacruz acknowledged that the State of Kansas had given him a grant of use immunity, but he argued that this immunity did not protect him from potential federal prosecution. The trial court took the matter under advisement.
On February 21, 2011, while waiting for the courts decision, Delacruz received a letter from United States Attorney for the District of Kansas Barry R. Grissom. The letter stated that Grissom was familiar with the facts of Delacruz’ case and that no federal prosecution against him was warranted or would be forthcoming for his involvement in the murder of Haines.
The next day, the trial court issued an order stating: “K.S.A. 22-3415 confers upon the District Attorney the authority to grant use and derivative immunity. Written immunity has been granted by the District Attorney to Jose Delacruz. Therefore, Jose Delacruz will be compelled to testify in the trial of the above captioned matter.”
Delacruz appeared in front of Judge Timothy Chambers three separate times on March 1, March 2, and March 4, 2011, and each time he refused to testify.
Between jury selection and opening statements for Waller’s trial, the following exchange occurred:
“THE COURT: Mr. Delacruz, you want to come sit up in the witness stand? Have a seat, sir.
"We are now back on the record on State versus Waller. Both counsel are present with the defendant. The jury is not present. On tire witness stand is Jose Delacruz who is a subpoenaed witness of the state. Mr. Delacruz is a co-defendant and has been previously convicted of the offense of aggravated robbeiy and been sentenced for that offense.
“Through his counsel, Alice Osbum, there ha[ve] been indications that Mr. Delacruz is going to refuse to testify. Ms. Osburn is presently in a jury trial in Wichita, but we are commencing trial. So what the court intends to do is, Mr. Delacruz, are you going to refuse tire subpoena to testify in this case or not?
“MR. DELACRUZ: Yes.
“THE COURT: I will find you in direct contempt of court for disobeying a direct order of this court. I will impose a[n] appropriate sentence when Ms. Os-burn is present. I believe that you should have counsel to make any statements when you’re found in contempt. Then you have a right to offer an explanation to the court.
“Apparendy she is under subpoena for Wednesday at, at some point. But when she ... is available we will bring you back to court and I will impose tire sentence that in all likelihood, tire law indicates the maximum sentence I can sentence you to is 6 months in the county jail of which you will get no credit on any of your other sentences. But we will wait until Ms. Osburn appears.
“And obviously you may purge yourself of contempt at any time that you decide you are going to obey the orders of the court. And I believe that’s all I can do this morning in regards to that till we can get Ms. Osburn here, so you can take Mr. Delacruz back to jail.
“JAILER: Thank you, judge.”
Then, on March 2, 2011, 15 witnesses into the Waller trial, the following exchange occurred:
"THE COURT: Mr. Schroeder.
“MR. SCHROEDER: Judge, we issued another subpoena for Mr. Delacruz at 1:30 this afternoon. Alice Osbum is in the hallway; I don’t know whether you want to take that up as well.
“THE COURT: If they can get him up here within the next 5 minutes we can take that up at 5 minutes till 3:00. We’re in recess.
“(A recess is taken. Court reconvenes with counsel, the defendant, the witness Delacruz, and his counsel Alice Osbum present.)
“THE COURT: We are back on the record on State versus Waller, 10 CR 291. Counsel and defendant are present. The jury is in the jury room.
“In the witness stand is Jose Delacruz. Mr. Delacruz has been subpoenaed as a witness by tire State of Kansas. Mr. Delacruz was brought up prior to trial and indicated he would refuse to testify.
“Are you going to testify, Mr. Delacruz?
“[MR. DELACRUZ]: No.
“THE COURT: I’m ordering you to testify. Are you going to testify?
“[MR. DELACRUZ]: No, I’m not.
“THE COURT: You’re indicating that you’re disobeying a direct order of this court?
“[MR. DELACRUZ]: Yes.
“THE COURT: I have two options, Mr. Delacruz. One is I can sentence you right now to 6 months in the Reno County Detention Center. I cannot sentence you any further to that unless I have a jury trial to find out a finding of contempt. If, in fact, such a jury trial is held, that I am not bound by the 6-month restriction. I can send you to jail as long as I feel appropriate under the facts and circumstances.
"Since I believe under the facts and circumstances a 6-month sentence is not appropriate I’m going to set tire matter for a jury trial and a jury will decide whether you are in contempt of court, so I can comply by United States constitutional law and the law as set out by the Kansas Supreme Court. So that if you are found in direct contempt of court that I can impose what I feel is an appropriate sentence.
“You may purge yourself of that contempt by testifying before this trial is over. I would strongly suggest you speak to Miss Osburn based upon what I have just said and the possible ramifications of that statement that I have just made.
“After the things I have just said, Mr. Delacruz, are you still refusing the direct order of this court to honor the subpoena?
“MR. DELACRUZ: Yes.”
Next, on March 4, 2011, the following exchange occurred with Delacruz present via video from the Reno County Detention Center:
“[THE COURT:] The only question I’m going to ask you, Mr. Delacruz, are you still refusing the direct order of the court to testify?
"MR. DELACRUZ: Yes, I am.
“THE COURT: That’s what I needed to know this morning, Mr. Delacruz. We will proceed with the contempt proceeding then with your hearing with a jury. That’s all today.
“MR. DELACRUZ: All right. Thank you.”
On March 7, 2011, a jury convicted Waller of first-degree murder and aggravated kidnapping. Delacruz did not purge himself of contempt by testifying before Wallers trial ended.
In May 2011, at the direction of the court, the State filed an accusation of contempt that charged Delacruz with three counts of criminal contempt based on his refusal to testify against Waller. The State noted that Delacruz refused three separate orders to testify. Delacruz’ refusal resulted in him being unavailable for cross-examination, which resulted in his video recorded statements being inadmissible in the Waller trial. The State asked for a controlling sentence of 9 years in prison to be served consecutive to his 83-month prison sentence for aggravated robbery. The trial court then filed its own accusation of contempt that was much more concise and made no mention of die contempt being three separate charges. Delacruz pled not guilty, and the matter was set for trial.
On the morning of trial, Delacruz filed a motion to dismiss for double jeopardy, a motion to appoint a special prosecutor, and a motion to dismiss for violation of his Fifth Amendment right against self-incrimination. The trial court denied all of his motions.
After his motions were denied, Delacruz formally waived his right to a jury trial and the case was submitted to the trial judge based on stipulated facts. After hearing arguments, the trial judge stated:
“There is really no doubt that Mr. Delacruz didn’t comply with a direct order from District Judge Timothy J. Chambers, Division II, to testify in the Anthony Waller case and based upon my previous rulings there is no reasonable basis for him to have claimed the right not to testify under the Fifth Amendment so his refusal to testify was unlawful, was willful, was intentional and felonious and occurred here in Reno County in this court. The Court finds the defendant is guilty beyond a reasonable doubt of felony criminal contempt of court as alleged in the accusation.”
After finding Delacruz guilty of contempt, the court immediately proceeded to sentencing. The State asked for a 3-year sentence for each separate refusal for a total of 9 years to be served consecutive to Delacruz’ aggravated robbeiy sentence. Delacruz asked for a 6-month sentence. The trial court ultimately adopted the State’s sentencing recommendation and ordered Delacruz to serve 9 years in prison to be served consecutive to his aggravated robbery sentence.
On November 10, 2011, Delacruz timely filed his notice of appeal. After numerous delays, this case was argued nearly 4 years later.
Did Delacruz Have a Valid Fifth Amendment Right to Remain Silent That Defeated His Finding of Guilt for Direct Contempt?
In Iris first issue on appeal, Delacruz argues that he should have been allowed to invoke his constitutional right to remain silent even though he was given immunity from prosecution or punishment in accordance with K.S.A. 22-3415. Specifically, Delacruz maintains that the immunity did not provide protection from federal prosecution; therefore, he should have been able to invoke his constitutional privilege against self-incrimination.
The purpose of immunity statutes is to “seek a rational accommodation between the imperatives of the privilege [against self-incrimination] and the legitimate demands of government to compel citizens to testily.” Kastigar v. United States, 406 U.S. 441, 446, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). In Kansas, K.S.A. 22-3415 is the statute dealing with the privilege against self-incrimination and grants of immunity. K.S.A. 22-3415 provides:
“(a) The provisions of law in civil cases relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of tire parties, shall extend to criminal cases so far as they are in their nature applicable, unless other provision is made by statute.
“(b) The county or district attorney, or die attorney general, may at any time, on behalf of die state, grant in writing to any person:
(1) Transactional immunity. Any person granted transactional immunity shall not be prosecuted for any crime which has been committed for which such immunity is granted or for any other transactions arising out of the same incident.
(2) Use and derivative immunity. Any person granted use and derivative use immunity may be prosecuted for any crime, but the state shall not use any testimony against such person provided under a grant of such immunity or any evidence derived from such testimony. Any defendant may file with the court a motion to suppress in writing to prevent the state from using evidence on the grounds that the evidence was derived from and obtained against the defendant as a result of testimony or statements made under such grant of immunity. The motion shall state facts supporting the allegations. Upon a hearing on such motion, the state shall have the burden to prove by clear and convincing evidence that the evidence was obtained independently and from a collateral source.
“(c) Any person granted immunity under either or both subsections (b)(1) or (2) may not refuse to testify on grounds that such testimony may self incriminate unless such testimony may form the basis for a violation of federal law for which immunity under federal law has not been conferred. No person shall be compelled to testify in any proceeding where the person is a defendant.
“(d) No immunity shall be granted for perjury as provided in K.S.A. 21-3805, and amendments thereto, which was committed in giving such evidence.”
The written grant of use immunity given to Delacruz reads as follows:
“COMES NOW the Plaintiff, State of Kansas, by and through Reno County District Attorney of the 27th Judicial District, Keith E. Schroeder, pursuant to the authority vested in me as District Attorney, by K.S.A. 22-3415(a) and (c), do hereby grant to: Jose G. Delacruz, immuniiy from the use of any testimony given in the above-captioned matter on February 28, 2011 through March 9, 2011. I, Keith E. Schroeder, District Attorney, grants [sic] this use immunity as described above with the legal assurance that such testimony will not be used against Jose G. Delacruz in any potential future case against Jose G. Delacruz. I, Keith E. Schroeder, District Attorney, condition this grant of use immuniiy as described on the condition that the testimony of Jose G. Delacruz must be truthful.”
The State relies on In re Birdsong, 216 Kan. 297, 531 P.2d 1301 (1975), to support its argument that Delacruz did not have a valid Fifth Amendment right to refuse to testify. In Birdsong, the defendant was granted immunity but still refused to testify, arguing that his immunity did not protect him from federal prosecution. In rejecting the defendants claim, our Supreme Court analyzed K.S.A. 22-3415 and held that the witness may be compelled to testify “[i]f the written grant of immunity contains no limitations which limit the constitutional privilege against self-incrimination or render the witness subject to federal prosecution.” 216 Kan. at 303. The court further held:
“The grant of immunity pursuant to the Kansa's statute (K.S.A. 22-3415 [Weeks]) affords a witness protection from self-incrimination in state prosecutions and under the federal case law a similar protection from federal prosecutions is afforded on account of any transaction or matter contained in any statement or about which such witness shall be compelled to testify. Such compelled statement or testimony shall not be used against such witness in any prosecution for a crime, state or federal.” 216 Kan. at 303.
Delacruz incorrectly argues that the holding in Birdsong applies only to cases involving transactional immunity and not use immunity which was given in this case. The Birdsong court even stated that under K.S.A. 22-3415, “[i]t appears from our reading of the statute that both a transactional immunity and a use immunity is provided.” 216 Kan. at 304. Thus, based on Birdsong it seems that a grant of immunity protects the witness from self-incrimination for any future state or federal prosecutions.
The plain language of the statute also supports the trial courts finding that Delacruz was not entitled to a valid Fifth Amendment right to refuse to testify. As stated earlier, “[a]ny person granted immunity ... may not refuse to testify on grounds that such testimony may self incriminate unless such testimony may form the basis for a violation of federal law for which immunity under federal law has not been conferred.” (Emphasis added.) K.S.A. 22-3415(c). In this case, Delacruz was clearly granted immunity from the State. In addition to that immunity, Delacruz also received a letter from United States Attorney Barry R. Grissom, informing Delacruz that the United States Attorney’s Office for the District of Kansas had no federal interest in this matter and that no federal prosecution was warranted. The letter plainly stated that it did not constitute a formal grant of immunity, but it explained that it was unlikely that any federal offense was committed in this case and, therefore, no federal prosecution would result from Delacruz testifying.
Under the plain language of K.S.A. 22-3415(c), Delacruz has failed to establish that his testimony might form the basis for a violation of federal law. Moreover, while the letter was not a formal grant of immunity from federal prosecution, it clearly stated that no federal prosecution would be forthcoming.
Based on these facts, we determine that Delacruz has failed to show that he had a valid Fifth Amendment right to refuse to testify.
Did the Trial Court Err in Failing to Request a Special Prosecutor?
Next, Delacruz argues that the trial court erred in failing to request a special prosecutor to prosecute Delacruz for contempt. Delacruz asserts that a special prosecutor was necessary in this case because the district attorney who prosecuted his contempt case was the same district attorney who prosecuted him for first-degree murder, for which he was acquitted. Delacruz maintains that the district attorney asked for such a long sentence for his contempt conviction because the district attorney was tiying to make up for losing the murder conviction.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S. Ct. 91 (2014).
Regarding contempt proceedings, K.S.A. 20-1206 states: “Upon request by a district judge the attorney general shall furnish said court with a special prosecutor to prosecute contempt proceedings.”
Under K.S.A. 20-1206, the trial court is not required to request a special prosecutor; it simply states that the trial court may request a special prosecutor. In this case, the trial court declined to request a special prosecutor, finding that it was unnecessary. Specifically, the trial judge held:
“I would note that it’s Chapter 20. It covers all contempts of court. Taking Miss Osburn’s argument to the logical conclusion, eveiy Friday in Reno County, Kansas the attorney general would be prosecuting 50 contempt citations for failure to pay child support in Reno County, Kansas if that statute actually implies what is suggested to me. Obviously, either all the courts in Kansas, all 238 State court judges are ignoring this statute or it doesn’t mean that. In fact, the first sentence just says this act so it’s the act that covers all the rules on how you do contempts; direct contempt, indirect contempt, criminal contempt, civil contempt, all of them. The second sentence provides that a district judge may request, not a district magistrate judge but a district judge may request that the attorney general provide a special prosecutor to prosecute contempt proceedings. If you’re going to have a special prosecutor upon request then you must have on [sic] the rest of the time a regular prosecutor and when I read this section as a whole and when I look back on my life experience I do recall cases in which district judges have had to request the appointment of a special prosecutor. For example, if I was to cite Mr. Schroeder in contempt of court I’d probably have to have an assistant attorney general come down here as a special prosecutor to prosecute him because we can’t really expect his assistants to prosecute him .... [s]o as to the motion to dismiss because it’s not brought by an attorney who is an assistant attorney general I find that that does not have merit.”
Aside from Delacruz’ allegations of bias against the district attorney, he has failed to show why a special prosecutor was necessary in this case. Moreover, even if the district attorney was biased against Delacruz which may have led to an excessive sentencing recommendation, the trial court judge makes the ultimate sentencing decision. In this case, Delacruz waived his right to a jury trial so his contempt case was presented on stipulated facts at a bench trial. Other than possibly recommending a lesser sentence, there was nothing else a special prosecutor could have done differently in this case. As a result, Delacruz’ argument fails.
Did the Trial Court Find That Delacmz’ Contempt Was Three Separate Events Instead of One Ongoing Event P
Next, Delacruz argues that “the information charging him with three counts of contempt, rather than one, and the conviction for three counts of contempt, rather than one, were contrary to long-. established law.” Delacruz maintains that his convictions must be reversed.
In his brief, Delacruz skips directly to the law on this issue without explaining what actually happened in his case. It is true that the States original accusation for contempt alleged three separate events of contempt and requested three separate convictions. Nevertheless, the trial court then wrote its own accusation for contempt that was much more concise and removed any language about three separate charges of contempt. The trial court’s accusation for contempt read as follows:
“This Court is informed that on or about the 28th day of February 2011 and continuing through tire 4th day of March 2011, one, Jose DeLaCruz, then and there being present, in Reno County, Kansas in the-presence of Timothy J. Chambers, the duly elected, qualified and acting District Judge, 27th Judicial District of Kansas Division II, did UNLAWFULLY, WILFULLY, INTENTIONALLY and FELONIOUSLY refuse to comply with an order of the District Court to appear and testify under oath as a witness in Case 2010 CR 291, State v. Anthony Waller, which was then in Felony Jury Trial with a jury duly impaneled sworn and receiving evidence, contrary to the dignity and respect of tire District Court and the peace and dignity of tire State of Kansas.”
On the record, the trial judge explained his reason for writing a new accusation for contempt:
“I cut it down because what the State alleged is too long and I believe that we’re talking about one, kind of a single impulse offense here. I’ve been doing some thinking. I don’t think it’s three contempts. I think that he had more than one opportunity to testify but I don’t think there’s a different motivation for each of them. I think it’s the sameone [sic], I mean, going into his mind.”
There is no evidence in the record to support Delacruz’ argument that he was charged and convicted of three separate counts of contempt. As stated earlier, the State did originally charge him with three separate counts but that was later corrected by the trial court. Moreover, although the trial court did ultimately accept the State’s sentencing recommendation, the trial court made it clear that it did not see this as three separate findings of contempt. Finally, the journal entry simply states that “[t]he Court finds the Defendant guilty beyond a reasonable doubt of Direct Criminal Contempt of Court, pursuant to K.S.A. 20-1203.”
Based on the record, Delacruz is incorrect when he argues that he was charged with and convicted of three separate counts of contempt. As a result, his argument fails.
Did the Delays in Filing and Docketing Delacruz’ Appeal Deprive Him of Due Process P
Next, Delacruz contends that his due process rights were violated as a result of the delays in appealing his contempt conviction and sentence. Delacruz argues that the unnecessary delay in filing and docketing his appeal, which was caused by the trial court’s insistence that Delacruz’ appeal be handled by the appellate defender office (ADO), violated his due process rights.'
To support his argument, Delacruz relies on Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994). The Hams court applied a four-factor speedy trial analysis established in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), to determine if the defendant’s due process rights to a timely appeal had been violated. Those four factors, known as the Barker test, are: (1) the length of the delay; (2) tire reason for the delay; (3) the defendant’s assertion of his or her right; and (4) prejudice to the defendant. 15 F.3d at 1559 (adopting factors from Barker, 407 U.S. at 530).
These factors have been applied by our court to determine whether a defendant’s due process rights have been violated by the delays in court proceedings. See State v. Bussart-Savaloja, 40 Kan. App. 2d 916, 920-21, 198 P.3d 163 (2008), rev. denied 288 Kan. 833 (2009); State v. McLinn, No. 104,882, 2014 WL 3843071, at *5-6 (Kan. App. 2014) (unpublished opinion) (applying Harris factors to determine if defendant’s due process right had been violated by delays), rev. denied 300 Kan. 1106 (2014).
Length of Delay
In this case, it was a 2jA-year delay between when Delacruz filed his notice of appeal and when his appeal was actually docketed. Our court has held that only the passing of an inordinate amount of time triggers due process concerns. A 2-year delay has been established as being presumptively inordinate. Bussart-Savaloja, 40 Kan. App. 2d at 921-22.
Here, Delacruz’ notice of appeal was filed on November 10, 2011, and we have not adjudicated his appeal until now. The State points out that some of the delay was caused by Delacruz’ counsel. For example, Delacruz’ appellate brief was not filed until over 9 months after his appeal was docketed. Additionally, Delacruz’ originally appointed private counsel had to withdraw due to a conflict of interest which caused a 4-month delay. Nevertheless, none of these facts mitigate the length of delay caused by the trial court’s refusal to allow die ADO to withdraw. That delay was just over 2 years, which is presumptively inordinate; therefore, this factor weighs in favor of a due process violation.
Reason for the Delay
Delacruz filed his notice of appeal on November 10, 2011. That same day the ADO was appointed to represent Delacruz. On January 9,2012, the ADO moved to withdraw claiming it could not represent Delacruz because it was not a felony conviction. On January 24, 2012, the trial court denied the motion. The next day, on January 25, 2012, the ADO filed a supplemental motion to withdraw. On August 21, 2013, the trial court eventually denied the supplemental motion (8-month delay). The trial court eventually agreed to appoint private counsel on December 18, 2013, after causing a 2-year delay. Unfortunately, on April 1, 2014, private counsel had to withdraw due to a conflict of interest. Delacruz’ current counsel was appointed on April 28, 2014 (4-month delay). Delacruz’ case was docketed on May 21,2014. Thus, it took 2½ years before Delacruz’ appeal was docketed with this court.
Thereafter, transcription delays were incurred between June 5, 2014, and August 29, 2014 (21A-month delay), appellant briefing required until February 23, 2015 (9 months), and briefing by the State required until April 27, 2015 (2 months). After briefing was completed, this court set the matter on an argued docket for September 2015. Delacruz has waited nearly 4 years for this decision.
The delays caused by transcripts and briefing are common for most appellate cases; what is uncommon is the over 2-year delay in appointing appropriate appellate counsel. Thus, this factor weighs in favor of a due process violation.
The Assertion of the Defendants Rights
Delacruz asserted his right to appeal immediately after sentencing. Additionally, on April 26, 2013, while waiting for the courts decision on the ADO’s supplemental motion to withdraw, Delacruz filed a letter with tire court requesting that he be appointed appellate counsel. And again, on June 28, 2013, Delacruz filed a pro se motion for appointment of counsel.
Delacruz did not just sit around and acquiesce to this 21A-year delay. Instead, Delacruz affirmatively asserted his right to a timely appeal. Therefore, this factor weighs in favor of a due process violation.
Prejudice to the Defendant
“Prejudice may result from any of the following: (i) oppressive incarceration pending appeal; (ii) constitutionally cognizable anxiety awaiting resolution of the appeal; or (iii) impairment of a defendant’s grounds for appeal or a defendant’s defenses in the event of a retrial.” Bussart-Scmaloja, 40 Kan. App. 2d at 925 (citing Harris, 15 F.3d at 1563-65).
The only prejudice that Delacruz asserts is that if his sentence were reduced he would be eligible for a lower level of security or possibly rehabilitative programs. This assertion has nothing to do with prejudice. Delacruz has failed to allege or establish any of the three prejudice factors. Delacruz has failed to show that he is being held in oppressive incarceration pending appeal because he is not being held on this charge yet. He is currently in prison for his aggravated robbeiy conviction. Delacruz has also failed to show anxiety or concern which requires a particularized and substantial showing of anxiety. See Harris, 15 F.3d at 1565. Finally, Delacruz has failed to show or allege that the delay impaired his grounds for appeal or his defenses for a retrial. As a result, this factor does not weigh in favor of a due process violation.
Balancing the Factors
After considering the four factors, we determine that Delacruz has failed to establish that the delay in the appeal process deprived him of his due process. Although three of the four factors suggest that Delacruz’ due process rights were violated, his failure to show substantial prejudice negates any violation. “[T]he necessity of showing substantial prejudice dominates the Barker test once a defendant has been convicted, and the first and second Barker factors do not compensate for a failure to timely assert the right or allege substantial prejudice. [Citation omitted.]” Bussart-Savaloja, 40 Kan. App. 2d at 926.
As a result, we conclude that Delacruz has failed to establish the delay in the appeal process has deprived him of due process.
Was Delacruz’ Sentence of 108 Months Excessive as a Matter of Law?
Next, Delacruz maintains that his sentence of 108 months for contempt was excessive as a matter of law. Delacruz concedes that the statutes which define contempt do not specify any penalties; nevertheless, he argues that the punishment must not be cruel, unusual or excessive.
Appellate courts apply a dual standard of review on appeal from a finding of contempt: We exercise unlimited review over tire question of whether the conduct is contemptuous and apply an abuse of discretion standard when reviewing the sanctions imposed. In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002). 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. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
In Kansas, contempt of court may be direct or indirect, criminal or civil. Direct contempt is an act “committed during the sitting of the court or of a judge at chambers, in its or his presence.” K.S.A. 20-1202. All other contempts are indirect. K.S.A. 20-1202. Under K.S.A. 20-1203, direct contempt may be summarily punished without a written accusation against the accused.
The contempt here was direct criminal contempt. Sanctions for criminal contempt are intended to punish the contemnor for disobedience or disrespect to the court. See State v. Jenkins, 263 Kan. 351, 352, 356-59, 950 P.2d 1338 (1997). Additional constitutional considerations become necessary when serious criminal contempt penalties are imposed. See State v. Shannon, 258 Kan. 425, 435-36, 905 P.2d 649 (1995) (jury trial is required where the sentence imposed for contempt of court exceeds 6 months).
Additionally, contempt is not a crime defined and set forth in our criminal code. K.S.A. 20-1201 et seq. governs contempt. In fact, “[n]o inherent power to punish for contempt exists independent of K.S.A. 20-1201 et seq.” Jenkins, 263 Kan. at 352. Moreover, the punishment for contempt is not regulated by the Kansas Sentencing Guidelines. A judgment of contempt lies within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Shannon, 258 Kan. at 435.
Aside from the 6-month jury trial requirement, the punishment for contempt of court is undefined. In this case, the State recommended that Delacruz receive 3 years for each refusal to testify based on the seriousness of die underlying murder trial. The State maintains that because first-degree murder is one of the most serious crimes committed in society, any effort to subvert justice deserves the stiffest possible penalty.
On die other hand, Delacruz correctly argues that the punishment for contempt is not determined by die level of the underlying case. Although in Kansas the sentencing guidelines base the punishment on the underlying crime, the sentencing guidelines do not apply to contempt convictions. Delacruz argues diat the trial court erred by essentially sentencing him according to the sentencing guidelines. To support his argument, Delacruz points to the trial judge’s statement: “This is more serious than armed robbery what you did, Mr. Delacruz
When sentencing Delacruz, the trial judge made the following additional statements:
“The question here is not, this is not a case where we’re talking about somebody not taking their hat off or saying a bad word or not standing to address the Court or interrupting another attorney where those things are somewhat disruptive and do not lead to creation of the land of atmosphere that we need to have in order for people to feel that when they come to court they can present, they can give their, they can present their case and witnesses can come to court and testify without having intimidation going in the courtroom or disruption or annoyance or disturbance. Those land of things, that’s, in my opinion, are a little on a different level and a different plane. What we have in this case is an attack against the whole, the very essence of the judicial process.
“The reason that we’re talking about celebrating Veterans Day tomorrow, thousands and thousands of veterans have sacrificed their fife to preserve our way of life; the most, in my opinion the most important of which is to have everyone treated the same, that in courts doesn’t matter who you are you have the same rights. Doesn’t matter who you are, you’re treated with the same respect and dignity and it doesn’t matter who you are if you’re the poorest person with the most depraved background, if you have a witness that you want to have testify and . . . that has relevant and admissible evidence in your case then you have the right to have that person brought to court and compelled to testify. Defendants charged with murder or other heinous crimes have the right to expect that if they have a witness that’s going to help present their defense that the Court will have the power to bring that person in and malee them testify in order to help them prove their innocence and what Mr. Delacruz has done is to say well, maybe not so fast. It doesn’t apply when I decide that I’m not going to be the witness.
“What I need to know is okay, what is a sufficient sentence to cause a person in Mr. Delacruz’s [sic] position to decide that he’d rather testify and take his chances with whatever repercussions there might be that his attorneys tell him about. What is enough years or months to get him to say I’m going to take the stand, I’m going to testify because I do not want to degrade the authority of the Court. It’s certainly not six months. It certainly has to be a number of years. It doesn’t matter whether Mr. Delacruz received an 83 month sentence or a life sentence, you know, because we’re not talking about his sentence for the crime that he was convicted of. We’re talking about what he did in this contempt.
‘What does this do to the dignity and the authority of the Court? I believe that I have a duty to, under Canon One and Canon Two under the [Code] of Judicial Conduct to maintain the authority and dignity of the Court and it’s not whether the attorney general came here. The attorney general would be assisting the Court by presenting evidence and making arguments to assist the Court in figuring out the Court’s duty but the duty to punish for contempt of court is not an executive branch function. It’s a duty that the Court has as a part of the essence of what a court is. We are separate and co equal branch of government and our purpose is to make sure that all parties have a tribunal in which they have access to compulsory process that’s effective. I don’t have anything to suggest that any sentence less than 108 months would be sufficient to charge the Court’s responsibility. I realize that’s more than he got for the robbery but tins is more serious than robbery. This is an attack against our judicial system. This is more serious than armed robbery what you did, Mr. Delacruz, so it’s the order and judgment and sentence of the Court that you serve 108 months in the custody of the Secretary of Corrections for contempt of court. It is consecutive to your 83 months [sic] sentence.”
An appellate court is to give deference to a trial courts sentence imposed for direct criminal contempt because the trial judge had the opportunity to observe the defendant and the proceedings. Because there are no sentencing guidelines in contempt cases, an appellate court must insure that the contempt power is not abused. In determining an appropriate sentence for criminal contempt, a court should consider tire following factors: “[1] the extent of the willful and deliberate defiance of the court’s order; [2] the seriousness of the consequences of the contumacious behavior; [3] the necessity of effectively terminating the defendant’s defiance as required by the public interest; and [4] the importance of deterring such acts in the future.” United States v. Mine Workers, 330 U.S. 258, 302-03, 67 S. Ct. 677, 91 L. Ed. 884 (1947).
Delacruz argues that “any punishment for contempt must not be cruel or unusual, must not be excessive, and may be mitigated by any circumstances of the case.” Delacruz further argues that this length of punishment for direct contempt seems to be an issue of first impression in the state of Kansas. Delacruz points out that a federal court had determined that a criminal contempt conviction for refusal to testify was a petty offense rather than a class A felony. The court held that a sentencing judge should look to the most analogous offense and sentence accordingly. See United States v. Carpenter, 91 F.3d 1282, 1283-84 (9th Cir. 1996).
The State argues that the sentence is not excessive for the following reasons: (1) Delacruz had no right to refuse to testify; and (2) due to Delacruz’ failure to testify, the State was prevented from introducing his statements which would have corroborated tire testimony of two other eyewitnesses whose credibility was hampered because of their drug-induced conditions, psychiatric impairment, and lengthy criminal records. The State also notes that Delacruz’ contemptuous acts in this particular case are in no way mitigated because Waller, the codefendant, was later found guilty of first-degree murder and aggravated kidnapping despite Delacruz’ refusal to testify. The State points to the severity of the underlying crimes and argues any effort to subvert justice in any criminal case would be inexcusable.
We agree with the State. The factors listed in Mine Workers, favor imposition of a substantial sentence. As to the first factor, Delacruz’ refusal to testify was willful and deliberate because he did not have a Fifth Amendment right not to testify. Additionally, regarding the second factor, the underlying crimes at issue here, first-degree murder and aggravated kidnapping, were serious and Delacruz’ failure to testify hindered the public interest in finding the truth and seeking justice. Finally, as to the third and fourth factors, the public interest in terminating the defiance and the importance of future deterrence both favor a substantial sentence. The 9-year sentence here properly deters future witnesses from refusing to testify and obstructing the administration of justice in serious criminal cases. The trial court specifically stated that Delacruz’ refusal to testify was “an attack against our judicial system.” A judgment of contempt lies within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. As a result, the trial court’s sentencing decision is entitled to deference. Accordingly, we cannot say that the trial court abused its discretion in imposing the 9-year sentence.
Recusal of Sentencing Judge
Delacruz also argues that the trial judge who sentenced him should have recused himself because he was biased. After he was sentenced, Delacruz filed a pro se motion for the judge to recuse himself and also a motion to modify his sentence.
In response, the State correctly points out that Delacruz specifically chose Judge McCarville to sentence him. The following discussion occurred at sentencing:
“[THE STATE]: Judge, that’s an interesting question as to which court should be doing the sentencing. I’m going to leave it to you or whomever but I’m going to raise the issue. The contempt happened in front of Judge Tim Chambers. I don’t know whether he would be the appropriate one to impose the sanction or since you’ve heard the trial. It doesn’t matter to me but I want to raise that issue, Judge.
“THE COURT: All right. Miss Osburn, anything on that?
“[DELACRUZ’ COUNSEL]: Could I have a minute to ask my client his position? (Counsel is conferring with client.) My client is asking for you to sentence him, Judge.”
A litigant may not invite error and then complain of the error on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). Based on the record, Delacruz clearly invited this error when he chose to have Judge McCarville sentence him; therefore, he cannot complain about him on appeal.
Did Cumulative Error Deprive Delacruz of Due Process P
Finally, Delacruz argues that the cumulative effect of several errors warrants reversal of his conviction.
“Cumulative trial errors, when considered collectively, may require reversal of the defendant’s conviction when the totality of circumstances substantially prejudiced die defendant and denied the defendant a fair trial. Notably, cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. Furthermore, a single error cannot constitute cumulative error.” State v. Waller, 299 Kan. 707, Syl. ¶ 4, 328 P.3d 1111 (2014).
Because we determined that no error occurred in this case, Delacruz’ claim of cumulative error is without merit.
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The opinion of the court was delivered by
Nuss, C.J.:
This case requires us to determine whether the Kansas saving statute applies to appeals from appraisers’ awards in eminent domain proceedings. Landowner David Neighbor timely filed his appeal under K.S.A. 2014 Supp. 26-508, and the district court later granted his motion to dismiss it without prejudice. About 5 months later Neighbor appealed again, relying upon K.S.A. 60-518 to save the appeal from an otherwise untimely filing frailty. The district court ruled the saving statute does not apply in an eminent domain appeal. So the court declared Neighbor’s second appeal untimely and dismissed it with prejudice.
We disagree with the district court. K.S.A. 2014 Supp. 26-508 provides that in eminent domain cases, “[t]he appeal shall be docketed as a new civil action, the docket fee of a new court action shall be collected and the appeal shall be tried as any other civil action.” Civil actions are generally governed by the time limitations in Article 5 of the Kansas Code of Civil Procedure, K.S.A. 60-101 et seq. Because Article 5 of the code includes K.S.A. 60-518, the saving statute applies to such eminent domain appeals. Accordingly, we reverse the district court’s dismissal and remand for further proceedings.
Facts
The facts are undisputed. In October 2011, Westar Energy, Inc. (Westar) sought an easement over real estate owned by Neighbor through a condemnation proceeding under the Eminent Domain Procedure Act (EDPA), K.S.A. 26-501 et seq. In accordance with the EDPA, the district court determined Westar had the power of eminent domain and that the taking was necessary to Westar’s lawful corporate purpose. It then appointed three appraisers to determine Neighbor’s compensation for the taking. See K.S.A. 2014 Supp. 26-504 (describing eminent domain procedure).
On Februaxy 6, 2012, the appraisers filed their report with the district court, and Westar paid the appraisers’ award to the clerk of the court. On February 27, 2012, Neighbor properly appealed their award to the district court under K.S.A. 2014 Supp. 26-508 by timely filing his notice of appeal.
On May 20, 2013, Neighbor filed a motion to dismiss his appeal without prejudice. The district court granted the motion on June 6.
Approximately 5 months later, on November 25, Neighbor filed a second notice of appeal, purporting to again appeal the appraisers’ award under K.S.A. 2014 Supp. 26-508. He also cited Kansas’ saving statute, K.S.A. 60-518, as authority for allowing his otherwise untimely second appeal. Westar moved to dismiss. It argued K.S.A. 60-518 does not apply to an appeal of an appraisers’ award permitted under K.S.A. 2014 Supp. 26-508 and therefore his second appeal should be barred as untimely.
After a hearing, the district court agreed with Westar, dismissing Neighbor’s appeal with prejudice. We have jurisdiction under K.S.A. 2014 Supp. 26-504, which provides for a direct appeal to this court of any final district court order under the EDPA.
Analysis
Issue: The district court erred hy dismissing Neighbors second appeal as untimely based upon its conclusion KS.A. 60-518 does not apply to an appeal of the appraisers’ award under the EDPA.
Neighbor contends the district court erred by granting Westar’s motion to dismiss because K.S.A. 60-518—the general saving provision contained in the code of civil procedure—allows his otherwise untimely second appeal. Westar responds the untimely appeal cannot be saved and the court properly dismissed it under our caselaw.
Standard of review and principles of statutory intei-pretation
This case requires us to interpret K.S.A. 2014 Supp. 26-508 and K.S.A. 60-518. We exercise unlimited review over questions of statutory interpretation. In re Estate of Strader, 301 Kan. 50, 55, 339 P.3d 769 (2014). In exercising our unlimited review, we acknowledge that
“[t]he fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if drat intent can be ascertained. When language is plain and unambiguous, diere is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.” 301 Kan. at 55.
Statutoiy language is “our paramount consideration because ‘the best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used.’ ” 301 Kan. at 55 (quoting State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 [2014]). But even when various statutory provisions are unambiguous, we may still construe them in pari materia with a view of reconciling and bringing the provisions into workable harmony. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013).
Discussion
K.S.A. 2014 Supp. 26-508(a) allows parties in an eminent domain action to appeal the appraisers’ award. It provides in pertinent part:
“If tire plaintiff, or any defendant, is dissatisfied with the award of the appraisers, such party, within 30 days after the filing of the appraisers’ report, may appeal from the award by filing a written notice of appeal with the cleric of the district court. The appeal shall be deemed perfected upon the filing of the notice of appeal. ... An appeal by the plaintiff or any defendant shall bring the issue of damages to all interests in the tract before the court for trial de novo. The appeal shall be docketed as a new civil action, the docket fee of a new court action shall be collected and the appeal shall be tried as any other civil action. The only issue to be determined therein shall be the compensation required by K.S.A. 26-513, and amendments thereto.” (Emphasis added.)
The parties agree Neighbor complied with this statute when he filed his initial notice of appeal in Februaiy 2012. But they disagree about whether he was entitled to again appeal in November 2013— this time relying upon K.S.A. 60-518—after his voluntary dismissal without prejudice. That statute provides:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.” K.S.A. 60-518.
Neighbor contends that once he perfected his initial appeal under K.S.A. 2014 Supp. 26-508, that statute’s express language requiring the appeal to “be tried as any other civil action” effectively deemed his appeal a new civil action to which K.S.A. 60-518 applies. So he argues that per the statute’s requirements, his initial action was commenced within due time; it failed but without prejudice; his statutory time limit for refiling expired; but he commenced his new action within 6 months of the failure.
Westar counters that the language of K.S.A. 2014 Supp. 26-508 applies only to tire trial phase of an eminent domain appeal, not to any pretrial proceedings. For support, Westar cites our decisions in Elwood-Gladden Drainage District v. Ramsel, 206 Kan. 75, 476 P.2d 696 (1970), and City of Wellington v. Miller, 200 Kan. 651, 438 P.2d 53 (1968). In Ramsel, we suggested a predecessor to K.S.A. 2014 Supp. 26-508 “ ‘applies to the presentation of the facts and not to the formation of the pleadings.’ ” 206 Kan. at 77 (quoting Miller, 200 Kan. at 652).
We reject Westar’s argument and agree with Neighbor. K.S.A. 2014 Supp. 26-508 expressly provides in relevant part: “The appeal shall be docketed as a new civil action, the docket fee of a new court action shall be collected and the appeal shall be tried as any other civil action.” Considering these independent clauses together, the statute requires an eminent domain appeal, including pretrial proceedings, to proceed as any other civil action.
As a “civil action,” an eminent domain appeal is generally governed by the time limitations in Article 5 of the code of civil procedure, K.S.A. 60-101 et seq. See K.S.A. 60-501 (“The provisions of this article govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute.” [Emphasis added.]). The saving statute, K.S.A. 60-518, is one of those provisions included in Article 5. While K.S.A. 2014 Supp. 26-508 does provide a different time limitation for filing an eminent domain appeal—30 days from the filing of the appraisers’ report—neither it nor the rest of the EDPA specifically provides a time limitation different from the code of civil procedure for saving a dismissed eminent domain appeal, i.e., a civil action. Accordingly, Neighbor is entitled to file his eminent domain appeal under this saving statute within 6 months of the initial dismissal without prejudice. So tire district court erred by dismissing his second appeal as untimely.
En route to this conclusion, we specifically reject Westar s contrary reading of K.S.A. 2014 Supp. 26-508 for at least two reasons. First, it is too narrow. Because the EDPA provides no procedure for pretrial proceedings between the docketing of an appeal and trial, Westar s reading would require parties to proceed directly to trial without such procedures, or at least without ones that are uniform throughout the state. We reject this interpretation of the statute as unreasonable. See Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, Syl. ¶ 9, 132 P.3d 870 (2006) (statutes are construed to avoid unreasonable results). Rather, we read the relevant provisions of the saving statute and EDPA together to bring the provisions into workable harmony. See Northern Natural Gas Co., 296 Kan. at 918 (court may read statutory provisions in pari materia). And the absence of any EDPA provisions regarding pretrial proceedings additionally supports our conclusion that K.S.A. 2014 Supp. 26-508 generally requires Chapter 60 of the Kansas statutes to govern them.
Second, we reject Westar s reading of the statute because its reliance on Ramsel and Miller is misplaced. We previously have cast significant doubt on the continuing validity of the specific language Westar cites from those cases. For example, in Landau Investment Co. v. City of Overland Park, 261 Kan. 394, 409, 930 P.2d 1065 (1997), this court stated that the 1968 holding in Miller “that the language in K.S.A. 26-508 ‘applies to the presentation of the facts and not to the formation of the pleadings/ [citation omitted], must be viewed in die context of [the specific statute addressed in Miller] and not Chapter 60 in its entirety.” And based on our conclusion in the instant case, we now expressly disapprove the suggestion in Miller and Ramsel that K.S.A. 2014 Supp. 26-508 only governs the trial in an eminent domain appeal.
Westar also argues our language-based approach fails to account for the general “nature” of the EDPA. According to Westar, this nature requires an expedited resolution of eminent domain proceedings. See, e.g., K.S.A. 2014 Supp. 26-504 (providing appeals to the Supreme Court in eminent domain proceedings “shall take precedence over other cases”)- And K.S.A. 60-518 purportedly counteracts or contravenes that nature by permitting tire proceedings to be prolonged.
Westar apparently gleans this argument from Landau. There, we examined our precedent addressing the application of the code of civil procedure in three eminent domain appeals. 261 Kan. at 407-08 (discussing State Highway Commission v. Lee, 207 Kan. 284, 485 P.2d 310 [1971]; City of Wellington v. Miller, 200 Kan. 651; Diefenbach v. State Highway Commission, 195 Kan. 445, 448, 407 P.2d 228 [1965]). Synthesizing these cases, we concluded: “On the whole, [an eminent domain] appeal is conducted as any civil trial. However, if a provision of the civil procedure code counteracts or contravenes the nature of the [EDPA], the civil procedure code will not be applied.” (Emphasis added.) 261 Kan. at 409.
Despite its reference to Landau, Westar’s argument about tire general nature of the EDPA is unpersuasive because our first duty is to interpret the actual statutoiy language. Because our holding in Landau suggests otherwise, we now clarify its rule so it conforms to our obligation to first interpret a statute’s actual language. As noted, the language of K.S.A. 2014 Supp. 26-508 generally requires an eminent domain appeal in district court to proceed as any civil action. So when determining whether a particular provision in the code of civil procedure actually applies to these appeals, we reject Landau’s emphasis on tire overall “nature” of the EDPA. Instead, we hold the code applies unless the Chapter 60 provision at issue contradicts a more specific provision in the EDPA. This holding is consistent with our rule that a specific statute controls over a general one. See Vontress v. State, 299 Kan. 607, 613, 325 P.3d 1114 (2014) (a specific statute controls over a general one when the relevant provisions overlap).
Finally, Westar argues we should affirm the district court’s dismissal based on our pre-EDPA decision in Howard v. State Highway Commission, 181 Kan. 226, 311 P.2d 313 (1957). There, tire State Highway Commission condemned a parcel of land for highway purposes. The landowner appealed the appraisers’ award, but the district court eventually dismissed the case without prejudice. The landowner moved to “reinstate” tire matter, but the district court denied the attempt. The landowner then appealed to this court, which ultimately dismissed the appeal.
While the Howard' landowner’s appeal was pending before this court, he filed a new action in the district court. Although the language is unclear, it appears the district court then changed course and, instead of treating the filing as a new action, chose to reinstate the landowner’s initial appeal of the appraisers’ award. The court conducted a jury trial after the reinstatement, which ultimately produced an award lower than the one from the initial appraisers. So the landowner appealed the second case to this court, arguing the district court lacked jurisdiction over the jury trial.
The district court had not relied on the saving statute then in effect, G.S. 1949, 60-311, when it permitted the reinstated appeal and subsequent jury trial. Nevertheless, this court addressed whether the saving statute applied to an eminent domain appeal under G.S. 1949, 26-102. This precursor to K.S.A. 2014 Supp. 26-508 provided that after a written notice of appeal was filed with the clerk of the district court, “an action shall be docketed and tried the same as other actions.” Without much, if any, analysis, the Howard court stated “the saving statute from its veiy terms would not apply” and noted further “that the eminent domain statutes (G.S. 1949, chapter 26, article 1) are special statutes providing for their own procedure, and [the saving statute], is, of course, not included therein.” 181 Kan. at 228. The court then analyzed the issue of the reinstatement of the landowner’s appeal, concluding the district court should have not considered the second filing as a reinstatement because it lacked jurisdiction to reinstate.
We disagree with Westar that Howard bars Neighbor from relying upon K.S.A. 60-518. Although the Howard court admittedly suggested it would have reached the opposite conclusion we do now, that intimation is insufficient to overcome the current and controlling language of K.S.A. 2014 Supp. 26-508. Moreover, the Howard court’s analysis focused on the district court’s erroneous reinstatement of the landowner’s initial appeal—not the saving statute. Its reference to the saving statute essentially was unrelated to the controlling rationale of the case and thus dictum, which we decline to follow. See Johnson v. Westhoff Sand Co., 281 Kan. 930, 946, 135 P.3d 1127 (2006) (dictum is a judicial comment that is unnecessary to the decision in the case) (citing Black’s Law Dictionaiy 1102 [8th ed. 2004]); see also Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 716, 317 P.3d 70 (2014) (dictum does not bind court in future cases).
Judgment of the district court dismissing the case with prejudice is reversed, and the case is remanded to that court for further proceedings.
Biles, J., not participating.
Michael J. Malone, Senior Judge, assigned. | [
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The opinion of the court was delivered by
Biles, J.:
This appeal arises after a civil jury declared Kodi A. Thomas to be a sexually violent predator under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. Thomas claims the district court erred by: (1) permitting the State’s experts to testify about hearsay statements contained within his treatment records; and (2) improperly instructing on the State’s burden of proof. We affirm because the hearsay challenge was not preserved for appellate review and the jury instruction deviation from our pattern instructions does not require reversal under our standard of review.
Factual and Procedural Background
Thomas was convicted in 1996 of attempted rape and aggravated burglary. Near the end of his prison sentence, the State sought to involuntarily commit him under the KSVPA. Thomas stipulated there was probable cause, so he was committed to Larned State Hospital for evaluation. A jury later found Thomas to be a sexually violent predator subject to civil commitment. Thomas timely appealed.
At the Court of Appeals, Thomas raised three issues: (1) sufficiency of the evidence; (2) whether the district court violated his due process right to confront witnesses under the Confrontation Clause of the Sixth Amendment to the United States Constitution when it allowed the State’s expert witnesses to give opinions based on hearsay; and (3) whether the district court violated his due process rights by giving an erroneous reasonable doubt instruction. Finding no error within its standard of review, the panel unanimously affirmed. In re Care & Treatment of Thomas, No. 108,563, 2013 WL 5976064, at *8 (Kan. App. 2013) (unpublished opinion).
Thomas petitioned this court for review of his second and third challenges regarding the Confrontation Clause and reasonable doubt instruction. This court granted review on these issues. Jurisdiction is proper. K.S.A. 2014 Supp. 60-2101(b) (review of Court of Appeals opinion upon petition for review). Additional facts will be presented when pertinent.
Confrontation Clause Challenge Not Preserved
At the involuntaiy commitment trial, the State presented testimony from two psychologists: Dr. Janet Kohrs, who performed a prerelease evaluation for the Department of Corrections; and Dr. Gregory Shannon, who assessed Thomas during his Larned com mitment for evaluation after the probable cause determination. Based on speaking to Thomas and the records available to her, Kohrs testified she believed Thomas would engage in sexually violent acts in the future and would not be able to control his behavior outside of a structured environment.
Without objection, Kohrs explained her opinions by reading verbatim from disciplinary reports maintained by the Department of Corrections that chronicled Thomas’ various sexual infractions while in prison. Also without objection, she testified the records she received from 2006 when Thomas was transferred for a period of time to Lamed for treatment of symptoms of paranoid schizophrenia reflected that Thomas had been warned by staff for openly masturbating in his room and staring at women’s buttocks and that Thomas persisted in this conduct despite numerous attempts at redirection. Following Kohrs’ cross-examination, the State moved on redirect to admit Kohrs’ written report, which contained this same information. Without objection, the report was admitted into evidence.
The State’s second medical expert, Shannon, also testified that Thomas posed a high risk of reoffending if released. He said Thomas’ mental abnormalities and personality disorder—namely cognitive difficulties, schizophrenia, and voyeurism—impaired Thomas’ ability to control his dangerous behavior. He said Thomas’ propensity to commit acts of sexual violence posed a menace to others’ health and safety.
During Shannon’s testimony, the State asked if he was aware of incidents in which Thomas engaged in exhibitionism while at Lar-ned. Shannon responded that he had reviewed about half a dozen nursing notes chronicling such events. These nursing notes discussed the same incidents of misconduct in which Thomas openly masturbated in his room and stared at women’s buttocks. When the State asked Shannon to testify about the first note, Thomas objected on confrontation grounds, arguing that “[t]he individual that made this record, the statements, are not available and we can’t cross-examine them . . . .” In response, the State argued the notes were not hearsay because it was not trying to prove the truth of the matters stated but simply asking about information Shannon had received that he later relied on in forming his opinions.
Thomas responded that “I guess my argument there would be whether there has been appropriate foundation that the opinion that this doctor relied on is reasonably relied on and regularly relied on in the field specialty.” The district judge asked the State to “flesh out that foundation” before proceeding further, so Shannon explained how information about previous hospitalization was useful in making a diagnosis and that he regularly relies on such information to do so, as do others in his field of practice. Shannon then read the notes verbatim into evidence without further objection. Shannon’s report, which extensively quoted from the nursing notes, was admitted into evidence after Thomas completed Shannon’s cross-examination without objection.
The Court of Appeals held that Thomas failed to preserve the Confrontation Clause issue for appeal. In re Care & Treatment of Thomas, 2013 WL 5976064, at *3-5. The panel observed the trial court never actually ruled on Thomas’ objection to the nursing notes or made factual findings as to whether the notes were testimonial in nature and that Thomas never objected to the lack of factual findings. This was significant, the panel observed, because appellate courts do not make factual findings and the burden is on the party making a claim to designate a sufficient record for appeal. 2013 WL 5976064, at *4.
The panel further noted Thomas failed to raise a timely objection to the nursing notes’ admission as required by K.S.A. 60-404 because Thomas modified his objection to focus on foundation, to which the State provided evidence in response; and then Thomas failed to raise further objection before Shannon began reading the notes into evidence. The panel also observed that Thomas failed to object to the admission of Shannon’s report, which contained the quoted material read into the record. Finally, the panel commented that Thomas did not object to Kohrs’ similar trial testimony, “waiving or abandoning the same admissibility issue as it relates to Dr. Kohrs.” 2013 WL 5976064, at *5.
In his petition for review, Thomas claims first that he had filed a pretrial motion to exclude this testimony that was never ruled upon. But no such motion is in the record on appeal, and we can find no evidence such a motion was filed. It was Thomas’ burden to establish an adequate record. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012) (parly claiming an error occurred has the burden of designating a record that affirmatively shows prejudicial error). Thomas further argues he contemporaneously objected to the nursing notes, but he concedes his objection was not renewed or clarified after Shannon provided the additional foundation requested.
We agree with the panel’s reasoning and hold Thomas failed to preserve this issue for appeal under K.S.A. 60-404, which provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision 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 the objection.” (Emphasis added.)
In this case, Thomas initially asserted an objection on confrontation grounds; but after the State responded, the colloquy focused on foundation and the district court instructed the State to “try and flesh out that foundation before you proceed.” After that, Shannon gave a more detailed explanation about the files available to him and then read from the nursing notes without further objection or a request for a continuing objection. Shortly thereafter, Shannon’s report was admitted into evidence without objection and its contents detailed the same nursing notes at issue in this appeal.
As an alternative argument, Thomas contends he should be allowed to raise his constitutional claim for the first time on appeal. But this court has explained that appellants asserting Confrontation Clause challenges may not circumvent K.S.A. 60-404, otherwise the exceptions would devour the statutory rule. See State v. Williams, 299 Kan. 509, 548-50, 324 P.3d 1078 (2014) (appellate court will not overlook lack of an objection as required by K.S.A. 60-404 even if appellant argues appellate review is necessary to Serve the ends of justice or prevent the denial of defendant’s right to a fair trial; citing other cases). We again reject this backdoor approach.
Instructional Error Harmless
Thomas argues next that the reasonable doubt instruction er roneously informed the jury it could find him to be a sexual predator without finding proof beyond a reasonable doubt of each required element from the statute.
Standard of Review
KSVPA proceedings are civil in nature. See In re Care & Treatment of Ontiberos, 295 Kan. 10, 19, 21, 287 P.3d 855 (2012). K.S.A. 2014 Supp. 60-251(d)(2) provides that a court may consider an error in the instructions if it was not preserved “if the giving or failure to give the instruction is clearly erroneous and the error affects substantial rights.” See also K.S.A. 2014 Supp. 60-261 (harmless error). In Thomas’ case, it is agreed the instruction challenge was not preserved, so the clearly erroneous standard applies.
An appellate court uses a two-step process to determine whether a challenged jury instruction is clearly erroneous. First, the court determines if there was error by considering whether the instruction was legally and factually appropriate, employing an unlimited review of the entire record. If the court finds error, it must assess whether it is firmly convinced the jury would have reached a different verdict had the instruction error not occurred. The party claiming error has the burden to prove the degree of prejudice necessary for reversal. See State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013).
Discussion
This issue concerns the KSVPA’s standard of proof as established by K.S.A. 2014 Supp. 59-29a07(a), which requires that “[t]he court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.” Drawing from that statute, our pattern instructions recommend giving the following burden of proof instruction in sexually violent predator proceedings:
“The State has the burden to prove its claim in this proceeding. The test you must use is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find for the respondent. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find for the State.” (Emphasis added.) PIK Civ. 4th 130.22.
In Thomas’ case, the State proposed a modified instruction that became Jury Instruction No. 4. And in the process of drafting that instruction, the State omitted the above italicized words “any of’ and included a few other minor phrasing differences not important here. The district court accepted die State’s proposed instruction without comment, and Thomas did not object.
Jury Instruction No. 4 was modified to state:
“The State has the burden to prove its claim in this proceeding. The test you must use is this: If you have reasonable doubt as to the truth of the claims required to be proved by the State, you must find for the Respondent. If you have no reasonable doubt as to the truth of any of the claiins required to be proved by the State, you should find for the State." (Emphasis added.)
After Jury Instruction No. 4, the district court gave the following separate instruction:
“The State alleges the respondent is a sexually violent predator. The respondent denies the allegation.
“To establish this charge, each of the following claims must be proved:
“1. That the respondent has been convicted of attempted rape, a sexually violent offense;
“2. That the respondent suffers from a mental abnormality or personality disorder which makes the respondent likely to engage in repeat acts of sexual violence; and
“3. That the respondent’s mental abnormality or personality disorder malees it seriously difficult for him to control his dangerous behavior.” (Emphasis added.)
Although Thomas did not object at trial to giving this instruction, he argues now on appeal that the phrase “if you have reasonable doubt as to the truth of the claims required to be proved by the State” conveyed to the jury that it could not find in his favor unless tire jury harbored a reasonable doubt as to all the elements of the State’s case. He contends the word “claims” is plural, therefore the “reasonable doubt” must relate to all the State’s claims. He further maintains the phrase requiring die jury to find for the State if it had “no reasonable doubt as to the truth of any of the claims required to be proved” misstated the State’s burden of proof and permitted a finding for the State if die jury believed the State had proved just one element of its case beyond a reasonable doubt.
It is not difficult to conclude that Jury Instruction No. 4 as modified by the State unnecessarily injected some confusion into the jury’s deliberative process as the Court of Appeals panel noted. See In re Care & Treatment of Thomas, 2013 WL 5976064, at *7 (questioning significance of difference between the PIK language and the instruction requiring verdict for defendant if jury had reasonable doubt as to the “truth of the claims” the State was required to prove). Variance from the PIK instruction is not dispositive, but the omission of “any of’ in this context was substantive enough to justify the assumption of error for purposes of appellate review.
The instruction at issue differs from the one challenged in State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013), a case both the panel and the State cite as supporting the appropriateness of Jury Instruction No. 4. In Herbel, we considered whether substituting the word “any” in an instruction that deviated from the then-current version of PIK Crim. 3d 52.02 was legally appropriate. 296 Kan. at 1120 (substituting “any of the claims” for PIK’s “each of tire claims”). The Herbel court held that while “each” was preferable, use of “any” in that context was not an incorrect statement of law for three reasons. First, the “any/any” instruction was identical to the previous version of PIK Crim. 3d 52.02, which had been approved repeatedly in our caselaw. 296 Kan. at 1124. Second, the word “any” was used consistently, thereby precluding the adverse meaning feared by defendant, which would require the court to focus on tire word’s use in isolation while ignoring the context in which it was used. 296 Kan. at 1123 (citing State v. Beck, 32 Kan. App. 2d 784, 787, 88 P.3d 1233, rev. denied 278 Kan. 847 [2004]). Third, there were separate instructions mitigating any confusion because they itemized the elements of the crimes and recited that the State must prove “each” such element to establish those charges. Herbel, 296 Kan. at 1123 (citing Beck, 32 Kan. App. 2d at 787-88).
Two of the Herbel rationales do not exist for Jury Instruction No. 4 because the language used lacks the same pedigree of prior caselaw approval and removal of the phrase “any of’ from the first sentence deprives the instruction of the consistent usage the Herbel court relied upon. The instruction should have clarified that the State was required to prove each element of its case that Thomas was a sexually violent predator. That said, we also recognize Jury Instruction No. 4 is not as blatantly erroneous as the instruction in Miller v. State, 298 Kan. 921, 935-38, 318 P.3d 155 (2014), which cut off entirely the remedial effect of the elements instruction-—the third Herbel rationale. See Miller, 298 Kan. at 937 (noting instruction literally misstated burden of proof, so no other instruction could have cured the error). In Miller, the instructional error corrupted the entire verdict because application of the instruction plainly misstated the State’s burden, so a structural error analysis was applied. 298 Kan. at 938. But we do not have an instructional error comparable to Miller in Thomas’ case.
We consider then under K.S.A. 2014 Supp. 60-251(d)(2) whether there was clear error, i.e., whether we are firmly convinced the jury would have reached a different verdict had tire instruction error not occurred. We hold that clear error is not shown because the elements instruction mitigated any ambiguity in the reasonable doubt instruction; counsel’s arguments further confirmed the State was required to prove each element beyond a reasonable doubt; and the evidence as to the issues in dispute was both uncontrov-erted and overwhelmingly in the State’s favor. See State v. Cruz, 297 Kan. 1048, 1069, 307 P.3d 199 (2013) (making clear error determination by reviewing impact of erroneous instruction “ ‘in light of the entire record and additional considerations’ ”).
We agree with the panel that “the State properly recognized its three-part burden of proof and accurately conveyed it to the jury.” In re Care & Treatment of Thomas, 2013 WL 5976064, at *8. In closing arguments, the State explained the elements it had to prove after noting the stipulation that Thomas had been convicted of a sexually violent offense. It outlined the State’s expert medical opinion evidence demonstrating that Thomas suffered from a mental abnormality or personality disorder and argued also that Thomas’ counsel had essentially conceded that point as well. Then, the State’s counsel said, “[S]o let’s talk about why we are here,” noting the jury needed “to determine the last two parts of [tire elements]. Is he likely to re-offend and does he have a serious difficulty con trolling himself.” And the State addressed the evidence proving those elements.
Similarly, Thomas’ counsel explained during closing that “[w]hat the State needs to do is prove to you beyond a reasonable doubt that [it] met the three elements of this offense.” (Emphasis added.) Counsel then conceded the first element, saying, “We never made any representation that Mr. Thomas didn’t have some very serious convictions in his background, and it became obvious during the opening comments of die State that that was, in fact, true.” Defense counsel further conceded, “I will agree that Mr. Thomas’ behavior indicates he has a lot of problems conforming to norms, obeying rules, he is mildly mentally retarded, is on psychotropic medicines that would drop a horse, and is schizophrenic.” As to the remaining element of proof, counsel then staked out his argument that “there wasn’t any evidence put before you today that Mr. Thomas . . . has any type of predatory sexual behavior.” Any chance for ambiguity arising from Jury Instruction No. 4 on reasonable doubt was resolved by the specific explanations provided by both counsel in closing arguments, which clarified and reinforced what the jury’s task was in this case.
Finally, the parties’ stipulation and the uncontroverted testimony of Drs. Kohrs and Shannon supplied a substantial case in tire State’s favor under the KSVPA. See K.S.A. 2014 Supp. 59-29a02(a) (defining “[s]exually violent predator”). Specifically, the parties stipulated Thomas was previously convicted of a sexually violent offense. Both psychologists diagnosed Thomas with paranoid schizophrenia and antisocial personality disorder, borderline intellectual functioning, and substance abuse. And Kohrs and Shannon both administered actuarial risk assessments that indicated Thomas posed a high risk of sexual recidivism. Kohrs testified that Thomas would engage in sexually violent acts in the future and would not be able to control his behavior outside a structured environment. Likewise Shannon testified that Thomas’ mental abnormalities and personality disorder (cognitive difficulties, schizophrenia, and voyeurism) impaired his ability to control dangerous behavior to a degree that posed a menace to others’ health and safety.
For these reasons, this court is not firmly convinced the jury would have reached a different verdict had the deviation from the pattern instruction not occurred.
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McAnany, J.:
Ronnie L. Taylor appeals his convictions for possession of anhydrous ammonia in an unapproved container and possession of drug paraphernalia, both with the intent to manufacture a controlled substance. He challenges the sufficiency of the evidence against him, claiming the jury engaged in impermissible stacking of inferences in several respects. Since there is substantial competent evidence to support his convictions, this argument fails and we affirm his convictions.
Taylor, who was on parole, had failed to report to his parole officer and was the subject of an outstanding arrest warrant. Parole Officer Ed Mora, who was driving around Hutchinson and who knew Taylor, saw Taylor driving an automobile. Mora followed Taylor and radioed the dispatcher that he was in pursuit. He activated the lights and siren on his police car, but Taylor refused to stop. The ensuing car chase lasted for approximately 25 minutes. It ended when Taylor and his passenger jumped out of the moving vehicle and it struck a light pole. They each then took off on foot.
Mora radioed the dispatcher and requested a K-9 unit. Officer Richard Elliott arrived with Cyrus, a dog from the Hutchinson Correctional Facility’s K-9 unit who was trained in tracking. Cyrus picked up the scent at the driver’s seat of the abandoned car and led the police along a trail of footprints in the snow that ultimately led to the home of Taylor’s mother.
Meanwhile, Officer Dean Harcrow, who was assigned to the drug enforcement unit of the Hutchinson police department, arrived at the scene of the wrecked and abandoned car. He found a tank in the trunk of the car that was of the type used to store anhydrous ammonia, a chemical used in the production of methamphetamine. The contents of the tank had the distinctive odor of anhydrous ammonia. Officer Harcrow, who smelled the odor, testified at trial that he was one-hundred percent sure that it was anhydrous ammonia. Officer Lee Campbell also searched the car and found various items of drug paraphernalia as well as a container of methamphetamine and a bag of marijuana.
After searching the car, Harcrow searched the garage apartment at the back of Taylor’s mother’s home, where he found materials consistent with the manufacture of methamphetamine.
Taylor was charged with (1) possession of methamphetamine, (2) possession of marijuana, (3) possession of drug paraphernalia with the intent to manufacture a controlled substance, and (4) possession of anhydrous ammonia with the intent to manufacture a controlled substance. Following a trial by jury, Taylor was convicted of the latter two charges, the possession of drug paraphernalia and anhydrous ammonia charges.
Taylor argues that there was insufficient evidence to convict him since the evidence against him consisted of a stacking of inference upon inference. Our task is to review the record and determine whether, when viewed in the light most favorable to the prosecution, a rational factfinder could have found Taylor guilty beyond a reasonable doubt. See State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005). Taylor argues that the jury improperly “stacked” inferences in order to establish five separate facts and thereby convict him.
Facts can be established at trial either by direct evidence or by circumstantial evidence. Neither is intrinsically more worthy of consideration than the other. In fact, even the most serious crime may be proven by circumstantial evidence. State v. Scott, 271 Kan. 103, 107, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001); State v. Cruz, 15 Kan. App. 2d 476, 488, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). Nevertheless, a conviction cannot be based solely upon inferences. Cruz, 15 Kan. App. 2d at 490. Thus, when a fact is established by circumstantial evidence, the circumstances must be proven and cannot be inferred from other circumstances. State v. Rice, 261 Kan. 567, 587, 932 P.2d 981 (1997). But once a fact is proven through circumstantial evidence, the jury may draw reasonable inferences from a fact so proven. Thus, there is no impermissible stacking of inferences if each element of the crime charged is supported by substantial evidence, either direct or circumstantial. Finally, it is important to note that it is the jury’s role to determine the credibility of the witnesses and weigh the evidence. State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000). Consequendy, if there is substantial competent evidence to support the jury’s verdict, we do not substitute our factual analysis for that of the jury.
Cyrus
First, Taylor claims that the jury had to infer that Cyrus actually followed the driver s scent from the wrecked and abandoned car to his mother s home because there was no evidence to support Cyrus’ ability to track. Cyrus, a 6V2- to 8-year-old bloodhound, had been trained by Elliott starting when Cyrus was an 8-week-old pup. Elliott testified about his training of Cyrus and the ability of Cyrus to track a scent. Taylor did not object to any of this testimony. Elliott then testified, without objection, to Cyrus’ tracking efforts on the day in question. We do not reweigh any of this evidence. The jurors believed Elliott regarding Cyrus’ ability to track, and there was substantial evidence upon which they could base that belief.
Footprints
Taylor next argues that the jury improperly inferred that he made the footprints in the snow that Elliott testified he saw along the route Cyrus followed, since there was no testimony that linked the pattern of the footprints to shoes worn by Taylor. The footprints were not an essential link in a chain of evidence needed to convict Taylor. Whether the footprints were those of Taylor or not, there was still substantial evidence to support his convictions based upon the drug paraphernalia and anhydrous ammonia found in the abandoned car.
Knowledge of The Presence of Drug Paraphernalia and Anhydrous Ammonia in the Car
Taylor argues that the jury improperly inferred that he knew the car contained anhydrous ammonia and drug paraphernalia. He correctly states that his mere presence with another person in a car where drugs were found is not enough to support a conviction for possession of drugs. See State v. Bockert, 257 Kan. 488, 493-94, 893 P.2d 832 (1995). However, Bockert notes that the presence of other factors can supply the link between a defendant and the drugs — or, in Taylor’s case, the anhydrous ammonia tank and the drug paraphernalia — found in a car with the defendant. Those circumstances include any suspicious behavior by the defendant. In Taylor s case, the jury had before it evidence that Taylor was driving the car; that he failed to stop when Mora activated his lights and siren; that he led Mora on a 25-minute chase; and drat his final effort at flight consisted of jumping from a moving car and running from tire scene. The large tank of anhydrous ammonia was found in the trunk of the car along with drug paraphernalia. Viewing the evidence in the light most favorable to the prosecution, the jury had ample evidence upon which it could have found that Taylor had knowledge of die anhydrous ammonia and drug paraphernalia in the car as he attempted to elude the police.
Manufacture of Methamphetamine
Taylor claims that die jury improperly inferred that he was manufacturing methamphetamine in the garage apartment behind his mothers home notwithstanding his mother’s testimony that he had not lived there and she had not seen him for several years. Since a partial methamphetamine lab was found in Taylor’s mother’s garage, the jury could have disregarded her testimony as lacking credibility. But even if the jury believed her, there still was substantial evidence to support its verdict when the evidence is viewed in the light that favors the prosecution. The jury did not have to find, by inference or otherwise, that Taylor was manufacturing methamphetamine in the garage apartment in order to convict him of possession of drug paraphernalia and anhydrous ammonia with the intent to manufacture a controlled substance.
Taylor’s crimes did not require proof of manufacturing but rather proof of possession with the intent to manufacture. Intent may be shown by acts, circumstances, and reasonable inferences. State v. Salcido-Corral, 262 Kan. 392, 398, 940 P.2d 11 (1997). Ordinarily, it is presumed that a person intends all of the usual consequences of his or her voluntaiy acts. State v. Acheson, 3 Kan. App. 2d 705, 712-14, 601 P.2d 375, rev. denied 227 Kan. 927 (1979). Here, Harcrow testified about the limited use of anhydrous ammonia as a farm fertilizer. There was no evidence that Taylor was a farmer or engaged in farming. Harcrow also testified that Coleman fuel and a Coleman camping burner are used in the manufacture of methamphetamine. Coleman fuel and a Coleman camping burner were found in Taylors trunk, along with the anhydrous ammonia. The jury could reasonably have inferred from the fact that Taylor s trunk contained several items associated with the manufacture of methamphetamine and the fact that he ran from the police, that Taylor possessed the anhydrous ammonia and paraphernalia with the intent to manufacture methamphetamine.
Testing of the Anhydrous Ammonia Tank
Finally, Taylor argues that the jury improperly inferred that the propane tank found in the car contained anhydrous ammonia. No evidence was presented at trial concerning the results of any tests of the contents of the tank. However, there was testimony that the tank was set up in a manner consistent with a tank used to contain anhydrous ammonia. The brass tank fitting had turned blue, consistent with exposure to anhydrous ammonia in the tank. The tank contained a freeze line, consistent with a tank containing anhydrous ammonia. Harcrow, who smelled the contents of the tank, testified that he was one-hundred percent sure it was anhydrous ammonia. The jury believed Harcrow, and Harcrow’s testimony constituted substantial evidence to support the jury’s verdict.
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Denied.
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In a letter signed April 16, 2016, addressed to die Clerk of the Appellate Courts, respondent John F. Thompson, of Leavenworth, an attorney admitted to practice law in the State of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2015 Kan. Ct. R. Annot. 390).
At the time the respondent surrendered his license, two complaints had been docketed by the office of the Disciplinary Administrator for investigation. One complaint alleged that the respondent violated Kansas Rules of Professional Conduct (KRPC) 1.1 (2015 Kan. Ct. R. Annot. 442) (competence), and the other complaint alleged that the respondent violated KRPC 1.15 (2015 Kan. Ct. R. Annot. 556) (safekeeping property) and KRPC 8.4 (2015 Kan. Ct. R. Annot. 672) (misconduct).
This court, having examined the files of the office of the Disciplinary Administrator, finds that surrender of the respondents license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that John F. Thompson be and is hereby disbarred from tire practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of John F. Thompson from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2015 Kan. Ct. R. Annot. 401). | [
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Denied.
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Schroeder, J.:
As heir-at-law of Earlene F. Brenner, Beverly Goodman petitioned for administration of her mothers estate more than 6 months after the date of her death, alleging there were assets to be marshaled and administered. Beverly’s brother, Danny Brenner, objected to the petition claiming there were no assets in the estate and that Beverly’s petition was really a claim against the estate barred by the 6-month nonclaims statute, K.S.A. 59-2239. The district court granted Danny’s motion to dismiss finding there were no substantial assets subject to administration. On appeal, we treat Danny’s motion to dismiss as a motion for summary judgment and find there are material facts at issue—whether there are assets owned by Brenner subject to administration—and reverse the district courts decision to deny Beverly’s petition for administration. Reversed and remanded with directions.
Facts
Brenner died on January 26, 2014, and was survived by three adult children, Danny, Darrel, and Beverly. Danny lived in Good-land, and Darrel and Beverly were residents of Arizona. On August 18, 2014, Beverly filed a petition for issuance of letters of administration. She alleged Brenner died intestate and the value of her estate was estimated at $100,000 for real estate with probable income of $4,000 and also personal property estimated at $140,000. She claimed her appointment as administrator was necessary for the collection, conservation, and administration of the estate.
Danny objected to the issuance of letters of administration. He claimed Beverly’s petition was, in essence, a claim against the estate and barred by the 6-month nonclaim statute of limitation. Danny also argued Brenner’s estate did not have any substantial assets because the Texas real estate had been deeded to him approximately 3 years prior to Brenner’s death, and the remaining bank accounts had passed to him pursuant to payable-on-death designations set up approximately 3 years earlier. Danny claimed that after their mother’s death, by agreement, the three heirs divided and distributed the remaining tangible personal property held in storage.
The district court set the matter for hearing. Danny explained that after Brenner’s death, the heirs had discussed the actions taken during Brenner’s lifetime in order to avoid the formal probate process through pre-death transfers and payable on death accounts, thus, leaving minimal assets to distribute. Danny’s district court brief claimed: “While Darrell and Beverly expressed some level of frustration with the fact that Dan Brenner was a primary beneficiary of non-probate transfers, they seemingly acknowledged the closer relationship between Dan and his mother and did not express any intent to challenge the non-probate transfers.’’
Beverly countered her petition for administration was not statutorily barred because a claim is a creditor demand for payment of the debts of the decedent, whereas a petition for issuance of letters of administration is filed to open administration of the decedent’s estate. Beverly stated she was not a creditor and the 6-month nonclaim statute did not apply. She argued there was no statute of limitations against filing a petition for issuance of letters of administration if the petitioner is not a creditor attempting to collect a debt from the decedent’s estate. Beverly concluded that she did not want to “put die cart before the horse” in pointing out there are issues over the transfer of Brenner’s property that can be resolved only by granting letters of administration and appointing an administrator who will have standing to carry out collection, conservation, and administration of the estate. After filing the petition for administration, Beverly also alleged for the first time &at Brenner had a last will and testament but provided no support for this declaration.
In denying Beverly’s petition, the district court first addressed her claim that Brenner had a last will and testament. The court adopted Danny’s rationale that no evidence of Brenner’s will had been presented. Danny directed the court to the fact that Beverly’s petition specifically alleged: “Brenner died intestate in Sherman County,” and without a will. Brenner died on January 26,2014, but Beverly did not file her petition until August 18, 2014. The court held: “The failure to file the will as mandated by statute within the six month time period precludes the court from now considering the will.”
The district court also denied the issuance of letters of administration because Brenner’s estate did not have substantial assets to administer. It did not decide the issue based on failure to timely file the claim. The court held:
“The more problematic issue is that of delivery of the deed as prescribed by Kansas and Texas law. Since the property and mineral interest rest in Texas it would appear Texas law would control. Thus, the affidavit of counsel in Texas persuades the court that the transfer was valid and effective.
“Since no evidence was presented that reflected that the estate of Earlene F. Brenner now has any substantial assets in it to administer. The request by Petitioner to this court to issue Letters of Administration is denied.”
Beverly appeals.
Analysis
Should Beverly s petition for issuance of letters of administration be granted?
Beverly argues the issue in this case has nothing to do with filing a claim and is simply whether the district court erred in denying the petition for issuance of letters of administration. She argues all the other issues are secondary to simply opening an estate. On this point we agree with Beverly.
Danny asked the court to dismiss Beverly’s petition. Under K.S.A. 2014 Supp. 60-212(d), a motion to dismiss for failure to state a claim under K.S.A. 2014 Supp. 60-212(b)(6) is treated like a motion for summary judgment if matters outside the pleadings are presented to, and not excluded by, the court. In this case, the trial court considered the parties’ briefs, arguments, and documents. It is evident from the district courts memorandum decision and order dismissing the case that the court did consider matters outside of the pleadings in making its ruling, effectively converting Danny’s request for dismissal to one for summary judgment. We must determine if the district court’s decision can be affirmed under the standards governing summary judgments. See Davidson v. Denning, 259 Kan. 659, 667, 914 P.2d 936 (1996) (though the district court’s decision did not expressly state it considered defendants’ motion to dismiss as summary judgment motion, the Court of Appeals properly treated it as such because “the court clearly considered matters beyond the face of the petition in granting the motion”).
Accordingly, the well-known standard of review governing summary judgment applies. This standard provides that summary judgment is appropriate only where 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. Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013). The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and, where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
Petition to Open an Estate
Kansas statutes are written to include a broad class of petitioners who may petition to open a decedent's estate. K.S.A. 59-2221 provides a general probate inclusion: “Any person interested in the estate, after tire death of the testator or intestate, may petition for tire probate of his or her will or for administration.”
“There is no provision of the probate code fixing a limitation on the time an heir may apply for administration of any estate in which he [or she] has an interest. The legislature has seen fit to make a provision fixing the time in which creditors must apply for administration (G.S. 1947 Supp. 59-2239) fixing the time for probate of a written will (59-617 and 618) and for the probate of an oral will (59-619) and had it intended any limitation on an heir seeking administration of an estate in which he [or she] had an interest it could have done so. It seems significant that it did not do so.” In re Estate of Wright, 170 Kan. 400, 406, 227 P.2d 331 (1951).
Danny argues K.S.A. 59-2239 controls and limits the time in which demands and claims may be filed against an estate, and the statute has long been considered a probate nonclaim statute. Harris, Survey of Kansas Law: Administration of Estates, 17 Kan. L. Rev. 325, 328 (1968). K.S.A. 59-2239 operates as a complete bar to all demands against a decedents estate that are not timely filed. 17 Kan. L. Rev. at 328. “A nonclaim statute is a self-contained statute which absolutely prohibits the initiation of litigation based on it after a prescribed period.” 51 Am. Tur. 2d, Limitation of Actions § 3, pp. 490-91.
Danny argues Beverly’s petition is a claim against the estate and should be barred by the nonclaims statute, K.S.A. 59-2239. Beverly again responds she is asking only to open the estate for administration. Danny presents Nelson v Nelson, 288 Kan. 570, 205 P.3d 715 (2009), to support his position. In Nelson, the court considered the question of whether a claim must be made against a decedent’s estate when it is alleged the decedent breached a contract to place his entire estate in a testamentary trust for the benefit of his adult children. The Court of Appeals in Nelson v. Nelson, 38 Kan. App. 2d 64, 162 P.3d 43 (2007), held the decedent’s assets were not subject to a constructive trust because a claim had not been made against the decedent’s estate within the period of limitations imposed by the nonclaim statute, K.S.A. 59-2239. In affirming, tire Nelson court recognized the broad reach of the nonclaim statute:
“The nonclaim statute recognizes that a decedent no longer has the individual capacity to respond in damages to torts, to pay debts, to cany out contracts, or to administer his or her estate; therefore, the estate must meet the decedent’s financial obligations. In re Estate of Reynolds, 266 Kan. 449, 456-57, 970 P.2d 537 (1998). As a result, a person who seeks to recover from the decedent, whether based on tort, contract, the decedents will, or the statute of intestate succession, must recover, if at all, from the decedents estate. 266 Kan. at 456-57; Burns v. Drake, 157 Kan. 367, 369-72, 139 P.2d 386 (1943).
“K.S.A. 59-2239 imposes a special statute of limitations governing such claims against a decedent’s estate, and it operates as a complete bar to all demands against a decedent’s estate that are not timely filed. [Citation omitted.]” Nelson v. Nelson, 288 Kan. at 591.
The Nelson court found the heirs’ contract claim was barred by the nonclaim statute.
“This policy has been furthered by cases that have read the term ‘all demands’ to be broadly inclusive of any and all claims, making exception only where a statute expressly provides odierwise. Union Nat’l Bank & Trust Co., 233 Kan. 671, Syl. ¶ 2. One statutory exception is found in K.S.A. 59-2239(2); that exception extends die statute of limitations for tort claims. Because we have concluded that the Appellants failed to plead fraud and the Appellants do not suggest they have pled any other tort, the tort exception does not apply. There is no similar exception for contract claims; such claims must be brought within the nonclaim period of K.S.A. 59-2239(1).” Nelson, 288 Kan. at 592.
While we agree one of the primary purposes of K.S.A. 59-2239 is finality, we do not believe the statute applies to the facts of this case. Beverly’s petition is not a claim against the estate, it is a petition to administer whatever assets there may be in the estate and to see that they are assigned to the light heir according to law. The Kansas Supreme Court explained the distinction in Nelson when it compared and contrasted In re Estate of Wright, 170 Kan. at 400, with In re Estate of Pallister, 13 Kan. App. 2d 337, 339, 770 P.2d 494 (1989). The court explained that a petition requesting administration of assets not administered is not a claim; however, a petition alleging assets were not in the estate because a transfer of title was void due to breach of contract, for example, is a claim and time barred by the nonclaim statute. Nelson, 288 Kan. at 596.
We also agree the time to file a will passed on July 27, 2014, no timely petition to admit a will was filed, and Beverly’s allegation of a will has no merit. K.S.A. 59-617 establishes tire general rule. The statute provides in its entirety: “No will of a testator who died while a resident of this state shall be effectual to pass property unless a petition is filed for the probate of such will within six months after the death of the testator, except as hereinafter provided.” Simply put, K.S.A. 59-617 functions as a statute of limitations prohibiting the admission of a will to probate more than 6 months after a testator s death. In re Estate of Reed, 157 Kan. 602, 607-08, 142 P.2d 824 (1943) (holding the then 1-year time limitation in G.S. 1941 Supp. 59-617 to be a statute of general limitation); In re Estate of Tracy, 36 Kan. App. 2d 401, 406, 140 P.3d 1045 (2006) (K.S.A. 59-617 is a statute of limitations); compare K.S.A. 59-618 (savings provision for innocent beneficiaries of wills improperly withheld). Thus, no will was timely offered by Beverly or anyone else, and Beverly’s petition for administration shall proceed as an intestate proceeding as it was originally filed.
Here, Beverly’s petition is seeking the right to administer the estate, not file a claim against the estate. The case of Wright, 170 Kan. 400, is squarely on point. In Wright, one of the heirs petitioned for administration of the estate to have real estate administered as part of the estate. One of the property owners objected claiming the petition to administer the estate was really an out-of-date petition for a claim against the estate that was barred by K.S.A. 59-2239. The Kansas Supreme Court denied the objection and found it was not a claim against the estate but was an action by the heirs-at-law seeking the administration of assets not yet administered. Wright, 170 Kan. at 406-07. The facts in Wright are the same as the facts of this case as Beverly is seeking authority to administer this estate and to find out if there are any assets that need to be administered for the benefit of the estate and its heirs. Clearly, this is an action by Beverly asking for authority to marshal the assets of the estate, if any. An action to marshal assets does not invoke the nonclaim statute. See Estate of Draper v. Bank of America, 288 Kan. 510, 532, 205 P.3d 698 (2009) (in such cases the nonclaim statute does not apply); Nickel v. Vogel, 76 Kan. 625, 92 P. 1105 (1907) (holding that the jurisdiction of the probate courts of this state to appoint administrators does not depend upon the existence of either assets or creditors). Additionally, we note the Supreme Courts statement in In re Estate of West, where the court said:
“Although it has been stated in some of our decisions that an object of the probate code is to provide for a speedy determination of the assets and liabilities of an estate so that it may be settled and a distribution made to the beneficiaries, it is of primaiy importance that all of the assets be collected and reduced to possession for such distribution and a contention by a beneficiary that all assets have not been collected ought not to be held barred in the absence of a specific statutory provision to that effect.” 169 Kan. 447, 455, 219 P.2d 418 (1950).
Clearly, these prior decisions recognize the right of heirs-at-law to petition for tire administration of an estate to make sure all of the assets of the estate are marshaled and distributed in accordance with the laws of intestate distribution. See K.S.A. 59-506.
We need not address Danny’s claim that Beverly is attempting to attack the validity of the transfers made prior to Brenner’s death. If that issue arises, it will be an issue for the district court to resolve, not for us to resolve in anticipation of what an administrator might or might not do. We also pause to note that Beverly waited more than 6 months to file her petition for administration. As previously mentioned, we can find no statutory bar to this action. By waiting more than 6 months to file her petition, she eliminated the need to notify creditors or the opportunity for creditors to file a claim against the estate because the 6-month nonclaim statute had run as to all claims against the estate. See K.S.A. 59-2239. The petition for administration is timely filed.
We recognize Danny’s claims that there are no assets for an administrator to marshal as he claims they were all delivered to him through nonprobate transfers prior to Brenner’s death, except the personal property already divided by the three heirs at the storage unit. That may be true, but without an administrator appointed and acting under the supervision and guidance of the district court, Danny’s claim cannot be verified. An administrator duly appointed would have authority to search for any assets owned by Brenner at the time of her death. If there are assets, then the estate can administer the assets in accordance with the law. If it is found there are no assets, then the estate can be. closed and no harm is done. Who pays for the cost of administration would be an issue for the district court to decide at the appropriate time.
Reversed and remanded with directions for the district court to allow the appointment of an administrator pursuant to K.S.A. 59-2232.
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Leben, J.:
The Kansas Protection from Abuse Act allows individuals to request court orders to protect victims of domestic violence. These proceedings—called “PFA” (Protection from Abuse) cases by judges and lawyers—must be heard quickly: a Kansas court can issue temporaiy orders for a limited time period but must hear the case within 21 days of filing unless the court approves a delay. Sadly, but also importantly, PFA cases are heard every day in the courts of Kansas.
The case now before us presents two legal questions that are specific to PFA cases. First, the Protection from Abuse Act allows either a parent or “an adult residing with a minor child” to seek protection orders on behalf of that child. K.S.A. 2015 Supp. 60-3104(b). In our case, a grandparent filed an action on behalf of two children while the children and their mother were living with the grandparent—but the mother disagreed with the filing and then moved out, taking the children with her. We must decide whether “an adult residing with a minor child” at the time of the filing can continue the action even if the child moves out of the adult’s home before the hearing is held. Second, after the mother and children moved out—but before the PFA hearing—the grandparent brought a motion asking the court to order grandparent-visitation rights. Nothing in the Protection from Abuse Act talks about grandparent visitation; we must decide whether such rights may be awarded in a PFA case.
We approach these questions with two important contextual guides. First, the Protection from Abuse Act tells us that its provisions “shall be liberally construed to promote the protection of victims of domestic violence . . . and to facilitate access to judicial protection for the victims.” K.S.A. 60-3101(b). Second, each PFA case comes to the court with its own unique factual setting. We will summarize the factual setting of this case in the next section of our opinion.
Factual and Procedural Background
The people whose rights are at the center of these proceedings are Charlie Banks, a 3-year-old girl at the time the PFA case was filed, and Sylas McCormick, then a 10-month-old boy. They are the children of Maggie McCormick and the grandchildren of Maggie’s parents, Linus and Terri Baker. Also important to this story are tire fathers of the two children, Austin Banks and Ryan McCormick, and the paternal grandparents of Charlie, Rick and Brenda Banks.
The PFA action now before us on appeal was .filed on September 24, 2015, by Linus Baker and Austin Banks, as plaintiffs, against Ryan McCormick, the defendant. Linus and Austin filed a joint petition on behalf of Charlie and Sylas, alleging that Ryan had physically and verbally abused Maggie and had placed the children in fear of imminent bodily injury; as a result, Linus and Austin asked that orders of protection be entered against Ryan and to protect Charlie and Sylas.
Within days of the filing of the action, Maggie and her children moved out of her parents’ home and went to live with Maggie’s sister. In addition, before a hearing was held, Linus and Terri Baker filed a motion asking that the court provide specific times for them, as grandparents, to visit with Charlie and Sylas. Rick and Brenda Banks filed a similar motion for visitation with Charlie.
The court held an evidentiary hearing on the petition on November 5, 2015. (The hearing took place more than 21 days after fifing, apparently to allow additional time for the sheriffs office in Wyandotte County to locate and serve Ryan McCormick with the petition and notice of the hearing.) Ryan McCormick filed a written answer but did not attend the hearing; Linus Baker presented his own testimony along with testimony from Terri Baker, Maggie, and Austin.
The evidence demonstrated that Ryan had committed significant acts of abuse against Maggie, often with one or both children present. Photos admitted into evidence showed Maggie bloodied and bruised. One set of events took place on August 20, 2015, when Maggie tried to keep Ryan from driving while intoxicated. He pushed Maggie to the ground, causing a nosebleed. Ryan later pushed Maggie hard into a mirror, leaving the mirror broken and Maggie bleeding. (Austin testified that Charlie had told him about tire mirror incident.) Ryan then threatened to kill himself while holding a knife to his stomach; Maggie said Charlie had heard these confrontations from another room. Maggie and her parents testified to many other incidents of abuse. On one occasion, Ryan pushed Maggie to the ground while she was holding Sylas, who bumped his head.
The evidence also showed that Maggie had left and then returned to Ryan more than once. After the August 20, 2015, incident, Maggie filed a petition for divorce and a PFA action, but she dismissed both in mid-September. It was after she dismissed those actions that Linus Baker and Austin Banks filed the PFA case now before us.
At the time this PFA case was filed, Maggie and her children were living with her parents. Maggie testified that she had moved out of her parents’ house and gone to live with her sister on October 7,2015; she said she had moved out because she had been mad at her parents for interfering in die situation by filing the PFA case. Terri testified that Maggie and tire children had initially moved in with Linus and Terri after a December 2014 domestic-violence incident but that Maggie had moved back to live with Ryan in May 2015. She moved back to her parents’ home after the violence on August 20, 2015, and stayed until October 7.
The district court separately considered the claims of plaintiff Linus Baker, of plaintiff Austin Banks, and of the grandparents for visitation. The court also noted that Maggie was not a plaintiff in the action, having dismissed her own PFA case against Ryan.
As to Linus, the court apparently misunderstood part of the evidence about when Maggie and the children had lived with her parents. The court said that Maggie had disputed whether she lived with her parents at tire time the petition was filed and cited testimony from Terri that Maggie had moved out in May 2015, well before Linus filed the PFA case in September. Based on that understanding of the testimony, the court said that Linus was not authorized to bring an action on behalf of the children because they did not reside with him as of the time the action was filed.
We can understand how the trial judge made this error. We have the benefit of a transcript; he heard the testimony once orally. At trial, Maggie said that one item in her written statement from September 2015—that Sylas lived with Linus and Terri—wasn’t correct. But she was apparently indicating only that this was no longer true as of the November 5 hearing date. Maggie went on to agree in response to Linus’ questions that she was residing with her parents in September 2015 because of Ryans abuse, that she was residing there at the time Linus filed the PFA action, and that she moved out on October 7 because her parents had interfered in her affairs by filing the case. And while Terri did say that Maggie had moved out in May 2015 and returned to Ryan, she also said that the reconciliation “lasted maybe two months” before Maggie “came back for about two weeks” and then moved to her sisters house. The evidence is clear that Maggie, Charlie, and Sylas were living with Linus and Terri Baker when the PFA action was filed but that they moved out on October 7, before the hearing held November 5, 2015. We will discuss the legal effect of that move in the next section of our opinion.
As to Austin, the court ruled that he had not met his burden to prove that Ryan had abused Charlie, Austins daughter. The court noted that Maggie had not sought a protection order. Based on the lack of evidence of abuse against Charlie, the court declined to enter any orders of protection.
As to tire grandparent-visitation issue, the court determined that such a request was not appropriate within a PFA case, especially since the child’s mother, Maggie, was not a party. The court noted that parents have a fundamental constitutional right to make decisions regarding the care and custody of their children.
Linus, Austin, and all the grandparents have appealed these decisions to our court. They have filed an appellate brief; Ryan, who filed an answer but did not attend the district court hearing, did not file an appellate brief.
Analysis
Our court must address three issues in this appeal. We noted two legal issues involving the Protection from Abuse Act at the beginning of the opinion: First, while an adult residing with a child can bring a PFA petition, can the PFA claim continue if the child no longer resides with that adult when the claim is heard? Second, can grandparents bring a claim for grandparent-visitation rights in a PFA proceeding? The third issue on appeal presents no novel legal issue: Austin and Linus simply argue that the district court got it wrong when it held that they had failed to prove that Ryan had abused Charlie. We will look at each of these issues in that order.
Before we do that, we would note that the joint appellate brief filed by Linus and Austin mentions only Sylas in its discussion of the first issue (whether Linus could bring a PFA action on Sylas’ behalf). Elsewhere, however, the brief notes that Linus and Austin jointly filed the petition and jointly sought a protection order for Charlie as well. We have treated both children the same in our discussion of the first issue because the petition, filed jointly by Linus and Austin, sought relief on behalf of both children, and both children lived in the Baker home for the same time periods. Thus, Linus’ ability to pursue a PFA action is at issue with respect to both children; we see no distinction between the legal status of Linus to bring a PFA action on behalf of one child as opposed to the other.
I. The Court Erred When It Determined That the Minor Children Were Not Residing with Linus When He Filed the Action.
When the right to make a claim comes from a statute, a courts subject-matter jurisdiction to consider the claim depends on meeting tire terms set out in tire statute. Whether a court has jurisdiction is a question of law, and we must review that question independently, without any required deference to the district court. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009). Here, the question will be determined by the Protection from Abuse Act. Interpretation of a statute also presents a legal question that we review independently. Ullery v. Othick, 304 Kan. 405, 408, 372 P.3d 1135 (2016).
K.S.A. 2015 Supp. 60-3104(b) allows “an adult residing with a minor child” to file a petition on a minor child’s behalf under the Protection from Abuse Act. The Act doesn’t provide a definition of “residing with,” and a number of alternative meanings might be available. As one court has noted, a related term, “residence,” “is not a term of fixed legal definition but takes on shades of meaning according to the context in which it is found.” District of Columbia v. H.J.B., 359 A.2d 285, 290 (D.C. App. 1976). Another court agreed, noting that while residence usually indicates a person’s place of domicile, context is important, and a residence can also be quite temporary: “Sometimes it implies the place where a man temporarily resides, where he transacts business for a brief period.” Horton v. Horner, 16 Ohio 145, 147, 1847 WL 24 (1847). Kansas statutes also recognize a flexible meaning for residence, with different definitions for, among other things, eligibility for appointment as a district judge, K.S.A. 20-331; eligibility for in-state tuition at state universities, K.S.A. 2015 Supp. 76-729; eligibility to attend elementary or secondary schools, K.S.A. 72-1046; and eligibility to vote, K.S.A. 25-407.
In addition to specific definitions found in statutes on specific subjects, the Kansas statutes also contain some generic definition provisions that apply when terms aren’t otherwise defined; these generic provisions define the term “residence” but not the term “resides.” Under the generic definition, found in K.S.A. 2015 Supp. 77-201 Twenty-third, “residence” means “the place which is adopted by a person as the person’s place of habitation and to which, whenever the person is absent, the person has the intention of returning.” But that definition isn’t suited to the Protection from Abuse Act, which is to be liberally construed to allow access to the courts to protect domestic-violence victims. If we treated “residing with” consistent with K.S.A. 2015 Supp. 77-201 Twenty-third, a child who had come to five for a year or even more with a nonpar-ent (such as an aunt, uncle, or grandparent) but planned to return to another more permanent residence would not have access to the courts through the adult with whom the child was then living on an extended basis in Kansas.
Like the noun “residence,” the verb “resides” takes on meaning from context too. The last edition of Black’s Law Dictionaiy to define the term gave many options—“Live, dwell, abide, sojourn, stay, remain, lodge”—and included concepts ranging from “to dwell permanently or continuously” to “to be stationed” and “to remain or stay.” Black’s Law Dictionary 1308 (6th ed. 1990).
Our task differs from the lexicographer’s. We need not attempt to determine the meaning of “resides with” in eveiy potential context—our job is to decide, on the facts of the case now before us, whether Linus had tire authority to file a PFA action on behalf of his grandchildren because they resided with him at that time. On these facts, he did. Maggie and her children had been living with Linus and Terri from shortly after the domestic-violence incident of August 20, 2015, through the time Linus filed the PFA case on September 24, 2015. In addition, Maggie and her children had lived at tire Baker residence from soon after the domestic-violence incident of December 2014 until May 2015, when Maggie decided to move back to Ryan’s home. The facts we have noted are undisputed on the evidence, and based on those facts, we conclude that the children resided with Linus at the time he filed the PFA action, thus giving him the authority to do so.
Having decided that question, we must answer one more: Did Linus’ authority to pursue the action end when Maggie and the children moved out and went to live with her sister? Again, we focus on the background considerations of the Protection from Abuse Act and its stated aim of making courts accessible for victims of domestic violence. In such cases, there are many potential reasons why someone might change residences, even several times, as individuals and families take precautions to be as safe as possible. The Act itself recognizes this possibility by providing that “[t]he right of a person to obtain relief under the protection from abuse act shall not be affected by the person’s leaving the residence or household to avoid further abuse.” K.S.A. 2015 Supp. 60-3103.
In our case, however, that specific provision doesn’t seem to apply—Maggie didn’t move with the children from her parents’ home to her sister’s “to avoid further abuse.” She did so in reaction to what she perceived as interference in her fife through Linus’ filing of the PFA action itself.
With that provision not directly applicable, we have no explicit guidance in the Act about whether moving from the house of a nonparent the child is residing with after that nonparent files a PFA action on the child’s behalf eliminates the courts jurisdiction over the case. Once again, though, we think that the Act’s directive that we interpret its provisions to facilitate access to judicial protection provides sufficient guidance. The goal of the Act is to provide access to the court so that situations can be sorted out and appropriate orders of protection entered. That goal would be thwarted if moves by children while the action is pending—which could occur for any number of reasons—took away the court’s jurisdiction to hear the case. Where, as here, the children resided with the adult who filed the action at the time of filing, that is sufficient to give the court jurisdiction to preside over the case to its natural conclusion.
This result is in line with cases that have applied a time-of-filing rule to determine a courts jurisdiction. Under that general rule, die courts jurisdiction is determined at the time of filing, not by later events. Linus and Austin cite a case in which our court applied the time-of-filing rule, In re Adaption of I.H.H.-L., 45 Kan. App. 2d 684, 251 P.3d 651, rev. denied 292 Kan. 964 (2011). In that case, our court held that an adoption could not proceed when the parties who filed it failed to meet the statutory criteria to file it on the date they did so. 45 Kan. App. 2d at 690-91. Generally, when the court’s jurisdiction depends upon the ability of a person or party to bring suit, the capacity of that person to do so is judged at the time of filing, Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570-72, 574-77, 124 S. Ct. 1920, 158 L. Ed. 2d 866 (2004), and later changes do not deprive the court of jurisdiction. 541 U.S. at 583-84 (Ginsburg, J, dissenting); In re Guardianship of Sokol, 40 Kan. App. 2d 57, Syl. ¶ 4, 189 P.3d 526 (2008). While there are case-law and statutory exceptions to the time-of-filing rule, see Grupo Dataflux, 541 U.S. at 572-74; Hill v. Kwan, 2009 ME 4, ¶¶ 10-11, 962 A.2d 963 (Me. 2009); K.S.A. 2015 Supp. 77-614(c), the time-of-filing rule generally supports our view that changes taking place after fifing shouldn’t deprive the court of jurisdiction in a PFA case, especially since we are to interpret the Protection from Abuse Act liberally to provide access to the courts to seek protection.
Even so, we recognize that the time-of-filing rule may not always be determinative under the Act since the Act specifically provides that leaving a residence to avoid further abuse doesn’t eliminate a court’s jurisdiction to hear the case. So if, for example, a child resided with the adult who filed a PFA action on the child’s behalf until the day before the action was filed—but the child had moved to another location specifically to avoid abuse—the court would still have jurisdiction over the proceeding. In that situation, the legislature has provided for jurisdiction even though application of the typical time-of-filing rule would not recognize it. But the general rule is the time-of-filing rule, and Linus qualified under that rule.
In sum, the undisputed facts show that both children resided with Linus at the time the petition was filed. That gave the district court proper jurisdiction to consider the Protection from Abuse Act claims on their merits. The district court has not considered the claims involving Sylas on their merits, so we return the case to the district court for that purpose. As we discuss in the final section of our opinion, the district court did review the evidence of abuse against Charlie and found no abuse. Because the court did not indicate it had excluded any evidence from its consideration and we have found no error in its determination on the merits of the claim involving Charlie, we remand only the claim involving Sylas for further consideration.
Before we close this section of our opinion, we note that Maggie, the mother of these children, was not a party to this action. While Linus correctly notes in his appellate brief that a parents views can still be presented even if the parent is a nonparty, there is no indication in the hearing held here that Maggie was advised that she could give the court her own views about the matters at issue rather than merely answering questions asked by Linus. (Austin and Linus, the two plaintiffs, each represented themselves at the hearing, but Linus, who is a licensed attorney, called each witness and was the only person to ask questions of them.) Parents have a constitutional right to make the basic decisions involved in raising children, Troxel v. Granville, 530 U.S. 57, 66-68, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Harrison v. Tauheed, 292 Kan. 663, 678-79, 256 P.3d 851 (2011), so Maggies views on any remedy would be entitled to consideration even if the district court concludes that Ryan has abused Sylas.
II. The District Court Correctly Determined That an Action for Grandparent-Visitation Rights Is Not Properly Before the Court in a PFA Case.
We turn next to the requests filed by two sets of grandparents for the district court to set aside specific times for them to have “substantial grandparent visitation” with the children. The district court determined that this was a matter not properly before the court in a PFA case. The question is a legal one to be determined by interpreting the Protection from Abuse Act; accordingly, we must consider the issue independently, without any required deference to the district courts ruling. Ullery, 304 Kan. at 408.
We begin by considering the provisions of the Protection from Abuse Act. K.S.A. 2015 Supp. 60-3107 sets out the types of orders that a court may grant if it finds abuse. Those orders include restraining orders, granting possession of a residence, ordering support payments, and “[ajwarding temporary custody and residency and establishing temporary parenting time with regard to minor children.” So the statute explicitly provides for temporary custody awards, temporary residence orders, and temporary parenting time—but it makes no mention of grandparent-visitation rights.
Even so, the grandparents argue that the court hearing a PFA case nonetheless must allow grandparents to seek visitation orders in that action based on K.S.A. 2015 Supp. 23-3301(a) and a case interpreting that statute, In re T.N.Y., 51 Kan. App. 2d 956, 360 P.3d 433 (2015).
K.S.A. 2015 Supp. 23-3301(a) provides no support to grandparents—at least as it was enacted by the legislature. It states that grandparents and stepparents may be granted visitation rights, but it only provides that opportunity in divorce cases (which are covered in article 27 of chapter 23): “In an action under article 27 of chapter 23 of the Kansas Statutes Annotated, . . . grandparents and stepparents maybe granted visitation rights.” Moreover, since there was no common-law right to grandparent visitation, grandparents only have die visitation rights set out by statute. See T.N.Y., 51 Kan. App. 2d at 960. So it would seem that the Protection from Abuse Act would not be an available forum for a motion or action to establish grandparent-visitation rights.
The grandparents argue that the T.N.Y. case changes this result. That case was a paternity action in which a father had petitioned to establish custody over his child, who had apparently been left for a substantial time period by the mother with her parents, the child’s grandparents—but was with mother by the time the case was heard. The district court adopted paternity orders and a parenting plan submitted by the mother and father, and the grandparents filed for visitation rights. The district court denied their request because K.S.A. 2015 Supp. 23-3301(a) provided for grandparent visitation only in divorce cases and this was a paternity action.
Our court reversed, concluding that no legitimate state purpose would be served by allowing grandparent visitation in divorce actions but not in paternity cases; to do so would violate the equal-protection rights of the children, making a distinction between those who were born within a marriage and those who were not. To avoid that result, our court said that the opening phrase of K.S.A. 2015 Supp. 23-3301(a)—“In an action under article 27 of chapter 23 of the Kansas Statutes Annotated”—should be stricken. 51 Kan. App. 2d at 969.
Based on T.N.Y., the grandparents argue that K.S.A. 2015 Supp. 23-3301(a) now applies to all types of actions that could involve child-custody and visitation matters. We disagree and conclude that the T.N. Y. case does not apply beyond its own setting—namely, a request for grandparent visitation within a 'paternity case.
The point of the T.N.Y. case was that if the State wanted to allow grandparent-visitation rights in divorce actions, with children born during a marriage, it must also allow grandparent-visitation rights in paternity actions, with children bom out of wedlock. To do otherwise, the T.N.Y. court determined, would violate the equal-protection rights of children born out of wedlock to have their interest in grandparent visitation considered on an equal basis with children born during a marriage.
But that doesn’t mean that grandparent-visitation rights must also be considered in cases brought under the Protection from Abuse Act. In accord with the T.N.Y. case, grandparents can already bring those claims in divorce cases or in paternity cases. Austin and Maggie weren’t married when Charlie was born, and a paternity case already has established the rights of the parents and Austin’s role as Charlie’s father. So we presume that the grandparents could file a motion seeking grandparent-visitation rights in that action. Ryan'and Maggie were married when Sylas was born, and they remain married with no divorce action on file, as far as our record shows. So there is no divorce or paternity action where the grandparents might file a grandparent-visitation claim regarding Sylas.
The T.N.Y. case does not suggest that creates a problem, however. Nothing in T.N.Y. suggests that there’s an equal-protection problem in providing a legal way for grandparents to seek visitation rights when a family is not intact (as in a divorce or paternity action) and not providing that legal mechanism when a child was born to parents who were, and still are, married. After all, parents have the fundamental constitutional right to raise their children, and even in contested proceedings courts presume that the parents’ decisions on these matters are in tire children’s best interests. Skov v. Wicker, 272 Kan. 240, 248, 32 P.3d 1122 (2001); In re Creach, 37 Kan. App. 2d 613, 620, 155 P.3d 719 (2007); In re Marriage of C.E.P., No. 113,411, 2016 WL 852917, at *8 (Kan. App. 2016) (unpublished opinion).
As we have discussed, the grandparents presumably could file a motion for visitation in the paternity case involving Charlie. As to Sylas, the Bakers, who seek visitation with Sylas (born during Ryan and Maggie’s marriage), do not argue that there’s an equal-protection problem in denying a forum for grandparent-visitation claims where a child is bom during a marriage and no divorce action is pending. Instead, their argument is based on the court in the T.N.Y. case striking tire introductory language that limited K.S.A. 2015 Supp. 22-3301(a) to divorce cases. Without that introductory language, they argue, the remainder of K.S.A. 2015 Supp. 22-3301(a) now applies to all types of actions that touch on child custody, including PFA cases.
We do not believe that the T.N.Y. case holding can be applied beyond its setting; it was a paternity case, not a PFA case. No one argued to tire T.N.Y. court that grandparent-visitation rights could be grafted into PFA cases. So the T.N.Y. court’s language about striking words from K.S.A. 2015 Supp. 22-3301(a) must be read within that context: When a grandparent files for visitation rights in a paternity action, the introductory clause of K.S.A. 2015 Supp. 22-3301(a) must be stricken so that the equal-protection rights of children are not violated. The same is not required—at least on the arguments presented to us—with respect to the interaction of K.S.A. 2015 Supp. 22-3301(a) and the Protection from Abuse Act.
With that foundational principle established, let’s return to the statutory language our legislature has adopted. First, it specifically limited the ability to bring grandparent-visitation claims to divorce cases. That strongly suggests that the legislature did not intend such rights to be pursued in PFA cases. Second, the Protection from Abuse Act makes no mention of grandparent-visitation rights. Third, the Protection from Abuse Act provides only for temporary custody orders-—and the overall orders in PFA cases are all temporary, lasting up to 1 year in most cases with the option of a 1-year extension. K.S.A. 2015 Supp. 60-3107(a)(4) and (e).
So the direct statutory language suggests strongly to us that grandparent-visitation rights just aren’t one of the topics available to be litigated in PFA cases. After all, grandparent-visitation rights didn’t exist at common law, so the court’s ability to hear such a claim depends on statutory authority. One other provision of the Protection from Abuse Act strongly supports this conclusion as well-—the provision requiring that we construe the Act liberally so as to make the courts accessible for victims of domestic violence. See K.S.A. 60-3101(b).
To consider that, let’s review how these cases must be handled in a busy Kansas trial court. Judges must keep sufficient time and judicial resources available to handle a steady stream of requests for temporary orders of protection. In addition, judges must set each of the cases for hearing within 21 days, unless one of the parties has a good reason for delay. And all of this must be done even if the judge has a 2-week murder trial or a lengthy medical-malpractice case on the calendar. So judges often set aside fixed times each week to handle PFA cases—but even so, they may not have much time to hear very important issues. In these circumstances, we should not lightly read the statutes to add more issues and more parties to the mix.
We conclude that grandparent-visitation issues are not properly before the court in a PFA case. In situations in which a grandparent qualifies as the adult who “resides with” a minor child and files the PFA action, of course, the court might well provide that the child should stay with the grandparent for the child’s protection. And even in other cases, the court can determine custody and residential placement based on the child’s need for protection. But in those cases, the grandparent’s ability to spend time with the child is simply a result of the needs of the child, not the request of the grandparent for visitation rights. We find no legal error in the district court’s conclusion that the grandparents could not bring their motions for visitation time in a PFA case.
III. The District Court Did Not Err When It Determined That Austin Had Not Proven That Ryan Abused Charlie.
The district court concluded that Austin had not proven that Ryan had abused Charlie, a precondition for orders of protection. Austin and Linus challenge this conclusion. Although the district court referenced only Austin as the plaintiff with regard to Charlie, we note that Austin and Linus filed a joint petition, so we treat the claim as one brought by both Austin and Linus. There is no indication that the court excluded any of the evidence from its consideration, so failing to mention Linus as a plaintiff with respect to Charlie does not affect our review.
The district court specifically found that the plaintiffs had not sustained their burden to prove that Charlie had been abused as that term is defined in the Protection from Abuse Act. In a judge-tried case, when the court concludes that a party has failed to meet its burden of proof, we can only reverse the district court’s factual determination if it arbitrarily disregarded undisputed evidence or was motivated by bias, passion, or prejudice. Cresto v. Cresto, 302 Kan. 820, 845, 358 P.3d 831 (2015); Paida v. Leach, 260 Kan. 292, Syl. ¶ 2, 917 P.2d 1342 (1996).
Having identified the standard that guides our review on appeal, we turn next to what Austin and Linus had to prove—abuse, as defined under the Protection from Abuse Act. The Act provides its own definition:
“As used in die protection from abuse act:
“(a) ‘Abuse’ means the occurrence of one or more of the following acts between intímate partners or household members:
(1) Intentionally attempting to cause bodily injury, or intentionally or recklessly causing bodily injury.
(2) Intentionally placing, by physical threat, another in fear of imminent bodily injury.” K.S.A. 60-3102(a).
“Household members” includes those who have formerly resided together, K.S.A. 60-3102(b), so Ryan is covered with respect to Charlie. We look, then, to see whether Austin and Linus proved that Ryan had intentionally attempted to cause bodily injury to Charlie, intentionally or recklessly caused bodily injuiy to Charlie, or, by physical threat, intentionally placed Charlie in fear of imminent bodily injury.
There was no evidence that Ryan caused or attempted to cause physical injury to Charlie, and Austin and Linus don’t make that claim on appeal. Rather, they argue that Ryan, by physical threat, intentionally placed Charlie in fear of imminent bodily injury. In support they argue that Charlie witnessed tire events of August 20, 2015, when Ryans actions left Maggie bloodied; Ryan and Maggie also struggled with each other while Ryan threatened to kill himself with a knife and Maggie tried to take the knife away. Austin and Linus argue that this left Charlie “not merely crying but screaming hysterically,” thus showing that Ryan’s physical actions had left Charlie in fear of imminent bodily injury.
We do not believe that is the only conclusion one can draw from the evidence. To summarize, there was no evidence that Charlie saw any of the events of August 20. Maggie testified that Charlie and her stepsister, Avery, were in a bedroom, where “they were crying because they could hear us fighting.” In a written statement, also entered into evidence, Maggie said that Charlie and Avery had been in a bedroom when Ryan threw Maggie into the mirror (in the living room) and that Charlie and Avery “heard that and started crying hysterically.” There also was no evidence that Ryan ever attempted to strike or harm Charlie. Austin testified that Charlie was scared to be with Ryan, but his testimony related that to her concern about her mother, not herself: “Any time that Maggie has been residing with Ryan, Charlie will ask me if she can stay with me because she doesn’t want to go back to Ryan s house, that she doesn’t like being there, that Ryan’s mean to her mom, and it makes her sad, and it scares her.” With this evidence, we cannot say that the district court disregarded undisputed evidence when it concluded that Austin and Linus had not proven that Ryan, by physical threat, had placed Charlie in fear of imminent bodily injury.
In support of their position, Austin and Linus cite a case, Crim v. Crim, 40 Kan. App. 2d 367, 196 P.3d 375 (2008), that they contend allowed a PFA case to proceed with far less evidence than present here. We do not find the Crim case controlling. First, tire issue in Crim was merely whether the allegations made in the PFA petition were sufficient to allow the case to proceed to a hearing, not whether a trial judges conclusion that the evidence didn’t show abuse should be reversed. Second, before the trial court’s final ruling in Crim, the mother “withdrew the portion of the petition relating to the children because the parenting time and custody issues had been resolved the day before in the divorce proceeding.” 40 Kan. App. 2d at 369. Thus, the court was not considering what allegations are sufficient to show abuse against a child; the plaintiff in Crim was die mother acting on her own behalf. The court began its discussion by noting that the mother maintained that her allegations showed that the defendant “willfully placed her in fear, by physical threat, of imminent bodily injury.” (Emphasis added.) 40 Kan. App. 2d at 370. While the court later referenced threats of violence against both the mother and her children, its comments must be taken in the context of the issue presented—a claim of abuse brought, as of the trial court’s final ruling, by the mother only on her own behalf, not on behalf of the children.
Finally, Austin and Linus argue that the district judge was biased against them, so the district court’s factual findings should be reversed. In support, Austin and Linus argue that the district judge ignored undisputed testimony; may have been aware of an interaction between Linus and sheriff’s deputies that could have placed Linus in a bad fight; wouldn’t allow Linus to question a witness by directly quoting profane language Ryan had used; and said at the end of the hearing that the court wished it could order everyone into counseling. We do not find that Austin and Linus have demonstrated bias on the part of the trial judge:
• While we did find that the district court misinterpreted the testimony about when Maggie and the children lived at the Bakers’ home, we don’t presume bias every time a factfinder makes a mistake about the facts. We see no evidence that the judge’s factual error was motivated by bias, and we found no other instance in which the judge went against undisputed evidence.
• We have no evidence that indicates how much the judge knew—before the hearing—about Linus’ interaction with sheriff’s deputies. What we do know is that Linus presented a video of the interaction, a video that Linus suggested would explain what actually occurred. The record shows that the district judge viewed that video during the hearing. We note also that Linus did not complain before the hearing that the judge was biased against him or seek the judges disqualification. See K.S.A. 20-311d. “[A] litigant who perceives a judge is biased against him or her should not be permitted to ‘roll the dice’ and wait for the outcome of the trial State v. Garcia, No. 108,993, 2014 WL 1508623, at *3 (Kan. App. 2014) (unpublished opinion), rev. denied 301 Kan. 1049 (2015).
• It’s true that the trial judge required that Linus use abbreviations or euphemisms rather than directly quoting profanities witnesses said Ryan had uttered. The district judge told Linus that he could “fully understand your meaning without that type of language,” and we had no difficulty doing so, either. A trial judge has wide discretion in setting and enforcing rules of courtroom decorum, see State v. Rochelle, 297 Kan. 32, 36, 298 P.3d 293 (2013), and its ruling that profanity need not be quoted directly in a judge-tried case did not show bias or prejudice.
• The judge’s comment about a desire to send everyone to counseling may in some ways be problematic—judges have a duty generally to limit comments and rulings to what is reasonably required to resolve a case, while refraining from unnecessarily disparaging the people who come before them. State v. Miller, 274 Kan. 113, 128, 49 P.3d 458 (2002). One could certainly argue that its generally inappropriate in a case involving domestic-violence allegations to suggest that everyone—victim, abuser, and interested parties alike— should go to counseling, especially when the only official action the court took was to find no proof of abuse and deny relief. Even so, the judge’s comment, though unnecessary, didn’t create reasonable doubt about the judge’s impartiality. See State v. Robinson, 293 Kan. 1002, 1035, 270 P.3d 1183 (2012). We do not find the comment indicative of the sort of personal bias, prejudice, spite, or ill will concerning a party that would require disqualification of a judge or suggest that we should disregard the judges factual findings on account of bias. 293 Kan. at 1032; Paida, 260 Kan. at 304.
The district courts judgment is reversed with respect to the courts jurisdiction to consider the claims Linus brought for orders of protection, and the case is remanded to the district court for further proceedings on the claims related to Sylas. The district court’s judgment is otherwise affirmed. | [
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Denied.
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Granted.
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Buser, J.:
Deron McCoy, Jr., appeals his convictions for felony obstruction of official duty and misdemeanor battery. He alleges that the elements instruction pertaining to obstruction of official duty was clearly erroneous and that the evidence at trial was insufficient to convict him of the two offenses. We affirm.
Factual and Procedural Background
This case arises out of a Hutchinson police investigation of a reported robbery. Deron McCoy, Jr., was operating the suspect car in a restaurant drive-through lane when he was confronted by police officer, Brice Burlie. McCoy maneuvered his car in such a way as to strike another car and quickly drove away, slightly injuring Officer Burlie who had hold of the car s door handle.
McCoy was charged by amended information with one count of aggravated battery and one count of obstruction of official duty. The obstruction count read that “[McCoy] did unlawfully, feloniously, knowingly and intentionally obstruct, resist or oppose a person, to-wit: Officer Brice Burlie; authorized by law to serve process, then and there in the discharge of an official duty, to-wit: investigating a robbery.”
Prior to trial, McCoy’s counsel filed a motion in limine stating in part:
“It would be irrelevant and immaterial and highly prejudicial for it to be known to the jury that the officers were in the course of an investigation for Robbery and that Mr. McCoy was their suspect. The State dismissed the Robbery charge against Mr. McCoy prior to the preliminary hearing. The Defendant would be willing to stipulate drat Officer Burlie was in tire course of a felony investigation.”
At a hearing on the motion in limine, McCoy’s counsel and the prosecutor announced a stipulation which would allow police officers to testily they were looking for the car driven by McCoy, but not to mention a robbery or that tire car was considered stolen. A written stipulation also provided:
“STIPULATION OF EVIDENCE REGARDING A FELONY INVESTIGATION
The State of Kansas, by and through Assistant District Attorney, Terry Bruce, and tire Defendant, by and through Assistant Regional Public Defender, Melissa French, stipulate on [sic] the following evidence: That on September 20, 2003, while at 201 East 44th Street, Hutchinson, Reno County, Kansas, Officer Brice Burlie was discharged [sic] with the official duty of investigating a felony.”
At trial, the written stipulation was admitted into evidence. In his testimony, Officer Burlie also stated he was investigating a felony at the time he approached McCoy.
Evidence at trial indicated that Officer Burlie was on routine patrol in Hutchinson when he observed a vehicle driven by McCoy that matched the description of the suspect vehicle. Officer Burlie recognized McCoy from two prior encounters at the Hutchinson Community College dormitories. McCoys car was moving forward in the Burger King drive-through lane. Officer Burlie positioned his patrol vehicle behind McCoy s vehicle, whereupon he observed the car s parking or reverse lights activated. Officer Burlie stepped out of his patrol car, approached, and stood directly in front of the driver s side window, about a foot from McCoy.
At that time, Officer Burlie was wearing a police uniform with identifiable patches, walkie talkie, gun, and holster. He instructed McCoy to place the vehicle in park, put his hand on the steering wheel, and “don’t move.” McCoy responded by asking Officer Bur-lie, “What is the problem?” Officer Burlie replied, “[J]ust go ahead and place the vehicle into park; put your hand up on steering wheel. I’ll explain to you what the problem is.” Contrary to Officer Burlie’s instructions, McCoy put the car in drive and accelerated forward, striking the vehicle ahead of it. Officer Burlie attempted to open the driver’s side door to grab McCoy. Officer Burlie testified to the events which followed:
“As he struck the Ford Explorer, I was trying to pull up on the door handle realizing when striking the Ford Explorer he was pushing it, he still gave it gas to move it out of the way where he was able to pull off away from the vehicle, get around it so he could leave the scene. During that time my ring was stuck on [the door handle], pulling me forward along the same path that it was scraping up against the Ford Explorer — thinking it was going to drag me into it, too. It gave me a good jerk. Probably pulled me about two feet, and tiren I was able to pull my hand away from the door handle.”
Officer Burlie testified that, as a result of this encounter, his finger had a “chunk” of skin tom away.
Prior to trial, McCoy s counsel filed proposed jury instructions with the court. The defendant’s proposed elements instruction for obstruction of official duty read:
“The defendant is charged with the crime of obstructing official duty. The defendant pleads not guilty.
To establish this charge, each of the following claims must be proved:
1. That Officer Burlie was authorized by law to serve process;
2. That the defendant knowingly and willfully obstructed Officer Burlie in the investigation of a felony;
3. That die act of the defendant substantially hindered or increased the burden of the officer in the performance of the officers official duty;
4. That at the time the defendant knew or should have known that Officer Burlie was a law enforcement officer; and
5. That this act occurred on or about the 20th day of September, 2002, in Reno County, Kansas.”
The trial court’s instruction number 11 was identical to the elements instruction for obstruction of official duty proposed by McCoy’s counsel with only one exception. Defense counsel’s proposed instruction used the word “obstructed,” while the court’s instruction used the word “resisted” in setting forth the second element of the offense. There was no objection from either counsel at the instructions conference, and instruction number 11 was read to the jury — essentially as submitted by defense counsel.
The juiy returned convictions for felonious obstruction of official duty and the lesser included offense of battery.
Obstruction of Official Duty Instruction
McCoy claims that instruction 11 setting forth the elements of the crime of obstruction of official duty was clearly erroneous. In particular, McCoy states that the first element of this instruction, “That Officer Burlie was authorized by law to serve process”; is improperly taken from PIK Crim. 3d 60.08 (Obstructing Legal Process), while the remaining four elements of this instruction are derived from PIK Crim. 3d 60.09 (Obstructing Official Duty). As a result, McCoy argues that this first element “has no relevance to this case [and] . . . was unsupported by the evidence and misleading to the jury.” He also observes that the first element of PIK Crim. 3d 60.09 (Obstructing Official Duty) instruction, was not given to the jury for its consideration and verdict. McCoy concludes: “Thus, the jury was not instructed on every essential element of the crime of obstructing official duty.”
The State contends that instruction 11 is identical to dre instruction submitted by the defense, the defendant’s proffered instruction cited “PIK Crim. 3d 60.09” (Obstructing Official Duty) as authority for the instruction, tire defense did not object to the submission of this instruction, and the totality of the instruction correctly allowed tire jury to consider the essential elements of obstruction of official duty.
The State and McCoy agree that this court should apply the clearly erroneous standard of review because McCoy did not object to instruction number 11. See State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002). K.S.A. 2004 Supp. 22-3414(3) provides:
“No party may assign as error the giving or failure to give an instruction . . . unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.”
See State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001). “An instruction is clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict had the jury been properly instructed.” State v. Graham, 275 Kan. 831, 833, 69 P.3d 563 (2003).
Of particular importance to this claim of error is the fact that McCoy not only failed to object, his counsel proposed the very language that, on appeal, McCoy now claims was clearly erroneous. As a result, McCoy invited the error, which precludes him from complaining about it on appeal. See State v. Smith, 232 Kan. 128, Syl. ¶ 2, 652 P.2d 703 (1982) (“Where a party procures a court to proceed in a particular way and invites a particular ruling, he is precluded from assailing such proceeding and ruling on appellate review.”); State v. Kleypas, 272 Kan. 894, 1080, 40 P.3d 139 (2001) (error in omitting instruction invited where defendant opposed the instruction); State v. Fulton, 269 Kan. 835, 846, 9 P.3d 18 (2000) (“jury instruction requested by defense counsel improperly com plained of on appeal”); Borman, 264 Kan. 476, 480, 956 P.2d 1325 (1998). (“Borman is in no position to argue that the trial court erred in providing the first sentence of the diminished capacity instruction because this sentence was almost identical to the diminished capacity instruction which Borman requested.”).
The application of the invited error doctrine to jury instructions is widely recognized. See Maiz v. Virani, 253 F.3d 641, 677 (11th Cir. 2001) (an erroneous instruction is not plain error if the defendant requested the instruction); Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998) (the giving of a requested instruction precludes reversal of conviction and any habeas relief even if trial court erred in giving the instruction); United States v. Baytank (Houston), Inc., 934 F.2d 599, 607 (5th Cir. 1991) (invited error doctrine is applicable to an instruction which results in conviction for a crime not charged in the indictment).
Our consideration of the merits of McCoy s claim assures us that, even if McCoy s claim were not barred from appellate consideration, it is without merit. The elements of obstruction are found in K.S.A. 21-3808. See State v. Shirley, 277 Kan. 659, 662, 89 P.3d 649 (2004) (elements are taken from the statute). K.S.A. 21-3808 states in part:
“Obstructing legal process or official duty is knowingly and intentionally obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of the court, or in the discharge of any official duty.”
To prove obstruction of official duly, then,
“the State was required to prove that an identified law enforcement officer was carrying out some official duty, and that each defendant knowingly and willfully obstructed or opposed that officer in the performance of that duty. The State was also required to show that each defendant knew or should have known that the person he opposed was a law enforcement officer. [Citation omitted.]” State v. Parker, 236 Kan. 353, 364-65, 690 P.2d 1353 (1984).
As stated in State v. Timley, 25 Kan. App. 2d 779, 785, 975 P.2d 264 (1998), rev. denied 266 Kan. 1115 (1999), “The statute thus encompasses two different possible scenarios — one in which an individual is obstructed in the service or execution of process or order of a court, the other in which an officer is obstructed in the discharge of any official duty.”
The same distinction was present in G.S. 1949, 21-717, which K.S.A. 21-3808 “follows . . . in all substantive respects.” State v. Lee, 242 Kan. 38, 40, 744 P.2d 845 (1987). The former statute established obstruction “[i]f any person or persons shall knowingly and willfully obstruct, resist or oppose any sheriff or other ministerial officer in the service or execution or in the attempt to serve or execute any writ, warrant or process, or in the discharge of any official duty . . . .” G.S. 1949, 21-717.
At the outset, the instruction submitted to the jury did contain surplusage. In particular, it directed the jury to determine if Officer Burlie was “authorized by law to serve process.” This particular element is essential to the offense of obstruction of legal process, but not essential to the offense of obstruction of legal duty. K.S.A. 21-3808. PIK Crim. 3d 60.09 makes this clear by setting forth the first element of obstruction of legal duty: “That-was authorized by law to__” In the “Notes on Use” the PIK committee states: “In the second blank of Element No. 1, the Court should insert the act or acts the person named in the first blank was authorized to perform.” This instruction does not mention the necessity of proving an officer was authorized to serve process, but it does require the State to prove that Officer Burlie was authorized to perform some official duty. Thus, the first element of instruction 11 was erroneously given, but it was not an essential element to prove the particular charge against McCoy.
The jury was not instructed according to the form of the first element of PIK Crim. 3d 60.09. We are convinced, however, that the jury did consider and determine the substance of the first element of that instruction — that Officer Burlie was engaged in an official duty at the time of his encounter with McCoy. Two factors dictate this conclusion. First, the parties submitted a written stipulation of evidence that “Officer Burlie was discharged with the official duty of investigating a felony.” Second, the third element of instruction 11 required the jury to determine “[tjhat the act of the defendant substantially hindered or increased the burden of the officer in the performance of the officers official duty.” (Em phasis added.) As a result, the jury was appropriately instructed to determine beyond a reasonable doubt that Officer Burlie was engaged in an official duty, to-wit: investigating a felony at the time of tire incident.
Finally, defense counsel conceded during closing argument that the defense was not contesting that Officer Burlie was engaged in the performance of his duties at the time of his encounter with McCoy. McCoy s counsel stated in part:
“In regards to the obstruction charge first, remember the obstruction is of Officer Burlie in the Burger King drive-thru .... Okay. One of the things you are going to get is a statement. We agree that Officer Burlie was in the course of the investigation of a felony, and that’s one of the important parts that you have in your instructions. Okay. We don’t disagree with that. What we disagree with is there was any type of obstruction.”
A fair reading of the record reveals that not only was the jury appropriately instructed in the necessity of finding Officer Burlie was engaged in the performance of his duty, but this fact was not essential to McCoy’s defense. Having considered the merits of McCoy’s claim we are not “firmly convinced that there is a real possibility the jury would have rendered a different verdict,” State v. Graham, 275 Kan. at 833, had the jury been instructed using the exact verbiage of PIK Crim. 3d 60.09.
Sufficiency of Evidence of Obstruction of Official Duty
McCoy complains that there was insufficient evidence to convict him of obstruction of official duty. In reviewing this claim, we review all of the evidence viewed in a light most favorable to the State. The question is whether a rational jury could have found the defendant guilty beyond a reasonable doubt. State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004).
In particular, McCoy argues that there was no evidence which established Officer Burlie was authorized by law to serve process. We agree. However, as discussed previously, McCoy was charged with obstructing official duty, not obstructing legal process. See K.S.A. 21-3808(a) (“[obstructing legal process or official duty [Emphasis added.])” Any allegation that Officer Burlie was authorized to serve process or any jury instruction requiring such a finding was surplusage and not necessary to McCoy’s conviction for obstruction of official duty.
The evidence at trial showed that Officer Burlie was a uniformed, clearly identified law enforcement officer engaged in his official duty of attempting to stop and investigate McCoy for a felony offense. In willful disregard of Officer Burlie’s order to place the vehicle in park, put his hand on the steering wheel, and “don’t move,” McCoy placed the vehicle in drive and drove off with Officer Burlie’s hand on the door handle. These facts obviously support McCoy’s conviction. A rational jury could have concluded from this evidence that McCoy knowingly and willfully obstructed or opposed a law enforcement officer in the performance of an official duty. See State v. Gasser, 223 Kan. 24, 30, 574 P.2d 146 (1977) (“breaking . . . and running” from an officer attempting to effect arrest “was conduct unlawful under K.S.A. 21-3808”).
Sufficiency of Evidence of Battery
McCoy maintains the evidence was insufficient to prove beyond a reasonable doubt either that his conduct was reckless or that it caused the injury to Officer Burlie. McCoy does not dispute the definition of recldess conduct given to the jury, which required it to find “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.”
It should be obvious that a rational juiy could find McCoy’s conduct reckless beyond a reasonable doubt. Using the car as a ram, McCoy struck another vehicle and accelerated from a narrow lane with Officer Burlie in close proximity and hemmed in by a building. This combination of McCoy’s evasive driving, which caused a vehicular accident, in close quarters with Officer Burlie in the immediate vicinity provides a rational basis to find McCoy created an imminent danger to Officer Burlie and showed a conscious and unjustifiable disregard of that danger.
McCoy next contends there was no evidence to show his awareness that Burlie had grabbed the door handle. At the outset, the State was not obliged to prove McCoy’s precise state of mind at the time he decided to flee from Officer Burlie. See State v. Spicer, 30 Kan. App. 2d 317, 324, 42 P.3d 742, rev. denied 274 Kan. 1117 (2002) (die recklessness element does not transform battery into a specific intent crime). Recklessness is shown where a person takes “an unjustifiable risk which results in a harmful touching to the person of another.” (Emphasis added.) Spicer, 30 Kan. App. 2d at 324. Thus, recklessness may be present even where a-defendant has not foreseen the specific injury which will occur. See State v. Davidson, 267 Kan. 667, 682-84, 987 P.2d 335 (1999) (construing reckless second-degree murder).
Finally, McCoy argues that he did not cause Officer Burlie’s injury because “it was Officer Burlie’s actions that created the contact with [McCoy’s] car.” The State responds that “if [McCoy] had obeyed Officer Burlie’s commands from the get-go, then Officer Burlie would not have been reaching for the door handle of the vehicle.”
McCoy is essentially arguing that Officer Burlie’s decision to grab the door handle was an intervening, superseding cause of his injury. This area of the law was discussed in State v. Anderson, 270 Kan. 68, 69, Syl. ¶ 6, 12 P.3d 883 (2000), where our Supreme Court stated:
“In an action for injuries suffered in a accident resulting from a police pursuit, die issue of foreseeability widi respect to defendant focuses upon his point of view, that is, whetiier the harm diat occurred was a reasonably foreseeable consequence of the defendant’s conduct at the time he or she acted. Since the officer’s conduct was a direct and specific response to defendant’s conduct, the claim that die officer’s conduct was a superseding cause of die accident can be supported only through a showing diat die officer’s conduct was so unusual, abnormal, or extraordinary diat it could not have been foreseen.”
Here, McCoy maintains he “had no control over Officer Burlie’s decision and, in fact, could not have stopped him from causing this contact from inside the car.” As Anderson provides, the issue is whetiier McCoy’s conduct reasonably caused Officer Burlie’s conduct, not whether McCoy could have somehow prevented this injury. Since it is not unusual, abnormal, or extraordinary that a police officer would attempt to open a car door to apprehend a suspect who is attempting to flee a felony investigation — especially when the car is stopped and apparently blocked in — the jury could prop erly conclude it was McCoy, not Officer Burlie, who proximately caused the injury. See Anderson, 270 Kan. at 73 (characterizing the analysis as “proximate cause in a criminal context”). We conclude a rational jury could have found the defendant guilty of batteiy beyond a reasonable doubt.
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Denied.
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Caplinger, J.:
Rachel Sparks and Ryan Williams are the mother and father of the minor child, Raigan Reed Sparks. Rachel Sparks appeals from the district court’s grant of shared residential custody, arguing the district court erred in the method it used to determine custody. We affirm, finding the district court’s methodology was correct; specifically, we hold the district court did not err in finding the time spent by the minor child in the father’s home, being cared for by her paternal grandmother, should be credited to the father in determining whether the parties have shared residential custody.
Background
Rachel Sparks gave birth to Raigan Reed Sparks on January 27, 2004. Ten days later, Ryan Williams filed a petition to establish paternity of the child. Williams also requested that child support and a parenting plan be established if he was determined to be the father.
Sparks’ answer acknowledged Williams was the biological father of the child. Sparks requested joint custody, with a provision that the child’s primary residence be with her and that Williams have reasonable periods of parenting time. She also requested child support and contribution for medical expenses for the prenatal care and birth of the child.
On May 12, 2004, Williams filed a motion to establish joint custody and specific parenting time. He requested the court award joint custody, allowing Sparks to have the child’s primary residence and granting him specific parenting time. He also requested the birth certificate be amended to name him as the father and to have the child’s last name changed to Williams.
On June 9, 2004, the district court issued a temporary order establishing parenting time and child support. The order provided for joint custody with the child’s primary physical residence with Sparks. Williams was granted parenting time on the days he was not working and Sparks was working. On those days, he would pick the child up at 1:00 p.m. and return her to Sparks the following morning. The court also ordered support in the amount of $450 per month.
Williams filed a motion to modify the temporary order and to set the matter for a final hearing. The hearing was held on October 20, 2004. Prior to the hearing, the parties stipulated to the facts relating to the schedule of parenting time. Specifically, Williams took the child on days that he was not working, except for Wednesday and Thursday, which were Sparks’ scheduled days off. Sparks dropped the child off at Williams’ residence at approximately 1:00 p.m., before she went to work each day that she worked. She picked the child up sometime after her shift ended or in the morning. Williams’ mother watched the child if Williams needed to sleep between shifts or had to go to work during the time the child was scheduled to be with him.
The parties further stipulated that Williams had the child in his home 46% of the time in the month of June, 51% in July, and 55% in August. The parties noted the time had not been calculated for September or October, but the percentage of time the child spent with each parent would be roughly equivalent to the preceding months. However, if the times when Williams’ mother watched the child while he was at work or sleeping did not count toward his residential time, the percentages of time the child spent with Williams were: 42% in June, 38% in July, and 45% in August.
Although tire specific nature of Spark’s argument in the trial court is unclear from the record, it is apparent from the dialogue between the trial court and the parties that Sparks contended the time Williams’ mother watched the child should not count as parenting time for Williams. However, the district court found the time the child spent at Williams’ home, being cared for by Williams’ mother, should not be excluded in determining whether the parties had shared residential custody.
The district court concluded that based upon the stipulation of facts, the parties had residential custody of the child on an equal or nearly equal basis. The court thus granted joint custody of the minor child, with the provision that the parties exercise parenting time under a shared custodial arrangement consistent with the existing schedule and pattern of allocation of parenting time. Further, the court reduced Williams’ child support to $67 per month.
On appeal, Sparks argues that in finding shared residential custody, the district court improperly considered the time in which Williams was not personally caring for the child while she was at his residence. She also argues the district court failed to consider whether the parties shared expenses equally.
The parties in this case stipulated to the relevant facts and agreed to the time the child was at each parent’s residence. Their dispute centers on the characterization of that time. Because the dispute revolves around the legal characterization of stipulated facts, our standard of review is de novo. See In re Harris Testamentary Trust, 275 Kan. 946, 951, 69 P.3d 1109 (2003). Further, interpretation and application of the Kansas Child Support Guidelines is a question of law subject to unlimited review. In re Marriage of Paul, 32 Kan. App. 2d 1023, 1024, 93 P.3d 734 (2004), aff'd 278 Kan. 808, 103 P.3d 976 (2005).
Shared residential custody
The shared residential custody provision of the child support guidelines sets forth two prerequisites to awarding shared residential custody: (1) the child’s residency must be split equally or nearly equally between tire parents; and (2) the parties must share the child’s direct expense on an equal or nearly equal basis. Supreme Court Administrative Order No. 180, III.B.7. (2004 Kan. Ct. R. Annot. 105).
Although Williams lived in the same home as his mother, his mother was not paid to watch the child, and Williams was responsible for the child’s expenses while she was in his home, Sparks urges us to interpret the term “residency” to include only the time when the child is personally supervised by a parent who is awake.
Under Sparks’ interpretation, a court determining residential custody would be required to exclude any time a parent slept while the child was at the parent’s residence. Or, if a parent were to remarry, the court would be required to exclude any time the natural parent left the home or slept, leaving the child in the care of a stepparent. Similarly, a court could not consider the time during which a child was left in the care of an older sibling, while a parent slept or ran errands.
Spark’s interpretation of the meaning of “residency” under the shared residency provision is both illogical and unenforceable. We thus conclude the district court did not err in finding that time spent by the minor child in the father’s home, being cared for by her paternal grandmother, should be credited to the father in determining whether the parties have shared residential custody.
Sharing of direct expenses
Sparks also argues the district court failed to consider whether the parties shared the child’s direct expenses equally or nearly equally. Sparks does not suggest that expenses were not shared equally, only that the court did not make a specific finding to that effect.
The child support guidelines provision for shared residency situations directs:
“No shared residency treatment shall be ordered without the court having approved a plan for paying and sharing expenses. The court shall require that a detailed expense sharing payment plan be submitted by the party or parties requesting the shared residency treatment.” Administrative Order No. 180, III.B.7. (2004 Kan. Ct. R. Annot. 105).
In this case, the court heard evidence that the parties were separately bearing any direct expenses for the child in each party’s home, that Williams was paying for any daycare expenses needed, and that medical expenses were shared. Further, the court stated “the plan the court would approve would be” that each party would be responsible for the child’s direct expenses while the child was at that party’s home. In the journal entry, the court set forth the manner in which the known expenses would be divided. It ordered the parties to share expenses accordingly and ordered Williams to pay child support. It further ordered the parties to submit a plan for paying and sharing expenses.
We find that the court approved a general plan for the sharing of direct expenses in ordering shared residential custody. Further, the court properly required the parties to submit a more detailed expense sharing plan for the court’s approval.
Under these circumstances, we conclude the district court did not abuse its discretion by approving a shared residential custody arrangement. Sufficient evidence exists to support the court’s determination that the child resided with each parent equally and that direct expenses were shared equally.
Best interests of the child
Finally, Sparks argues the district court erred by fading to consider the best interests of the child before determining what form of custody should be assigned, as required under K.S.A. 2004 Supp. 60-1610.
When resolving custody issues between the parents, the paramount consideration is the welfare and best interests of the child. The trial court is in the best position to make findings on the best interests of the child, and its judgment will not be disturbed in the absence of an abuse of judicial discretion. In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002). “Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. [Citations omitted.]” Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).
K.S.A. 2004 Supp. 60-1610(a)(3)(B) provides a nonexclusive list of factors to be considered by the court in determining custody in accordance with the best interests of the child. Sparks argues the district court did not consider these factors before determining custody in this case. However, she fails to note the preceding language in K.S.A. 2004 Supp. 60-1610(a)(3)(A), which states:
“If the parties have entered into a parenting plan, it shall be presumed that the agreement is in the best interests of the child. This presumption maybe overcome and the court may malee a different order if the court makes specific findings of fact stating why the agreed parenting plan is not in the best interests of the child.”
Sparks and Williams had entered into a parenting plan agreement. Pursuant to K.S.A. 2004 Supp. 60-1610(a)(3)(A), it was presumed that this agreement was in the best interests of the child. Therefore, the district court was not required to specifically consider the factors enumerated in K.S.A. 2004 Supp. 60-1610(a)(3)(B).
We thus affirm the district court’s order granting joint custody of the minor child and shared residential custody.
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McAnany, J.:
Nam Le, who had preexisting but asymptomatic osteoporosis, fell at work and suffered a vertebral fracture at the T-10 level. The fracture healed, but Le continued to suffer pain which prevented her from returning to work. The administrative law judge (ALJ) found Le was permanently and totally disabled and entitled to future medical benefits on account of her injury, including pain management care for her chronic pain. On appeal, the Workers Compensation Board set aside the finding that Le was permanently and totally disabled and limited her award to a 15% permanent partial general disability and authorized future medical treatment only for tire fracture. Le appeals the Board’s decision.
Facts
Le has a high school education. She came to the United States from Vietnam in 1991. She speaks very little English and is unable to read or write English. She worked for Armour for almost 12 years doing line food production packing. On August 8, 2011, Le slipped and fell on a concrete floor, injuring her back. We need not recount here the facts surrounding her accident, her preexisting osteoporotic condition, or the medical treatment that followed. Those facts are well known to the parties and are set forth in detail in the findings of the ALJ and the Board.
Three medical doctors testified about Les condition.
Dr. David Johnson, Les family doctor since November 2009, •treated Le both before and after the accident. He testified about Les preexisting osteoporosis and the treatments she received for it. He characterized Le’s preexisting osteoporosis as severe but asymptomatic. He stated that osteoporosis is inherently asymptomatic and only becomes symptomatic with an injury. Dr. Johnson has not observed anything that would lead him to believe that Le has suffered a new fracture since her work accident. He does not challenge the conclusion that Le’s fracture from the accident has healed. But Le was fully capable of working before the accident, and but for the accident she would still be working. The pain Le has experienced since the accident was caused by the fall and the resulting fracture, and her inability to work has been caused by her chronic pain.
Dr. Pedro Murati examined Le twice but did not treat her. He testified that Le’s osteoporosis is not itself painful and her pain was associated with her compression fracture. He diagnosed Le with a greater than 50% thoracic compression fracture and low back pain with radiculopathy. He assigned her a 24% whole person impairment rating. He opined that she suffered an 86% task loss and was essentially and realistically unemployable because of her chronic pain. In his opinion, it was Le’s compression fracture, not her osteoporosis, that prevented her from returning to the labor market. Dr. Murati testified Le would need pain medication as a result of her injury for the rest of her life.
Dr. John Ciccarelli first saw Le a month after her fall. He found that the fracture was caused by Le’s fall, although her osteoporosis was a significant contributing factor. He suspected Le’s bones were very brittle and predisposed her to the fracture she experienced, but tire prevailing factor causing the fracture was her work accident. According to Dr. Ciccarelli, Le should not return to work due to her osteoporosis. She continued to complain of pain and her pain was real, but Dr. Ciccarelli did not take that into account in deciding not to issue work restrictions because the fracture had healed and “structurally the spine [was] capable.” Les fracture, once healed, did not require any permanent work restrictions. He stated, “I make the recommendations for restrictions more based on what I feel structurally the spine is capable [of] and not necessarily just pain complaints.”
When he last saw Le in January 2012, about 5 months after her fall, Dr. Ciccarelli did not believe Les fracture would require future treatment. But he reported he was “writing for her a separate prescription that would keep her out of her job secondaiy to her underlying osteoporosis and not based upon her previous work injury.” When he last saw Le, she complained of pain and, though she tried to work, she could not make it through the day. He was of the opinion that Le’s pain was real.
Dr. Ciccarelli stated he would expect a fracture patient who suffers a minimal loss of height in the fracture of a vertebral body “to be sore up to a year following these types of fractures.” But he acknowledged that here, Le suffered a 50% loss in height of the vertebral space, which was the result of “a significant fracture.” In any event, Dr. Ciccarelli stated that Le had advance stage osteoporosis, and “a very common complaint of someone with osteoporosis is chronic pain” without evidence of a specific trauma or identifiable fracture. He acknowledged, however, that he had no indication she suffered from chronic pain before the work accident.
In Dr. Ciccarellis opinion Le sustained a 20% functional impairment, but 5% was due to her osteoporosis, leaving her with a permanent partial impairment rating of 15%. Considering only the healed fracture and disregarding her ongoing pain, Dr. Ciccarelli was of the opinion that she did not suffer any task loss. He opined that Le was not in need of future medical care for her fracture but needed ongoing care for her osteoporosis which, if untreated, could cause chronic pain.
The ALJ noted that prior to the accident, Le was able to work full time without limitations despite her osteoporosis, but after the accident she was severely limited in what she could do on account of her pain. Based on Le’s personal background, her chronic pain, and the opinions of Drs. Johnson and Murati, she determined that Le was not capable of substantial gainful employment and was entitled to benefits for being permanently and totally disabled. Further, Le was entitled to future medical benefits, including pain management care.
On appeal, the Board adopted Dr. Ciccarelli’s impairment opinion and determined that Le suffered a 15% permanent partial whole person functional impairment. The Board found that Le’s inability to return to work was not caused by her fracture but rather by her osteoporosis. The Board disregarded Dr. Murati’s impairment rating regarding Le’s lower back pain and radiculopathy because these symptoms were not a result of her fracture. The Board limited Le’s future medical treatment to treatment for her vertebral fracture. Le appeals.
Appellate Review
As directed by K.S.A. 2013 Supp. 44-556(a), we review the Board’s order pursuant to the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., to determine if the Boards findings are supported by substantial evidence based on the record as a whole. K.S.A. 2013 Supp. 77-621(c)(7). In doing so, we do not reweigh the evidence or engage in de novo review. K.S.A. 2013 Supp. 77-621(d).
We have unlimited review of questions involving the interpretation or construction of a statute, owing “ ‘no significant deference’ ” to the Board’s interpretation or construction. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 (2010). We may grant relief if we determine the Board erroneously interpreted or applied the law. K.S.A. 2013 Supp. 77-621(c)(4). In making that determination, we apply the law de novo to undisputed facts. Bryant v. Midwest Staff Solutions, Inc., 292 Kan. 585, 587, 257 P.3d 255 (2011).
Permanent Total Disability—Effect of Preexisting Condition
Before the 2011 amendments to the Act, it had been “well established under the workers compensation law in Kansas that when a workers job duties aggravate or accelerate an existing condition or disease or intensify a preexisting condition, the aggravation becomes compensable as a work-related accident.” Poff v. IBP, Inc., 33 Kan. App. 2d 700, 708-09, 106 P.3d 1152 (2005). The injured worker was entitled to compensation for any increase in tire amount of functional impairment associated with the aggravation. See K.S.A. 2010 Supp. 44-501(c).
But Le’s accident occurred several months after the 2011 amendments to the Act were effective. With tírese amendments a compensable injury was limited as follows: “An injury is not com-pensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic.” K.S.A. 2011 Supp. 44-508(f)(2).
While we have not interpreted the new language in K.S.A. 2011 Supp. 44-508(f)(2), numerous Board decisions since this amendment have done so. See Allen v. Cleary Building Corp., No. 1,063,145, 2014 WL1758038, at *6-7 (Kan. Work. Comp. App. Bd. 2014) (citing six Board decisions interpreting K.S.A. 2011 Supp. 44-508[fj [2]).
Allen v. Cleary Building Corp.
In Cleary, authored by Board member David A. Shufelt, the claimant had a long history of injuries to his cervical spine. He then reinjured his neck at work. The ALJ entered a preliminary order for benefits, and the respondent appealed to the Board, arguing in part that the claimants injury was not compensable because it was an aggravation of a preexisting condition. The Board reviewed the. claimant’s medical records and confirmed that he had a disk protrusion at tire C6-C7 level that had not been present in his previous MRIs in addition to medical findings in areas of his cervical spine that had previously been injured. The Board stated:
“It seems clear the Kansas legislature, in enacting the May 15, 2011, amendments to the Act, intended to limit recover in claims involving aggravations of preexisting conditions or which render preexisting conditions symptomatic. However, the legislature chose to use the term ‘solely in conjunction with the word aggravates’ in K.S.A. 2012 Supp. 44-508(f)(2). ‘Solely’ must be provided its plain meaning. The Kansas Supreme Court held in [Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607-08, 214 P.3d 676 (2009)], as follows:
“When a workers compensation statute is plan and unambiguous, this court must give effect to its express language rather than determine what the law should or should not be. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it. If the statutory language is clear, no need exists to resort to statutory construction. Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 608 (2007).’
Thus, the issue in this review is not whether claimants preexisting cervical condition was aggravated by claimant’s accident, but rather whether the injury solely aggravated the preexisting condition.
“Recent Board decisions are instructive on the issue. The Appeals Board has found accidental injuries resulting in a new physical finding, or a change in Ae physical structure of Ae body, are compensable, despite claimant also having an aggravation of a preexisting conAtion. These decisions tend to show compensability where there is a demonstrated physical injury above and beyond an aggravation of a preexisting conAtion.” Cleary, 2014 WL 1758038, at *6.
The Board in Cleary considered six other Board decisions that had interpreted K.S.A. 2011 Supp. 44-508(f)(2) to mean that accidental injuries resulting in a new physical finding, or a change in the physical structure of the body, are compensable despite the claimant also having sustained an aggravation of a preexisting condition. Following those earlier Board decisions, the Board found that the claimants C6-C7 disk protrusion was a new lesion or change in the physical structure of his body caused by the accident. Because of this finding, the Board determined that the accident did not solely aggravate a preexisting condition and therefore the injury was compensable. Here are 'the six other Board decisions discussed in Cleary.
Folies v. State
Folks v. State, No. 1,059,278, 2012 WL 4040471 (Kan. Work. Comp. App. Bd. 2012), was also authored by Board member Shufelt. There, the claimant injured his knee while working on a ladder. “I felt my knee pop.... I noticed my knee starting to swell.” An MRI performed 3 days later revealed a chronic tear of the anterior cruciate ligament and other conditions predating Folks’ work accident, including significant osteoarthrosis and osteonecro-sis. None of these conditions had been symptomatic before Folks’ work accident.
Dr. Mark Rasmussen diagnosed Folks as having a chronic ACL tear and degenerative joint disease. Another orthopedist, Dr. Lepse, opined that Folks needed a total right knee replacement. Dr. Edward Prostic testified to Folks3 preexisting tears and opined that the work accident “caused additional tearing of his medial meniscus for which in general he would need a partial medial men-iscectomy but that it would most likely not give him relief so the total knee replacement authroplasty is claimants best treatment option.33 2012 WL 4040471, at *3. While Dr. Prostic acknowledged that Folks3 “osteoarthritis is the greatest factor leading to the total knee replacement recommendation,” he testified that the work accident was “the prevailing factor in the need for surgery at this time, but for the preexisting disease he would not need a total knee replacement.” 2012 WL 4040471, at s3.
The ALJ found that Folks3 meniscus injury arose out of his work injury, which was the prevailing factor in causing his need for a total knee replacement. On appeal to the Board, and after citing K.S.A. 2011 Supp. 44-508(f)(2), the Board affirmed the ALJ and stated:
“Dr. Prostic, the court ordered independent medical examiner, opined that the accident caused a new tear in claimants medial meniscus. Consequently, the accident did not solely aggravate, accelerate or exacerbate the preexisting condition in claimant’s knee. Moreover, Dr. Prostic concluded that although a tom meniscus is normally treated by a partial medial meniscectomy, in this case because of claimant’s preexisting knee condition such treatment would not provide claimant relief and the arthroplasty was the best and appropriate course of treatment. Consequently, Dr. Prostic concluded the December 2011 work injury was the prevailing factor in claimant’s need for surgery at this time.” 2012 WL 4040471, at “3.
Homan v. U.S.D. #259
In Homan v. U.S.D. # 259, No. 1,058,385, 2012 WL 2061780 (Kan. Work. Comp. App. Bd. 2012), also authored by Board member Shufelt, the claimant had a preexisting but asymptomatic carpal tunnel syndrome at the time of her work-related injury to her wrist. The accident happened in August 2011, after the effective date of the current statutory change. The accident resulted in a tear of the left triangular fibrocartileage and aggravated and rendered symptomatic the claimants carpal tunnel syndrome. The medical testimony established the claimants need for medical treatment for both conditions. The Board found K.S.A. 2011 Supp. 44-508(f) (2) inapplicable because the accident did not merely aggravate the preexisting carpal tunnel syndrome but tore a cartilage in the claimant’s wrist.
Macintosh v. Goodyear Tire eh Rubber Co.
In Macintosh v. Goodyear Tire & Rubber Co., No. 1,057,563, 2012 WL 369786 (Kan. Work. Comp. App. Bd. 2012), also authored by Board member Shufelt, the claimant had preexisting disk protrusions at L3-4, L4-5, and L5-S1 that had periodically caused him pain and radiating pain on the left side. His June 2011 work-related injury occurred when he was bounced around while driving a fork lift, causing immediate pain from his low back down his right side. A postaccident MRI disclosed a herniated disk at L5-S1, which affected the right passing nerve root. The Board found that the accident did not solely aggravate a preexisting condition because of this new herniated disk. Thus, the accident did not solely aggravate a preexisting condition. The accident was found to be “the prevailing factor causing the injury, medical condition and resulting disability.” 2012 WL 369786, at *1.
Short v. Interstate Brands Corp.
In Short v. Interstate Brands Corp., No. 1,058,446, 2012 WL 3279502 (Kan. Work. Comp. App. Bd. 2012), also authored by Board member Shufelt, the claimant had a history of surgical reconstructive repair to the anterior cruciate ligament in his right knee and mild osteoarthritic changes. The claimant began to experience pain in that knee over 20 years later in July 2011 while working for respondent as a delivery route driver. The claimant had experienced a new meniscus tear from the repetitive trauma of his delivery work. This was a new finding. Consequently, K.S.A. 2011 Supp. 44-508(f)(2) did not apply because the injury did not solely aggravate, accelerate, or exacerbate a preexisting condition.
Ragan v. Shawnee County
In Ragan v. Shawnee County, No. 1,059,278, 2012 WL 2061787 (Kan. Work. Comp. App. Bd. 2012), authored by Board member Duncan A. Whittier, the claimant suffered a work-related injury to his left wrist while hauling trash. The injury caused a partial rupture of a ligament in his wrist. In October 2011, the claimant rein-jured his wrist at work, resulting in a complete rupture of the tendon in his left wrist. The Board determined the “claimant sustained a change in the physical structure of his wrist,” so the limitation of K.S.A. 2011 Supp. 44-508(f)(2) did not apply. 2012 WL 2061787, at *4. The October 2011 accident was the prevailing factor in causing claimant’s current injury.
Gilpin v. Lanier Trucking Co.
In Gilpin v. Lanier Trucking Co., No. 1,059,754, 2012 WL 6101121 (Kan. Work. Comp. App. Bd. 2012), authored by Board member John F. Carpinelli, the claimant had a preexisting spondy-lolisthesis, which was rendered symptomatic by the work-related injury in June 2011. The Board determined that the work did not solely render his preexisting spondylolisthesis symptomatic. Rather, “the structure of claimant’s previously asymptomatic spondylo-listhesis changed.” 2012 WL 6101121, at s4.
The interpretation found in these Board decisions comports with the plain language of the statute, which appears to be intended to exclude liability for an employees’ preexisting conditions when the injury is solely an aggravation of die preexisting condition. Further, while Cleary and tire six Board decisions it cites were on review of a preliminary hearing Order, no subsequent Board Order in any of these cases undermined the holding in any of these cases.
But in the Cleary line of cases, the injury from the work accident included concurrent and, at the time, ongoing new injuries along with the aggravated preexisting injuries. In our present case, Le’s new injury, the vertebral fracture, according to Dr. Ciccarelli has healed, leaving ongoing Le’s preexisting condition of osteoporosis.
But Le continues to experience chronic and debilitating pain. All of the doctors who saw Le believed her pain was real. There is no dispute that the pain prevented Le from doing a day’s work. The question is whether the source of this pain is Le’s fracture or her preexisting osteoporosis.
Dr. Johnson testified that fractures due to osteoporosis cause chronic pain and that Le’s pain was causally related to her work accident. He also opined that Les pain from her fracture would be the same even if she did not have osteoporosis. According to Dr. Johnson, Les inability to work is due to her chronic pain.
Dr. Murati also opined that Les pain was caused by her fracture, not her osteoporosis.
But Dr. Ciccarelli, on whose testimony the Board relied, opined that Les pain was caused by an aggravation of Les osteoporosis. He testified that he would expect ongoing pain from a minor vertebral fracture for about a year after the injuiy. But here Les fracture was much more significant. And while “a very common complaint of someone with osteoporosis is chronic pain,” there is no indication Le suffered from chronic pain before the work accident, though she suffered from severe osteoporosis at the time. Dr. Ciccarelli s opinion of the source of Le’s ongoing pain was made 5 months, not a year, after the accident. Further, his 1-year pain projection applied only to minor fractures, which was not the case here. He stated that with advance stage osteoporosis, “a very common complaint of someone with osteoporosis is chronic pain” without evidence of a specific trauma or identifiable fracture. But here, there was a specific trauma and identifiable fracture sustained by Le which can account for her persistent pain, and there is no evidence of chronic pain from undetected traumas before this work accident.
The relevant part of K.S.A. 2011 Supp. 44-508(d) defines an “[ajccident” as
“an undesigned, sudden and unexpected traumatic event, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. An accident shall be identifiable by time and place of occurrence, produce at the time symptoms of an injury, and occur during a single work shift. The accident must be the prevailing factor in causing the injuiy.”
The Board noted that there was no dispute that Le suffered an accident as defined by this statute.
According to K.S.A. 2011 Supp. 44-510c(a)(2), “[pjermanent total disability exists when the employee, on account of the injury, has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment.” An “injury” under K.S.A. 2011 Supp. 44-508(f)(l) requires a “lesion or change in the physical structure of the body, causing damage or harm thereto.”
There is no dispute that Le suffered a vertebral fracture in her work accident. But under K.S.A. 2011 Supp. 44-508(f)(2)(B)(ii), the accident must be “the prevailing factor causing the injury, medical condition, and resulting disability or impairment” (Emphasis added.) According to K.S.A. 2011 Supp. 44-508(g), to be the “prevailing factor causing the injury,” means to be “the primary factor, in relation to any other factor.” Here, the Board determined that the prevailing factor that led to Les T-10 fracture was her fall at work. But there remained the issue whether Les fall and the resulting fracture were the prevailing factor causing Les “resulting disability or impairment” under K.S.A. 2011 Supp. 44-508(f)(2) (B)(ii). The Board resolved this issue against Le, finding that her chronic pain was caused by her preexisting osteoporosis, not the fracture. The Board agreed with Dr. Ciccarelli that osteoporosis was the prevailing factor in the inability of Le to return to work.
We do not substitute our view for that of the Board on issues of credibility. But based on our earlier analysis of Dr. Ciccarellis testimony, when considering the record as a whole, we cannot conclude that Dr. Ciccarelli’s testimony provided substantial evidence to support the Boards decision. Le’s osteoporosis was an ongoing condition. She did not suffer from chronic pain before her work accident. Following the accident, she suffered from intractable pain that prevented her from returning to work. It is undisputed that Les fracture was painful. In her case, the pain became chronic and has never been associated with a post-work-accident trauma. When viewing the record as a whole, the evidence undermines Dr. Ciccarellis conclusion that Les ongoing pain which prevents her from working is attributed solely to her preexisting osteoporosis and is not a consequence of the injury she sustained at work. See Herrera-Gallegos v. H&H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d 239 (2009). There was insufficient evidence to support the Board’s conclusion on this point, and we reverse and remand for the Board to reinstate the ALJ s award based upon the finding that Le was permanently and totally disabled.
Future Medical
Le asserts that the ALJs award of future medical care should also be reinstated. She argues that tire Board erred in limiting her future medical benefits to reasonable and necessary treatment for the T10 fracture to the exclusion of any pain management for her chronic pain.
According to K.S.A. 2011 Supp. 44-510h(a), the employer has the duty “to provide tire services of a health care provider ... as may be reasonably necessary to cure and relieve the employee from the effects of the injury.” (Emphasis added.)
Based on our finding that Les chronic pain is part of her com-pensable injury, we reverse the Boards decision regarding future medical care and reinstate the ALJs award including future pain management.
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Buser, J:
Steven Kent Bloom, an inmate at the Lansing Correctional Facility, brought this pro se civil rights action under K.S.A. 2004 Supp. 60-1501 and 42 U.S.C. § 1983 (2000). Bloom appeals the district court’s dismissal for failure to state a claim. We affirm in part, reverse in part, and remand with directions.
Factual and Procedural Background
Bloom filed a civil rights lawsuit pursuant to K.S.A. 2004 Supp. 60-1501 and 42 U.S.C. § 1983 against the Kansas Department of Corrections and various named and unnamed employees (KDOC). On October 5, 2004, the district court considered KDOC’s answer and motion to dismiss. The district court made separately enumerated findings, which included a list of Bloom’s claims:
“11. Plaintiff claims that he has been denied his ‘right to freedom of speech.’
“12. Plaintiff claims that he has been denied free and uninterrupted communications with courts, publishers and educational institutions.
“13. Plaintiff claims that acting warden Simmons, of the El Dorado Corrections Facility, willfully denied him his cash funds to pay a filing fee in the U.S. District Court.
“14. Plaintiff claims that he was unjustly charged with a disciplinary violation and held in segregation from 4-22-03 through 5-12-03 and the charge was dismissed.
“15. Plaintiff claims that he was denied the use of his typewriter during this time period and was denied his right to docket an appeal with the Kansajs] Supreme Court.
“16. Plaintiff claims that certain pieces of mail were pre-opened illegally.
“17. Plaintiff claims that he was deprived of Iris fair turn in line for access to the law library and to make legal copies.
“18. Plaintiff claims that he was denied catalogues for the purchase of books.
“19. Plaintiff claims that he is discriminated against because he has to trade in his old typewriter ribbons when he buys new one[s] and the costs of these ribbons is [sic] deducted from his inmate store account limits.
“20. Plaintiff claims drat he was denied attendance at Donnelly College.
“21. Plaintiff claims that IMPP 11-101 is used to deny him his right to purchase books because it limits spending to $30.00.
“22. Plaintiff claims that he was assigned a job by KDOC which is contrary to his disability and was done in retaliation to his filing a law suit [sic] against K.D.O.C. and staff.”
In its answer, KDOC raised failure to exhaust administrative remedies under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) (2000); immunity under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq.; failure to state a claim under K.S.A. 60-212(b)(6); qualified immunity under federal law; and immunity under the Eleventh Amendment to the United States Constitution.
The motion to dismiss raised the same grounds for dismissal, adding res judicata and lack of personal participation by the individual defendants in the acts alleged. The record on appeal does not contain a response to the motion to dismiss. The district court docketing statement, however, shows a six-page reply to defendant’s motion to dismiss was filed on September 29, 2004. The district court docketing statement also shows “[correspondence from [Bloom]” was filed on October 4, 2004, and a motion to supplement from Bloom was filed on October 6, 2004. These additional filings are also not in the record on appeal.
The district court granted KDOC’s motion and dismissed the lawsuit with prejudice. The district court held Bloom to a heightened standard of pleading because KDOC had raised qualified immunity as a defense. The district court determined Bloom had not met that standard and had failed to state a claim. Finally, applying K.S.A. 75-52,138, the district court found Bloom had not proven exhaustion of his administrative remedies. The district court declined to consider die other grounds raised by KDOC.
Standard of Review
Pro se pleadings are liberally construed. Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004). The analysis depends on the facts alleged by the pro se petitioner, not the form of the pleading. Jackson v. State, 1 Kan. App. 2d 744, 745, 573 P.2d 637 (1977), rev. denied 225 Kan. 844 (1978). When reviewing a dismissal for failure to state a claim, a petitioner’s facts and any reasonable inferences are assumed to be true. The question is whether the facts and inferences state a claim on any possible theory. McCormick v. Board of Shawnee County Comm’rs, 272 Kan. 627, 634, 35 P.3d 815 (2001),
Whether an official enjoys qualified immunity under certain facts is reviewed de novo. See Huffmier v. Hamilton, 30 Kan. App. 2d 1163, 1165, 57 P.3d 819 (2002), rev. denied 275 Kan. 964 (2003).
“An allegation that a party is required to or has failed to exhaust administrative remedies presents a question of law, and the appellate court’s standard of review is unlimited. [Citation omitted.]” In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 622-23, 24 P.3d 128 (2001).
Qualified Immunity Defense
In considering KDOC’s qualified immunity defense, the district court held Bloom to the heightened standard of pleading set out in Breidenbach v. Bolish, 126 F.3d 1288, 1292 (10th Cir. 1997). In Currier v. Doran, 242 F.3d 905, 912, 916 (10th Cir. 2001), however, a panel of the Tenth Circuit Court of Appeals reversed Breidenbach and held the heightened standard could not be mandated by appellate courts after Crawford-El v. Britton, 523 U.S. 574, 140 L. Ed. 2d 759, 118 S. Ct. 1584 (1998). In McCormick, the Kansas Supreme Court followed Currier and held the heightened standard of pleading should not be applied in Kansas state courts. 272 Kan. at 638. In Huffmier, 30 Kan. App. 2d at 1167-68, this court, relying on McCormick, held a trial court erred in applying the Breidenbach heightened standard. Similarly, the district court should not have held Bloom to the heightened standard of pleading.
In Hujfmier, the panel proceeded to consider the qualified immunity issue under the proper standard. See 30 Kan. App. 2d at 1166-71. The appeal in Hujfmier was from a summary judgment ruling, and all the facts were before the appellate court. In the present case, the district court dismissed the lawsuit based only on the initial pleadings.
We must consider whether we apply the proper standard to the existing record in order to rule on the qualified immunity issue “ ‘at the earliest possible stage of litigation.’ [Citation omitted.]” Huffmier, 30 Kan. App. 2d at 1167 (quoting Saucier v. Katz, 533 U.S. 194, 201, 150 L. Ed. 2d 272, 121 S. Ct. 2151 [2001]). The fact that Bloom’s reply to his motion to dismiss and the motion to supplement are not in the record is critical because the United States Supreme Court “has never indicated that qualified immunity is relevant to the existence of the plaintiff s cause of action; instead ... it [is] a defense available to die official in question. [Citations omitted.]” See Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980). In other words, a “plaintiff need not overcome the [immunity] defense in the complaint. [Citation omitted.]” Alexander v. Newman, 345 F. Supp. 2d 876, 881 (W.D. Tenn. 2004). Bloom’s reply to the motion to dismiss, and perhaps the letter or supplement, would have been the means by which he would have responded to the qualified immunity defense if, in fact, he did respond.
We conclude that the absence of Bloom’s responsive pleadings from the record on appeal deprives this court of its ability to consider the qualified immunity issue undér the correct standard. We will still consider whether Bloom has exhausted his administrative remedies, however, and whether he has otherwise stated a claim on any exhausted issues.
Exhaustion of Administrative Remedies
In ruling against Bloom, the district court relied on K.S.A. 75-52,138, which requires an inmate filing a civil action against the State to exhaust administrative remedies prior to filing the lawsuit. State exhaustion requirements, however, do not apply to 42 U.S.C. § 1983 actions. See Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 16, 20 P.3d 39 (2001). As this court noted in Huffmier, 30 Kan. App. 2d at 1166, “[s]tate law defenses to state law claims are simply not the same as federal law defenses to federal claims.”
Certain prisoner § 1983 cases are subject to an exhaustion requirement under federal law. See Prager, 271 Kan. at 16. The PLRA states: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This provision is not jurisdictional, but it does oblige an inmate to plead exhaustion in the complaint. See Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1208-09 (10th Cir. 2003). Because “the final administrative decision is central to a prisoner’s claim . . . the prisoner is required to plead exhaustion and provide evidence of exhaustion. [Otherwise, the prisoner] has failed to state a claim and ... is vulnerable to dismissal.” 355 F.3d at 1212. The PLRA is applied in state courts. See, e.g., Toney v. Briley, 351 Ill. App. 3d 295, 297, 813 N.E.2d 758 (2004); Higgason v. Stogsdill, 818 N.E.2d 486, 489 (Ind. App. 2004).
The Kansas prison administrative grievance procedures generally allow appeals to the Secretary of Corrections. See K.A.R. 44-15-102(c). The documents Bloom attached to his petition and included in the two appendixes show an appeal to the Secretaiy of Corrections of two grievances (claims Nos. 16 and 20), which were both determined against him and appealed in the instant case. The balance of Bloom’s claims were not exhausted and, as a result, must be dismissed without prejudice. See Sandlin v. Roche Laboratories, Inc., 268 Kan. 79, 88, 991 P.2d 883 (1999) (remanding with directions to dismiss without prejudice so petitioner could exhaust administrative remedies); Steele, 355 F.3d at 1213. We next address claims Nos. 16 and 20.
Analysis of Claims Nos. 16 and 20
On October 1, 2002, Bloom complained that he received “Legal Mail” which had been opened (claim No. 16). This was given grievance No. 00010501, and the next day a prison officer wrote: “It is not [prison] policy to open legal mail in the mail room, it is opened in front of the inmate . . . .” The officer stated he had spoken with the mail room personnel and learned that the letter in question was from Bloom’s wife. The officer directed Bloom to the inmate rule book, which defined legal mail as “mail affecting the inmate[’]s right to access to the courts or legal counsel,” such as mail from “any lawyer, a judge, a clerk of a court or any intern or employee of legal services for prisoners.” Bloom appealed, stating the mail was actually from his mother, who “holds a Power-OfAttomey on [his] behalf.” Bloom claimed the envelope identified the sender as: “Myrl Bloom, P.O.A.” and was addressed to him with the notation: “Legal Docs. Copies Ct. Records.” Both the warden and the Secretary of Corrections affirmed the response given to Bloom.
On April 15, 2004, Bloom complained he had not been let out of his cell on March 24, 2004, to 'attend a Donnelly College class (claim No. 20). The complaint was given grievance No. AA20040885, and on June 1, 2004, defendant Duane Muckenthaler responded that a corrections officer unfamiliar with the area failed to let Bloom out of his cell on March 24, which was the first day of class. According to Muckenthaler, he called Donnelly College tire next day to inform them of the situation and was told nothing had happened on the first day of class. Muckenthaler further said he told Bloom he could still attend the class, but that Bloom refused. Muckenthaler also stated Bloom was not charged for the class. The warden and the Secretary of Corrections agreed with Muckenthaler’s response.
The next question is whether we may reach the merits of claims Nos. 16 and 20. Although the district court erroneously applied a heightened pleading standard in holding that Bloom had failed to state a claim, “ '[a] trial court’s reason for its decision is immaterial if the ruling is correct for any reason.’ ” See Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 239, 32 P.3d 705 (2001) (quoting KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 110, 118, 936 P.2d 714 [1997]). We will, therefore, consider whether Bloom failed to state a claim more generally; that is, accepting Bloom’s description of events and any reasonable inferences as true, does his petition state a claim under any possible theory? See McCormick, 272 Kan. at 634; Yousef v. Reno, 254 F.3d 1214, 1219 (10th Cir. 2001).
Applying a liberal construction to claim No. 16, Bloom alleges one piece of legal mail was opened before he received it and that this was done to antagonize him. He does not allege a pattern of behavior, and he does not allege any prejudice. Accepting these allegations as true, Bloom fails to state any facts from which a claim may be reasonably inferred under any legal theory.
It is true an inmate’s legal mail may be opened only in his or her presence. Bagguley v. Barr, 893 F. Supp. 967, 971 (D. Kan. 1995). The response given Bloom shows this is the prison policy, and the policy also conforms with the administrative regulations. See K.A.R. 44-12-601(e). The regulation specifies, however, that incoming legal mail must be “clearly identified as legal, official, or privileged mail . . . .” K.A.R. 44-12-601(e). The United State Supreme Court has approved similar requirements, which “assure that the letters marked privileged are actually from members of the bar.” Wolff v. McDonnell, 418 U.S. 539, 577, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974).
Bloom’s letter was not from a member of the bar, and he states no facts which would otherwise render it privileged. His mother’s alleged power of attorney, even if it could be deciphered from the initials “P.O.A.” on the return address, did not communicate that the letter involved Bloom’s access to the courts. See Sallier v. Brooks, 343 F.3d 868, 875 (6th Cir. 2003) (return address of American Bar Association did not convey that the communication involved an inmate’s legal representation). A legal power of attorney does not confer upon the holder a right to appear in court on behalf of another. The notation indicating the letter contained copies of court files also would not clearly identify the contents as privileged. Court files are generally public documents.
Even if the letter was legal mail under the administrative regulations, this one incident in itself does not support an action for breach of Bloom’s constitutional rights. To properly allege a constitutional violation, an inmate must show a pattern of censorship or other practices which chill or impede the inmate’s access to legal representation and the courts. See Davis v. Goord, 320 F.3d 346, 351-52 (2d Cir. 2003). Bloom did not meet this standard.
Turning to claim No. 20 under a liberal construction, Bloom alleges his attendance at Donnelly College was approved, but that he was not allowed out of his cell to attend classes. As discussed above, the documents in the appendix show he was mistakenly not let out for the first day of class. Nothing of significance occurred that day, and later, Bloom refused on his own volition to attend the course. He was not charged for the class.
These facts not only fail to state a legal claim, they are frivolous. Although Bloom may have missed the first day of class, the decision to not attend thereafter was his own. The first-day confusion over scheduling does not, in itself, support a claim under the United States Constitution or any other federal law. “There is no constitutional right to prosecute an action that is frivolous or malicious.” State ex rel. Stovall v. Lynn, 26 Kan. App. 2d 79, Syl. ¶ 1, 975 P.2d 813, rev. denied 267 Kan. 890 (1999).
Having determined that Bloom exhausted claims Nos. 16 and 20, we affirm the district court’s dismissal with prejudice of these two claims for the above-stated reasons. The district court’s dismissal with prejudice of the remainder of the claims, as identified by the district court, however, is reversed and remanded. On remand, the district court is directed to dismiss Bloom’s remaining claims without prejudice.
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The opinion of the court was delivered by
Johnson, J.:
Brandon Castleberry seeks review of the Court of Appeals’ decision affirming his jury trial convictions and sentence for obstruction of official duty, distribution of methamphetamine, unlawful use of a communication facility to arrange a drug sale, failure to affix a drug tax stamp, and fleeing or attempting to elude a police officer. State v. Castleberry, 48 Kan. App. 2d 469, 293 P.3d 757 (2013). Castleberry arranged to sell methamphetamine to a police informant in a telephone conversation and then, after effecting the sale in a park, led police on a high-speed chase before being subdued and arrested.
On petition for review from the Court of Appeals, Castleberry argues: (1) The State failed to establish that Castleberry used a communication facility in Lyon County so as to establish venue on that charge; (2) the district court’s failure to instruct the jury on the definition of a moving violation for purposes of fleeing and eluding was clearly erroneous; (3) the district court’s failure to give a unanimity instruction on the obstruction of official duty charge was clearly erroneous; (4) the State presented insufficient evidence on all of the instructed alternative means of committing distribution of methamphetamine; and (5) the district court violated his rights to the Sixth and Fourteenth Amendments to the United States Constitution when it sentenced him to an increased sentence based upon his criminal history without requiring the State to prove it to a jury beyond a reasonable doubt. Finding no reversible error, we affirm Castleberry’s convictions and sentence.
Factual and Procedural Background
On June 10, 2010, to avoid being prosecuted on unrelated charges, Mark Foltz agreed to assist law enforcement officers by making a controlled purchase of methamphetamine from Brandon Castleberry. While at the Emporia Police Department, Foltz made two recorded cell phone calls to Castleberry. In the first call, Foltz told Castleberry he wanted to “go fishing,” which he explained to police was code for purchasing methamphetamine. During that call, Castleberry asked Foltz where he was calling from, and Foltz responded that he was “in town.” During die second call, Foltz and Castleberry agreed to meet at Peter Pan Park in Emporia.
Based upon these phone calls, police set up video recording equipment at Peter Pan Park, placed a wireless transmitter on Foltz, and gave Foltz $600 to fund the methamphetamine purchase. Then, Foltz drove his pickup truck to the park to meet Castleberry, who also arrived in a vehicle. Foltz got into Castle-berry’s car, where, according to Foltz’ testimony, he gave Casde-berry $600 in exchange for a cigarette package containing methamphetamine. When the two parted ways, Foltz returned to the Emporia Police Department widr the methamphetamine.
Officer Lance Delgado, driving a marked patrol vehicle, unsuccessfully attempted to stop Castleberry’s car as it left the park. Instead of pulling over, Castleberry led officers on a 45-minute, high-speed chase through residential and rural areas of Lyon County. During the chase, Castleberry disobeyed several stop signs and traffic signals, while driving at speeds ranging from approximately 45 miles per hour to 120 miles per hour.
Highway Patrol Trooper Beau Wallace learned of Castleberry’s location and stopped his patrol car in the opposite lane of traffic with the intent of deploying stop sticks to end the chase. Wallace was still in his car when Castleberry’s car traveled towards him at 109 miles per hour. As Castleberry approached, he neared the road’s centerline, as though he was aiming at Wallace’s car. Wallace accelerated into the ditch to get out of Castleberry’s path and notified dispatch that Castleberry had tried to hit him.
The pursuit finally ended when law enforcement deployed stop sticks in the path of Castleberry’s vehicle, which caused Castleberry to stop before reaching the stop sticks. Immediately upon coming to a stop, Castleberry got out of his vehicle. Four officers pointed their weapons at Castleberry and yelled at him to get down on the ground. Castleberry threw his arm up in the air in what Delgado described as an “almost taunting” or “threatening” motion. Wallace described Castleberry’s behavior as antagonistic and aggressive and noted that Castleberry told the officers to shoot him. After approximately 5 to 20 seconds, Delgado tased Castleberry, allowing officers to temporarily subdue him, before Castleberry resumed resisting the officers’ attempts to handcuff him.
Based on these events, the State charged Castleberry with one count each of aggravated assault on a law enforcement officer, obstructing legal process or official duty, distribution of methamphetamine, unlawful use of a communication facility, failure to affix a drug tax stamp, fleeing or attempting to elude a law enforcement officer, and reckless driving.
At trial, Castleberry testified in his own defense, denying that he had given Foltz methamphetamine in exchange for money. He contended that his telephone conversation with Foltz was literally about going fishing, as they had done in the past. Castleberry said that on those prior fishing expeditions, he had used the fishing equipment that Foltz kept in his pickup truck. Castleberry explained further that, when the two met at the park, Castleberry was talking to Foltz’ girlfriend and handed the telephone to Foltz. After Foltz spoke with his girlfriend, he announced that he was not ready to fish that day but perhaps they could go the following day.
Castleberry explained that as he left the park, he noticed police officers following him, and he panicked. But he said that during the chase he spoke by telephone with his mother and a friend, who convinced him to stop his car. He further testified that he did not resist arrest, but rather he was unable to place his arms behind his back because of his large body structure and the effects of the taser.
After the close of evidence, the district court granted the State’s motion to dismiss the misdemeanor reckless driving charge to avoid a potential issue with convicting Castleberiy of both felony fleeing or eluding a police officer and misdemeanor reckless driving. The jury acquitted Castleberry of aggravated assault of a law enforcement officer but found Castleberry guilty of the remaining charges. The district court sentenced Castleberry to a controlling sentence of 61 months’ imprisonment.
Castleberry appealed to the Court of Appeals, which affirmed his convictions and sentence. On the venue question, the panel concluded that the State’s proof that Foltz originated the call in Lyon County was sufficient evidence to establish venue on the use of a communication facility charge. Castleberry, 48 Kan. App. 2d at 477. Although the panel determined that the trial court erred in failing to instruct the jury on the specific underlying moving violations that supported the fleeing and eluding charge, it determined that the error was harmless because all of the traffic offenses described at trial constituted moving violations. 48 Kan. App. 2d at 482. The panel found no error in the district court’s failure to provide the jury with a unanimity instruction on the obstruction of official duty charge because Castleberry’s conduct was one continuous act, i.e., there were not multiple acts. In the alternative, the panel found that the State effectively elected the act upon which it was relying. 48 Kan. App. 2d at 484-86. The panel rejected Cas-tleberry’s argument that the definition of “distribute” provided to the juiy established alternative means of committing the crime of distribution of methamphetamine. 48 Kan. App. 2d at 486-89. Finally, the panel rejected Castleberry’s due process challenge to tire district court’s use of his criminal history score to enhance his sen- tenee. 48 Kan. App. 2d at 489. This court granted Castleberry's petition for review.
Proper Venue For Unlawful Use of a Communication Facility
Castleberry argues that the State failed to establish that venue to prosecute the use of a communication facility charge was proper in Lyon County because the State faded to present sufficient evidence from which a rational jury could infer that Castleberry was physically present in Lyon County during his telephone conversations with Foltz. Rejecting the premise that Castleberry had to be physically present in Lyon County in order to use a communication facility within that county, we deny his venue challenge.
Standard of Review
Castleberry cites to this court's standard of review for analyzing the sufficiency of the evidence. But before we can determine whether the State’s evidence was sufficient to prove the facts necessary to establish Lyon County as a proper venue for the use of a communication facility charge, we must interpret the statute that defines the crime to ascertain where the defendant is deemed to have used the communication facility. Of course, statutory interpretation is a question of law over which appellate courts exercise unlimited review. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
Analysis
We begin by looking at the statutory definition of the crime of unlawful use of a communication facility contained in K.S.A. 2009 Supp. 21-36a07, which provides, in relevant part:
“(a) It shall be unlawful for any person to knowingly or intentionally use any communicatio n facility:
(1) In committing, causing, or facilitating the commission of any felony under K.S.A. 2009 Supp. . . . 21-36a05 . . .
“(c) As used in this section, ‘communication facility’ means any and all public and piivate instrumentalities used or useful in the transmission of writing, signs, signals, pictures or sounds of all kinds and includes telephone, wire, radio, com puter, computer networks, beepers, pagers and all other means of communication.” (Emphasis added.)
Castleberiy recognizes that the definition of the crime in K.S.A. 2009 Supp. 21-36a07 does not specify a location element. Accordingly, Castleberry’s “argument essentially raises the question of whether [Lyon] County was the proper venue for prosecuting him for the crime.” See State v. Kendall, 300 Kan. 515, 530, 331 P.3d 763 (2014) (citing State v. Rivera, 42 Kan. App. 2d 1005, 1008-10, 219 P.3d 1231 [2009], rev. denied 290 Kan. 1102 [2010], to explain that “unless specified in statute defining the crime, location of where the crime was committed is generally not an element of the crime; however, venue is a necessary jurisdictional fact that must be proven along with the elements of the actual crime”).
Kansas’ venue statutes prescribe where the State may prosecute a crime. Pursuant to K.S.A. 22-2602, “[e]xcept as otherwise provided by law, the prosecution shall be in the county where the crime was committed.” Under K.S.A. 22-2603, “[w]here two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.” Accordingly, our first task should be to determine the act or acts Castleberry had to perform in order to commit the crime of unlawful use of a communication facility. Then, we look at where he performed those acts.
Castleberiy argues that the State was required to prove what it charged in the complaint, i.e., he was physically present in Lyon County when he used a cell phone to receive the call from Foltz about a drug purchase. Castleberry relies on a prior, unpublished opinion from the Court of Appeals, State v. Price, No. 92,012, 2005 WL 823912 (Kan. App.) (unpublished opinion), rev. denied 280 Kan. 989 (2005). There, Price was charged in Atchison County with the unlawful use of a communication facility to arrange the sale of a controlled substance. But at trial, the State only presented evidence that the drug purchaser was located in Atchison County during the telephone conversation arranging the sale; the State did not prove that Price was in Atchison County when he received the call. The Price panel rejected the State’s argument that the pur chaser s use of a telephone in Atchison County satisfied K.S.A. 22-2603, reasoning that it was “unpersuaded that [the purchaser’s] act [of using an Atchison County telephone to call Price] was an element of Price’s crime.” 2005 WL 823912, at *3.
While acknowledging the factual similarity to Price—that “[t]he record does not indicate whether Castleberry was in Lyon County when he received [the informant’s] phone calls,” Castleberry, 48 Kan. App. 2d at 477—the panel in this case took another tack, reasoning as follows:
“K.S.A. 2009 Supp. 21-36a07(a) states: ‘It shall be unlawful for any person to knowingly or intentionally use any communication facility . . . In die context of this sentence, the term ‘use’ is a transitive verb meaning ‘to put into action or service.’ See Webster’s Third New International Dictionary 2523 (1993). As a transitive verb, it requires and places emphasis on an object. See Chicago Manual of Style 172 (15th ed. 2003) (‘A transitive verb requires an object to express a complete thought; the verb indicates what action the subject exerts on the object.’). Focus on the object—in this case, a communication facility—is therefore critical to giving full effect to the term ‘use.’
“To that end, K.S.A. 2009 Supp. 21-36a07(c) defines ‘communication facility’ as ‘any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures or sounds of all kinds and includes telephone, wire, radio, computer, computer networks, beepers, pagers and all other means of communication.’ Reading the two subsections in conjunction with each other, K.S.A. 2009 Supp. 21-36a07(a), (c) malees it unlawful for any person to‘use’ any communication instrumentality ‘used or useful in the transmission of writing, signs, signals, pictures or sounds of all lands.’ Given the statute specifically requires drat the instrumentality be one that is used or useful in transmitting signals and sounds of all lands, we believe the legislature intended the act of using any communication instrumentality (in this case a cell phone) to include die transmission of information from one party to anodier. That is, although the act of using a cell phone technically may require only unilateral conduct, the language of the statute substantively requires the act of using diat cell phone to be made for purposes of communicating information from one person to another. For venue purposes, then, we conclude as a matter of law that ‘use’ of a communication facility in violation of K.S.A. 2009 Supp. 21-36a07(a) occurs simultaneously where the parties to the communication are located.” 48 Kan. App. 2d at 476-77.
We agree with the Court of Appeals that the term “communication facility” encompasses more than simply physically possessing a telephone. The statutory definition of “communication facility” contains illustrations which can be parsed as including “telephone, . . . and all other means of communication.” K.S.A. 2009 Supp. 21-36a07(c). In other words, it is the use of a communication system to facilitate a drug deal that is the gravamen of the offense. Here, Castleberry knew Foltz was calling him from “in town,” i.e., from Emporia, Lyon County, Kansas. Castleberiy intentionally used the telephone communication system that was located in part in Lyon County to arrange a drug transaction. Accordingly, venue for the crime of unlawful use of a communication facility was proper in Lyon County.
Our interpretation of K.S.A. 2009 Supp. 21-36a07 is consistent with Corpus Juris Secundum (C.J.S.)’s discussion of a similar federal statute, 21 U.S.C. § 843(b) (2009), which criminalizes the “use [of] any communication facility in committing or in causing or facilitating the commission ... of ... a felony . . . .” That treatise explains:
“The accused need not personally use tire facility, and it is sufficient that the accused instructs someone else to do so. ’Use’ of a telephone occurs at both ends of the line. Thus, the accused need not initiate the call, and may violate the statute by receiving outside the United States a call made in the United States. ‘Use’ includes receiving calls, engaging in nondescript conversations, and hanging up after a busy signal.” (Emphasis added.) 86 C.J.S., Telecommunications § 126.
For the proposition that the accused need not initiate the call, C.J.S. cites to United States v. Davis, 929 F.2d 554, 559 (10th Cir. 1991), where the Tenth Circuit held that 21 U.S.C. § 843(b) “encompass [es] situations where the defendant receives the telephone call from a government informant” and held that “[t]he statute encompasses any use of a communication facility that makes easier the commission of the underlying felony.”
For the proposition that “use” occurs at both ends of the telephone line, C.J.S. cites to United States v. Arias-Villanueva, 998 F.2d 1491, 1509 (9th Cir.), cert. denied 510 U.S. 1001 (1993), overruled on other grounds by United States v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007), where tire Ninth Circuit held that venue over the defendant in Oregon was proper even though the defendant was outside of the United States. The court reasoned that “[s]ince under section 843 the ‘use’ of the telephones was committed both where the call was made and received, venue in Oregon was proper. ” Arias-Villanueva, 998 F.2d at 1509. See also United States v. Acosta-Gallardo, 656 F.3d 1109, 1120 (10th Cir. 2011) (citing United States v. Goodwin, No. 09-3316, 433 Fed. Appx. 636, 642, 2011 WL 2006335, *5 [10th Cir. 2011], “Our circuit has previously described venue for an 843[b] offense as being appropriate ‘in both the district where the call was made and in the district where it was received.’ ”); Andrews v. United States, 817 F.2d 1277, 1279 (7th Cir. 1987) (holding “section 843[b] proscribes a continuing offense and, as a result, the crime is committed both where the call originates and where it is received”); United States v. Barnes, 681 F.2d 717, 724 (11th Cir. 1982) (“a 843[b] offense is ‘committed’ for venue purposes both in the district where the call was made and in the district where the call was received”). But cf. United States v. Rodgers, 575 F. Supp. 246, 247 (N.D. Ill. 1983) (finding government agent’s phone call from Chicago to the defendant in the Bahamas did not constitute a “use” of a communication facility under § 843[b] because defendant’s use did not occur in the United States; reasoning “[i]t is inconceivable that Congress intended under § 843[b] that a DEA agent may create federal offenses all over the world by simply picking up a telephone in the United States and calling suspected narcotics violators outside the country”).
To summarize our holding on this issue, venue to prosecute an alleged drug dealer for the crime of unlawful use of a communication facility is proper in the county where a potential drug purchaser initiates a telephone call to the dealer when the dealer knows the location of the caller and intentionally uses that telephone communication to facilitate the sale of drugs.
Failure to Instruct on Underlying Moving Violations Supporting Fleeing or Attempting to Elude a Police Officer
The elements instruction on the fleeing or attempting to elude a police officer charge included the requirement that the jury find beyond a reasonable doubt: “That the defendant engaged in reckless driving or committed five or more moving violations.” Castle-berry complains that the district court failed to sua sponte instruct the juiy as to what constitutes a moving violation for purposes of determining that particular element of the fleeing or attempting to elude charge. The Court of Appeals found that the omission was error but not clearly erroneous because all of the violations described by the police officer were moving violations, i.e., the result would not have been different if the instruction had been given. Castleberry, 48 Kan. App. 2d at 481-82. The panel did not discuss whether the inclusion of reckless driving in the elements instruction affects the analysis.
Standards of Review
Castlebeny did not request that the district court instruct the juiy on what constitutes a moving violation; therefore, our standard of review is governed by K.S.A. 22-3414(3) and State v. Williams, 295 Kan. 506, 511, 286 P.3d 195 (2012). In Williams, we noted that K.S.A. 22-3414(3) imposes a procedural hurdle when a party fails to object to or request a jury instruction:
“K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court’s giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which die party objects and die grounds for objection; or (b) the instruction or the failure to give tire instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.” 295 Kan. 506, Syl. ¶ 3.
We utilize a two-step process to determine whether an instruction is clearly erroneous:
“First, ‘the reviewing court must. . . determine whether there was any error at all. To make that determination, die appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of die entire record.’ 295 Kan. 506, Syl. ¶ 4. If error is found, then we proceed to die second step of assessing whether we are firmly ‘convinced that die jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains die burden to establish the degree of prejudice necessary for reversal.’ 295 Kan. 506, Syl. ¶ 5; see also State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013).” State v. Cruz, 297 Kan. 1048, 1066-67, 307 P.3d 199 (2013).
In this case, the second step in the analysis includes the additional inquiry as to whether the inclusion of both reckless driving and five or more moving violations created alternative means of committing the offense. “Whether a statute creates alternative means of committing a crime is a matter of statutory interpretation and construction and is a question of law subject to de novo review on appeal.” State v. Betancourt, 299 Kan. 131, 137, 322 P.3d 353 (2014) (citing State v. Foster, 298 Kan. 348, 353, 312 P.3d 364 [2013]).
Analysis
The State charged Castleberry with felony fleeing or attempting to elude a police officer. The crime of fleeing or attempting to elude a police officer is set forth at K.S.A. 2009 Supp. 8-1568 and states, in relevant part:
“(a)(1) Any driver of a motor vehicle who willfully fails or refuses to bring such driver’s vehicle to a stop for a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty as provided by subsection (c)(1), (2) or (3).
(2) Any driver of a motor vehicle who willfully otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty as provided by subsection (c)(1), (2) or (3).
(3) It shall be an affirmative defense to any prosecution under paragraph 1 of this subsection that the driver’s conduct in violation of such paragraph was caused by such driver’s reasonable belief that the vehicle or bicycle pursuing such driver’s vehicle is not a police vehicle or police bicycle.
“(b) Any driver of a motor vehicle who willfully fails or refuses to bring such driver’s vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, and who: (1) Commits any of the follotving during a police pursuit: (A) Fails to stop for a police road block; (B) drives around tire deflating devices placed by a police officer; (C) engages in reckless driving as defined by K.S.A. 8-1566 and amendments thereto; (D) is involved in any motor vehicle accident or intentionally causes damage to property; or (E) commits five or more moving violations; or
(2) is attempting to elude capture for the commission of any felony, shall be guilty as provided in subsection (c)(4).
“(c)(1) Violation of subsection (a), upon a first conviction is a class B nonperson misdemeanor.
(2) Violation of subsection (a), upon a second conviction is a class A nonperson misdemeanor.
(3) Violation of subsection (a), upon a third or subsequent conviction is a severity level 9, person felony.
(4) Violation of subsection (b) is a severity level 9, person felony.” (Emphasis added.)
The fleeing or attempting to elude instruction given in this case was modeled after PIK Crim. 3d 70.09 and also included the elements of reckless driving, modeled after PIK Crim. 3d 70.04, to-wit:
“The elements of reckless driving are as follows:
“1. That tire defendant was driving a vehicle;
“2. That the defendant was driving in a reckless manner;
“Reckless means driving a vehicle under circumstances that show a realization of the imminence of danger to another person or the property of another where diere is a conscious and unjustifiable disregard of tiiat danger.” '
Under the first step in our analysis, we must determine whether it was error for the district court not to instruct the jury on what constitutes a “moving violation” as that term is used in the fleeing and eluding statute. In State v. Richardson, 290 Kan. 176, 180-81, 224 P.3d 553 (2010), we held that because “moving violation” is not defined by the fleeing and eluding statute and “is not a simple matter of common knowledge among jurors,” it was error not to instruct the jury on the specific underlying moving violations and their elements. The Court of Appeals relied on Richardson to hold that it was erroneous not to instruct the jury on the specific elements of each moving violation at issue in this case. State v. Castleberry, 48 Kan. App. 2d 469, 481, 293 P.3d 757 (2013). The State has not cross-petitioned this panel finding and, at oral argument, the State confirmed that it was not challenging the panel’s finding of error.
Moving to the second step, we agree with the Court of Appeals’ ultimate destination—that the instruction error was not clearly erroneous^—albeit we arrive there by a different route. The Court of Appeals found no clear error by determining that all of the offenses described at trial by the police officer constituted moving violations under the definition set forth in K.A.R. 92-52-9(a). 48 Kan. App. 2d at 482. Richardson criticized this approach because it would require the appellate court to first choose from among several possible definitions of “moving violation” and then to “step into the shoes of the jurors and convict [the defendant] of five moving violations of our choice.” 290 Kan. at 183.
Nevertheless, here we are presented with a different elements instruction than was involved in Richardson. Castleberry’s jury was also instructed to determine whether he engaged in reckless driving as an option to meet the felony sentencing enhancement element of fleeing or eluding. The district court treated the options— engaging in reckless driving or committing five or more moving violations—as a multiple acts issue. But describing two different ways in which a single crime may be committed creates an alternative means question, not a multiple acts issue. We have described die distinction as follows:
“ ‘ “In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]
“ ‘ “In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt. [Citations omitted.]” [State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 (1988)].’ State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994).” State v. Becker, 290 Kan. 842, 854-55, 235 P.3d 424 (2010), superseded by statute on other grounds as stated in State v. Todd, 299 Kan. 263, 323 P.3d 829 (2014).
Engaging in reckless driving or committing five or more moving violations are simply two different ways in which misdemeanor fleeing or attempting to elude can be elevated to a felony. See K.S.A. 2009 Supp. 8-1568(b)(l)(C), (E), and (c)(4). Even if the jury were to find both circumstances—reckless driving and five or more moving violations—Castleberry would have been subject to but one conviction. Consequently, the addition of the reckless driving language to the elements instruction for the fleeing or attempting to elude charge created an alternative means question.
Two panels of the Court of Appeals have recently reached different conclusions regarding whether the penalty enhancement factors contained in K.S.A. 2009 Supp. 8-1568(b)(l) create alternative means of committing the crime of felony fleeing or attempting to elude a police officer. Most recently, a panel determined that K.S.A. 2009 Supp. 8-1568(b)(l)(C) (reckless driving) and K.S.A. 2009 Supp. 8-1568(b)(l)(D) (motor vehicle accident), did not create alternative means. The panel found these terms are options within a means, as they illustrate “the factual circumstances of the additional act that must occur during a police pursuit to raise the crime’s severity level to a felony.” State v. Goodpaster, No. 108,631, 2014 WL 702395, at *7 (Kan. App.) (unpublished opinion), petition for rev. filed March 7, 2014 (pending). Another panel reached the opposite conclusion, holding that K.S.A. 2009 Supp. 8-1568(b)(l)(C) (reckless driving) and K.S.A. 2009 Supp. 8-1568(b)(1)(E) (five or more moving violations) constitute alternative means because “[t]he proof necessary for a conviction of reckless driving or a conviction for the commission of five or more moving violations is mutually exclusive. Neither necessarily requires proof of the other.” State v. Cordovo-Hipolito, No. 103,793, 2011 WL 3658368, at *2 (Kan. App. 2011) (unpublished opinion), rev. denied 293 Kan. 1109 (2012).
Notably, Cordovo-Hipolito was filed before this court’s decision in State v. Brown, 295 Kan. 181, 196-99, 284 P.3d 977 (2012), where this court distinguished between alternative means of committing an offense and optional ways in which the State may prove the gravamen of the offense. See also Foster, 298 Kan. 348, Syl. ¶ 4 (“Alternative means are legislatively determined, distinct, material elements of a crime, as opposed to legislative descriptions of the material elements or of die factual circumstances that would prove the crime.”). That distinction is germane here. The legislature obviously intended to enhance the severity of the crime where the perpetrator endangered the public safety by the way in which he or she drove his or her vehicle while fleeing or attempting to elude the police. The State can prove that unsafe vehicle operation by either establishing the definition of “reckless” as applicable to the crime of reckless driving or by establishing that, during the flight, the defendant committed five or more moving violations. Contrary to being mutually exclusive, those proofs would most likely overlap. It is difficult to imagine that a juror would not view the act of running multiple stop signs at speeds exceeding 100 miles per hour as evidence of reckless driving.
In the words of Brown, engaging in reckless driving or committing five or more moving violations are “options within means,” rather than alternative means. Accordingly, the State was not required to prove both reckless driving and the commission of five or more moving violations. Therefore, it was not clearly erroneous to fail to instruct upon the definition of a moving violation in this case because ample evidence supported one of the options within a means—reckless driving—upon which the jury was instructed.
Multiple Acts
Castleberry next argues that the district court’s failure to sua sponte give a unanimity instruction on the obstruction of official duty charge was clearly erroneous. He contends that he committed two acts that the jury could have relied upon to support his obstruction of official duty conviction: (1) fleeing in his car, and (2) after the car chase ended, resisting officers as they tried to handcuff and arrest him. We disagree.
Standard of Review
We recently set out the framework and standard of review for analyzing unanimity instruction errors:
“Unanimity instruction errors are reviewed under a three-part framework. First, the reviewing court determines whether a multiple acts case is presented. The threshold question is whether jurors heard evidence of multiple acts, each of which could have supported conviction on a charged crime. State v. King, 299 Kan. 372, Syl. ¶ 1, 323 P.3d 1277 (2014). This is a question of law subject to unlimited review. State v. Santos-Vega, 299 Kan. 11, 18, 321 P.3d 1 (2014) (citing [State v.] Voyles, 284 Kan. [239,] 244, 160 P.3d 794 [2007]). If the case is a multiple acts case, the next question is whether error was committed. To avoid error, the State must have informed the jury which act to rely upon or the district court must have instructed the jury to agree on the specific act for each charge. Failure to elect or instruct is error. Finally, the court determines whether the error was reversible or harmless. Santos-Vega, 299 Kan. at 18. When, as here, the defendant failed to request a unanimity instruction, the court applies the clearly erroneous standard provided in K.S.A. 2013 Supp. 22-3414(3). See Voyles, 284 Kan. at 252-53. Under this test, to find the error reversible,
“ ‘[A]n appellate court must be firmly convinced that under the facts the jury would have returned a different verdict if the unanimity instruction had been given. See State v. King, 297 Kan. 955, 979-80, 305 P.3d 641 (2013); see also State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013) (noting court’s decision to omit the “real possibility” language from Voyles test to avoid confusion with the constitutional harmless error test).’ Santos-Vega, 299 Kan. at 18.” State v. De La Torre, 300 Kan. 591, 596, 331 P.3d 815, (2014).
Analysis
In De La Torre, we defined and discussed multiple acts:
“ ’Multiple acts’ are legally and factually separate incidents that independently satisfy the elements of the charged offense. See King, 299 Kan. at 379, 323 P.3d 1277; Slate v. Soto, 299 Kan. 102, 111, 322 P.3d 334 (2014). Incidents are factually separate when independent criminal acts have occurred at different times or different locations or when a criminal act is motivated by a fresh impulse. Factually separate and distinct incidents are not unitary conduct. King, 299 Kan. 372, Syl. ¶ 2, 323 P.3d 1277.” 300 Kan. at 591.
Additionally, in State v. Schoonover, 281 Kan. 453, 507, 133 P.3d 48 (2006), we noted that the factors utilized in determining if there is unitary conduct include:
“(1) whether tire acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.”
Castleberry argues that his acts of fleeing in his car and resisting arrest occurred at different locations and that an intervening event—Castleberry stopping his car—broke up his conduct and therefore created a multiple acts scenario. As previously stated, the high-speed vehicle chase ended when law enforcement deployed stop sticks in the path of Castleberry’s vehicle, which caused Cas-tleberry to stop his vehicle. Immediately upon coming to a stop, Castleberry got out of his vehicle. Four officers pointed their weapons at Castleberry and yelled at him to get down on the ground. Police described Castleberry’s behavior as “almost taunting,” threatening, antagonistic, and aggressive. After approximately 5 to 20 seconds, Officer Delgado deployed his taser on Castleberry.
The Court of Appeals found “Castleberry s conduct here—fleeing from law enforcement, stopping his vehicle, being tased, and being taken into custody—amounts to one continuous act in which Castleberiy substantially hindered or increased the burden of the law enforcement officers who were trying to effect his arrest.” Castleberry, 48 Kan. App. 2d at 484. The panel compared this factual scenario to State v. Kesselring, 279 Kan. 671, 683, 112 P.3d 175 (2005), where this court found that a kidnapping was a continuous incident that could not be factually separated even though the crime took several hours, the victim was moved from one location to another, and the victim was momentarily free when he attempted to escape. See also State v. Bischoff, 281 Kan. 195, 201-03, 131 P.3d 531 (2006) (one continuous act of aggravated assault where semi-truck driver harassed victim for 8 miles on highway before following victim onto exit ramp). But cf. State v. King, 297 Kan. 955, 981-82, 305 P.3d 641 (2013) (multiple acts were presented where defendant damaged property, left the premises, then returned to do more damage).
Castleberry’s situation is more analogous to Kesserling and Bis-choff. The shift in the action was caused by law enforcement’s successful termination of the vehicle chase, rather than by Castle-berry’s fresh impulse to do something different. His attempts to elude arrest were continuous and uninterrupted, even though the resistance evolved from a vehicle chase to a physical altercation. Moreover, if the State had attempted to prosecute Castleberry on two counts of obstruction, it is likely that he would have claimed multiplicity. See State v. Lemons, No. 108,894, 2014 WL 4388565, at *3 (Kan. App.) (unpublished opinion), rev. denied 303 Kan. 1080 (2015) (on another issue) (reversing one of two convictions for obstructing official duty as multiplicitous on similar facts).
Because Castleberry’s actions were all part of one continuous act, unbroken by a fresh impulse, this was not a multiple acts case. Consequently, the district court did not err in failing to give a unanimity instruction.
Alternative Means
For his next issue, Castleberry contends that he was charged with alternative means of committing the distribution of methamphetamine charge and that the State presented insufficient evidence to convict him of each of the alternative means. Although Castleberry did not object to the jury instruction in the district court, “[t]he overarching question presented involves the sufficiency of the evidence to support the [distribution of methamphetamine] conviction, which does not require [this court] to engage in a preservation inquiry.” Foster, 298 Kan. at 352 (citing State v. Cheffen, 297 Kan. 689, 699-700, 303 P.3d 1261 [2013]).
Standard of Review
“Whether a statute creates alternative means of committing a crime is a matter of statutory interpretation and construction and is a question of law subject to de novo review on appeal.” Betancourt, 299 Kan. at 137 (citing Foster, 298 Kan. at 353).
Analysis
Because an alternative means challenge presents an issue of statutory construction, it is helpful to start with the language of the statute at issue. See Foster, 298 Kan. at 353. The legislature defines the crime of unlawful cultivation or distribution of controlled substances, in relevant part as: “(a) It shall be unlawful for any person to cultivate, distribute or possess with the intent to distribute any of the following controlled substances or controlled substance analogs thereof: (1) Opiates, opium or narcotic drugs, or any stimulant . . . .” K.S.A. 2009 Supp. 21-36a05(a)(l).
In turn, die definitions section of Article 36a,. crimes involving controlled substances, defines “distribute”:
“ ‘Distribute’ means the actual, constructive or attempted transfer from one person to another of some item whether or not there is an agency relationship. ‘Distribute’ includes, but is not limited to, sale, offer for sale or any act that causes some item to be transferred from one person to another. ‘Distribute’ does not include acts of administering, dispensing or prescribing a controlled substance as authorized by the pharmacy act of the state of Kansas, the uniform controlled substances act, or otherwise authorized by law.” (Emphasis added.) K.S.A. 2009 Supp. 21-36a01(d).
Castleberiy argues the terms “actual, constructive or attempted” contained in the definition of distribute provided the jury with alternative means by which they could have convicted him of distribution of methamphetamine. Castleberry then asserts that because the State failed to prove an attempted transfer of methamphetamine, his conviction must be vacated. See Foster, 298 Kan. at 352-53 (alternative means rule requires super-sufficiency of the evidence).
But the first task, before the sufficiency of the evidence is analyzed, is to determine whether Castleberry was charged with distribution of methamphetamine “by only one statutory means that was susceptible to being proved in different ways, or... by [three] or more distinct alternative means by which the legislature has said the crime can be committed.” Foster, 298 Kan. at 352. As the Court of Appeals pointed out, this court has not previously addressed an alternative means challenge to the definition of distribute contained in K.S.A. 2009 Supp. 21-36a01(d). Castleberry, 48 Kan. App. 2d at 487.
As noted, the possible alternative means for committing the crime of distribution of methamphetamine are actually contained in a definitional provision, rather than the crime-defining statute. In Brown, we observed that in Washington, which has provided us with persuasive authority on this topic, its caselaw holds that “ ‘[d]efinition statutes [that merely elaborate on elements rather than define the crime] do not create additional alternative means of committing an offense.’ ” Brown, 295 Kan. at 198 (quoting State v. Linehan, 147 Wash. 2d 638, 646, 56 P.3d 542 [2002]).
Further, the language employed in our definition statute suggests that the gravamen of the offense is the transfer of the drugs from one person to another and that the listed alternatives are merely “descriptive of [the] factual circumstances” by which the crime may be proved and, therefore, they “signal[] secondary matters not giving rise to an alternative means issue.” Brown, 295 Kan. at 199.
Castleberiy points us to State v. Stevens, 285 Kan. 307, 316, 172 P.3d 570 (2007), which found tire phrase, “operate or attempt to operate,” created alternative means of committing the crime of driving under the influence (DUI). He contends that Stevens stands for the proposition that where a statute criminalizes both the successful completion of a crime and an attempt to commit that crime, the statute necessarily presents alternative means. But subsequent caselaw on the DUI statutory language causes Castle-berry’s argument to evanesce. In State v. Ahrens, 296 Kan. 151, 160, 290 P.3d 629 (2012), we reconsidered Stevens in light of Brown and held that tire phrase “operate or attempt to operate” did not create alternative means of committing a DUI. Ahrens opined that “[t]he crime of driving under the influence requires two primary elements—that is, driving and simultaneously being under the influence.” 296 Kan. at 160. Accordingly, “the term ‘operate’ and the phrase ‘attempt to operate’ merely ‘describe the factual circumstances in which a material element’—i.e., driving— ‘may be proven.’ ” 296 Kan. at 160 (quoting Brown, 295 Kan. at 196-97). Under that rationale, “actual, constructive or attempted” could simply describe the factual circumstances under which a material element—transfer—may be proven.
Persuasively, we have subsequently relied upon Brown and Ah-rens to conclude that the legislature did not intend to create alternative means of committing aggravated intimidation of a witness through tire use of the statutory terms “ ‘preventing or dissuading, or attempting to prevent or dissuade.’ ” State v. Aguirre, 296 Kan. 99, 106-07, 290 P.3d 612 (2012). We held that because tire statute only prohibits one distinct type of conduct or actus reus, the act of intimidating the witness or victim, tire challenged terms did not create alternative means of committing the crime. The panel in this case relied on Aguirre when determining that “actual transfer and attempted transfer do not present alternative means of distributing controlled substances,” but rather “the statutory definition of ‘distribute’ lists options within a means, as it merely describes the type of factual circumstances that may prove the material element of ‘distribute.’ ” Castleberry, 48 Kan. App. 2d at 488-89. We agree with the panel.
As the Court of Appeals noted, Castleberry concedes that the State presented sufficient evidence that he actually and/or constructively transferred methamphetamine to Foltz. Because tire State was not required to also present evidence the he attempted to transfer methamphetamine, Castleberry’s conviction was supported by sufficient evidence and is affirmed.
Criminal .History
Castleberry finally argues that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated because tire district court sentenced him to an increased sentence, based upon his prior criminal history, without requiring the State to put his criminal history before a jury and prove it beyond a reasonable doubt.
Standard of Review
Castleberry’s attack on the constitutionality of the Kansas Sentencing Guidelines Act sentencing grid involves a question of law over which this court has unlimited review. State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002).
Analysis
Castleberry’s argument relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). But he acknowledges that his argument was specifically rejected by this court in Ivory, 273 Kan. at 46-48, and that we have repeatedly confirmed Ivory’s holding on numerous occasions thereafter. See, e.g., State v. Adams, 294 Kan. 171, 185, 273 P.3d 718 (2012). Castleberry has not advanced any reason for us to revisit Ivory, and we decline to do so. The imposition of the enhanced sentence was proper.
Castleberiy’s convictions and sentence are affirmed.
Michael J. Malone, Senior Judge, assigned. | [
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